ML20100J176

Nuclear Regulatory Commission Issuances for December 1995. Pages 221-258

ML20100J176
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Issue date:	02/29/1996
From:	NRC OFFICE OF ADMINISTRATION (ADM)
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References
NUREG-0750, NUREG-0750-V42-N06, NUREG-750, NUREG-750-V42-N6, NUDOCS 9602280302
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Available from Superintendent of Documents U.S. Government Printing Office P.O. Box 37082 Washington, DC 20402-9328 A year's subscription consists of 12 softbound issues, 4 indexes, and 2-4 hardbound editions for this publication.

Single copies of this publication are available from National Technical Information Service Springfield, VA 22161 Errors in this publication may be reported to the Division of Freedom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commis: on Washington, DC 20555-0001 (301/415-6844) l

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NUREG-0750 Vol. 42, No. 6

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Pages 221-258 NUCLEAR REGULATORY COMMISSION ISSUANCES December 1995 This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judges (ALJ). the Directors' Decisions (DD), and the Decisions on Petitions for Rulemaking (DPRM),

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

U.S. NUCLEAR REGULATORY COMMISSION Prepared by the Division of Freedom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301/415-6844)

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Shirley A. Jackson, Chairman Kenneth C. Rogers l

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CONTENTS Issuances of the Nuclear Regulatory Commission CURATORS OF THE UNIVERSITY OF MISSOURI Dockets 70-00270,30-02278-MLA (TRUMP-S Project)

(Byproduct License No. 24-00513-32; Special Nuclear Materials License No. SNM-247)

MEMORANDUM AND ORDER, CLI-95-17, December 14,1995.. 229 SEQUOYAH FUELS CORPORATION and GENERAL ATOMICS (Gore, Oklahoma Site)

Docket 40-8027-EA (Decontamination and Decommissioning Funding)

MEMORANDUM AND ORDER, CLI-95-16, December 14,1995.. 221 Issuances of the Atomic Safety and Licensing Boards RADIATION ONCOLOGY CENTER AT MARLTON (Marlton, New Jersey)

Docket 30-32493 CivP (ASLBP No. 95-709-02-CivP) (EA 93-072)

(Byproduct Materials License No. 29-28685-01)

PREHEARING CONFERENCE ORDER, LBP-95-25 December 20,1995...

237 SEQUOYAll FUELS CORPORATION and GENERAL ATOMICS (Gore, Oklahoma Site Decontamination and Decommissioning Funding)

Docket 40-8027-EA (ASLBP No. 94-684-01-EA)(Source Material License No. SUB-1010)

ORDER, LDP-95-24, December 18,1995...

235 Issuances of the Directors' Decisions BALTIMORE GAS AND ELECTPIC COMPANY (Calvert Cliffs, Units I and 2)

Dockets 50-317,50-318 (License Nos. DPR-53, DPR-69)

DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206, DD-95-22, December 6,1995 247 iii

FLORIDA POWER AND LIGHT COMPANY (St. Lucie Nuclear Power Plant, Unit 1)

Docket 50 335 (License No. DPR-67)

DIRECTOR'S DECISION UNDER 10 C.F.R. I 2.2%,

DD-95-22, December 6,1995.............

..... c 247 MAINE YANKEE ATOMIC POWER COMPANY (Maine Yankee Atomic Power Plant)

Docket 50-309 (License No. DPR-36)

DIRECTOR'S DECISION UNDER 10 C.F.R. I 2.206, 5

DD-95-22, December 6,1995..................

..... 247 NORTHEAST NUCLEAR ENERGY COMPANY i

(Millstone Nuclear Power Station, Unit 2)-

Docket 50-336 (License No. DPR-65)

DIRECTOR'S DECISION UNDER 10 C.F.R.12.206, DD-95-22, December 6,1995.......

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.4 NORTHEAST NUCLEAR ENERGY COMPANY

- (Millstone Nuclear Power Station, Unit 1) i Docket 50-245 (License No. DPR-21)

I DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206, DD-95-23, December 19,1995..

253 OMAHA PUBLIC POWER DISTRICT (Ibrt Calho'un,' Unit 1)

Docket 50-285 (License No. DPR-40) i DIRECTOR'S DECISION UNDER 10 C.F.R.12.206, DD-95-22, December 6,1995..... -..

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CLl-95-16 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i

COMMISSIONER:

Shirley Ann Jackson, Chairman' l

in the Matter of Docket No. 40-8027-EA (Decontamination and Decommissioning Funding)

SEQUOYAH FUELS CORPORATION and GENERAL ATOMICS j

(Gore, Oklahoma Site)

December 14,1995

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l De Commission reverses the portion of the Atomic Safety and Licensing i

Board's Order, LBP-95-5,41 NRC 253 (1995), that entered a provision in a j

protective order restricting the NRC Staff from referring confidentialinformation obtained through discovery to other NRC offices without first obtaining Board approval. The Commission vacates that provision and directs the Board to enter a new pro'vis~ ion in accordance with this opinion.

ADJUDICATORY BOARDS: AUTHORITY OVER STAFF ACTION ne Atomic Safety and Licensing Board may not place itself in the position of deciding whether the NRC Staff should be permitted to refer information obtained through discovery to NRC investigatory staff offices.

ADJUDICATORY BOARDS: RESPONSIBILITIES

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ne licensing board performs the important task of judging factual and legal disputes between parties, but it is not an institution trained or experienced in assessing the investigatory significance of raw evidence.

I This Decision was nude by Chairman Jackson under delegated authonry as authonzed by NRC Reorgamzauon Plan Na i of 1980, after consukation with Comnussioner Rogers Comnussioner Rogers has stated his agreement with tius Decision 221

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ADJUDICATORY BOARDS: AUTHORITY OVER STAFF ACTIONS The regulation permitting the Board to enter protective orders,10 C.F.R. 52.740, is procedural and may not be read to enlarge the Licensing Board's j

authority into areas that the Commission has clearly assigned to other offices.

MEMORANDUM AND ORDER On June 29, 1995, the Commission granted the NRC Staff's petition for interlocutory review of an Atomic Safety and Licensing Board order issued on

. April 18,1995. LBP-95-5,41 NRC 253. That order imposed a protective order, I

the terms of which were unobjectionable to all parties, except for paragraph l

7. Paragraph 7 restricts the NRC Staff from referring confidential information obtained through discovery to other NRC offices without first obtaining Board l

approval. The NRC Staff opposes paragraph 7 on the ground that a requirement for prior Board approval interferes with NRC investigatory and enforcement I

activities. The Staff asks the Commission to reverse the Board's order with respect to paragraph 7. The Licensee, Sequoyah Fuels Corporation (SFC), and its parent, General Atomics (GA), support the Board's decision.2 The proceeding is currently being held in abeyance pending settlement l

negotiations between the NRC Staff and GA. The Board recently approved a settlement agreement between the NRC Staff and SFC. LBP-95-18,42 NRC 150 (1995)(Petition for Review Pending). Some discovery already has taken place and more likely will ensue should the proceeding resume. Therefore, despite the delay in the proceeding and despite GA's suggestion that issuance of a decision with the Commission not at " full strength" (see note 1, supra) would be " imprudent," the Commission believes that this matter should be resolved now.)

For the reasons stated below, the Commission reverses LBP-95-5 with respect to paragraph 7 of the protective order and vacates paragraph 7. In addition, the Commission directs the Board to enter a new paragraph 7 in accordance with this opinion.

BACKGROUND This proceeding stems from an NRC Staff enforcement order holding SFC and GA jointly and severally liable for providing financial assurance for the 2 Nauve Arnencans for a Clean Environment and the Cherokee Nanon we also parues to this procee&ng. They ed not panicipate in this appeal 3 See GNs Answer to NRC Staff's Bnef m support of Parnal Reversal of ! BP-95-5 Outy 28.1995). at 4 222 t

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decontamination and decommissioning of SFC's facility near Gore, Oklahoma.

Sec 58 Fed. Reg. 55,087 (Oct. 25,1993). He present controversy began after initial discovery requests were filed by the NRC Staff, SFC, and GA. These parties attempted to reach an agreement on the terms of a protective order proposed by SFC to control access to its confidential documents requested in discovery, but these attempts failed. As a result, SFC filed before the Licensing Board a motion under 10 C.F.R. 5 2.740(c) requesting that the Board approve a protective order to control the disclosure and use of confidential discovery material obtained by Staff. GA joined in this motion seeking the same restrictions for its confidential documents.

Because the NRC Staff agreed that a document-by-document review to determine if a document may be considered exempt from public disclosure would significantly delay discovery, see 10 C.F.R. 5 2.790(b), it agreed to the concept of a protective order. However, the NRC Staff, SFC, and GA could not agree on language for the order's paragraph 7. The Licensing Board ultimately imposed essentially the version of paragraph 7 proposed by SFC and GA.d he version of paragraph 7 acceptable to SFC/GA and the one entered by the Licensing Board states:

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Nothing in this Protective Order shall prevent NRC Staff authonzed to receive Protected Discovery Material from using such material as is appropriate in the legitimate exercise of their respective duties, provided that they shall not disclose such matenals to l

any individual not authorized to receive material under this Protective Order without hrst obtaining the approval of the Licensing Board.

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41 NRC at 269. The NRC Staff proposal, supported by Native Americans for a Clean Environment and the Cherokee Nation but rejected by the Board, states:

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Nothing in this Protective Order sha!! prevent NRC Staff authonzed to receive l

Protected Discovery Material from disclosing such to the NRC Executive Director for l

Operations, the NRC Director of the Office of investigations, or the NRC Inspector General, or their staff, but such NRC Staff shall infonn each of the foregoing to whom Protected l

Discovery Material is disclosed that the matenal was obtained from documents covered by j

this Protective Order. Notwithstanding any other provision contained in this Protective Order, the NRC Executive Director for Operations, the NRC Director of the Office of Investigations, l

or the NRC Inspector General, or their Staff may use or refer such Protected Discovery l

Materials as is appropriate in the legitimate exercise of their respective duties.

41 NRC at 255-56.

' Judges Gleason and Khne ruled in favor of imposing the protective order inclueng the current versmn of paragraph 7. Judge Bollwerk dissented with respect to paragraph 7, but otherwne concurred m the mayonty's decision j

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he principal difference between the two proposals is that the SFC/GA ver-sion requires the Staff to seek prior Board approval before it may refer confi-dential information, even information that it believes evidences wrongdoing, to NRC investigative or enforcement offices. The staff's version of paragraph 7 would permit "in-house" referral to other NRC offices, including the Office of the Inspector General (OIG), the Office of Investigations (OI), and the Office of the Executive Director for Operations (EDO) "as is appropriate in the legitimate exercise of their respective duties."

he Board imposed the SFC/GA version on the ground that SFC and GA had adequately substantiated the need for protection from inadvertent releases by demonstrating that some discoverable financial and commercial documents are legitimately confidential or privileged information. The Board noted that on a showing of good cause it had the authority "to issue orders to protect against discovery disclosures of a party's trade secrets, confidential research, development, or commercial information or to require that disclosures of such information be made in a designated way." 41 NRC at 258 (citing 10 C.F.R. 6 2.740(c)). The Board concluded that the Staff is not exempt from section 2.740(c) and that pursuant to this section the Board is authorized to restrict intraoffice Staff dissemination of information where good cause for such restrictions is demonstrated. In weighing the interests of the parties, the Board found compelling the advantage to be gained by imposing the blanket protective order to avoid the parties proceeding "seriarim pursuant to the regulations governing the obtaining of protected information,10 C.F.R.

Il 2.740(c) and 2.790.

[which would) requir[e] the observance of good cause and other procedural requirements of the regulations, [and) would consume further argument 'and unnecessary time." 41 NRC at 2M.

Under the Board order, if the Staff believes that ir/ormation should be referred to investigative or enforcement offices, the Staff is permitted to make an in camera, ex parte presentation to the Board on why ine matter should be referred. 41 NRC at 265. The Board would then " rapidly" make a determination on whether to permit the referral. 41 NRC at 257. Apparently the Board would apply a " reasonableness" standard in making this determination. Id. If the Board deems the referral unreasonable, the matter would be sent immediately to the Commission for resolution.

Judge Bollwerk dissented from the majority with respect to paragraph 7. He expressed grave concern "with the Board's incursion into a regulatory area in which it has no authority or expertise." 41 NRC at 273. He would have modified paragraph 7 to delete any requirement of preclearance by the Board and instead require that, if Stafflitigators determined that a referral was necessary, the Staff simultaneously with the referral would inforra the Commission, rather than the Board, of its action. 41 NRC at 278.

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ANALYSIS He central issue before the Commission is the appropriate role, if any, of the Licensing Board in determining whether the Staff may refer confidential information obtained through discovery to NRC investigatory offices. His issue raises a number of complex and difficult questions that the Commission has not previously faced. After careful consideration the Commission concludes that the screening of investigatory information is not an appropriate function of the Board. The circumstances of this case warrant some protection to GA and SFC's documents, but not the type of protection contemplated under the current version of paragraph 7 of the protective order.

Protective orders are an important procedural device in Commission adjudica.

tory practice. The Commission encourages ehe Licensing Board to use protective orders to expedite discovery and at the same time protect legitimate interests in confidentiality. In this instance, parties on both sides of the controversy seem to agree that without a protective order discovery would be significantly de-layed. Although the Staff contested the Board-imposed version of paragraph 7, it agreed to the desirability of a protective order to avoid the burdena of seriatim review, NRC Staff's Reply to General Atomics' Brief in Support of Motion for a Protective Order at 7-8 (Jan. 6,1995).

The Commission agrees that the imposition of a protective order to avoid seriatim review is necessary and useful in the circumstances of this case. The Commission does not agree, however, that the protective order should establish the Licensing Board as a screen between NRC Staff and NRC investigatory offices.

The Licensing Board performs the important task of judging factual and legal disputes between parties, but it is not an institution trained or experienced in assessing the investigatory significance of raw evidence. Even in enforcement cases or in instances where one party is accused of making a material false statement or omission in its representations to the Board, the Board is not required to consider the policy priorities inherent in deciding whether and when l

to institute an investigation or enforcement action.5 Yet the type of Board review contemplated by the current protective order puts the Board in exactly that role by making it in effect an investigatory gatekeeper. The Board may have to I

decide whether certain information should be reviewed by NRC investigatory l

or enforcement offices, or whether any investigation at all is appropriate. These inquiries may have nothing at all to do with the matters at issue in the adjudicatory controversy before the Board. They are functions clearly delegated S Sce Metropoluan Eduon Co. flhree Mile Island Nuclear statmn. Utut 11. CL1-82-31.16 NRC 1236.123940 (1982)(alleged matenal false statement had an indirect relevance to the Licensing Board proceeding. but of is not bound by the suggestwns of the Ucensing Board regarding the course of further investigation).

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to the Staff, not the Board.' As the dissenting Licensing Board Judge stated, reviews factual information for its investigatory significance is an inquiry "that a Board's experience and expertise make[] it ill-equipped to make." 41 NRC at 275.

i Not only is the gatekeeper role outside the Board's traditional functions, it also seems unworkable in practical terms, as demonstrated by the Board's own vagueness on how it would exercise its review in this case. The Board referred only to a general " reasonableness" standard. 41 NRC at 257, 265.

If " reasonableness" means a searching Board inquiry into the need for an investigation or the relevance of certain information to an investigation, the Commission cannot approve such a Board role, for it is outside the Board's expertise and authority. If, on the other hand, " reasonableness" means simply ensuring that discovery documents contain the information the NRC Staff says they do, the Boarti role becomes so minimal as to offer meaningless " protection" to GA and SFC. He Commission, in short, is unwilling to approve a vague reasonableness review that either establishes a meaningless procedural step or poses the risk of unnecessarily entangling the Board in investigatory matters that are clearly outside of the scope of its responsibilities.

He Board incorrectly relied on section 2.740 to give it authority to conduct the type of review contemplated under the protective order. This regulation is procedural and may not be read to enlarge the Licensing Board's authority into areas that the Commission has clearly assigned to other offices. As the Licensing Board itself recognized, it could not exercise its " protective order" powers to prohibit the Staff from referring to other Staff offices information obtained through discovery that has immediate public health and safety implications. 41 NRC at 264. The Commission concludes that the same is true of investigatory or enforcement information.

While GA's brief suggests in elliptical fashion that as a matter of law the NRC Staff might be barred from referring documents obtained through discovery to NRC investigatory or enforcement offices, this case at bottom involves no such claim. He protective order, for example, does not even apply to nonconfidential documents, so there is no restriction whatever on their dissemination. Moreover, the order explicitly permits intrastaff referral of confidential material, albeit with prior approval from the Board. The Board and GA cite various judicial cases on protective orders, but none bars an agency receiving discovery documents in its

" As part of sts trussion. the NRC ss authonzed to "rnake such studies and invesugauons" and "obtain such mformahon" as as necessary to assist it in exercismg its statutory authonty Atomic rnergy Act. Il61(c). 42 O s C.A.1220l(c). The Comnussion has delegated to of the Commission's authonry pursuant to section 16l(c) to conduct invesugations inio allegauons of wrongdomg of bcensees. appheants, their contractors or vendors.

NRC Management Direcove 9 8. chap 0119 03,see aho 10 CI R. II 36f a) And, by statute, the olG is given broad powers to mvesugate possible agency fraud. waste. and abuse. See inspector General Act. 5 U.s C. app.

Ihat see aho 10 C F R Ii 12(d).

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own adjudicatory proceeding from referring them to its investigative offices. See LBP-95 5,41 NRC at 263-64; GA's Answer to NRC Staff's Brief in Support of Partial Reversal of LBP-95-5 (July 28,1995), at 7-9. At most these cases stand for the proposition that a corporation's interest in confidentiality may provide good cause for restricting agencywide dissemination of discovery material. See, e.g., Harris v. Amoco Production Co., 768 F.2d 669,684-85 (5th Cir.1985).

The cases certainly do not require the Board-review device created by para-graph 7.

Although the Commission does not approve the Board's version of paragraph 7, the Commission agrees with the Board that GA and SFC have demonstrated a legitimate, significant interest in protecting their confidential documents. Thus, the question remaining is what device is appropriate to protect the interest of GA and SFC. The Commission fails to see why the Board's review of a Staff referral is essentir.1 to protect the confidentiality of GA's and SFC's business documents. Indeed, upon analysis, such review provides very little protection of confidentiality. Under the current protective order the NRC Staff must detennine that a document contains evidence of possible wrongdoing and then seek the Board's approval for a referral. The Board must then approve or disapprove the Staff's reasons for the referral before any documents are transferred. Virtually all of the Staff requests presumably would be approved.1 Once the Board gives its approval, the current paragraph 7 provides no limits on further dissemination within the Staff.

Because the current paragraph 7 is deficient, the Commission imposes a substitute provision that climinates any prescreening by the Board and, in the Commission's view, provides more protection than what now exists. The new paragraph 7 shall ' provide:

(1) The NRC litigation staff is to refer confidential documents to staff investigatory or enforcement offices, not involved in the litigation, only after it has made a threshold determination that the documents reasonably contain evidence of possible wrongdoing.

(2) Once referred, further dissemination within the NRC Staff will be limited to a "need to know" basis.

(3) Upon any referral, the Staff will inform the Board in writing, in camera and ex parte, that a referral was necessary and that the referral is consistent with the restrictions contained in paragraph 7.

'Ihe Licensing Board is free to consider motions to modify the protective order. As the Board has already stated in this case, "[ijn the event that the 7 A Board finding against referral seems highly unhkely As Judge Bollwerk stated "any instance that [the Board) would withhold mformanon would pnhably be mformanon that is so far off track thai (it is] hard to beheve the staff would.. be interested in furtung [it] over to of anyway ' Transcnpt of oral Argument on the Terms of Protectne order ni !) Uan. 27, 1995).

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parties desire to pursue additional discussions regarding the provisions of this order, they are of course free to do so." 41 NRC at 266.

CONCLUSION l

l Ibr these reasons, the Commission REVERSES LBP-95-5 with respect to l

paragraph 7 of the protective order and vacates paragraph 7. The Commission directs the Board to enter a new paragraph 7 in accordance with this opinion.

l IT IS SO ORDERED.-

For the Conunission JOHN C. HOYLE Secretary of the Commission Dated at Rockville, Maryland, this 14th day of December 1995.

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Cite as 42 NRC 229 (1995)

CLi-95-17 i

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONER:

Shirley Ann Jackson, Chairman

• In the Matter of Docket Nos. 70-00270 30-02278-MLA (TRUMP-S Project)

I (Byproduct License No. 24-00513-32; Speciel Nuclear Materials License No. SNM-247)

CURATORS OF THE UNIVERSITY OF MISSOURI December 14,1995

'Ihe Commission denies the Intervenors' petition for reconsideration of an order (ClJ-93-11,42 NRC 47 (1995)) imposing a condition upon the University of Missouri regarding its TRUMP-S experiments. The Commission rules that the NRC Chairman had sufficient authority to approve CLI-95-11 despite the absence of a three-person Commission: the Commission's acknowledgment in CLI-95-11 that the site of the experiments is highly accessible to the public did not necessitate a reexamination of the safety of the TRUMP-S Project; and a challenged licensing condition, imposed by the Commission in CLI-95-11, regarding the Licensee's actions during an Alert is adequate to protect the public.

NRC REORGANIZATION PLAN NO.1 OF 1980 Pursuant to section 3 of the NRC Reorganization Plan No. I of 1980, an order may be issued on the authority of only one Commissioner rather than the quorum of three called for by the Energy Reorganization Act of 1974.

• Tlus Decisson was made t>y Chainrin Jackson under delegated authonty, as authorized by NRC Reorganization j

Plan No.1 of 1980. after consultation with Conumnioner Rogers Comnussioner Rogers has stated his agrecrnent j

with this Decision.

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EMERGENCY PLAN: AMENDMENT; CONTENT (CHANGES);

LICENSING CONDITION; PUBLIC HEALTH AND SAFETY An amendment to an Emergency Plan is unnecessary if it would not enhance j

the public safety and would not make a requirement previously imposed by a Commission order any more enforceable than it already is.

RULES OF PRACTICE: AD HOMINEM ATTACKS; ATTORNEY CONDUCT; CANON OF ETHICS; RESPONSIBILITIES OF COUNSEL; SANCTIONS Counsel's derogatory description of the NRC Staff consti utes intemperate, t

even disrespectful, rhetoric and is wholly inappropriate in legal pleadings.

ADJUDICATORY PROCEEDINGS: STATUS OF NRC STAFF ADMINISTRATIVE TRIBUNALS: AUTHORITY NUCLEAR REGULATORY COMMISSION: AUTHORITY; DELEGATION TO STAFF RULES OF PRACTICE: STAFF MEETING WITH PARTIES

.An adjudicator at the Commission has the authority to delegate to the NRC Staff the responsibility of verifying that the licensee or applicant has responded adequately to a license condition imposed by the adjudicator. Because meetings between NRC Staff and a licensee under such delegated authority are public, such delegation does not deprive Intervenors of an opportunity to know what communications transpire between the University and Staff, or to know the basis of any Staff determination, or to contest such determination. The Intervenors would receive advance notice of, and would be permitted to attend, such meetings.

1 ADJUDICATORY PROCEEDINGS: STATUS OF NRC STAFF ADMINISTRATIVE TRIBUNALS: AUTIIORITY NUCLEAR REGULATORY COMMISSION: AUTHORITY; DELEGATION TO STAFF; SUPERVISORY AUTHORITY RULES OF PRACTICE: STAFF MEETING WITH PARTIES ENFORCEMENT ACTIONS If the Intervenors disagree with conclusions reached at a meeting between Staff and licensee regarding whether the licensee had complied with the Com-mission's licensing conditions, the Intervenors may seek further agency action 230

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l by filing a petition with the Commission pursuant to 10 C.F.R. 6 2.2%. The l

Staff response to such a petition would be subject to the ultimate oversight of the Commission itself.

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l MEMORANDUM AND ORDER i

l (Petition for Reconsideration)

De Intervenors seek reconsideration of a Commission decision issued on J

August 22,1995. CLI-95-11,42 NRC 47. In that decisien, the Commission denied the University of Missouri's petition for reconsideration of an emergency classification issue and sua sponte ordered the University either to (i) require i

evacuation of all persons (except emergency personnel) to a point at least 150 meters from the Alpha Lab whenever an Alert is declared as a restalt of a fire i

involving TRUMP-S materials or (ii) provide the NRC Staff sufficient informa-i tion to allow it to determine that the existing Emergency Plan and procedures (or any proposed modifications of the Plan and procedures) adequately protect the public within the site boundary in the case of a fire involving TRUMP-S materials.

The Intervenors assert that CLI-95-ll is flawed in three respects: (1) the

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NRC Chairman's alleged lack of authority to approve the order; (2) a failure to reexamine the safety of the TRUMP-S Project in light of the Commission's I

acknowledgment that the site of the experiments is highly accessible to the public; and (3) the alleged inadequacy of one of the Commission's remedial conditions. The Commission finds these claims to be without merit and therefore denies the Intervenors' petition for reconsideration.

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Chairman Jackson's Authority to Authorize Issuance of CLI-9511 The Intervenors first argue that the order was issued on the authority of only one Commissioner (Chairman Jackson) rather than the quorum of three called for by the Energy Reorganization Act of 1974, 6 201(a)(1), 42 U.S.C. 6 5841.

The Intervenors assert that, because section 3 of the NRC Reorganization Plan No. I of 1980 (5 U.S.C. App. I, 6 3) gives the Chairman authority to act alone only in an emergency, CL1-95-1I was ultra vires. Petition at 2-3. The flaw in this argument is that the Chairman exercised authority to issue the order not under section 3, which deals with emergencies, but rather under section I, which allows the Commission to delegate authority to one of its members. See 60 Fed.

Reg. 34,56162 (July 3,1995).

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B.

Ramifications of Commission's Conclusions Regarding the Openness of the MURR Facility Site Next, according to the Intervenors, the Commission's belated acknowledg-ment in CLI-95-11 that there is no " site boundary" around the Alpha Lab under-cuts the Commission's earlier safety findings, and those findings must therefore be reconsidered. Petition at 5. 'Ihe Intervenors' argument ignores the fact that CLI-95-8 recognized that there is no " site boundary," in the sense of a fence, around the University's research reactor (MURR) facility which houses the Al-pha Lab, and that the Commission factored this into its safety findings. See CLI-95-8,41 NRC 386,391-92 (1995). See generally CLI-95-1,41 NRC 71, 153 (1995); CLI-95-11,42 NRC at 48.

C.

Adequacy of Remedies Regarding University's Actions During an Alert The Intervenors assert that neither of the two alternative remedial conditions concerning the University's actions during an Alert is adequate to protect the public. First, the Intervenors argue that the Commission should require the University to amend its MURR Facility Emergency Plan to include the first alternative remedy (i.e., to require evacuation of 311 persons (except emergency 3

personnel] to a point at least 150 meters from the Alpha Lab whenever an Alert is declared as a result of a fire involving TRUMP-S materials). Petition at

5. The Commission sees nothing to be gained by such a modification. Such an unendment would not make the requirement imposed by CLI-9,5-ll any more enforceable than it already is, would not enhance the public safety, and is therefore unnecmary.

The Intervenors also argue that the second alternative remedy (permitting the University to provide the NRC Staff sufficient information to determine that the existing Emergency Plan and procedures, or any proposed modifications thereto, adequately protect the public within the site boundary in the case of a fire involving TRUMP-S materials) deprives the Intervenors of any opportunity to know what communications transpire between the University and Staff, or to know the basis of any Staff determination, or to contest such determination.

Petition at 4.

According to the Intervenors, a resolution of this safety issue through a private conversation between Staff and the University would deprive the Intervenors of their statutory right to a hearing and their constitutional right to due process.'

I in support of this contention. the Intervenors assert that this ahernanve remedy leaves the safety deternunanon in the hands of NRC Staff which. m the Interwners' words, "is totally incapable of mahng that deternunation in a sensible fashion" 14. Intervenor counsels

• derogatory descripuon of NRC Staff is another example of (Consmurd) 232 i

1 The Intervenors' fears are unfounded. The second alternative would not deprive Intervenors of an opportunity to know what communications transpire between the University and Staff, or to know the basis of any Staff determination, or to contest such determination. Meetings such as one contemplated under the second alternative are public meetings, He Intervenors would receive advance notice of, and would be permitted to attend, such meetings.2 If the Intervenors conclude that an alternative to which Staff and the University agree does not provide equivalent protection to the public as compared with the 150-meter evacuation alternative,) the Intervenors would then be free to seek further agency action by filing a petition with the Commission pursuant to 10 C.F.R. 6 2.206.

De Staff response to such a petition would be subject to the ultimate oversight of the Commission itself.

Finally, we note that it is hardly unusual for an adjudicator at this Commission to delegate to the NRC Staff the authority to verify that the licensee or applicant has responded adequately to a license condition imposed by the adjudicator.'

Indeed, the Presiding Officer in this very proceeding did exactly that in his Final Initial Decision - without complaint or appeal from the Intervenors.8 the " intemperate, even disrespectful, rhetone" (CLI-95-8,41 NRC 386. 392 (1995))that has characterized their pleadmgs throughout this procce&ng. Such language is wholly mappropriate in legal plea &ngs See 10 C.F R.

I 2.713fa),(c)(I), Norrhern Indiana Pubhc Service Co (Bailly Generaung Stanon, Nuclear 1), ALAB 2OI,7 AEC 835, 837-38 (1974);American Bar Associanon's Afodel Code of Professhmal Responsibility ("Model Code"). DR 7101(A)0 L found in A84/8NA low 3rrs' Afanual em Professional Conduct (" Manual") at p. 01:338 (1995);

Model Rule 3.5, Comment, found in Afanual at 01151. Cf Houston lightmg and Power Co. (South Texas Project. Umts I and 2), LBP-86-15, 23 NRC $95,627. ag'd. ALAB-849,24 NRC 523 (1986).

Intervenors also claim that Staff's prior determinanons m this proceedmg have been driermined by both the Adnunistranve Judge and the Comnussion to be " hopelessly wrong " 14 The Comnussion can fmd nottung in either its own or the ticensing Board's decismns that even remotely supports this proposinon

'Sre NRC Management Direenwe 3 5. "Public Artendance at Certain Meenngs involving the NRC Staff"(oct.13.

1994); NRC Handbook 3 5, "Pubhc Artend.mce ai Certain Meetmgs involvmg the NRC Staff"(oct. 13, 1994).

8 CL1-95 Il stated that any ahernauves to the 150-meter requirement must provide "adequatet) protecttion)." 42 NRC at 49. Tius statement emphes equivalence between the 154 meter requirement and any ahernanve approach.

1. See Pubhc Service Co. of New Hampshire (Seabrook Station. Units I and 2), LBP-91-3, 33 NRC 49, 5051 (1991)(&recung Staff to oversee comphance with comnurments). Pubhc Service Co of New Ilampshire (Seabrook Station, Uruts I and 2), LBP 90 20, 31 NRC 581, 587-88 (1990) (&rectmg Staff to ensure that tiu evacuanon ome estimaics conformed to the provisions of a related Appeal Board order). Wrangler Laborarones. LBP 39, 30 NRC 746, 788 (1989) (barnng bcensees from taking certain acnons pner to Staff's confirmanon of the hcensecs' comphance with the coneuons of the Board order), rev'd am other grounds. ALAB-951,33 NRC 505 (1991); Pubhc Service Co of New //ampshire (Seahrook Stanon. Unus I and 2), LBP-89 32,30 NRC 375. 436, 650 (1989)(&recong Staff to venfy applicant's conformance with the Board's fin &ngs, provisos, condinons, and expectatmns and grantmg the Staff " broad discreten in the uming and manner of conformance consistent with the

[ Board's) Im&ngs and.. mient") ag'd as to rats ruhng. CLI-90 3, 31 NRC 219,251 (1990),og'd sub nom.

Afassachuscars v Nuclear Regulatory Communon 924 F 2d 311 (D C. Cir ), cert demed. 502 U S 899 (1991).

8 See Curators of the Univernry of Afusouri. LBP-9131. 34 NRC 29.130 (1991), instruenng the Universary to take three safety-related acnons and to report the details of those acnons to Staff and then mstruenng Staff to venfy the adequacy of those actmns 233

-. ~. -.

. -. ~ _ _.....

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D.'

Condusion I

'Ihe petition for reconsideration is DENIED. The Commission will consider i

no further Petitions for Reconsideration in this proceeding.'

It is so ORDERED.

I Ibr the Commission l

l JOHN C. HOYLE Secretary of the Commission.

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i-Dated at Rockville, Maryland, this 14th day of December 1995.

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'See Florida Prmer and Urhr Co (si Lucie Nuclear Power Plant. Unit 2). C1J-80 41.12 NRC 650,652 (1980)

(" Reconsideration is at the discretion of the Commission"), crisng Unsied States v. Prerce Avro Freight Unes. 327 U.S. 515. 535 (194[61).

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1 Atomic Safety and Licensing Boards issuances ATOMIC SAFETY AND UCENSING BOARD PANEL B. Paul Cotter, Jr.,* Chief Administrative Judge James P. Gleasor\\

• Deputy Chief Administrative Judge (Executive)

Frederick J. Shon,* Deputy Chief Administrati"9 Judge (Technical)

Members Dr. George C. Anderson Dr. Richard F. Foster Dr. Kenneth A. McCollorn Charies NJa,.;oi^

Dr. David L. Hetrick Marshall E. Miller Peter B. Bloch*

Emest E. Hill Thomas S. Moore

• G. Paul Bollwerk 111*

Dr. Frank F. Hooper Dr. Peter A. Morris Dr. A. Dixon Callihan Elizabeth B. Johnson Thomas D. Murphy

• Dr. James H. Carpenter Dr. Charles N. Kelber*

Dr. Rchard R. Partzek Dr. Richard F. Cole

• Dr. Jerry R. Kline*

Dr. Harry Rein Dr. Thomas E. Elleman Dr. Peter S. Lam

• Lester S. Rubenstein Dr. George A. Ferguson Dr. James C. Lamb !!!

Dr. David R. Schink Dr. Harry Foreman Dr. Emmeth A. Luebke Dr. George F. Tidey

• Permanent panelmembers a

4 n-

Cite as 42 NRC 235 (1995)

LBP-95-24 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

James P. Gleason, Chairman Dr. Jerry R. Kline G. Paul Bollwerk,111 Thomas D. Murphy, Alternate Member j

in the Matter of Docket No. 40-8027-EA

{

(ASLBP No. 94-684-01-EA)

(Source Material License No. SUB-1010)

SEQUOYAH FUELS CORPORATION and GENERAL ATOMICS (Gore, Oklahoma Site Decontamination and Decommissioning Funding)

December 18,1995 ORDER

.l (Modification of Protective Order)

In a Memorandum and Order dated December 14,1995, CLI-95-16,42 NRC 221, the Commission reversed a prior decision of this Board with regard to paragraph 7 of a Protective Order limiting the conduct of discovery between the parties to this proceeding. Under the direction of the Commission, we hereby j

amend our prior acceptance of the Protective Order by deleting the original paragraph 7 in its entirety and replacing it with the following language:

7.a.

Upon determining that Protected Discovery Materials reasonably contain evidence of possible wrongdoing. NRC Staff authorized to receive Protected Discovery Materials shall refer such documents to the NRC Executive Director for Operations, the NRC Director of the Office of Investigations, or the NRC Inspector General, or their staffs for such use as 235

is appropriate in the legitimate exercise of their respective duties, but NRC Staff rnaking the referral shall inform each of the foregoing to whom Protected Discovery Material is disclosed that the material was obtained from documents covered by this Protective Order.

b.

Once Protected Discovery Material has been referred to NRC Staff investigatory or enforcement offices in accordance with clause (a) of this paragraph, further dissemination within the NRC Staff shall be limited to a "need to know" basis as determined by those NRC Staff investigatory or enforcement offices receiving the material, and those persons to whom further dissemination is made shall be informed by the NRC Staff investigatory or enforcement office making the disclosure that the material was obtained from documents covered by this Protective Order.

c.

Upon any referral of Protected Discovery Material in accordance with clause (a) of this paragraph. NRC Staff making the referral shall inform the Board in writing,in comem and ex pane, that such referral is necessary and is consistent with the restrictions contained in this paragraph.

h is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD James P. Gleason, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland December 18,1995 236

Cite as 42 NRC 237 (1995)

LBP-95-25 UNITED STATES OF AMERICA '

NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Charles Bechhoefer, Chairman Dr. James C. Lamb lil Lester S. Rubenstein in the Matter of Docket No. 30-32493-CivP (ASLBP No. 95-709-02-CivP)

(EA 93-072)

(Byproduct Materials License No. 29-28685-01)

RADIATION ONCOLOGY CENTER AT MARLTON (Marlton, New Jersey)

December 20,1995 1

In a civil penalty proceeding, the Licensing Board enters a Prehearing Conference Order setting forth issues in controversy and establishing schedules for the proceeding.

CIVIL PENALTIES: DISCRETIONARY CHARACTER Although recognizing the Staff's broad discretion in determining the amount j

of a civil penalty, results reached in other cases may nonetheless be relevant in determining whether the Staff may have abused its discretion in this case.

A nexus to the current proceeding would have to be shown, and differing circumstances might well explain seemingly disparate penalties in various cases.

237 1

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PREHEARING CONFERENCE ORDER (Issues and Schedules for Proceeding)

On October 11,1995, the Licensing Board held a prehearing conference at the NRC headquarters in Rockville, Maryland, to define appropriate issues for litigation in this enforcement proceeding.' Participating, in addition to the Licensing Board, were representatives of Radiation Oncology Center at Marlton (ROCM or Licensee) and the NRC Staff.

Prior to the conference, at the request of the Licensing Board, ROCM and the Staff each had filed proposed statements of issues to be litigated. De Staff stated that it did not wish to raise any specific issues beyond those set forth in the Order Imposing Civil Monetary Penalty and which may be properly raised by the Licensee.2 For its part, the Licensee set forth seventy-six issues that it wished to litigate.8 At the conference, the Board considered the following questions:

1.

Motion to Stay Proceedings On August 31,1995, ROCM had filed a Motion to Stay Proceedings. De Staff on September 20,1995, filed its response in opposition to ROCM's motion.

At the conference, ROCM indicated it was withdrawing its motion to stay, and the Board accepted that withdrawal (Tr. 4-5)..

-2.

Applicable Enforcement Policy All parties agreed (Tr. 6-7) that the enforcement policy governing this proceeding is that one set forth in 10 C.F.R. Part 2. Appendix C, as in effect during the period of the alleged violation. Subsequent to that time, effective June 30,1995, those provisions were superseded by a General Statement of Policy and Procedures for NRC Enforcement Actions (NUREG-1600), which differed in some respects from the Appendix C Statement of Policy.

3.

Issues: Comparison with Other Proceedings One of the major matters of disagreement between the parties is the manner in which the Staff exercises enforcement discretion in assessing penalties. The 8 See Nonce of Prehearing Conference. dated August 28,1995. pubhshed at 60 Fed Reg. 45.750 (Sept 1. 1995).

See also that t.icensing Board's Memorandum and order (Agenda for Preheanng Conference). dated September 28.1995.

2 NRC Staff Response to Memorandum and order (Schedules for Proceedmg). dated July 24,1995 i

3 j.

Prehnunary Report on issues for Adjudicauon and Related Discovery, daicd July 24.1995 238 I

l Staff stated that it would defend at the hearing its use of discretion in this proceeding but strongly objected to any comparison with the results reached or the manner in which the Staff had exercised discretion in other seemingly similar cases (Tr. 9-10). On the other hand, ROCM sought to compare the Staff's exercise of discretion here with its exercise in other cases. It claims that the penalty in this case far exceeds those imposed in other similar cases (Tr.

13-15).

The Board ruled that, although recognizing the Staff's broad discretionary authority in enforcement matters, results reached in other cases may nonetheless be relevant in determining whether the Staff may have abused its discretion in this case (Tr. 22). Such possible abuse of discretion is, of course, well within our authority to consider. "While [NRC's] enforcement discretion may be at its zenith as the agency decides whether to initiate enforcement action, that discretion does not negate the participatory rights in agency proceedings under statute or regulation once a proceeding has been initiated or a matter set for hearing." Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site),

CLI-94-12,40 NRC 64 (1994). Licensing boards previously have considered penalties in other cases. See Tulsa Gamma Ray. Inc., LBP-91-40,34 NRC 297 (1991).d The Board stated that it would permit the Licensee to raise questions about differing Staff treatment in similar cases, although a nexus to the current proceeding will have to be shown (Tr. 21-22, 91-92). Further, the Board observed that, as claimed by the Staff, differing circumstances might well explain seemingly disparate penalties in various cases (Tr. 22).

.L issues: Specyie Matters Following our ruling on the foregoing issue (comparison with penalties assessei in other proceedings), the Staff suggested that many of its differences with the Licensee could be resolved by rewording some of ROCM's issues.

We reces.ed the conference to permit the parties to reconcile their differences (Tr. 79). Thsy later requested that they be permitted to submit a revised list of issues at a later date (deleting at least two to which they agreed to stipulate, and eliminating others that appeared repetitive or subsets of broader issues), and the Board accepted their request. On October 25,1995, the Staff forwarded the joint list of issues to the Board, taking into account the ruling with respect to d in one civil penahy proceedmg. however, an Adnunistranve law Judge dechned to consider penalues in other cases that the Staff was attempung to advance to jusufy the penalty it was there seekmg. Hurley Medical Center (one Hurley Piaza. Fhnt. Michigan). AU-87-2. 25 NRC 219,236-37 0987) We fmd ample reason to distmguish Hurley from this case. There, the staff anempted to bring in other proceedings to justify a level of penaky, whereas here a 1.icensee is attempung to esiahhsh that it is bems unfairly smgled out Further, the AU in Hurley prenused his ruhng in part on lack of adequate nouce to the 12censee, based on failure of the Notice of Violation (NOV) to have included the references sought to be included in staff resumony Od al 237 n 5)- a ruhng not relevant here 239

other proceedings set forth above, together with certain clarifications of ROCM's issues discussed at the conference.

Set forth in the Appendix to this Order are those issues approved by the Board. We have basically accepted all of the issues submitted to us, although we have made several minor modifications that do not appear to change the intent of ROCM's issues.

S.

Discovery At the prehearing conference, the Licensee and Staff each expressed pref-crence to defer setting discovery schedules until a schedule in a related case (Oncology Services Corp., Docket No. 030-31765-CivP) became better known (Tr. 94-95). On October 30, 1995, the Licensing Board in that case issued a Memorandum and Order denying a motion to stay that proceeding and es-tablishing a schedule for prediscovery dispositive motions. With that in mind, this Board held a telephone prehearing conference on Thursday, December 14, to establish a discovery schedule. Participating were Judges Bechhoefer and Rubenstein (Judge Lamb was unavailable to participate), representatives of the Licensee and Staff, as well as Lee Dewey, counsel to the Atomic Safety and Licensing Board Panel.

t

. Based on the discussion during that call, the Board hereby approves the 1

following agreed-upon chedule:

i Monday, January 29,1996 Last day for filing interrogatories and requests for production of documents.

Friday, March 15,1996 Filing of responses to interrogatories and requests for production of documents.

Friday, July 12,19%

Termination of discovery (including depositions).

Friday, August 30,1996 Filing of prefiled testimony or (where oral testimony is to be presented) names and background statements of oral witnesses, including a summary description of proposed testimony.

Under this schedule, the hearing would likely be held in mid to late September or early October 1996.

240

eee Pursuant to 10 C.F.R. 52.752(c), objections to this Order may be filed by ROCM within five (5) days after service of the Order. "Ihe Staff may file objections within ten (10) days after service.

IT IS SO ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD I

Charles Bechhoefer, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland December 20.1995 APPENDIX Specific Issues The Board accepts the following issues (numbers reference the revised l

statement of issues and comparable ROCM proposed issues, several of which have been slightly rewritten by the Board):

l.

Whether, if all of the violations did occur, as alleged by the NRC, a penalty of $80.000 is consistent with penalties imposed by the NRC on other licensees based on similar severity-level violations.

2.

Whether it was appropriate for the NRC to use its enforcement policy discretion in this matter.

3.

Purpose of NRC in imposing the $80,000 penalty.

4-6.

[ Withdrawn.]

7.

Whether the corrective action taken by the Licensee (as set forth in exhibits A and B to ROCM's proposed issues) were appropriately considered by the NRC in assessing the civil penalties.

2 8.

Whether corrective actions by licensees in general are taken into consideration by the NRC and, if so, the precise criteria utilized by the NRC in such considerations.

9.

Whether it was inappropriate not to reduce tN penalty in light of the fact that items A3 and G of the Notice of Viohtion (NDV) were withdrawn by the NRC. (Cf Tulsa Gamma Ray, LBP-91-40, supm.)

10.

[ Withdrawn.]

241 1

I 1.

In what specific situations does and has the NRC used its enforcement policy discretion.

12.

Whether the Licensee had " notice" that such a penalty could and/or would be used for such alleged violation.

13.

Whether it is appropriate for the Licensee to be chosen at random to be the example for other licensees engaged in similar activities.

14.

Whether the NRC has ever used its enforcement policy discretion in a similar matter and, if so, when, where and why.

15-16. The Board rejects issues concerning the constitutionality of certain alleged Staff practices for discovery purposes but will permit argument of these issues in proposed fmdings of fact and conclusions of law, based on facts estabhshed at the evidentiary hearing. See Tr. 55-77. Factual bases for such questions are encompassed in other issues set forth herein.

17.

Whether a misadministration ever occurred at the Licensee's facility.

18.

Whether a recordable event ever occurred at the Licensee's facility.

19.

Whether having the RSO or physicist present in the Center on June 4, September 16, and December 9,1992, was adequate to meet NRC requirements.

20.

Whether if the RSO or physicist did not observe source exchanges on June 4, September 16, or December 9,1992, there was a serious risk to health or safety.

21.

Whether having the RSO or physicist inside the facility during source exchanges but not physically present in the treatment room would, standing alone, constitute a violation and, if so, what severity level.

22.

Whether the actions or inactions by the Licensee as stated in the NOV ever posed a serious threat to public health or safety.

23-25. [ Withdrawn.]

26.

Whether " observation" as it is used in the license requires physical presence in the treatment room.

27.

Whether having the RSO or physicist inside the facility, but not observing source exchanges, created a risk to public health and safety and, if so, why.

28.

Whether surveys of radiation levels in adjacent areas and controlled areas were performed by anyone during the source exchanges on March 5, June 4, September 16, and December 9,1992.

29.

Whether, if surveys of radiation levels in certain adjacent areas and controlled areas were performed by Omnitron for the benefit of the Licensee during source exchanges on March 5, June 4, September 16, and December 9, i

1992, a violation of the license occurred.

30.

Whether, if surveys of radiation levels in certain adjacent areas and controlled areas were not performed did such pose a threat to public health and safety.

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31.

Whether, if surveys of radiation levels in certain adjacent areas and/or controlled areas were not performed and if such constituted a license violation, at what level would such violation, standing alone, be typically classified.

32.

[ Withdrawn.]

33.

Whether and under what circumstances it is appropriate for the NRC to aggregate multiple penalties typically classified at levels IV and V to create a level II violation.

34.

Whether the matters set forth in the Notice of Violation are so significant that they support a severity level II violation.

35.

[ Withdrawn.]

36.

Whether the "HDR operator / users" did individually demonstrate com-pctence in the emergency procedures during " dry run" emergencies.

37.

[ Withdrawn.]

38.

Whether, if the HDR operator / users were trained in emergency

- procedures but did not individually do multiple types of dry runs, such created

- a public health and/or safety risk.

39.

Whether, if the HDR operator / users were trained in emergency procedures but did not individually do multiple types of dry runs, such, standing alone, typically constitutes a violation and, if so, what severity level.

40.

Whether, if all the facts alleged in the Order are true and constitute a violation, an order imposing a penalty of $80,000 would be supported or should be sustained.

41.

Whether, where the Licensee possessed a backup PrimeAlert in case i

of failure of the wall-mounted PrimeAlert, as opposed to having a battery backup on the wall-mounted PrimeAlert, such satisfies item 9.1.C of the license.

42.

Whether, where the Licensee possessed a backup PrimeAlert in case of failure of the wall-mounted PrimeAlert, as opposed to having a battery backup on the wall-mounted PrimeAlert, such constituted a violation of the license or created a risk to public health and safety.

43.

Whether, where the Licensee possessed a backup PrimeAlert in case of failure of the wall-mounted PrimeAlert, as opposed to having a battery backup on the wall-mounted PrimeAlert, such standing alone constitutes a violation and, if so, what severity level.

44.

Whether the Licensee violated 10 C.F.R. I 19.12.

45.

Whether the Licensee violated 10 C.F.R. 6 35.25(aXI).-

46.

[ Withdrawn.]

47.

Whether the dosimetrist was instructed in the proper use of the hand-i held radiation survey meter.

48.

Whether the dosimetrist knew the meaning of the error messages from the HDR machine.

49.

If the Licensee violated 10 C.F.R. i 19.12, at what severity lewt would such violation, standing alone, typically be classified.

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1 50.

If the Licensee violated 10 C.F.R. I 35.25(a)(1), at what severity level would such violation, standing alone, typically be classified.

l 51.

[ Withdrawn.]

52.

Whether the Licensee violated 10 C.F.R. I35.31.

53.

If the Licensee violated 10 C.F.R. 6 35.31, whether such violation constituted a threat to public health and safety.

54.

If the Licensee violated 10 C.F.R. I 35.31, at what severity level would such violation, standing alone, typically be classified.

55.

[ Withdrawn.]

l 56.

Whether, from March 1992 through December 1992 the Licensee had a quality management program in place.

57.

Whether, as of February 5,1993, the Licensee had established and maintained a written quality management program as required by 10 C.F.R.

i 35.32.

i 58.

Whether failure to have the apparent exposure rate conspicuously noted on a check source (along with the date of calibration) in itself typically constitutes a violation and, if so, at what severity level.

59.

Whether, where the Licensee had present at the facility current copies

)

of the license,10 C.F.R. Parts 19 and 20, and form NRC-3, but where those documents were in a file and not actually posted, such constitutes a public health 1

or safety risk.

60.

Whether, where the Licensee had present at the facility current copies of the license,10 C.F.R. Parts 19 and 20, and form NRC-3, but where those documents were in a file and not actually posted, such standing alone typically constitutes a violation and, if so, at what severity level.

61.

Whether, if the matters set forth in the NOV constitute a severity level i

II violation, it is appropriate for the NRC to use its discretionary enforcement 1

policy in order to impose a civil penalty of $80,000.

62.

Whether any precedent exists for the actions of the NRC in imposing an $80,000 civil penalty for multiple violations that, standing alone, typically would be evaluated at no more than severity level IV or V violations.

63.

[ Withdrawn.]

6t Whether precedent of any nature exists for the monetary actions taken by the NRC against the Licensee and if so, what are they.

65.

[ Withdrawn.]

66.

Whether the surveys that were completed on March 5, June 4, September 16, and/or December 9,1992, were adequate to satisfy item 10.12 of the license.

67.

Whether failure to have a quality management program in place between March 1992 and December 1992 constitutes a violation of 10 C.F.R. 635.32.

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68.

Whether the matters cited constitute a violation of 10 C.F.R. 6 35.21(a).

69.

Whether a violation of 10 C.F.R. i 35.21(a), standing alone, typically would constitute a severity level 11 violation.

70.

Whether a severity level 11 violation has ever given rise to a civil penalty of $80,000 or use of the NRC's enforcement policy discretion.

71.

Whether the violation involved a "high potential impact on the public."

72.

Whether it is legally appropriate for the NRC to link the Indiana, Pennsylvania accident to this separate Licensee and, if so, why.

73.

What cases, if any, did the NRC rely on to determine what penalty should be imposed herein.

74.

Whether there was a failure of Licensee management in this action.

75-76. [ Withdrawn.]

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Decisions i

Under 10 CFR 2.206 I

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Cite as 42 NRC 247 (1995)

DD-95-22 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

]

OFFICE OF NUCLEAR REACTOR REGULATION William T. Russell, Director l

in the Matter of MAINE YANKEE ATOMIC Docket No. 50 309 POWER COMPANY (License No. DPR-36)

(Maine Yankee Atomic Power Plant)

OMAHA PUBLIC POWER Docket No. 50-285 DISTRICT (License No. DPR-40)

(Fort Calhoun, Unit 1)

BALTIMORE GAS AND Docket Nos. 50-317 ELECTRIC COMPANY 50-318 (Caivert Cliffs, Units 1 and 2)

(License Nos. DPR-53, DPR-69)

NORTHEAST NUCLEAR ENERGY Docket No. 50-336 COMPANY (License No. DPR-65)

'(Millstone Nuclea'r Power Station, Unit 2)

FLORIDA POWER AND Docket No. 50-335 LIGHT COMPANY (License No. DPR-67)

(St. Lucie Nuclear Power Plant, Unit 1)

December 6,1995 The Director of the Office of Nuclear Reactor Regulation has denied a petition filed by John F. Doherty, J.D., requesiing that six pressurized-water reactors be shut down and that the steam generator tubes at each of those plants be inspected.

The petition is based on a recent inspection of the Maine Yankee plant using the Point Plus system which allegedly revealed steam generator tubes on the j

verge of rupture. Because the other plants identified in the petition were built i

by the same manulacturer and are of similar operating age, Mr. Doherty asks that they be shut down and immediately inspected using the Point Plus probe system. The reasons for the denial are fully set forth in the Decision.

247

DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206 I.

INTRODUCTION On May 2,1995, Mr. John F. Doheny, J.D. (Petitioner), filed a petition with the U.S. Nuclear Regulatory Commission (NRC) pursuant to 10 C.F.R. 5 2.206.

The Petitioner requested that the following six pressurized-water reactors be immediately shut down: Maine Yankee, Fort Calhoun Unit 1, Calvert Cliffs Units I and 2 Millstone Unit 2, and St. Lucie Unit 1. In addition, the Petitioner requested that steam generator tubes be inspected immediately at those plants.

The Petitioner stated that an inspection by the licensee in April 1995 of the Maine Yankee plant using the newly developed Point Plus system revealed that the steam generator tubes are on the verge of rupture, threatening the release of radioactive liquid and gaseous material into the environment and consequent harm to human health and safety. Because the other plants the Petitioner identified were built by the same manufacturer (Combustion Engineering, or CE) and are of similar operating age, the Petitioner asked that they, along with Maine Yankee, be immediately shut down and that all steam generator tubes be immediately inspected using the Point Plus probe system.

On June 28,1995,I informed the Petitioner that the petition had been referred to my office for preparation of a Director's Decision. I further informed the Petitioner that his request for immediate shutdown and inspection was denied because continued operation of these units until their next scheduled outage posed no undue risk to public health and safety. I also informed the Petitioner

'that the NRC would ~take appropriate action within a reasonable time.

II. DISCUSSION P

ne Petitionn requested that six CE-designed plants be shut down and their steam generator tubes be inspected with the Plus Point inspection probe. The request appears to be based on concerns that without inspections using the Plus Point probe, the steam generators in these plants may be susceptible to one or more steam generator tube ruptures (SGTRs). However, the results of examinations of tubes removed from the Maine Yankee steam generators l

and in-situ pressure tests of the most severely degraded tubes in the Maine

]

l Yankee steam generators have demonstrated that the tubes, although severely degraded, still had a significant margin before failure even under postulated accident conditions. Furthermore, the NRC ha: taken actions to ensure that other plants have performed appropriate steam generator tube inspections to ensure i

tube integrity. Rese important actions are discussed below in greater detail.

248 l

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The NRC applies a defense-in-depth approach toward protecting public health and safety from the potential consequences of events involving the rupture of steam generator tubes. Stenin generator tube degradation is managed through a combination of several different elements, including inservice inspection, tube repair criteria, primary-to-secondary leak rate monittering, water chemistry, and analyses to ensure that safety objectives are met.

He primary means for assessing steam generator tube degradation is through inservice inspections. Plant technical specifications require a periodic inspection of the steam generator tubes. Any tubes with identi5id degradation in excess of the repair criteria are repaired or removed from service. In order to assess the condition of steam generator tubing, the industry primarily relies on eddy-current inspection techniques, which include the motorized rotating pancake coil (MRPC) test. Circumferential cracking in steam generator tubing has been identified at expansion transitions, small-radius U-bends, dented tube support plate intersections, and sleeved joints. Based on the utilities' responses to GL 95-03, the inservice CE steam generators (i.e., not including retired CE steam generators) have been inspected in these areas with techniques capable of detecting circumferential cracking and, to date, such cracking was found only at the expansion transitions.

Experience to date, including experience at the Maine Yankee plant, shows that the standard MRPC probe is a reliable means for detecting structurally significant cracking in steam generator tubes. The use of an MRPC probe in conjunction with adequate inspection procedures is a reliable means for detecting circumferential cracking in steam generator tubes. As discussed above, metallographic examinations of removed tubing and in-situ pressure testing of degraded tubes continue to support the Staff's conclusion that properly conducted MRPC inspections can identify circumferential cracking before the cracking exceeds the structural limits.

In addition to requiring periodic steam generator tube inspections, the NRC requires an operational leak rate limit to provide reasonable assurance that, should a primary-to-secondary leak be experienced during service, it will be detected and the plant will be shut down in a timely manner before rupture occurs and with no undue risk to public health or safety. Requiring operation within these limits decreases the possibility that steam generators may be vulnerable to tube ruptures during postulated accidents such as a main steamline break or a loss-of-coolant accident.

Inspection findings at Maine Yankee in 1994 revealed indications of large j

circumferential cracks that had been missed in previous inspections because of inadequacies in MRPC test and analysis procedures. The test and analysis procedures were upgraded accordingly. However, subsequent inspections at Maine Yankee performed with the MRPC in early 1995 revealed circumferential indications that were more numerous and larger than expected based on the short 249

operating interval since the previous inspection. He 100% MRPC inspection of the expansion transitions were supplemented by inspections with the recently developed Plus Point probe and a specially wound high-frequency MRPC coil. These latter probes offer improved sensitivity to inner-diameter-initiated circumferential cracks of the type present at the Maine Yankee expansion transitions and identified substantial numbers of relatively small circumferential cracks not detected with the conventional MRPC.

Three tubes were removed from these steam generators in early 1995. Before the tubes were removed, they were tested by ultrasonic, visual (fluorescent pene-trant dye), and eddy-current techniques to confirm the nature of the indications.

Eddy-current methods included examination with a standard rotating pancake coil, a Plus Point coil, and a high-frequency pancake coil. He indications were sized with various techniques and the tubes were then destructively examined so that the actual size of the indications could be determined. The results of the destructive examinations are provided in NRC Information Notice 95-40,

" Supplemental Information Pertaining to Generic Letter 95-03, 'Circumferential Cracking of Steam Generator Tubes.'" He destructive-examination results and data obtained with a high-frequency pancake coil suggest that many of the in-dications may not have been as structurally significant as the standard pancake coil appeared to indicate.

l In-situ pressure tests were conducted on the tubes with the largest MRPC indications, and the results indicate acceptable margins against burst under normal operating and postulated accident conditions. The NRC had a review conducted by an independent contractor of the in-situ test method used at Maine Yankee and determined that it provides a reasonable simulation of the hydraulic pressure loads induced during a postulated main steamline break.

Thus, it has been demonstrated that the tubes with the largest indications at Maine Yankee continued to exhibit adequate structural integrity at the time they were found. This fmding is attributable to the morphology of the cracks as determined from metallographic examinations of pulled tube specimens from Maine Yankee. This morphology consists of cracks that were not coplanar but, rather, of short circumferential length and staggered around the circumference over a short axial region with ligaments of material between the cracks. These ligaments add considerably to the strength of the tube, but these ligaments are generally not detectable by the MRPC.

De findings at Maine Yankee nevertheless raised the concern that large undetected circumferential cracks could possibly exist at other plants. Therefore, the NRC issued Generic Letter (GL) 95-03, "Circumferential Cracking of Steam Generator Tubes," on April 28,1995, notifying licensees of the Maine Yankee experience and requesting that they evaluate recent operating experience concerning the detection and sizing of circumferential cracks and the potential applicability of this experience to their plants. On the basis of the results of this 250

evaluation, past inspections and the results thereof, and other relevant factors, licensees were requested to develop a safety assessment justifying continued operation until the next scheduled steam generator tube inspections were to be performed. He generic letter also requested that licensees develop and submit their plans for the next steam generator tube inspection as they pertain to the detection of circumferential cracks. The utilities were required to respond to GL 95-03 within 60 days. By now, the utilities that own the six plants listed in the petition have responded to GL 95-03 and the responses have been evaluated by the Staff.

Based on the utilities' responses to GL 95-03, with the exception of Millstone Unit 2, the CE plants listed in the petition have been inspected in those areas susceptible to circumferential cracking with improved eddy-current inspection probes equally capable to the Point Plus system in detecting circumferential cracking. All tubes with detected cracks have been removed from service.

The liccasee for Millstone Unit 2 replaced the original CE steam generators d: ring an outage that ended in January 1993. The new steam generators incorporated many new design features that are expected to climinate or greatly reduce the potential for circumferential tube cracking. These include the use of Inconel 690, a material that has significantly greater resistance to cracking and hydraulic expansion of tubes, which reduces the potential for cracking in the expansion transitions. The limited operational time, improvements in design, and favorable plant operating conditions minimize the potential for the development of circumferential cracking in the Millstone Unit 2 steam generators. Millstone

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Unit 2 steam generators will continue to be inspected during refueling outages.

The NRC has studied the risk and potential consequences of a range of SGTR events in NUREG-0844, "NRC Integrated Program for the Resolution of Unresolved Safety Issues A-3, A-4, and A-5 Regarding Steam Generator Tube Integrity." The Staff estimated the risk contribution due to the potential for single and multiple SGTRs. The study also examined the expected consequences of SGTR scenarios, including beyond-design-basis situations, such as the potential for release as a result of containment bypass because of failed tubes concurrent with a breach of secondary system integrity. A combination of circumstances and conditions is required to produce such simultaneous failures: (1) main steamline break or other less severe loss of secondary system integrity, (2) the potential that a population of tubes susceptible to rupture exists in a particular steam generator,(3) the potential that operators would not take actions to avoid high differential pressures; and (4) the probability that a large number of tubes would actually fail simultaneously. In the NUREG-0844 assessment, the Staff concluded that the probability of simultaneous multiple tube failure was small (approximately 10-8), and that the risk resulting from releases during SGTRs with loss of secondary system integrity was small (about 10-7 latent fatalities per reactor year).

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Ill CONCLUSION Based on the fact that (1) adequate steam generator tube inspections have been performed, (2) primary-to-secondary leakage is being monitored on a continuing basis, and (3) the risk of multiple SGTR events is low, I have concluded that an immediate shutdown and Plus Point probe inspection of Maine Yankee, Fort Calhoun Unit 1, Calvert Cliffs Units I and 2, St. Lucie Unit 1, and Millstone Unit 2 are not warranted.

The Petitioner's request for action pursuant to 10 C.F.R. 5 2.2% is denied.

As provided in 10 C.F.R. 5 2.206(c), a copy of the Decision will be filed with the Secretary of the Commission for the Commission's review,1his Decision will constitute the final action of the Commission 25 days after issuance unless the Commission, on its own motion, institutes a review of the Decision within that time.

FOR THE NUCLEAR REGULATORY COMMISSION William T. Rusell, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 6th day of December 1995.

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l Cite as 42 NRC 253 (1995)

DD-95-23 r

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION William T. Russell, Director

. In the Matter of Docket No. 50-245 (License No. DPR-21)

NORTHEAST NUCLEAR ENERGY COMPANY (Millstone Nuclear Powar Station, Unit 1)

December 19,1995 l

The Director of the Office of Nuclear Reactor Regulation has denied a petition by Anthony J. Ross. The Petitioner requested that the NRC take enforcement action against certain individuals at Millstone Nuclear Power Station Unit I for deliberate misconduct in connection with the site paging and site siren evacuation alarm system in the facility maintenance shop. Following a review of the issues raised by the Petitioner, the Director has concluded that no substantial health and safety issues have been raised that would warrant the action requested by the Petitioner.

i TECHNICAL ISSUE DISCUSSED j

1hc following technical issue is discussed: emergency plans.

DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206 1.

INTRODUCTION On January 8,1995, Mr. Anthony J. Ross (Petitioner) filed a petition with the Executive Director for Operations of the U.S. Nuclear Regulatory Commission (NRC) pursuant te 10 C.F.R. 6 2.206. In the petition, the Petitioner raised 253

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concerns regarding the site paging and site siren evacuation alarm system in the Millstone Nuclear Power Station, Unit I maintenance shop.

The Petitioner alleged that on numerous occasions since January 1994, his department manager had instructed the Petitioner's coworkers to shut off or turn down the volume on the site paging and site siren evacuation alarm system in the Millstone Unit I maintenance shop, and the Petitioner's first-line supervisor and coworker had complied with this request in violation of Technical Specification (TS) 6.8.1 and NUREG-0654. The Petitioner requested that the NRC impose at least three sanctions against his department manager, and impose sanctions against the Petitioner's coworker and maintenance first-line supervisor for engaging in deliberate misconduct in violation of 10 C.F.R. 650.5.

On February 23,1995, I informed the Petitioner that the petition had been referred to me pursuant to section 2.206 of the Commission's regulations. I also informed the Petitioner that the NRC would take appropriate action within a reasonable time regarding the specific concerns raised in the petition. On the basis of a review of the issues raised by the Petitioner as discussed below, I have concluded that no substantial health and safety issues have been raised that would warrant the action requested by the Petitioner.

II. DISCUSSION in the petition, the Petitioner raised a concern that on numerous occasions since January 1994, his department manager had instructed the Petitioner's coworkers to shut off or turn down the volume on the site paging and site siren evacuation alarm system in the Millstone Unit 1 maintenance shop, and the Petitioner's first-line supervisor and coworker had complied with this request in violation of TS 6.8.1 and NUREG-0654.

Licensees for nuclear power plants are required to have emergency plans that meet the standards of 10 C.F.R. 6 50.47(b) and the requirements of 10 C.F.R. Part 50, Appendix E. Under 10 C.F.R. 6 50.47(b)(8), adequate emergency facil-ities and equipment to support the emergency response must be provided and maintained. Appendix E of Part 50 establishes minimum requirements for emer-gency plans for use in attaining an acceptable state of emergency preparedness.

Section IV.E.9, in part, requires at least one onsite communications system.

NUREG-0654, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants," provides guidance for developing radiological emergency plans and improving emergency preparedness. Section ll.F.1.c states that each emergency plan shall include provisions for alerting or activating emergency personnel in each response organization. Section 11.J.1 states that each licensee shall establish 254

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the means and time required to warn or advise onsite individuals and individuals who may be in areas controlled by the licensee. Technical Specification 6.8.1, in part, requires that procedures be established, implemented, and maintained covering emergency plan implementation.

The topic of this petition was one of the maintenance-related issues the NRC Staff raised to Northeast Nuclear Energy Company (NNECO), Licensee for Millstone Unit 1, in letters dated December 5 and 28,1994. In those letters, the NRC Staff requested NNECO to review the issues and submit a written response.

Specifically, the NRC requested NNECO to review the following: (1) that NNECO management had shut off the site paging and site siren evacuation alarm system or directed workcrs to shut off the system in the Unit I maintenance shop during morning meetings, (2) that on several occasions the system was not turned back on for hours, and (3) that the on/off switches for the speakers in question had been installed without a work order, The Licensee's investigation into this matter, which was described in its January 26,1995 response to the NRC request, confirmed that the site paging and site siren evacuation alarm system had been routinely turned off at one of the two speakers located in the Millstone Unit I maintenance shop area during meetings, and that this practice was not consistent with Emergency Preparedness Department guidance and NUREG-0654,3 However, NNECO management stated that it was confident that personnel could still hear the other speaker. His configuration was also tested during a special test conducted by NNECO. The results of the test verified that one of the two speakers had sufficient capacity to support event notification in the maintenance shop area. Since the single speaker could be heard, personnel in the maintenance area would be alerted if an emergency existed. NNECO's investigation also concluded that the on/off switches were installed without a work order in 1973 consistent with work performance processes at that time.

NNECO's corrective actions to address this concern included prohibiting the use of any switch that disables any feature of the site paging and site siren evacuation alarm system, removing the two speaker switches, and performing a walkdown of all other system speakers to verify that no other similar switches existed in the system.

He NRC conducted a special safety irispection from May 15 through June 23,1995, at the Millstone station. During this inspection, the Staff reviewed a number of the concerns, the topic of this petition being one of them, and issued

'NUREG4)6R 111, staies that each hcensee shall estabhsh the means and ume required to warn or advise onsite indmduals and mdividuals who may be en areas controlled by the hcensee Eniergency Pieparedness Depanment gmdimee (Emergency Plan Adnumstrante Procedure tLPAP) 115), at the nme. required that the umt services director momuw and maintam energency preparedirss facihnes and equipment in Attachnent 2 of EPAP l 15, the Uma i pubhc announcement speakers and evacuauon alarm were encluded as emerFency preparedirss eqmpnrnt 255 l

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the findings in inspection Report (IR) 50-245/95-22, 50-336/95-22, 50-423/95-22 (95-22), dated July 21,1995.

De NRC inspector reviewed the results of the monthly page and siren tests, which were done in accordance with Procedure C-OP-605, and the separate test conducted in the Millstone Unit I maintenance shop area. He review of the last two monthly tests showed that the site alarm was audible over ambient noise in all the tested areas. The review of the separate Millstone Unit I maintenance shop test 6howed that either switch, when in the off position, would not disable the system and that with one of the speakers turned off, the other speaker had sufficient capacity to support event notification.

Emergency Preparedness Department guidance (EPAP 1.15) required that emergency preparedness equipment be maintained. He purpose of the guidance, as it related to the speakers, was to warn or advise onsite individuals. Since i

the single speaker could still be heard, the Petitioner's department manager stated in a meeting with the NRC inspectors that he believed the Emergency

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Preparedness Department guidance was still being met. Therefore, the Petitioner has not supported his assertion that the department manager and, indirectly, his first-line supervisor and coworker, deliberately violated Millstone procedures or technical specifications,10 C.F.R. 6 50.47(b), or 10 C.F.R. Part 50 Appendix E, or failed to meet the guidance in NUREG-0654.

The inspector reviewed NNECO's corrective actions and confirmed that a work order had been processed to disconnect and remove the cutoff switches and that this work was completed. The inspector reviewed several Millstone site daily news articles ("To the Point") that reinforced the message of not adjusting speaker volume..The articles clearly stated that management expectations and emergency preparedness guidance were that personnel were not to tamper with emergency preparedness equipment. De inspector also discussed the results of a walkdown of the entire system with a Licensee representative. The representative stated that one additional speaker on/off switch had been found in the Unit 3 i

instrumentation and controls area. This speaker's on/off switch was subsequently j

removed.

NNECO's investigation had also concluded that the switches were installed in 1973 without the use of a work order. The work control process has been enhanced significantly at Millstone Unit I since 1973. Performing modifications to equipment important to safety, such as the site paging and site alarm siren evacuation system, would now require engineering and operations department review. It would also require consideration of relevant regulatory requirements.

During these reviews it would be expected that modifications of this type (i.e.,

done without such a work order) would be rejected and not irnplemented.

The NRC inspector concluded that NNECO's current work control practices would require an automated work order for this type of modification and that these switches could not have been installed without such a work order under 256

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the current work control procedures. Therefore, since a work order for this modification was not required in 1973, no enforcement action is warranted.

l The NRC inspector concluded in the Inspection Report that turning off the i

site paging and site siren evacuation alarm system speaker was in violation of the Licensee's emergency preparedness plan (and thus a violation of TS 6.8.1) and not in conformance with the guidance in NUREG-0654. Therefore, this issue and three others were collectively cited as a Severity Level IV violation.2 However, the Inspection Report stated that since the operators in the maintenance shop were still able to hear information provided by the other speaker in the maintenance area, this event was of low safety significance and that it appeared NNECO had taken effective corrective action to correct the problem.

He NRC Staff has concluded that the enforcement action already taken is sufficient in this case and, therefore, no additional enforcement action is warranted. The NRC Staff has also concluded that although the Petitioner's department manager turned off or had the Petitioner's coworkers turn off one of the speakers, the Petitioner has not supported his assertion that his department manager and coworkers deliberately violated NRC regulations or the Millstone Unit I operating license and, thereby, violated the provisions of section 50.5.

III. CONCLUSION The institution of proceedings pursuant to section 2.2% is appropriate only if substantial health and safety issues have been raised. See Consolidated Edison Co. of New York (Indian Point, Units 1, 2, and 3), CLI-75-8, 2 NRC 173,175 (1975), and Washington Public Power Supply System (WPPSS Nuclear Project No. 2), DD-84-7,19 NRC 899,924 (1984). This is the standard that has been applied to the concerns raised by the Petitioner to determine whether the action requested by the Petitioner, or other enforcement action, is warranted.

On the basis of the above assessment, I have concluded that no substantial health and safety issues have been raised regarding Millstone Nuclear Power Station, Unit 1, that would require initiation of additional enforcement action as requested by the Petitioner.

The NRC has taken appropriate enforcement action for the events referenced in the petition. The Petitioner's request for additional action is denied. As l

provided in 10 C.F.R. 9 2.206(c), a copy of this Decision will be filed with the Secretary of the Commission for the Commission's review. This Decision will l

2 he three other issues mvohed vmlanons of Millstone Procedure ACP-QA4 028. " Receipt. Control and Idenu-ficanon of QA Material." ACP-QA-4 OI A. " system and Comp < ment Hmisekeeping." and (01. "Admsmstranon of Milbtone Procedures and forms" (NRC Inspecuon Report 50 245h5 22. 54336N5-22,50-423N5-22. dated i

July 21.1995) 257 l

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constitute the final action of the Commission 25 days after issuance unless the Commission, on its own motion, institutes review of the Decision in that time.

FOR THE NUCLEAR REGULATORY COMMISSION William T. Russell, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland,

• this 19th day of December 1995.

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