ML20100Q258

Nuclear Regulatory Commission Issuances for November 1991. Pages 261-295

ML20100Q258
Person / Time
Issue date:	01/31/1992
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V34-N05, NUREG-750, NUREG-750-V34-N5, NUDOCS 9202060465
Download: ML20100Q258 (42)

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NUREG-0750 l

Vol. 34, No. 5 Pages 261-295 l

l NUCLEAR REGULATORY

COMMISSION ISSUANCES i

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U.'. NUCLEAR REGULATOMY COMMISSIOhle S

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A year's subscription consists of 12 sof tbound issuos, 4 indores, and 2-4 hardbound editions for this publication.

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NUREG-0750

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Vol. 34, No. 5 Pagos 261-295

\\UCLEAR 9EGULATORY COMMISS 04 ISSUA\\lCES November 1991 This report includos th'J isSuanCoS foColvo(4 during the specified period from the Commission (CLl), the Atomic Safety and Licensing Boards (LBP), the Administra:lvo Law Judges (ALJ), the Directors' Decisions l

j (DD), and the Doniata of Potations for Rulemaking (DPRM).

The summarios and noadnotes procoding the opinions reported herein are not to be doomeo a part of those opinions or have any independent logal significance.

s U.S. NUCLEA-REGULATORY COMMISSION Prepared by the Division of Froodom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission i

Washington, DC 20555 l

(301!492-8925) i 1

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1 COMMISSIONERS ivan Selin, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Romick D. Paul Cotter, Chief Adrrunistrative Judge, Atomic Safet/ and Lkonsntg thard Panol y ~.

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t CON'I'ENTS Issuances of the Nuclear llegulatory Commission CLEVELAND ELEC11 tlc ILLUMINATING COMPANY tual I

TOLEDO EDISON COMPANY (Petry Nuclear Power Plant, Unit 1: Davis Desse Nuclear Ibart Station, Unit 1)

Docket Nos. 50-440 A,50-346 A (Suspension of Antitrust Conditions)

ORDER, CL191 15, November 20.1991....................... 269 01110 EDISON COMPANY (Perry Nuclear Power Plant. Unit 1)

Docket No. 50440-A (Suspension of Antitrust Cork!stions) i ORDER, CLI 91 15, November 20,1991........................

269 PUllLIC SERVICE COMPANY OF NEW ll AMPSillRE. rt al.

(Seabrook Station. Unit 1)

Docket 50 443 OLA (nansfer-of Ownership Amendment)

MEMORANDUM AND ORDER, CLI 91 14. November 15, 1991... 261 istuance of the Atomic Safety and 1lconsing floard LONO ISLAND LIOllTING COMPANY l

(Shoreham Nuclear Power Station. Unit 1)

Docket 50 322-OLA.2 (ASLUP No. 91631-03 OLA 2)

(Possession Only License)

MEMORANDUM AND ORDER, LilP 9139, November 15,1991.. 273 issuance of Dirntor's l>rcision ILORIDA POWER CORIORA*llON (Crystd River Nuclear Generating Plant, Unit 3)

Dockc4 50-302 DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206, DD-916 November 3. 1991.......,......................., 2 8 5 lil

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CLl 9114 UN11ED S1 ATES OF AMERICA NUCLEAR REGULAlORY COMMISSION COMMISSIONERS:

Ivan Selin, Chailman Kenneth C. Rogers James R. Cuttiss fortest J. Remick in the Matter of Docket No. 50-443-OLA (Transfer of Ownership Amendment) f UBLIC SERVICE COMPANY OF NEW HAMPCHIRE, et at.

(Seabrook Station, Unit 1)

November 15,1991 The Commission considers tie peduoner's appeal of a licensing toard deci-alon denying its gtition to intervene and for bearing on a proposed smendraent to the operating liceme to permit a transfer of ownership. The Commission dis-misses the appeal for the petithmer's failure to ble its brief on time ord affirms, though on different grounds, the licensing teard's order denying tie petitkiner standing.

RUI.I'.S OF PRACTICE: API'ELLATE ItFNIEW Driefs filed beyond the 10-day period prescrit ed for apitals in 10 C.F.R.

s 2.714a nre justifiable only if there is a showing of goml cause for the failure to hs/c filed on time.

ItUl.ES OF PIMCTICE: ItESPONSillit.lTIES OF PAlfilES Participmts in NRC pvxcedmgs are expected to familiarire themselves with the applicable rules of pructice and to adhere to datlines.

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ltUI.ES OF l'ItACTICE SI'ANDING TO INTI:ltVI;NE

'the Cornmission applies contemporaneous concepts of standmg in determin-ing whether a petitioner has established a right to intervene arkt to a hearing in

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NitC proceedings; i.e., the petitioner must slow that the proposal action will cause injary in fact to the petitkmer's interest and that the injury is within L!c l

" tone of interests" protected by the applicable statutes.

if ULES OF PitACTICI:s STANDING TO INTEltVENI (INJUltY IN FACT)

• the petitioner must establish that he or she will suffer a distinct and palpable harm that constitutes the injury in fact, that the injury can le traced faltly to the proposed action, and that the injury is likely to bc redressed by a favorable decision in the proceeding.

ItULI;S OF l'It ACTICE STANDING TO INTEltVENI: (INJUltY IN FACT)

'Ihe petitioner failed to show that favorable action in the instant proceeding would abate its claimed injury where it appears that the petitioner's alleged harm would ttill occur from the grant of a r,eparately hoticed license amendment that the petitioner failed to challenge.

MEMORANDUM AND ORDER I.

INTItODUCTION On June 28,1991, the Feacoast Anti Pollution League (S APL) (ded a notice of sopeal from the Atomic Safety and Licensing Doard's Memotandum and Order, LDP 9128,33 NRC 557 (1991), which denied S APL's petition for leave to intervene and for hearing on a Ivoposed amendment to tie operating license for the Seabrook Station. *lhe poposed amendment would permit the Public Service Company of New llampshire (PSNil), one of the licensed owncts of the facility, to tmnsfer its ownersh!p interest in Seabrook to the North Atlantic Ericrgy Corporation (NAEC). Although SAPL's notice of appeal was timely under our rules of practice, SAPL did not file a supletting brief at the same time as gescribed in 10 C.F.It $ 2314a(a). Both the Nuclear Regulatory Commission (NRC) Staf f and the Licensees oppose SAPL's appeal and argue that the Commission has ample grounds either to dismiss the appeal for SAPL's 262 7"

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feiture to submit its brief on time or, alternatively, to deny die appeal on its merits.' lbr the reasons stated in tius hiemorandum and Order, we dismiss the r

appeal and otherwise affum the Licensing thurd's denial of S APL's intervention petition.

11. IIACKGROUND On Fettuary 28,1991, the NRC Staff published a notice of opp.atunity for hearing on the proposed issuance of an amendment to the Seabrook operating liceme, which would authorlic NAEC to acquire PSN11's ownership interest in the Seabrook Station. 56 Fed. Reg 8373 (Feb. 28,1991). PSN!!, on behalf of itself and the other Scabrook co-licensecs, had submitted an application for the proposed amendment in a letter dated November 13, 1990, from Ted C.

Felgentuum to the NRC, which was furtter supplemented in a letter dated lanuary 14,1991, fiom hit. Felgenbaum As described in the Tcdcral Register notice and the amendment application, transfer of PSNil's ownership interest to NAEC is contemplatcJ under the reorganiradon plan ordered by the Bankruptcy Court to resolve the pending PSNil bankruptcy proceedings.1hc reorganization plan involves the acquisition of PSNil by Northeast Udlides (NU) and, through a merger _the formation of N AEC and Reorganized PSNil" as two wholly owned NU subsidiaries..PAEC will acquire PSNil's 35.56942 % ownenhip share of Seabrook, but will not assume retponsibility for management, operation, and maintenance of Seabreak. Responsibility for those functions is proposed to be transferred, however, to another NU subsidiary pursuant to another amendment application, notice of which was piblished at 56 Fed. Reg.9384 (htar. 6,1991).

S APL filed its peution for leave to intervene and for hearing on tie ownership transfer amendment on April 1,1991, within the time prescribed in the Felruary 28 imlice, and its pedtion was subsequently referred to a Licensing Board established to rule on such petitions and to preside over the proceeding in the event that a hearing was ordered.8 in its petition, SAPL described itself as a cidi.cns' organizadon with its principal place of business in Portsmouth. New flampshire, which represents the interests of citizens in New llampshire and n(etheastern hiassachusetts, most of whom reside within tic 10-mile emergency 51 e stafr napoded m My 1s. Ic91 in g3=num no SAit's suane of a;5=et tweng salt's fallius to 61e a su6; %: br.ar. The thennees fiW e sn4 man to denus the apr**1 = M 17. whkh the siert sigt.,ssed in F

en answer dated July 29, sal't. filed a bner in sugget of us spreal am My 2s. By seder of My 29.1991, we gwnuned the siaft and laensees to suspeid to s A11/s kier im the mania. wuhaus prepulus to aur c mmdessuan whahst ow appeal s!wuld to damanned owms to salt's unumely rang The tuensas and the staff filed bneis en August 6 and Au6usi s.1991, tengwuveJy in response to our order.

256 Ied. l(eg. 22,016 (htay is.1991). salt inut. ally 61ed he rettuati enh de IAerums llooni sunvened to hear orfute smeigarry plannmg kans in tlw seehnmA crersung lamnas pnxadmg 'De geinmed enedatant is unrzisied to de renaming issues i.) tine qerstang tscense pmcedaig. and s Alt did aus solutui its peutum in the fann or e owien to emipan that pmsedirig.

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planning rane for the Seabn>ok Station.' S APL has previously intervened in toth tic constraction permit and the olwrating license proceedmgs for Scaback.

SAPL averred that the transfer of PSNil's ownership interest to NAEC may cause a " material increase in the hazard of operadon" of Seabrook on the basis of pending NRC investigations of alleged harassment and intimidation by Northeast Utilities (NU) of its employees at the Millstone Nuclear hmrt Plant in Connecticut. In SAPL't words, "[t]he fact of the NRC's invesdgution into NU's operation of Millstone, and its negadve treatment of whistleblowers raises genuine concerns regarding the propriety of the transfer of Seatrook to that company." SAPL's Response to Licenrecs' Answer at 2 (Apr. 24,1991).

l S APL also pointed to comments in the Staff's Systematic Appraisal of Licensee Performance report for Millstone which, SAPL believes, indicate weaknesses in management's resoludon of employee concerns.

He NRC Staff and the Lict'nsees opposed SAPL's petition. The Licensees argued that SAPL had not demonstrated citter that the interests it sought to protect or the relief it sought were within the scope of the proceeding, tecause the amendment at issue dealt only with ownership of the plant, not operadorul responsibility. The Staff made similar arguments against granting intervention but also emphasized that "the mere pendency of an invesugation is not material to licensing issues and does not show a particularized harm." NRC Staff Response to S APL Petition at 8 (Apr. 22,1991).

On June 18,1991, the Licensing Doard denied SAPL's petition to intervene in the amendment proceeding on the transfer of ownership. Tie lkiard viewed its jurisdiction to be limited to matters related to the transfer of owrcrship, and not operadon, of the plant, in this context, the Board found that "allegadons concerning NRC investigations of regulatory violations 13 a parent organization at another licensed f acility... have no place and cannot le reviewed in the instant proceeding" and that "the mere pendency of an invesugation is not

. germane to licensing issues and dacs not show particularized harm." LDP-91

' 29, 33 NRC at 559. The Doard held that SAPL had not demonstrated injury in fact or an affected interest within the swpe of the proceeding and, consequently.

that SAPL lacked standing to intervene.

ne Doard noted that its order could te appealed to the Commission within 10 days of serva e of the order in accordance with 10 C.F.R. 9 2.714a(a). 33 NRC at 560. sal'L filed a nodce of appeal on June 28,1991, with the Commission, but did not submit a brief in support of its appeal until July 23,1991. This 8 tn its April i peuum, salt did m4 nimufy a misnhar or the sagamasu.m for wtan it was actag as a sepesemauve, os um. ally is requued to estabhsh orgamasumal standing. As thensees and the staff twah cased this derset in SAPL's peuum, and Salt Onen idauar.ed the s arme or two mornWrs resuhng near she behrme plant in its Apd 34.1991 sospese to the thensees' Ansect to the Peuthm LApnl 11. 1991). De tacmams aanrd accepted salt's aprese sten as rurma the deAcierry in na ongmal peuunn. TSP 912s. s3 NltC at 538 a.d.

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matter come, before us in accordance with the interim appellate procedures in effect at the tim of the Licensing floard's decision?

111, ANALYSIS A.

Whether sal'L's Appeal Should lic Dismhsed We consider first the question whether SAPL's appeal should be dismissed for its failure to submit a supporting brief with its police of appeal as required under 10 C.P.R. 6 2.714a(a). Both the Staff and the Licensees urge dismissal on this ground.

7here is no doubt that 10 C.P.R. 6 2.714a geverns any appeal imm the Licensing Board's order, Sec florida Powr d Lip.t Co. (7briey Point Nuc! car Generating Plant, Units 3 ar.d 4), CL1915, 33 NRC 238 (1991). Section 2.714a(a) applies to circumstances, like those here, in which the Licensing Board's order wholly denics a petition for leave to atervene or request for hearing. To assert an appeal under this provision, a party must file a notice of appeal and accompanying supporting brict within 10 days after service of the Board's order. The Licensing Board specifically noted the applicability of section 2.714a(a) in its order,33 NRC at $60, and S/ PL concedes that it should have filed its brief with its notice of appeal.s Although the provisions in section 2.714a may not be jurisdicdonal in the sense that they absolutely preclude consideration of appeals that are not perfected within the prescrited time, further consideration of the appeal is warranted only if good cause is shown for the failure to fih on time. Turley Potra, CLI 915 supra,33 NRC at 240.

To explain its failure to file on time, SAPL states that it mistakenly treated its appeal as an appeal under 10 C.P.R. 62.762 from an inillal decision for which SAPL would have had 30 days from the filing of its notice of appeal to file its supporting brief.' S APL attributes its error to " oversight" and its "long standing practice of filing briefs"in the operating license proceeding. In view of its long participation as an intervenor it: Seabrook proceedings ed tir sneliness of its notice of appeal, SAPL asks that we not fortriose consiocration ofits late trict Ibr their part, the Licensees and the Staff argue that SAPL's reasons for its late filing are unpersuasive and that, on the strength of our trcent decision in Turkey Point, CLI.915, supra, SAPL's a[ peal should be dismissed? In

'sne 10 C T.R. I 2.785 nou (b), P**hkJ er $s Fed Reg 42.944 (th 24.1990) 8 arict supp<nung inkinnur's Nake d Agyeal or tJtP 9128 at 3 Quly 211991)

• l4 I lkams' 1:auon to Dumnas Apr 41 poly if,1991). NRe start Resp < wee in son =wi at lamme's hkausi to Disnuss Agnal Quly 29, lHI), lAenecer.' ceainsi nuts that sAPL d.d n<a rs e antasi r,w tran to rde its (Caname4 -

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particular, both lelieve llut SAPL's long participation in NRC proceedings and the Licensing floard's specific evference to 10 C.F.R.12.714a in its order uixiercut SAPL's argument that its late filing be oveslooked.

We agree with the Licensees and the Staff Neither SAPL nor its counsel is a i

novice to NRC proceedings. SAPL's failure to follow the applicable procedures is not excused by its averment that it was accustomed to handling other matters differently. We do not think it too much to expect gurticipants in our proceedings to read and otherwise f4unillarite themselves with the applicable rules of Factice.

Sec Duke rower Co. (Perkins Nuclear Stadon, Units I,2, and 3), ALAD-615, 12 NRC 350,352 (1980). Even in instances involving lay litigants, we expect

- adherence to deadlines to ensure the orderly administrullon of the adjudicatory process. Sec Turkey Point, CLI 915, supra. 33 NRC at 241,11ecause we do not believe dmt S API, has shown sufficient cause for its failure to timely file its brief, SAPL's appeal from the Licensing Board's decision denying its petition to intervene is dismissed.

II, The Licensing Iloard's Denial of Standing While we have decided that SAPL's tardy filing warrants dismissal of the appeal, we have determined on review of the Licensing Board's decision arxl the positions of the parties that the Board was correct in denying SAPL standing.

Although we are satis.* led that the Licensing Board reached the appropriate result, we rest our determination on somewhat dif ferent grounds than did the Licensing Doard. S APL has not shown, even accepting its clairn of injury, that a remedy in this proceeding will abate tic allegeil harm.

• Ihere is no dispute over tie basic principles governing the standing de-termination.' The Commission has long applied contemporaneous judicial con.

cepts of standing in determining whether a petitioner has established a right to intervene and to a hearing in NRC proceedings. Florida Power & Ligle Co. (St.

Lucie Nuclear Power Plant Units I and 2), CLI 89 21. 30 NRC 325,329 (1989);

Aferropolitan Edison Co. (Three Mlle Island Nuclear Station, Unit 1), CLI.83 25,18 NRC 327,332 33 (1983): Portland Cencral Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI.76 27,4 NRC 610,614 (1976). To establish standing. the petitioner must show that the proposed action will cause injury in fact" to the petitioner's interest and that use injury is arguably within the

" zone of interests" protected by the statutes governing the proceeding. Threr Affle Island, CL183-25, supra.15 NRC at 332. In making this showing, the petitioner must establish that he or she v l!! suffer a distinct and palpable harm i

bner o.a of hma sah e awake uld have been omrorr. ate. see Kau,a o.u eel Decerne ce (Wr caveA l

onrranng s.athm. Und 1). Al.AB424,6 NRC 122.126 097t), but we have cwukved in any evens, s Al't/s argummas rat scampuns ha bner f.s pipsis or our decisam here.

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that constitutes the injury in fact, that the injury can be trxed faiily to the challenged action, and that the hijury is likely to te redressed by a favorable

- decision in the prNeeding. Src Delluna v. NRC,863 P.2d 968,971 (D.C. Cir.

j 1988).

He Licerais!$ Doard found that Salt had *not denuvatrated any injury in i

fact and has allegcd no basis for an interest within the scope of this proeceding

LitP 9128, supra,33 NitC at $59. Altlough Salt's claim 4 injury trsts on a l

somewhat tenuous chain of inferences, it is not clear that harms arising from a co-ow ner's relatiortship to or influence over the pl.mt tresator are wlolly beyond the scope of an ownership trarafer prueceding.' Nonetheless, we find that S Alt has tot satisfied the threshold standing requirements, tecause it has failed to describe how any remedy in this proceeding can provide relief where, without objection, a separate amendment will permit an NU subsidiary to opente and manage the plant.

S Alt's posidon is premised on NU's alleged harassment and intimidation of employees at its Millstone plant. In SAPL's view, the alleged conduct, should it occur at Seabrook, would make opetudon of the plant more hamrdous. Salt's objection to NAEC's holding an ownership interest rests on the purported influence of NU through its subsidiary over the plant operator flut in order to establish its standing, Salt bears the burden of showing that, but for the particular action it challenges, its injury would abate. Ser Simon v. Eastern Kentucky Welfare Rights Organitation, 426 U.S. 26, 38 (1976); Driluna v.

NRC, Apra. 863 P.2d at 971.

About a week after the notice of the ownership trainter amendment was pub-i lished, a notice appeared in the federal #rgister of a separute ameraltnent by

-which operational authority over Seabrook would te transferred from PSNil to NAESCO, a different NU subsidiary. 56 Fed. Iteg. 9373 74, 9384 (Mar. 6, 1991). De latter amendment would authorlie NAESCO to manage, operate, and maintain the Seabrook plant,' matters that are at the heart of S Alt's conectn and claim of potential injury. Yet, despite its objection to NU's involvement with die Seabrook project, SAPL did not respond to that notiec by filing a peti-tion for leave to intervene or for hearing on that amendment, nor has S Alt since

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'Cf 1%blc sense Co. e/ lei.d=s (MaMs lidt bleer oaeraung $satunt. thute i and 2K ALAll419. 7 NRC lit,200 (1975)(sosswum immi tw inwtaed in vwe or inrlume owrue can enen swa die situes and smwde of its asema widwin t ems nn "psismun" at de gewmsest centiallJuarar Ca. and $<wthwest Asienic Ismgy

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Assalaies,3 Art 99 (1W4 (tweaps surpeebun's veiwrship. amtrid,in dmrueuwe an issue in mostruium p'ermn prowedms).

As indwated in the swake. howns, ths sowgarnasute plan tienangdmes that de transfer at marugenal suderity wW be ammel.shed by pansrening saad.ag seshm44 starr and coraraonne surym to NAl.Sa) rur One gnanaggiaMB ond 8peratauen tir Statecid, k

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etjul permission for late intervention. No other challenge to the amendment has been filed. Even if SAPL were granted the rehef it rtquests with respert to the owne: Ship trarnfer amendment, it apjwars that the harm that sal'L claims it will suffer would still occur from an amc4dment SAPL has left unchallenged.

Thus, we are satisfied that sal'L has not suffielently demonstrated its starding i

to intervene in this proceedirig concerning the ownership trarafer amendment.

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sal'L L.ts not shown that its alleged form would alute if it were granted rebef on the amendment at issue in this proceeding, lY. CONCLUSION ihr the reasons stated in this decision, SAPL's appeal is dismis,ted and the Llerruing floard's order in LUP 9128 is otherwise @rmed.

IT IS SO ORDERED.

Ibr the Ccumnission 2

SAMUEL J. CillLK Secretary of the Commission i

Dated at Rockville, Maryland, I

this 15th day of November 1991.

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'# n the Nwene'.or 13 letter fr4sn Ma lesisade.u d.si teammmed the egydacatum rur Die ownereht unnsfer l

amewhisons. P,, Nil mised ha interW 6e eegersialy eenk lash emedmaus, he two smsndmet aglaatusu mee thaungmahmat in uw Secessary's baununal of XAlt's innerve.< *n peutasi to des Isasia.ng lwasd Joe hiermirandian for It< twl Cester, Jr Quel Adminwustive Judge, from Esnwel 3 (ha. Senstary or os Canurussius (Api * ? WI), in edd.titsi, b<nh the Ikmeme and de NitC Steft had meed Salt 's failure to seek buervenn s amendmera involving HM.SCO in thew indtal mapsises to Salt's putum em Die ownemhip transfa s.

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Cito as 34 NilC 209 (1991)

CLI 9115 UNITED STA1ES Of AMEHICA NUCLEAR REGULA10RY COMMISSION COlAIAISSIONCHS:

Ivan Selin, Chairman Kenneth C. Hogera James R. Cuttiss Forrest J. Hernick in the Matter of Dockel Nos. 50-440-A 50 346 A (Suspension of Antitrust Conditions)

- OHIO EDISON COMPAl4Y (Perry Nuclear Power Plant.

Unit 1)

CLEVELAND ELECTRIC ILLUMINATING COMPANY and TOLEDO EDISON COMPANY (Perry Nuclear Power Plant, Unit 1; Davis Besse Nuclear Power Statloa, Unit 1)

Novembe.t 20,1991' lr

'the Commission swa sponte exerches its inherent superyhory power over an adjudicatory proceeding initiated l'y applicants' request for amendments that would remove certain anutrust licegue condidons pertaining to the Perry and Davis liesse miclear plants. "Ihe Commission directs its Licensing Board to suspend consideration of all matters, except for two hsues referTed to as the "tedrock" legal issue.

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DI:CISIONAl, lil AS (NitC STAI f)

STAI F lil AS 7

De Commission notes that consideration of sui issue of decisional bias l

is unprecedented in its proceedings and defers providing guidance where the

tiedrock" legal issue has the potential to be disposithe of the Ivoceeding.

ORDER "the instant proceeding was inia ted by Ohio Edison Company's, Cleveland Electrie Illuminating Company's, and W1edo Elison Company's (Applicants) i requests for amendments to the operating licenses for the Perry and the Davis-Lesse nuclear plants. The arnendments would remove certain antitrust lleense conditions that wem attached to the licenses as a result of the Commission's initial antitrust review purstiant to section 105c of the Atomic Energy Act of 1954, as amended. %c op;mrtunity for a formal adjudicatory hearing wt.s afforded the Applicants on the occasion of tie NRC Staff's announcement 6at after administrative consideration, it would deny the amendment request.

See $6 Fed. Reg, 20,057 (1991). A Licensing floard was constituted to consider requests for hearing and intervention. Applicants requested tic hearing on the dental and other parties sought to intervene on the basis of their interest. Intervention was granted to United States Department of Justice, City of Cleveland, American Municipal Power-Obio, Inc., and the Alabama Electric Cooperative.' The NRC Staff is also a party.

• lhe !.leensing Board has recently issued onicts memortalizing its rulings during a prehearing conference and armouncing a hearing and providing for limited appearance requests, An.ong other things, th; floard ruled that it had jurisdiction to conduct the proceeding.* admitted lictnsee Ohio Edison's contention relating to alleged decisional bias by the NRC Staff, and provided an opportunity to submit a joint statement setting forth the "ledrock" legal issue (or issues) in this proceeding that thereafter will te the sut@ct of possibly di.nositive summary dispositkxi motions. LDP 9138,34 NRC 229 (1991),

i 8 Alabama 1.1 conc Cooperauve's inimwitam op gramed a s maws d diarenan and ou hmited ht tenime mpetu not twas asievais.

3We adnowleJse that da City ar Cosiend, wkh mer admiumd as an insveu la ow prwweding, has arP** al (minna er le C.FK (1714.) ce tjceming coord's junidwtanal nd.ng in 04 pn=emhng We win emades Oeveland's tilang. and any reepsues thsema. 6n &ie cuurse, f

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Urtler the ikurd's ecler tlw parties will for the next approsimately 6 months tv hiicfmg what they have all acktiowledged is a " bedrock" legal issue.$ Ohio lidhews has volenteered that the desion on the legal issue has the lotential of allowing opplicants ta proceed to no evidentiary proceeding or of termiruting the he;.ricg in f avor of maintaining the license conditions, While intinuling to opinion on this issue or any other isste beftuc the lhwl, we hereby er.crcise Cur it.herent supervisory lower over adjudicahwy pnweedings to direct 'he 1.icercing Ikurd to suspend its considefation of all matten irt this proceeding with the sole exception of the so-calkd " bedrock" legal issu6. We tale this uction tmby because the bednwk issue has the potential to lye dhpositive of LSis Ivoceeding and panicularly in light of the nature of the contention on decishmal bias by the NRC Staff. The admission of sch a contention % Wars F) te without precedent in our proceedings. Tims, there is no cunent caldarse avF, lame to the IJcensing Ikurd on this kind of isst.c and

~

s the Commission is not inclined to considet how such gnidance is to le provided while the possibility remains that the proceeding will be resolved without 36y w

need to reach the issue.*

IT IS SO ORDl!P.11D.

Ibr the Coinmission S AMUf!L J. CillLK Secretary of the Commission Dated at Rockville, Maryland, this 20th day of November 1991, 31he parties have informed de t.icensus lloani dim all of die perues have egreed sqwet de falloweg as dw

'hsdrwn" legal issue f,or ines) in dus pn.mding-la de Canmusion mid a4 aiahorny es a assues ad law muler natum 105 ur the Aa.euis 1.norgy Act

• , risata anutrust heimse cordanes cannes.ied in an ogwasung laserne if it finds that die acsual seet or slatnehy fran Om heaved nuciser power plant is higher d.an de cust ad electricity funn stiernsUve nonetes all as sppropmtrJy sucasumd and eunpsruit and Are de Arrbrants' empeau for ausswmke of tree warus hmus mau.sw kemd by au putwm. ce cut:swaal caugyal tw lachte, <w the Ise nf the case?

See taum fren R. ontdberg end C Auuther. js., Csermal rim the City or Cbeland, no Judges Maier, itedihoerer, and llullwa4k (%,,7,1991).

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• We one ue Swrre l(espmse un oMe IAs m Caenpany's tecnosstona no Ow Nialear Reguisusy Cannussa.mi starf was fund OMes 33, le91. Oh4 IA<tsa ropaded enh e nuaum to cienprJ eartmg furthas answas inen the NkC Suff.

271 I

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l Atomic Safety and Licensing i

Boarcs issuances l

i ATOMIC SAFETY e.ND CCCNSING BOARD PANEL 4

l B. Paul Cotter,* Chlof Administrativo Judge Q

l l

Robert M. Lazo,* Dep'Ity Chiot Administrativo Judge (becutivo) l Frederick J. Shon,* Deputy Chlof Administrativo Judge (Tochnical) 1 l

Q Members

.i

-b Dr Cuorge C. Anderson Jamers P Gloavn Dr immoth A Luette h

Charles Ewichhoefor*

Dr Cadut H Hand, Jr Dt brvwth A. McCdiorn Peter B Ukoh*

Dr Jerry Hartour*

Morton B MarUules*

i Guinn O Beght Dr dam L Hetrx;k Marshall E Miller Dr A Dixon Callihan Errest E. Hill Dr. FWw A Mome James H Carpenter

• Dr. Frank F Hooper Dr 86rd R Partrek h

Dr ftchard F. Co6e*

Elgabeth B Jorwwon Dr Harry Rein Dr Thomas E. Elleman Dr Waner H. Jordan LetW b Ruterrstein i

Dr George A, Ferguson Dr Charies N Mitun' 5 dam R Schnk W

i Q -/

Dr Harry foreman Dr Jerry R Klitie*

ivan W smrlh*

Dr %hard F. Foster 04 FYtor S Lam

• Dr George Today John H Frye !!!*

Of Ja'res C Lamb 1:1 Shokbn J Wufo j

reeman.nr panet nansen, t

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i Cito as 34 NRC 273 (1991)

LDP 9139 UNITED STATES OF AMERICA NUCl EAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING DOARD Dolore Administrative Judges:

Thomas S. Moore, Chair nan Dr. Georgo A. rerguson Dr. Jerry R. Kilne in the lAstter of Docket flo. 50 322 OLA 2 (ASLDP No. 91-63103-OLA.2)

(Possession-Only I.lconse)

LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

November 15,1991 in this Memorandum and Order, the Licensing ik>ard fmds that none of ile petitioner's proferied contentions are admissible ared, therefore, it denics pe'itioner's intervention petition.

ItULl3 0F PitACTICI:: ADMISSillit.ITY OF COKITNI'lONS

'Ihe Commission has made it clear tiet the new plextng requirements of 10 C.F.R. 62.714(b) are to be enforced vigorously and that licensing boards are not free to assume any missing information in a contention. See Arhona PuNic Service Co. (Palo Verde Nuclear Generating Station, Units 1,2 arnt 3),

CL1-91 12,34 NRC 119,155 56 (1991).

It%GUI.ATOltY GUIDF.S STATUS It is well settled that regulatory guides are just that - guides, not regulations

- and comphance with them is not requirco. Sec, c.g., ferition for Emergency 273 l'

i c

and Remedial Action, CLt.78-6, 7 NRC 400, 406 01 (1978); l'hilaJciphia ficctric Co. (Limerick Generating Station, Units 1 and 2), ALAll Hl9,22 NRC 681. 737 (1985); long Island Lidding Co. (Storcham Nuclear liiwer Station, Unit 1), ALAll 788,20 NRC 1102,1161 (1984).

RULl:S OF PitACTICI': CONTI;NTIONS A motion for reconsideration of a portion of the Licensing 130ard's earlier ruling on petitioner's standing is not a proper subject for a contention as that tes m is used in 10 C.F.R. 8 2.714(b). 'Ibe petitioner's contentions must focus on the issues identified in the rutice of hearing, the applicant's amendment applicatkin, and the staff's environmental responsibilities relating to that application, not on the peddoner's own standing to raise issues concerning these matters.

MEMOltANI)UM AND OltDElt (Huling on Contentions)

I.

The history of this procceeng for a possesskm-only license"(POL) amend-rnent for Long istarid Lighting Company's (applicant's) Shoreham Nuclear

!\\mt Station is set forth in several earlier Commission and Licensing floard opinions and need not be repeated here.111 suffices to note that, in LBP 91-76, the Licensing floard (as then constituted) ruled that petitioner, Scientists and Enginects for Secure Energy, Inc. ("SE2"), had alleged sufficient injury in its intervendon pedtion to e-stablish standing to raise certain issues under the National Envirotunental policy Act (NEPA),42 U.S.C.14321 et seq., and tie Comtnission's implementing environmental regulations,10 C.F.R. Part 51.8 SE2 then filed a supplemental petition containing seven contentions.8 *lhe applicant and the NRC stalf both opposed the admission of any of the proffered cor.-

Isee ClJ-91 1,33 NkC 1 o991). !JIP 91% 33 NKC 537. twe=udnouca deaioil. !JtP 91-32,34 NRC 132 0991). !JIP-917,23 NRC 179 09911 8 see 33 NRC si 543,547.

Isee l%tumers' AmaWmers and supsdement to 1%ima no traerrow [hnremafe 5%1 amer's $ 4T amere} (kly l

1,19911 Akhuush e anned peuuam, shard 4meWedmg 10ver Central Sch=4 Detrict (sWRCsD).Janed st.2 in t.hng e Anru autylanarual pausm, ht 3%them's imualinwevenum peuse was earlee aan,od, see litP 91 M. 33 NRC at s4547. Ahh<a.gh sWRCsD has rded on agreelimm that ruims wnh A Cummisasm, mly $1.2 vemains as a peutumer liefare us 274 i

I i

l tentions.* Thereaftes, the ikurd held a gvehearing conference at which it heard argument on tie admissibility of the getitioner's contendons?

lbr the reasons that follow, we conG N that none of the petithmer's prolfered contentions are admissible. Accordingt,, Sli2's petition to interverie is denied.

11clow, we address seriatim cach of the petitioner's contentions.

11.

A. 1hc petitioner's first contention asserts timt, lefore issuing the FOL, the NRC must pirpare an environmental impact statement (IIIS) to consider the impacts of the proposal to decommissice Shoreham. This is so, the c(mtention states, tecause the ICL is within the scope of the proposal to decommisshmi Shoreham and the decommissioning poposal is itself a major federal action significantly alTecting the quality of tie human environmenL Nest, quoting tic definitions from the NEPA regulations of the Council on Envirorimental Quality (CEQ) that have been adopted by the NRC in 10 C.F.R. 6 51.14(b).

- tie contention claims that the ICL is within the scope of the proposal to decommission Shoretuun "because it is an 'Anterdependent [part] of [ thall larger action and depend [s upon (sic)) tie larget action for [its] justification."5 Finally, and again relying on definitions from Cl!Q's regulations adopted by the NRC, the contention asserts Out the ICL is also a cumulative action that shoukt te discussed in a comprehensive EIS on the decommissioning of Shoretuun.

In arguing that the petitioner's first contention is inadmissible, de applicant and the staff both assert slot the contention does not meet the requirements for an admissible Shoreham contention laid down by the Commission in several recent rulings.1 hey also argue that the petitioner's contention falls to meet the general standards of 10 C.F.R. I 2.714(b)(2)(ll), which requires that a contention set forth the facts or expert opinion supporting it.

1he applicant and the staff are cortect that the petitioner's first contention does not meet the special requirements for an adrnissible contention emmciated in earlier rulings by tie Commission for proceedings involving Shoreham, in the first of those decisions, CLl 90-8,' the Commission addressed the intervention petitions of SE2 and SWRCSD in an earlier shapter of the Storcham saga.

At issue were the validity of a confirmatory order in which the applicant agreed not to refuel the reactor without acency permission and two license

'Sta illfo's ommnan no sf2's cowwnums on lbanessum (kdy'* taanse Ammenas (kly 12, 1991).

NRC Siaff Raymee no Puntumma' hly 1.1991 Amsated Ikstum and surgdenas (My 22.1991).

Ion scpemter 24.1991, the tjeenaing thed was mesuwsed to indude the curms Chamnar. See $6 isd Reg 49.8M (1991)

'thmer a ser1 ansen at 't 4

4 s2 NRC til o990) seemJ,rwwa dread, elJ 912. 33 NkC el 0900 275 p

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amendments involving changes to the uppheant's security plan and offsite emerpncy preguedness. 'the peulloness argued that dese agency aethua amounted to a de facto decommisskming of Shorcham that could be aiproved urider ND'A only after the NRC prepared an 111S considesing Oc resurned e,peration of de facill / as an altesnative to decommissioning. 'the Commission responded diat the applicant's determination not to operate Shoreham was a purely private action that did not involve the agency. As a conmjuence, only its decision on Oc method of dec(unmissioning, not its decision wiether to decommission, miuires NRC approval. Ibrther, the Commission stated dat treause "[t)he alternative of ' resumed operation' - or odies methods of

,g generating electricity - are alternatives to the decision int to operate Shorewn

nd thus are icyond Commission ccesideintion,"'such aherratives *nced not le considered under ND'A" so that no IIIS is needed.' With this guidance, the Cornmission then forwntded de intervendon petilkms to the 1.Leensing Bcwd for further proceedings.

'thereafter, in CL1914, the Commission denied, as interlocutory, the appeal of the same petitioners from a Licensing Ikiard ruling finding tlut dey lacktd standing, but permitting them to rectify the deficiencbs in their petitions." 'lhe Comtnission took die opportunity in CLI.91-4, however, ta correct anotter portion of that ruling in which the Doard decided, based or' CL1-90-8, Out de petiuoners' claims regarding pic illegal segmentation of the Shoreham decommissioning process were outside the scope of the amendment proceeding. In explaining its earlier ruling, the Commission opined that while it doubted the petitiorers could credibly show that the three actions at issue were part of the decommissioning process, its decision in CLI.90-8 nonedeless was not intended to preclude an improper segmentatico claim. At the saric time, the Commission stated that any such contention

• in at a eninimurn reed to orlet some i ausibio captanauun why an l'IS might he nquired d

for an NRC decishm approvins a Shurcham de4ortrduksdng plan a=J how tirse actamis tere calJ. try foteclusing ahetnadve decommisshe ins ene%=1s et sinne inhet NITA.hsica considerathms, c(wistitute an littgal segnwntsum ti the l'.tS pnmens.83 Finally, in CLI.91-1, an opinion involving the present ICL proceeding handed down between the two earlier discussed decisions, the Commission addressed the threshold question whether a ICL request must le preceded by tie applicant's decommissioning plan, it concluded that "[nleither regulations,

'32 NRC 2tr7 (footnina tumsted)

Ild at 208-10 33 NkC 233 0991).

U $n t.!!P 911,33 NRC 15 oV91) 12 33 NRC at 33'l (emr asa in anginal).

e 276 one ii ami timi

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NEI'A. sior policy considerations Icquire a decornmissioning plan hi be subtiiitted in conjunction with the ICL upphention."3 *the Conmhsion stated that -

the densiusdukming sales.lu sius cuncinpine that a IUI. msadJ. in noenial tirnanitames, need to te puc. led liy sideniulot of any partluilu envirteuunnel infunnathe to amenps.

rden! tiy any Nt?A review related to decannmisshwting. Acmedsngly, we do sus lichest that NITA w 10 f*

• 3. Part $1 serves n a tinis fue luiting a l't$L muh die filing w revice ad any prel,ndnavy - wninheing pim Of twrse dine may lie spmal ovunnetames where a(ete NtTA review sos a M)t, nay tie manarded despie die categurital estiush:1 ltd 10 Cl JL l $1.22(cX9)l, fut eaangle if ue IUL clearly coidJ tie shown actuaHy to fuer4kue shettative ways u owiJun deusnmluheitig dat euulJ : dynte w atleviate suna sigruf6

<and esivisteunesdal impact. Itut, inan die popus kled math us as dde pelunieury usac, no sich special circumstarwe anwars in Ods cow)*

. It then forwarded the petilkms to the Licensing floard for further proecolings "in necontance with the opinlotti capressed herein and in CLI 90 8.""

'thken together, these Commission decisions direct that, in this l'OL proceed.

ing, an admissible NEPA cantentkvi must meet two tests. Fint, the contention must " offer some plausible explanathm why an EIS might be required far an l

NitC deciskm apivoving a Shorehani decommissioning plan,*'* In other wrds, the contention must explain why the environmerital impacts of decommission.

ing Shoreham fall outside the enveloje of br; mets altra.ly considered by the Commission in the agency's Fital Ocnetic Environmental Impact Statement on l

Decommissioning of Nuclear li.cilities (GELS)."'Ihat GEIS formed the basis for the Commissioni current decanmissioning rules." It also is tie underpin-ninfg for the deletion of the former regulatory proviskm requiring an EIS fw tie decommissioning of every plant."llectuse the Commitska already has de-termined on the losis of the OEIS that tic relative impacts of decommisshming a tr' actor are comparable fmm one plant to another, no purpme is served by j

duplicating, in a plant specilie E'S, the conclushms contained in tie GEIS.*

l u 33 NHC si 6, H14 et 6 7.

Old es '1.

lh tiensing flas'd dieresfier dr*asndnod dsat die Cisnmiuum's gamien.* in Qj 914 u fully orgdu4his to i

r dus lot, pnamies lhe Ikurd a8"v*d dwi. twauw 0J 914 is a umafwann d ClJ 90 5. de nunwatum inwst be foDmi u weU. su tJtP 91% 31 hRC e 541.

8'CL3 914,53 NRC ei 237.

n NUkl.o U51ste (Augues 1958)-

H$w s3 iet lleg 24,018 (19 0 ).

"Saa 10 CIA 4 si MM(s) Cesty

1. s ths Ocewnlasnet siaumi in die sietenna d Cunaidast4.m aanmpanying de 6ral daiunmastsung A

vegutsthm:

The Ctemusamm's svuusry reaue rue cluhanating a n.armlaury IJs for dmunmunnuenna is diet dw dwruu b"* k'*a tm**lamt a. men 6 alt, in 4 oLH 1h Curwnuswe+ detaimened det esammatum ed uvue trops a.id tieu comilcave sifset se the envirunnwns and than trerg,rstusi kno de wasu dwgmsal (Caudoeus.O 277 l

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'thus to satisfy the Conunission's first test, the amtention must distinguish the impacts of deconunissioning Shoreham from the range of linpacts already con-sidered in the GELS. Second. the contention must plausibly explain how the granting of the IOL invohes special circumstances likely to foreckse one or more of the ahernatives for decorntnisslorung Shoreham so that such agency action constitutes an illegal segmentation of the EIS procesii.85 in its rulings. Die Commis lon mandated that both these requirements must be met making a con-tention's failure to meet either fatal to its adtnissibility.22 Additionally, of courtie, the contenuon must sath,fy the pleading requirements of 10 C.F.R. 6 2.714(b).

• lhe petitioner's first contention fails to meet either p.trt of the Commission's two-prong test. In im apgarent attempt to satisfy the first requirement, the contention asserts that an EIS is required twause the proposal to decommission Shan: ham is a major federal action signlucantly affectmg the quality of the human enyhonment. 'Ihis assertion is cornpletely inadequate to meet the first part of the test, requiring a reasonable explanation w hy the GEIS is innpplicable to the decommissioning of Shoretuun. Nothing in the petitioner's first cs.,itention even hints at such an explanation.

Nor does the petitionet's contention sati:fy the second sequirement that it provide a " plausible explaration" of how the ICL amendment constitutes an illegal segmentation of the EIS process." petitioner's contention atternpts to confront this requirement by relying upon the definitions in 40 C.F.R. I 1508.25

- of the CEQ regulations to clahn that the ICL is at Interdependent part of the Shoreham decorumissioning process that depends upon decommluioning for its justi0 cation. The sontration also claims, again solely relying upon the defini-tions in the CEQ regulations, that the POL amendment is a cumulative action that has cumulatively significant impacts with decommisskoing and, therefore, the p0L should be diset.ssed as pas, of the EIS on the decommissioning of Shoreham. Further, at the prehearing conference, the petitioner argued that it was raising only a legal argument in a' tempting to meet the second prong of the Commission's teat.** 11ut the Commission's direct'on that the contention contain prinssa tauld best be saandusJ gerarm4Dy.. % Or.ls shows that dw d#erese in hmpsts ar'usta des basic sharneuves fur domutaniaandng is smau. and the d<se impact af demenmianirsung is small.

whatever sitarneuve is :tuman,in semgartann with the inesci usoped trian 40 part it baused cresshe

%s relauwe isn6wcts are esposted in be sunnar invu plass to pient. so that a si.e operiric 13s wmid sesuh in the same t<urlusions as the aus with regard to rneduals saf demninumanzung Aldunigh scure esentnersers sterealy point (as that an I.A is amadi has detailed in its seersances af innpaas than s.t IJs.

if tha snputs ror e perucular p!4ra seg signir;cantly dirtuted inen une studied guerusty herause d aespouric cunaiderzuuns, the envinunnesual anarwran w=ld diactner thine at.J lay de f<antatum for dw prgerne.e J an IJs. tr 'he smputs ror a parucidar g4ars are n<s s,purwa sty dirrensa, a IWrg d No sgsturn Inipact wow be preseial.

s3 i ed. Res et 2A039.

83.5,e Clj 91-4. 33 NHC si 2ah CU 911, s) Nke et 1.

2233 NRC at 237.

• • Il 24Tr. at 16.

278 l

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a " plausible explanation" sequires much nu.c dtan mesely qtaning regulatory definitions. In order to prtnide a sulticient explaruti'ri the contention, at a minimum, ruust spell out how die ICL arnetidinent is b 'steidelweiderit giart of Oz decomntissioning process und how timt arnetuiment is urjustified excelt as put of that pwcas. Similarly, the c(mtention mmt clucklats ' aw the IOL has cumulatively 1%nificant impets with decommissioning. Itecause these snatters are not self evident, fulfillment of the Commiukm's test requires a rnuch fuller explanation in ordet to mnte the profletal explanation " plausible," evei, if the petidoner seeks to raise only a leltal luuc.

Additiorully, the adequate ext.!anathm comjxment of die Commluksi's tw-pronged test dovetails whh the pleading requirements of 10 C.l:.R. I 2.714(b)(ii) and (111). %ose provisiens direct, respecuvely, that de petitioner lvovide "[a]

l conelse statement of the alleged facts.. which suiport l'ic contention" and

• (slufficient information,,, to show tlat a Ernuine dispute exists... on a material issue of 8'tw or fact." Judged by either of these stamlards, the petitioner's contention is inadequate for the surne reasons that tie cnntention

- fails to meet the Commlukm's

• plausible explanation" requirement

brther, de Commission has made it clear that the new pleading t aquirernent ection 2.714(b) are to be enforced rigorously and that we are not free to anume any mluing information in a tuntemion." When viewed in light of these strictures.

It is a[pvent that the irtilkmer's first contention is Irwl.rnissible.

II. The peutioner's second contention asserts Oct the agency's OEIS does not apply to the pnposal to decommission Shoreham Iccause the genesic impact statement i. imited in its scope to facilitics at Oc end o.' their useful life or to reactors, med prematurely due to an accident. Itecause neider situatkm is applicable t ' Jhoreharn, the contention claims diat de NRC ruust apply its runw abrogated reguladon,10 C.I'.R. 9 51.20(b)(5) (198H), that required an P.lS for each deccxumissioning proposal, in opposing de admission of tte peutioner's second contentioni, the stali argues that the eMiention fails to establish the essential nexus betwcen the proposed ICL amendment and the decomminkming of Sh(rcham. Ihrther, the -

staff argues that Oc contention fails to meet both prongs of the Comtnission's test for an adraissibic Shoreham contention. %e applicant, on the other hand, argues that the second contendon should be rejected because the petilkmer's real intent is to raise the issue of the resumed operation of Shorciam, contrary to the Comminion's earlier directives.

%c petitioner's second' contention is identical to a ccatention it filed in tie e4ulier Shorcham confirmatory ordu and license amenlments proceeding.

In LilP 9135, the Licensing floard rejected that contention on the grourals 5 su annou A,ac sum, ca 0.h, v..i. Natue o mg aw-n,0,. 1. 2..a n. cu 91 t 2. s4 NRc 149. Iss % 0991),

279

that it was pn:mised on the erroneous and unestablished premise that the three actions at issue required the preparation of an EIS." nat same reasoning is applicable here because the petitioner's second contention is footed upon the same mistaken premise, In :Ms proceeding, the petitioner alleged in its first contention that the NRC must preparc an EIS on the Shoreham decommissioning before issuing the POL amendment because the POL was within the scope of that decommissionlag proposal; Having rejected this contention, the instant one, which deals exclusively with the need for an EIS on the decommissioning of Shoreham without mentioning the POL, has no rgical foundation. Stated othernise, in order for the issue of Shoreham decommissioning - the sole subject cf the second contention - to become relevant, the petitioner must first estabh.h that the POL 'unendment - the only licensing action involved in this proceeding - is part of the proposal to decomr ission Shoreham. As the staff correctly argues, having failed ta establish this crucial linkage, the peutioner's second contention is inadmissible.

De staff is also correct that the petitioner's contention does not meet the second prccg of the Commission's test for an admissible Shoreham contendon.

De contention conWns no explanation of how the POL amendment constitutes an illegal segmentation of the EIS process by foreclosing any decommissioning methods. Thus, the contention also must be rejected for this reason.

C. In its third contention, the petitioner asserts simply that "LILCO's environmental report should be in the format prescribed by Regulatary Guide 4.2 (Rey,2 July 1976)."" The staff and the apylicaut both argue that the contention must be rejected for failing to raise a litigable issue, ne applicant also asserts that the contention is inadmissible because it does not meet the Commission's 4

test for an acoeptable Shoreham contention.

De petitioner's third contention is clearly imdmissible. Th.s contention '

also is identical to one the petitioner filed in the earlier Shoreham confirmatory order and license amendments proceeding. In LDP-9135, the Licensing Board rejected the contention for falling to present a litigable issue. Oherving that regulatory guides are not mandatory regulations, the Board concluded that even if the contention was proven,it would be of no consequence in the proceeding so

. as to entitle the petitioner to relief." Dat reasoning is equally alplicable here, it is well settled snat regulatory guides are just that - guides, not regulations -

and compliance with them is not required." Indeed, the very regulatory guide cited by the petitioner specifically notes that conformance with the format set "34 NRC 163.17172 0991)..

U Petidess's supplanera at 8.

"34 NRC si 172 73 "See, e s., Pssiaen for Energsacy sad Aemedal Aenen. C1J.78 6. 7 NRC 400,40407 (1978); Phl.drfph,a Electne Co. (LJmendt ocncraung station. Lmts I and 2). AIAB-819. 22 NRC 681. 737 0985); long Island

. Ughnag Co. (shoscham Nuclear Power statim. Urut 1). A1AB488. 20 NRC 1102.1161 (1914)

~

280

~

. fonh in the guide is not required." Accordingly, the :ontention fails to raise a litigable issue and, pursuant to 10 C.F.R. 6 2.714(d)(2)(ii), it must be rejected?

D. The petitioner's fourth contention relies upon selective quotations from tire agency's OEIS and asserts that an EIS is required for the decommissioning of Shoreham tecause tle decommissioning plan submlued by tle Long Island Power Authority, and adopted by the applicant, proposes to use the DECON

- method. According to the contention, the use of that method will foreclose con-sideration of the SAFSTOR and FNIOMB decommissioning methods thereby -

forfeiting the advantage of reduced occupational exposures offered by the latter two alte' natives Finally, the contention asserts that because only the DECON method calls for radioactive contaminants to be removed from the site, adop-tion of tht, POI. amendment permitting the apphrant to ship certain reactor fuel support picco off site for disposal effectively prejudices consideration of the SAFSTOR and FNIVMB decommissioning alternatives, For slightlt different reasons, the staff and the applicant both claim that the petitioner's murth contention should be rejected for falling to meet the two prong of the Commission's test for an admissib!c Shorch.nm contention. They both agree, however, that the centention neglects the first prong by offe-ing no expls.ation why the OEIS is inapplicable to the decommissioning of Shoreham.

. Although the petitioner's fourth contention clearly attempts to address the secord requirement of the Commission's two-part test, the staff and the appli-cant are correct that it is fatally flawed for ignoring the first requirement. In its contention, the petitioner has not even attemped to explain why the envi-ronmental impacts of decommissioning Shoreham fall outs.ide the enveloix of impacts already considered in the OEIS. Regardless of how ht.crally we read it, the contention contains absolutely no language that can be construed as offering an explanation satisfying the first prong of the Commission's test Further, in view of the fact that none of the petitioner's other contentions are admissible, M NRC Regulatory cuide 4.2 (Rev. 21, *Preparaum of Eeninsvnental Repons for Nuclear Ibwer statms"(k ly 1976 at h.

81 At the proseanns sentsancs, the paiumer,la abet, sought to amend Contenuse 3 stating twc We have gt the coraenum in terms of Om format penseribed by Regulauwy (Mie 41 thmver, j

that format is htrative of 0.e scege to be consideredt.1 D)wmat in Uus sense does nas refer to the penicular numberbg or chapters or sutueetus but to the craness reqmred fue an envimnmental repmt neder N!?A.

i' The issue them wmld be the legat imsue of whether the hcente or the stafr can show that the pnscribed sinenu for envinomentai reporta under NITA as ilhastrated by 4.2 beve been met by an acceptable and selevasu envirmmanal report fw the propsmal to denannusaust.

Tr. at 20. Puusg to one side the premdents holdmg that the peutmer is bound by ow tderal inrms of its own emamum, su Carefina power A l@ Co. (shcana llarns Nustear ibwa Plant), ALAB-8SA 24 NRC En2,816 (1986);i.uwnd, ALAD-st9,22 NRC at 709, the po6umer*a suempt to change the manma ofits cuntentmn does nothing to entace its adnusashihty. hi ordes for a etwention chauenging itw curuents nf an enviremental apun to be a4masible, the Canminamn's regulat.ons nquire that it idanufy the aueged sme en the repart and state the seasans why the report 's in armt. see 10 CfJL 6 2 714(bX2)(uil liven as orally shared at the pt:14 arms conterence, the peuouner's third cankwa is anti woefully dericient 1

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there is no basis for incorporating the required explanation from another coa-tention, even if that were appropriate Because a contention must meet toth parts of the Commi.sion's test to be admissible, petitioner's failure to address die first prong requires that it be rejected.

E. The petitioner's fifth contention avers that the Licensing Board's earlier ruling in LDP 9126 erred in disappioving one of SE2's standing arguments.

According to l'ic petitioner, it claimed Wat the Commission's action granting a F3L to the applicant in order to relieve Shorcham of the provisions of its operating license is arbitrary and capricious because the Commissiva has not provided similar relief to other licensed plants undergoing long outages.

The staff and the applicant both argue that the petitioner's so called fifth contention is not a contention at all, but rather an improperly justified motion for reconsideration of LBF 9126. ' Rey also tegue that tie contention must be rejected because the Licensing Board there ruled that SE2 had standing only to -

raisc NEPA issues and this filing raises no such issues.

On its face, De petitioner :, purported " contention" is concerned solely with die Licensing Board's alleged error in earlier rejecting one of SE2's standing

_ arguments. llence, this so-called " contention" is, in reality, a request to reconsider a portion of the Board's prior ruling on standing in LBp-9126. A motion for reconsideration,' houver, is not a proper subject for a contention as that term is used in 10 C.F.R. 6 2314(b). In the instant license amendment proceeding, the petitioner's contentions must focus on the issues identified in the notice of hearing, the applicant's amendment application, and the staff's environmental responsibilitics relating to that application, not on the petitioner's own standing to raise issues conecrning these matters.

Moreover, even if the petitioner's filing could be considered a contention, it still must be rejected. As the applicant correctly nor.cs, the Licensing Board previously ruled that SE2 had standing only to raisc NEPA issues." Because this so-called contention does not raise such issues, it is not admissible."

F. The petitioner's sixth contention declares that the EIS required for the decommissioning of Shoreham must include a consideration of the indirect effects of permitting decommissioning, including the construction of fossil fuel plants and associated transmission lines. In opposing the adrmt3 ion of this contention, the staff argues that the petitioner's filing is morYr impropcily pled motion for reconsideration, this time aimed at the Licec. dog Board's ruling in 8 see 33 NRC at 543. s 7.

DAs the pechaarms cmference. es pentimer steed that *(ilmorn sa tCmenuun sl nuy be cormademi a maam ter musidersuon, we hereby ask the board to trat it as sudt." Tr. at 64. Even as a mann ror verunaidasauun.

'howcur ne peuhmer's bg is dettown in form and anent. see 10 C F R. I 2.730(b) Nowhere in its ha

- does the peuumer saplaus how the t icensmg Heard's vessming is in senw Er does the pasiumer's rdeg orrect the derinsncies that the Board nused in Sera sundmg argurnent Thus, even ir peuuaner's firth casamon is vtewed chantably n a maion ror mins 6desation,its Wg rada to provide any bum ror granting such asher.

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LDP 9126 that these same indirect c!fects of decommissioning Shoreham are outside the scope of the proceeding. Similarly, the applicant argues that the contention should be rejected because it only raises a question of law that the

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Licensing Doard already held is mg in issue in this lOL proceeding.

In filing this contention, the petitioner disregarded tie Licensing Board's earlier explicit ruling with resirct to raising any hsue involving the building of fossil fuel plants and associated transmission lina to replace the loss of Shoreham, in LBP-9126, the Board stated:

$udi indrect etfats would be outside the supe d any required N!;PA review in this prixecJing. h is dear beytnid casil that the Commisse has held that restart will run tic considered nor wiu other methuJs of generating electricity, whidi indude fossil fuel plants.

IAcwise, the effects of fossil fuel plarus are beymd the scope of the psweeans?

Accordingly, the Board's ca' lier ruling forceloses the admission of this con-tention.

- O. The petitioner's seventh and last contention states that SE2's pursuit of a judicial stay of the ICL amendment does not deprive the Licensing Board of jurisdiction to enforce 10 C.F.R. fl 51.100 and 51.101(a)(2)." Tic staff argues that contention should be rejected because it involves regulations that only apply when an EIS is required, and the contention does not establish that the POL amendment requires a NEPA review. In a similar vein, thevpplicant argues that the contention is inadmissible because, even if it is accepted r.s true, it does not entitle tie petitioner to any relief.

Ahhough labeled a " contention," petitioner's fding is merely a statement to the effect that the Licensing Board has jurisdiction to enforce 10 C.F.R. -1551.100 and 51.10!(a)(2), while the petitioner pursues a judicial stay of the POL amendment. As wrinen, this purported contention is clearly inadmissi-ble because, even if true, it would not enthle the pcthloner to any relief."

Furthermore, even if the petitioner's ftling is somehow read to claim that the agency must enforce the cited regulations, those provisions are only applicable to proposals requiring tm EIS. To be admissible under this theory, the petitioner still would need to establish that the ICL amendment requires the preparation

- of an EIS. The petitioner has made no such showing, so the contention must be rejected.

"33 NRC at 545. Su Ct.I 90 R. 32 NRc et 2J7.

M secum St.100 prihtma the agency renn mama any dwiswn <si a pmpowl re pnne s.1.13 wdd the higaa staiamed has been made availatde ror ptais v snmesit. sectest $1.10baK2) pat &w that sa spplicant may be denied a hcam ror a pmjest requinns an I;is if the apsdwarn tabe any step that has an advene eswinundal iropect er hmita the choice ur tessonable shernauves hertue the CJs powene is cumplened.'

"5n 10 C,F.R. ( 2.714(d)(2XL4 283

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Order -

Er the foregoing reasons, we find' that none of the lrtitioner's proffered contentions ure admissible, in order to txtome a lurty to the proceeding,10 C.F.R. 62.714(b)(1) requires that a petitionet must have at least one contention admitted. Itaving failed to meet this requirement, petitioner SE2's intervention i

petition is detaird.

Pursuant to 10 C.F.R. 5 2.714a,' the petitioner, within 10 days of service of this Memorandum and Onder, may aireal this Order to the Commission by filing a notice of appeal and accompanying brief.

FOR Tile ATOMIC SAFETY AND LICENSING llOARD Thomas S. Moore, Chairman ADMINIS1RATIVE JUDGE George A. Ferguson ADMINISTRATIVE JUDGE Jerry R. Kline ADMINISTRATIVE JUDGE Dethesda, Maryled November 15,1991

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Cite as 34 NRC 285 (1991)

DD 91-6 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGUL ATION Thomas E. Murley, Director in the Matter of Docket No. 50-302 FLORIDA POWER CORPORATION (Crystal River Nuclear Ganerating Plant, Unit 3)

November 3,1991 The Director of the Office of Nuclear Reactor Regulation denies a petition filed by Louis D. Putney, on tchalf of Edward S. Wollesen, requesting action with regard to the Crystal River Unit 3 Nucleas Generating Plant (CR-3).

Specifically, the Ittition alleged that 1500 to 3000 safety-related instruments are not properly identified and are not in a proper calibration program, that the Security and Fire Protection Programs are insufficiently dermed and are not auditable, that Florida Power Corporation has not adequately defined and does not know the exact requirements of the plant's Technical Specifications, that the uncontrolled Plant Review Committee Guidelines Manual includes mandatory instructions for nuclear operations, and that tecause no verification of calitration was performed when instrument calibration stickers were removed from plant lastruments there is no assurance that the instruments are in calibration. 'The Ittitioner icquests that the NRC institute a proceeding pursuant to 10 C.F.R. 5 2.202 to suspend or revoke the operating liccase of CR 3 or take such other action as may be proper.

DIllECTOR'S DECISION UNDER 10 C.F.R. @ 2.206 INTRODUCTION Louis D. Putney, on belcif cf his client, Edward S. Wollesen, filed a request (Ittition) dated June 25, 1991, with the Executive Director for Operations, 285

pursuant to section 2.206 of Title 10 of the Code of redcrat Regulations (10 C.F.R. 6 2.206), that the United States Nuclear Regulatory Commission (NRC) institute a prtxecding pursuant to 10 C.F.R.12,202 to susperal or revole the

- operating license of the Florida Power Corporation's (IPC or the Licensee)

Crystal River Unit 3 Nutlear Generatirig Plant (CR 3), or take such olier action as may be proper, in response to an NHC request, this Petition was supplemented by a letter from Mr. Wollesen (Pedtioner) dated July 23,1991,8 which provided additional details and clarification regarding each allegation in the Petition. Tic original allegations are summarized as follows:

1.

1500 to 3000 safety-related instruments are not properly identified and are not in a proper calibration program 'Ihey do not appear on plant engineering diagrams and the diagrams do not represent the actual plant configuration.

2. FPC's Security and Fire Pmtection Programs are not sufGciently d: fined as to be auditable.

3.

ITC has not adequately defined and does not know the exact regulre-ments of the plant's Technical Specifications @).

4.

The uncontrolled Plant Review Committec Guidelines Manual in-cludes mandatory instructions for nuclear operations, contrary to NRC requirements.

5.

Since no verification of calibration was performed wlen instrument calibration stickers were removed from the plant's instruments, there is no assurance that these instruments are in calibration, NRC Inspection Report 5(W1/91 15, dated September 11.1991, documents the results of an inspection by a Region 11 inspection team covering the issues raised in the Petition and the July 23,1991 letter F1C provided its res xmse to the Petition by letter dated September 20,1991. Both of these documents were considered in evaluating the Petitioner's allegations, DISCUSSION A.

Plant lustruments Not Calibrated and Not on Engineering Diagrams The statement of this concern in the Petition is as follows:

1.500 to 3,000 instruments in tir sustear ptw, nest s4 whid are idenafied to te safeiy related or isnporta.it to safety, are mt being cunuuHed es requiral by the regulations of the Nucks Regulatory Commission, that is, they are sus peperly idenufied and are nin in a puper cabbration prograu. 'thertfene, the oprability of tSese instruments, whid are rcJicd

'las.ms ntamt to Iwtada cunplamt au the Uniu4 5:4ies ikparuners of iAu reamhna the iernneum na his employment mdi1-l'C were raid in the My 23,1991 lester, tan are moi addmeed harem 286

upim by de nudcar opermurs,is questhmahic. 'this is utd.mly a very serhus nudear salcty cimmn. In tmue tedmkal terms, these instruments are run in Ibrida l\\iwes's Cmhguratim Management infivmasksi System (CMIS), thercfine there are no emtridled tahtua ku+ data shecu ectaung to dese innruments. As e resuh, it is impasilde fit l*kwkis Pmver to detennine that the instruments encet or remain within their engineeritig dealgn standards as required by the NRC Ibnhet, the engineering diagrams d the nudear plant do sus Whd:

these instrumenu, and the dingtsms are eut representative of the adual ssmfigurati<m of the 3 ant, as required by the NRC 4

As elaborated by the July 23,1991 letter, the Petitiones's a! legation car. be summarired as follows.

Some 1500 to 3000 instruments were removed from the Maste4 Instrument

- List and do not appear in the Configuration hianagement Information Sysicm (CMIS). As a result, they are not in a proper calloration program and have no controlled calibration data sheets. Therefore, FPC cannot detennine if these instruments meet their engineering design standards. 'Ihe plant engineering diagrams do not show these instruments, particularly those used to monitor the emergency diesel generators which have previously been identified as overdue for calibration,

'Ib correct the shortcomings in its earlier instrument calibration program, the Licensee initiated an enhanced program in early 1988 that simplified and improved the control of instrument calibration. ITC is implementing this new program under FPC's Preventive Maintenance Program, which is supported by a new computerlied work control system, the Maintenance Activity Control

. System (MACS) and the new CMIS, More than half of the 15,0M) instruments previously on the Master Instrument List have been deleted from the progmm because they do not require periodic calibmtion or are no longer in use, ITC recently removed a number of instrument data sheets, roughly corresponding to the 1500-3000 specified by the Petition, from the Document Control System because the instruments do not require periodic calitmion.

Since the 1500 3000 instruments specif:ed by the allegation were not identh fled, the NRC inspectors examhied a random sarnple of eighty three instruments on the Master Instrument List dated January 29,1986. Of these eighty three in-simments, seven were not in the curreat MACS /CMlS system. !!owever, a valii basis existed for the removal of each instrument from the program, such as re-

- moval of the instrument from the plant or installation in a system no longer used in the plant. *lhe remaining seventy-six instruments are listed in MACS /CMIS.

'Ihc inspection team also exa.nined a sample of lifty two plant instruments to determine their current calibrmion status anil schedule for routine calilwauon, 287

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Some minor deficiencies wefe noted and identified to the Licensee for correc-tion.2 Although procedures implemenUng h1ACS and ChilS wen: found to be genemlly adequate, the miner deficiencies and the lack of clarity in assignment of responsibility for msintaining instrument categories in ChilS regxwted by the inspection team indicate that these areat air not fully covered in the procedurcs mid that a comprehensive procedure for controlling and using h1 ACS and ChilS data tuses for instrument calibration would be helpful. 'Ihis was also identified to the Licensee, llowevef, the above discrepancies have not resulted in instruments not being calibrated as necessary, with no identified exceptions of importance to safety. In general, instruments reviewed by the inspection team are being calibrated even if calibration is shown as not required in ChilS or hiACS, Instruments subject to calibmtion have calibration data sheets controlled within the ITC Documentation Control System Other significant design information is cross-referenced by one or more ChilS functions.

The inspection team compared the enginecting drawings for 21 of the instruments in the 52 instrument sample with the actual plant configuration and found two minor discrepancies which were identified to the Licensec for correction.2 *the inspection team niso performed a walkdown of several emergency dicsci generatof systems on both diesels, Rr the approximately fifty instruments in the diesel generator systems, no significant discrepancies between the actual systems configuration and the drawings ure found. In addition,

- approximately a dozen diesel-related instruments were reviewed for calittation status, and one was found to be overdue for calibration.

'Itc thensee has been engaged in a major program to upgrade its ovendl configuration management program, including a system-by system evaluation of all components and field validation. After completion of this program on 60%

2 Two insmanents of h riny4=o owe can of cahbrathm. but were so identmed in MAes and wink requests were in plus to perform cahbratums. De enn accessible instnanas had a dericiency tag on it. An<the; two of the nfty-two ' mtmmass, a Bow steners and Row unnaniuer m the reactur building veu imd-range sad high range m

rad.anest munitur, wwu not rounnely cahbrated, boxause they were clasa6ried as act memng cahbraum hen, instrumans are used for punucti$res hinarial data. De IJcenses has nadataken to cahbrats dame inatnanaus in du futura, but has nut agmed that the class.ficanon is ' wnnect. hun aJdiussialinstr.snaus ute incesuedy u

clasadaJ as oss mpiring calilaauan, but were in faa in cahhratkat miJ w.heduled for routum cahbratim via recuning work mpost Arruher irutnumas did nos have an instnanau category assagned in ChilS, and u o resuh, was ini.orrectly nut mpund by htACs to be calibraiar ikmever, h instnenes was in calibrathm and waa ededuled for ruutino cahbraums. he inspectum iearn mpested a luiu g of all insmetans with sw assigrmi snatnanara category, and fr und that 90% of dm 719 sati iminanaus in the hat won in Tad devices that carunt be calibrated, sud as thermowella and solerund valeat %e irvpa;tmn tearr, reviewsl a sample of the remamma 10% of the inatnsnana on the hat and found that all the instmmens in the narnple were in fad cabbraiad and odwduled for routme cabbration. Tlw dericiency in cowswy enstannussa in chus ese idcanded in h licenseo for conectum 2 Piping d: awing wD 101 1 E was incorrect in that die integml Dow stenen and transmittar were shown u separate instnanotta, and there were no Bow element inclatum valves. In additaan, the drawing label fia IM el, fire main pressure et the inlet to the suunneus deluge valve, did not agree wuh the lahat on b instrument.

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of the systems, no programmatic problems have been iden'ified. The program casures correction of individual discrepancies as found, llased on die above, we conclude diat although many in.,truments were re-moved from the hiaster Instrument List and do not appear in CMIS, they are not required to be in the current calibration program because they cil5er do not require periodic calibration or are not in use in the plant.- We further conclude that there is no significant programmatic inadequacy in the Licensee's current instrumentation calibration program, although some specific deficiencies exist and have been identified to the Licensee for correction. *ll.c Licensee maintains the necessary calibration data sheets, and the reviewed instruments requiring cal-ibration have, in almost all cases, been calibrated and are scheduled for periodic routine calibration, Ericrgency diesel generator instruments reviewed were not found overdue for calibration, and no significant discrepancies ktween these (and other) instru'nents and plant enginecting drawings have been identified.

Therefore, we conclude that no substantial safety issue has been raised in the Petition regarding this a!!cgation,

11. Security and l' ire Protection Programs Not Adequately Defsned The statement of this concern in the Petition is as follows:

11orida Power pated in recent Quality Audit Reports (which are required by the N}tC under 11orida Power's license commiunents) that various audited prostems, including Security and I' ire Protection, complied with NRC tequirements. 'the reports also staied that the pograms needed to be defined. In fact, the audited pograms are not suf5cicntly de5ned so as to be auditable as required by the NRC. These unaudited safety related pngrams give cauw f,r peat concern for the safety of the nuclear plant.

In the July 23,1991 letter, the Petitiqct noted that various FPC audit teams recor.. mended that implementing procedures be listed in the program documents and questioned the procedure review process. The same kinds of questions about the procedure review process are repeated in Allegation C and are addressed in the discussion of A!!cgation C, below The NRC addressed only the Security and Fire Prateetion programs because the Petitioner specifically identified only these programs as examples of"various audited programs."

The inspection team reviewed seven different Licensee and contractor amlit reports issued betviren March 1990 and May 1991 that addressed security or fire protection, - No report concluded that the Security or Fire Protection programs needed to be defmed. One report concluded that, except for specific findings unrelated to this allegation, the Fire Protection Program was adequately -

defined. Another recommended that a listing of the fire protection implementing.

procedures be included in the Fire Protection Plan as an aid, but that, with the 289

exception of three unrelated findings, the Fire Protection Program was effectively controlled and implemented.

'the inspection team found that cross references between the Iire Pmtection Plan and implementing pmcedures are included in individual paragraphs in th: Plan, in response to a Licensce QA audit, a separate hsting of Fire Protection Plan implementing procedures is being prepared for inclusion in the Plan, in addition, the FPC Nuclear Operations Commitment System

- (NOCS) was sampled and shown to pmvide cro.,s-references between selected Plan paragraphs, originating requirements or commitments, and implementing procedures.

The requirements for fire protection at nuclear power plants are defmed in considerable detail in 10 C.F.R. 6 50.48,10 C.F.R. Part 50, Aptendix R, 10 C.F.R. Part 50, Appendix A, Criteriort 3, nnd, for CR.3 in particular, in its TS. FPC audits and NRC inspections l' ave addressed this program without identifying significant deficiencies in definition or auditability. See NRC Inspection Reports 50-302/89 33 and 91 15.

The CR-3 Security Plan has teen, and continues to be, in conformance with regulatory requirements. The Security PL; was originally reviewed and approved by the NRC in its Safety Evaluation for the CR.3 operating license dated July 5,1974. Many specific changes have tren reviewed and approved since that time, and review and approval of a itdl revision of the cutire plan was completed in early 1991. (See letters dated July 31,1990, and Fetwary 11,1991, from William E. Cline (NRC) to Percy M. Beard, Jr. (FPC)). Periodic NRC inspections have demonstrated that implementation of the Security Plan is acceptable, See NRC Inspection Report 50-302/91-07 (SALP), at 13. 'Ihe inspection tearri noted that the NOCS adequately cross references the Security Plan reauiremmts to the various implementing procedures.

Based on the above, we conclude that the Security and Fire Protection Programs anc satisfactorily defined and therefore auditable. Moreover, we have found no evidence that the programs are deficier... Accordingly, we conclude that no substantial safety issue has been raired in the Petition regarding this allegation.

C.

Technical Specifications Not Defined, Exact Requirements Unknown to FPC.

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The statement of this allegation in the Petition is as follows:

1%rida 1%ct's license requirrments with the NRC require it to meet the Technical Specificatims (l'S) ror the nuclear plant. Iiorida Puwer has not adequately defried aid does not know the exact requirernents of the Technical Speciricatims for the eclear plar,t, 290

therefore. Ibrida Power cannot accuratdy irptwt that it is complying with the TS and it is unpussible to audit the TS program. Es is a serhaa nudcat safety ctsicem in the July 23,1991 letter, the Ittitioner narrowed tie allegation considerably, so that the thrust of the allegation is now as follows.

1. The review required by TS 6.8.2.1.a of the implementing procedwes for the Security Plan and Fire Protection Plan, and of Administrative Instructions, by the Plant Review Committee (PRC), is not dermed and PRC members are not qualified to review implementing procedures.

2.

Appendix A of NRC Regulatory Guide (RO) 1.33

• Quality Assurance Program Requirements," identifies certain Administrative Procedures that each licensec must pregure and maintain. Some of the imple-menting procedures for these Administrative Procedures are not in the group identified as Administrative Instructions, and therefore may not be reviewed at all, or may be reviewed by Qualified Reviewers (rather than the PRC), which would be a reduction in quality.

The Licensee originally proposed complete TS in its operating license appli-cation. %cse were reviewed thoroughly and approved by the NRC. All changes to the TS are likewise reviewed and approved by the NRC prior to issuance.

Compilance with the TS is monitored by NRC inspectors. Where there has been evidence of inadequate or incorrect TS, they have been revised. De NRC los no evidence of general lack of defmition of the TS or lack of knowledge of its requirements by FPC.

The followirtg addresses the specific allegations of tic July 23,1991 letter.

1.

TS 6.5.1.2 specifies areas from which supervisory personnel are to be chosen as members of the PRC, among which is Security. Fit confirmed that members are selected on the basis of qualifications

-and experience required for their positions. The inspection team found that the PRC " consists of a diverse group of senior nuclear plant managers." The latest NRC SALP report, Inspection Report 50-30?MI-07, dated June 28, 1991, states that tic PRC " continued to be staffed with qualified personnel." he inspection team further notes that FPC document Al-300, " Plant Review Committee Char.

ter," contain.: requirements for training PRC members and that Fit maintains a record of such training.

%e Licensee notes that PRC procedure review is performed in ac-

- contmee with existing guidelines and procedures (Al 300), although there is no checklist defining all the factors the PRC must consider.

Rather, the broad experience and qualifications of the members permit an effective redew of implementing procedures by collegial discus-sion. Although individual cases of deficiencies in plant procedures

- have come to the attention of the NRC (and have been corrected by 291

the Licensec), the NRC has no evidence that pHC review of those procedures was ineffective because of lack of PRC review definition, 2.

The inspection team found that four of the requin'd RO 1.33 Adminis-trative Procedures are not implemented by those IPC procedures cat.

tgorized as Administrative Instructions, nor are they required to be.

Therefore, in accordance with TS 6.8.2.1.b. these must be leviewed by the Qualified Reviewer process, with the PRC bebg sequired to renew only the 10 C.F.R. 5 50.59 safety evaluation, llowever, the PRC in practice does more than jus 8 review the section 50.59 safety evaluation Rir other than minor t., mutine procedure changes, the author of the change or other knowledgeable representative from the responsible deparunent typically m:&cs a presentation to the PRC on the change, He classification of " Administrative Instructions" or "other prt>.

cedures" is not made on the basis of safety importance. Many of the "other proceduits" are of significant importance to the safe operation of the nuclear plant, such as procedures for combatting nuclear plant emergencies and for controlling radioactivity.

Administrative Instructions typically cover matters of general pol-icy or broad applicability, and therefore warrant PRC review Other procedures involve areas of narrower applicability and greater tech-nical detail. Rese other procedures must be reviewed by an intrade-partmental Qualified Reviewer, and where appropriate, by interdis-ciplinary Qualified Reviewer (s) in interfacing departments, and be approved by the responsible Superintendent or Manager Qualified Reviewers are typically experienced personnel with a high level of technical knowledge in a particular area. who also have specialized training in inview of procedures. NRC requiremen:s for training and qualifications of Qualified Reviewers are contained in TS 6.8.2.2, Based on the above, we conclude that the CR 3 TS are adequately dermed and that the Licensce has adequate knowledge of their requirements. We further conclude that PRC members are qualified and adequately trained to review implementmg procedures, that PRC review of such implementing procedures complies with TS 6.8.2.1.a, and that PRC review is adequately defined. We also

- cc%lude that review of implementing procedures of the four required RG 1,33 Administrative Procedures in accordance with TS 6.8.2,1.b (Qualified Reviewer process) is acceptable. Ibrthermore, there is no reason to conclude that the.

- Qualified Reviewer process constitutes a reduction in quality. Therefore, no substantial safety issue has been raised in the Ittition regarding this allegation.

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D.

Mandatory Instructions in Uncontrolled Documents ne statement of this concein in the Petition is as follows:

'Ita NRC requires that Ibnda Power not indude mandatory instrudkun in uncunuulled snanuals used by nudcar operations (ANSI Standard N45.2.10 lM3). This is tecause uncontnJkd manuals may bc condated, causing perumel to unplemers the wnns imwfurt.

11erida Power's Pins heview Chnmince Guidehnes Manual, an uncunisuued manual.

indudes namlatory insuucikms for nuctcar operatwns 'this is a serkius nudcar safety (Ancern.

Re. July 23, 1991 letter indicated that the " mandatory instructions for nuclear operations" contained in the uncontrolled PRC Guidelines Manual were instruedons to comply with the TS (presumably TS 6.8) governing PRC activi,ies, and Administrative Instruction Al 300, "Piant Review Committee Charter."

he inspection team examined copies of the PRC Guidelines Manual, and found that they contained outdated TS pages and an outdated copy of Al 300.

Both the TS pages and Al-300 include mandatory instructions for conduct of the PRC. Although the PRC Guidelines Manual contains the wrd " guidelines," it was officially distributed to PRC members for use in performing PRC duties, and is listed in Al 300 as an implementing reference. Therefore, TS requirements and implementing procedures contained in the Guidelines Manual should be up to date. Accordingly, a noncited violation was identified (NCV 91 15 02). This violation was not cited in a Notice of Violation because criteria specified in 10 C.F.R. Part 2, Appendix C, i V.A (NRC Enforcement Policy) were satisfied.

His was an isolated Severity Level V violation, and tie Licensec initiated appropriate corrective action before the inspection ended, as discussed below, he NRC considers this vicision to be of minor safety significance. FTC state 41 that it considered the PRC Guidelines Manual to be a " guidance" document and, as an uncontrolled document, did not rely on it to provide marxlatory instructions of any kind. 'lYaining of PRC members includes a review of the current revision of Al.300 and emphasizes that employees refer to the latest revision of plant documents. Al 300 and the TS are controlled documents, and it is not likely that outdated copies in the PRC Guidelines Manual would have caused a PRC member to take erroneous action or to take any action that would negatively affect nuclear safety. Moreover, the Licensee took prompt initial corrective action, including revising Al.300 to delete the PRC Guidelines Manual from the -

list of implementing references and recalling all copics of the PRC Guidelines Manual. De NRC will review the Licensee's final contctive action.

Based on the above, we conclude that no substantial safety issue has been raised in the Ittition regarding this allegation.

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- 10. Knowledge of lustrument Calit ration Status

'ihe statement of this concern in the Petition is as follows:

the January 1991 OPS Audit idenhfied prutdems with instnanent cahlwathm at the inclear i ent. Ibrida Power had nec.aly a4 pied a program to remme use instrumna cabtwatkin d

stkiers from the t ants instruments. 'the sticiers were the cidy gdae tu cinain currein d

informathm to the instruments. In linplementing this pengram, sw ver.ficatim of cabbratkm was perfonned, therefore, there is no usurante these safety nlated instrumerus are in calibratkm as acquired by the NRC. %%cn this protdem was idenufwd, sudd manage:ners and the nuclear gdant managemers told the sudd team to furget the lasue. 'this is a seriet.s nuclear safety cmccrn.-

1he July 23, 1991 leller indicates that the Itt Lioner's concern focused on operator knowledge of the calibration status of the instruments and the alleged failure of the new calibration program to properly inform operators of instruments past due for calibration, A system of instrument tags is the principal method by which operators are provided the required information on the status of instrument calibration.

Organitations responsible for calibration of instruments attach yellow stickers to instrumer.ts overdue for calibration. Operators have been directed to assume that any instrument not so tagged is in calibration, and any instrument with a tag is either overdue for calibration or in need of maintenance. Operators are not to use such tagged instruments without further review, Although MACS pmvides the calibration status of individual instruments and also lists all out-of. calibration instruments associated with a particular surveillance procedure, it appears that operator truinin.g in and ability to utilize MACS is not fully effective.1his was identified to the Licensee as a weakness, Regarding the Petitioner's allegation that the calibration stickers formerly in use were the only place to obtain current calibration information on the instrument, the inspection team found that the Licensee's official record of instrument calibration was and continues to be the instrument calibration data sheets.1hese are retained in document control and information therein is entered into a computer data tese separate fmm MACS and accessibic from many computers, including those in the control room The Licensee also stated that in a recent audit, random checks by each audit team member did not i&ntify any instruments out of calibration.

Ilased on the above, we conclude that adequate information is readily avalli able to operators to ascertain the calibration status of instruments. Therefore, no substantial safety issue has been raised in the Ittition regarding this allegation.

294

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CONCLUSION

%c institution of proceedings pursuant to 40 C.F.R. 6 2.202 is appropriate only when substantial health and safety issues have been raised. See Consol-idned Edison Co, of New York (Indian itint, Units 1, 2, and 3), CLI.75-8,2 NRC 173,176 (1975), and Washington Public Power Su;> ply System (WPPSS Nuclear Project No. 2), DD-84-7,19 NRC 899, 923 (1984). The NRC has applied this standard to determine if the actions requested in the Ittilion are warranted. Ibr the reasons discussed above, the NRC has no basis for taking the actions requested in the Ittilion, since no su'sstantial health and safety issues have been raised by the ittition. Accordingly, the Ittillones's request for action pursuant to 10 C.F.R.12.206 is denied.

A copy of this decision will be filed with the Secretary for the Commission's review in accordance with 10 C F.R. 6 2.206(c).

FOR Tile NUCLEAR REGULA7ORY COMMISSION Tiomas E. Murley, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 3d day of November 1991.

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