ML20117P127

Nuclear Regulatory Commission Issuances for June 1996

ML20117P127
Person / Time
Issue date:	08/31/1996
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V43-N06, NUREG-750, NUREG-750-V43-N6, NUDOCS 9609200257
Download: ML20117P127 (129)

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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 i,

Errors in this publication may be reported to the Division of Freedom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washhoton, DC ~ 20555-0001 (301/415-6844)

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I NUREG-0750 Vol. 43, No. 6 l

Pages 235-358 I

i NUCLEAR REGULATORY COMMISSION ISSUANCES 4

June 1996 I

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This report includes the issuances received during the specified period 1

from the Commission (CLI), the Atomic Safety and Licensing 130ards (LBP), the Administrative Law Judges (ALJ), the Directors' Decisions (DD), and the Decisions on Petitions for Rulemaking (DPRM).

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

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U.S. NUCLEAR REGULATORY COMMISSION l

Prepared by the l

Division of Freedom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 i

(301/415-6844)

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. Shirley A. Jackson, Chairman i

e Kemeth C. Rogers Greta J. Dicus Li j

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.c B. Paul Cotter, Jr., Chief Administrative Judge, Atomic Safety and Licensing Board Panel

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2 CONTENTS i

Issuance of the Nuclear Regulatory Commission YANKEE ATOMIC ELECTRIC COMPANY (Yankee Nuclear Power Station)

Docket 50-029-DCOM (Decommissioning Plan)

MEMORANDUM AND ORDER, CLI-96-7, June 18,1996.

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fesuances of the Atomic Safety and Licensing Boards l

EASTERN *i ESTING AND INSPECTION, INC.

Dukets 03'M)5373-EA,030-32163-EA (ASLBP No. 96-714-02-EA)

(li\\ 9f 4 d5)(Order Suspending Byproduct Material License N n. 7-09814-01 and 29-09814-02)

. MEMORANDUM AND ORDER, LBP-96 ll, June 11,1996..

. 279 SEQUOYAll FUELS CORPORATION Docket 40-8027-MLA-3 (ASLBP No. 94-700-(M-MLA-3)

(Source Materials License No. SUB 1010)

INITIAL DECISION, LDP-96-12, June 21,1996...

.... 290 Issuances of Directors' Decisions ARIZONA PUBIIC SERVICE COMPANY (Palo Verde Nuclear Generating Station)

Dockets 50-528,50-529,50-530 DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206, DD-96-4, Ju ne 3, 1996...................

309 ARIZONA PUBLIC SERVICE COMPANY (Palo Verde Nuclear Generating Station, Units I,2, and 3)

Dockets 50-528, 50-529, 50-530 DIRECTOR'S DECISION UNDER 10 C.F.R. I 2.206, DD-96-8, June 25,1996.............

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.i CONSOLIDATED EDISON COMPANY OF NEW YORK I

.(Indian Point,' Units 2 and 3) j

~ Dockets 50-247,50-286 (License Nos. DPR-26, DPR-64)

DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206..

. DD-96-6, J une 10, 1996.................................... 333 PECO ENERGY COMPANY.

(Itach Bottom Atomic Power Station, Units 2 and 3) l Dockets 50-277,50-278 1

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

DD-96-5, J une 10, 1996................................... 322 -

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PORTLAND GENERAL ELECTRIC COMPANY

- (Trojan Nuclear Plant) i Docket 50-344 (License No. NPF-1) -

l DIRECI'OR'S DECISION UNDER 10 C.F.R. 5 2.206,

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. DD.96-7, June 14, 1996..................................... 33 8 SACRAMENTO MUNICIPAL UTILITY DISTRICT

~ (Rancho Seco Nuclear Generating Station)

Docket 50-312 (License No. DPR-54)

DIRECTOR'S DECISION UNDER 10 C.F.R. I 2.206, DD-96-7, June 14, 1996................................... 33 8 SOUTilERN CALIFORNIA EDISON COMPANY

- (San Onofre Nuclear Generating Station, Unit 1) i Docket No. 50-206 DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206, DD-96-7, Ju ne 14, ' 1996................................... 3 3 8

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i YANKEE ATOMIC ELECIRIC COMPANY (Yankee Nuclear Power Station)

' Docket 50-029 (License No. DPR-3)

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

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. DD-96-7, June 14, 1996................................. 33 8 l

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Cite as 43 NRC 235 (1996)

CLi-96 7.

UNITED STATES OF AMERICA i

NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Shirley Ann Jackson, Chairman Kenneth C. Rogers -

Greta J. Dicus in the Matter of Docket No. 50-029-DCOM (Docommissioning Plan)

YANKEE ATOMIC ELECTRIC COMPANY (Yankee Nuclear Power Station)

June 18,1996 t

In LBP-96-2,43 NRC 61 (1996), the Board granted standing to two Peti-tioners but declined to admit any of their contentions, denied their request for j

an administrative hearing, and terminated the instant proceeding. Petitioners appealed, and sought reversal of the Board's rejection of their contentions, and

. also challenged for a third time certain guidance given by the Commission in CLI-96-1,43 NRC 1 (1996), earlier in this proceeding. YAEC and the NRC Staff opposed Petitioners' arguments on appeal and urged affirmance of LBP-96-2. Alternatively, YAEC challenged Petitioners

• standing to seek a hearing.

The Commission grants in part and denies in part Petitioners' appeal, rejects YAEC's arguments regarding standing, and remands the case to the Licensing Board for further proceedings consistent with this opinion.

RULES OF PRACTICE: ' STANDING TO INTERVENE; INTERVENTION (STANDING)

Once a party demonstrates that it has standing to intervene on its own accord, that party may then raise any contention that, if proved, will afford the party relief from the injury it relies upon for standing.

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- RULES OF PRACTICE: STANDING TO INTERVENE; INTERVENTION (STANDING)

Under Commission jurisprudence, proximity alon: normally does not estab.

lish standing (outside the nuclear power reactor construction permit or operating license context) absent an obvious potential for offsite consequences.

RULES OF PRACTICE: STANDING TO INTERVENE; INTERVENTION (STANDING)

Where the Licensing Board rests its finding of standing on a combination of (a) the petitioners' proximity to the licensed facility, (b) petitioners' everyday use of the area near the reactor, and (c) the decommissioning effects described in the Commission's 1988 GEIS, the Commission defers to the Board's finding "that some, even if minor, public exposures can be anticipated" and "will be visited" on petitioners' members.

RULES OF PRACTICE: ADMISSlHILITY OF CONTENTIONS; CONTENTIONS (ADMISSIBILITY, SPECIFICITY AND HASIS)

Under the Commission's " Contention Rule," 10 C.F.R. 9 2.714, a petitioner not only must demonstrate standing but also must proffer with specificity at

- least one admissible contention. For a contention to be admissible, a petitioner must refer to the specific portion of the license application being challenged, state the issue of fact or law associated with that portion, and provide a " basis" of alleged facts or expert opinions, together with references to specific sources and documents that establish those facts or expert opinions. The basis must be sufficient to show that a genuine dispute exists on a material issue of fact or law.

RULES OF PRACTICE: HURDEN OF PROOF; HURDEN OF GOING

-FORWARD Although 10 C.F.R.12.714 imposes on a petitioner the burden of going forward with a sufficient factual basis, it does not shift the ultimate burden of proof from the applicant to the petitioner.

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REGULATIONS: DECOMMISSIONING; LNTERPRETATION (10 C.F.R. 5 50.82); RADIATION PROTECTION STANDARDS (ALARA)

Section 50.82(e) of 10 C.F.R.' expressly requires that decommissioning be performed in accordance with the regulations, including the ALARA rule in 10 C.F.R. I 20.1101.

REGULATIONS: DECOMMISSIONING; RADIATION PROTECTION STANDARDS (ALARA)

ALARA may not be invoked to restrict licensee decisions on, for example, whether to decommission an operating nuclear power reactor or whether to build one in the first place (as opposed, say, to a coal plant). ALARA comes into play only after such basic choices are made and requires a licensee to carry out its activity in a manner calculated to minimize radiation exposures as much as is practical consistent with the purpose for which the licensed activity is undertaken.

REGULATIONS: DECOMMISSIONING; RADIATION PROTECTION STANDARDS (ALARA)

A licensee's choice bet' cen DLCON and SAFSTOR (or their variants) is presumptively reasonable o ader the ALARA principle.

RULEMAKING: EFFECT ON ADJUDICATION NEPA: REQUIREMENT FOR HEARING; GENERIC ISSUES lt would be unreasonable to require the Commission continually to relitigate issues that may be established fairly and efficiently in a single rulemaking proceeding. This principle applies also to environmental issues raised under the National Environmental Policy Act.

REGULATIONS: DECOMMISSIONING The fact that a very small portion of a site may not be releasable does not preclude the release of the overwhelming remainder of the site, 237 4

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RULES OF PRACTICE: BURDEN OF PROOF REGULATIONS:. DECOMMISSIONING; RADIATION PROTECTION STANDARDS (ALARA)

Petitioners are not absolutely barred from litigating the DECON-SAFSTOR choice on ALARA grounds. It is, however, petitioners' burden to show

" extraordinary circumstances" rebutting the presumption that the licensee's choice is reasonable.

RULES OF PRACTICE: CONTENTIONS (NEW INFORMATION, UNTIMELY FILING); NEW MATERIAL; NONTIMELY SUBMISSION OF CONTENTIONS The fact that petitioners raise an argument for the first time late in a

-- proceeding is not necessarily fatal where the argument rests significantly on a document prepared only shortly before the argument is proffered and where petitioners promptly bring it to the adjudicator's attention.

- ADMINISTRATIVE TRIBUNALS

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ADJUDICATORY BOARDS: ROLE-ADJUDICATORY llEARINGS: RESOLUTION OF FACTUAL ISSUES NRC: ADJUDICATORY RESPONSIBILITIES LICENSING BOARD: RESPONSIBILITIES (DEVELOPMENT OF RECORD)

- The Licensing Board, rather than the Commission itself, traditionally devel-i ops the factual record in the first instance.

REGULATIONS: DECOMMISSIONING PLAN A decommissioning plan by its very nature deals with a myriad of uncertain.

ties, and the Commission's regulations cannot be construed to require the plan to predict the future with precision.

REGULATIONS: DECOMMISSIONING PLAN

'!he Commission's regulations do not require a licensee, at the time it seeks approval of its decommissioning plan, to decide whether it will move spent fuel into dry cask storage.

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REGULATIONS: DECOMMISSIONING FUNDING A contention challenging the reasonableness of a decommissioning plan's cost estimate is not litigable if reasonable assurance of decommissioning costs is not in serious doubt and if the only available relief would be a formalistic redraft of the plan with a new estimate.

RULFS OF PRACTICE: IIEARING ON CONTENTIONS To obtain a hearing on the adequacy of the decommissioning plan, petitioners must show some specific, tangible link between the alleged errors in the plan and the health and safety impacts they invoke.

REGULATIONS: DECOMMISSIONING FUNDING The standard for determining that the funds for decommissioning the plant will be forthcoming is whether there is " reasonable assurance" of adequate funding, not whether that assurance is " ironclad."

REGULATIONS: DECOMMISSIONING FUNDING A decommissioning funding mechanism is external in nature where its col-lections are made through Power Contracts and are deposited in an independent and irrevocable trust at a commercial bank and where the trust is executed in compliance with 10 C.F.R.150.75(e)(1)(ii).

l RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY, SPECIFICITY AND BASIS); ADMISSillILITY OF CONTENTIONS Petitioners must submit more than speculation in order for a contention to be admitted for litigation.

COMMISSION PROCEEDING: CLAIMS FOR DAMAGES REMEDY Although the Commission has a general responsibility to ensure that decom-missioning operations do not jeopardize public health and safety, no statute or regulation grants the Commission authority to require the licensee to pay (in effect) compensatory damages to private individuals.

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RULES OF PRACTICE: SCOPE AND TYPE OF PROCEEDING Completed decommissioning activities are beyond the scope of a decommis-sioning proceeding that deals solely with the propriety of a decommissiomng plan and future decommissioning activities.

NEPA: SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT ADJUDICATION: SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT ne standard for issuing an SEIS is set forth in 10 C.F.R. 5 51.92: H ere must be either substantial changes in the proposed action that are relevant to environmental concerns, or significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.

RULES OF PRACTICE: CilALLENGE TO COMMISSION'S REGULATIONS; CONTENTIONS (CHALLENGE OF COMMISSION RULE); GENERIC ISSUES; LITIGAlllLITY OF ISSUES (GENERIC ISSUE); RULEMAKING (EFFECT ON ADJUDICATION)

If parties believe that the agency's prior generic review reached the wrong conclusions, the proper remedy is a petition for rulemaking, not a litigation contention challenging the basis for a Commission rule.

RULES OF PRACTICE: OFFICIAL NOTICE Pursuant to 10 C.F.R. 9 2.743(i), the Commission may take official notice of publicly available documents filed in the docket of a Rderal Energy Regulatory Commission proceeding.

TECIINICAL ISSUES He following technical issues are discussed: Decommissioning; ALARA.

MEMORANDUM AND ORDER 1.

INTRODUCTION On March 1,1996, the Atomic Safety and Licensing Board (" Licensing Board" or " Board") issued LBP-96-2,43 NRC 61, in this proceeding involving 240 E

the decommissioning of the Yankee Nuclear Power Station near Rowe, Mas-sachusetts (" Yankee Rowe facility" or " Yankee Rowe"). The Yankee Rowe facility was a 185-MWe nuclear power plant owned and operated by Yankee Atomic Electric Company ("YAEC" or " Licensee"). It is the Licensee's only power plant and its principal asset. YAEC is in turn owned by ten New England utilities (" Purchaser /Co-owners") which purchased electricity from the facility pursuant to ten identical" Power Contracts." Despite the shutdown of the Yankee Rowe facility, these contracts remain in full force and effect.

In L11P-96-2, the Board granted standing to the New England Coalition on Nuclear Pollution and the Citizens Awareness Network (collectively " Petition-ers"), but declined to admit any of their contentions, denied their request for an administrative hearing, and terminated the instant proceeding. Petitioners appeal, and seek reversal of the Board's rejection of their contentions, and also challenge for a third time cenain guidance given by the Commission in CLI-96-1,43 NRC 1 (1996), earlier in this proceeding. (Petitioners had previously sought reconsideration and partial rescission of CLI-96-1 on January 26 and March 7,1996.) YAEC and the NRC Staff oppose Petitioners' arguments on appeal 3nd urge affirmance of LDP-96-2. Alternatively. YAEC challenges Peti-tioners'stacding to seek a hearing.

For the reaans set forth below, the Commission grants in part and denies in part Petitioners' appeal, rejects YAEC's arguments regarding standing, and remands the ca,e to the Licensing Board for further proceedings consistent with this opinion.

IL llACKGROUND A.

First Circuit's Decision and Commission Response On October 1,1991, YAEC ceased operation of its Yankee Rowe facility.

In February 1992, the Licensee removed all fuel from the reactor vessel at that facility; notified the Commission that the plant was permanently shut down and that decommissioning would commence; and applied for a possession-only license (" POL") from the Commission. On August 5,1992, the Commission j

granted the POL, but stated that the NRC must approve any major structural changes to the radioactive components of the Yankee Rowe facility. This statement was consistent with the Commission's then-effective interpretation of 10 C.F.R. 6 50.82, that a power reactor licensee was prohibited from conducting major decommissioning activities prior to final Commission approval of a decommissioning plan.

In early 1993, however, the Commission announced a new policy interpreting its decommissioning rule to allow NRC licensees to initiate substantial decom-missioning of their facilities prior to plan approval if they met certain conditions.

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Having met those conditions. YAEC initiated a" Component Removal Project" or "CRP."during which many radioactive components of the Yankee Rowe facility, including large components like the reactor's steam geacrators and pressurizer, were removed and sent to a low-level radioactive waste ("LLRW") disposal fa.

cility in Barnwell, South Carolina. The Citizens Awareness Network ("CAN").

id one of the Petitioners in this proceeding, asked the Commission to prov e an opportunity for a hearing regarding the CRP.De Commission refused and CAN filed a petition for review of that decision in the United States Court of Appeals for the First Circuit.

On July 20, 1995, the First Circuit ruled that: (1) the Commission had improperly changed its regulatory interpretation, (2) it should have offered a hearing on the CRP, and (3) it should have performed a NEPA evaluation Cir.1995), referring to l

of the CRP. See CAN v. NRC, 59 F.3d 284 (1st

- National Environrnental Policy Act ("NEPA"),42 U.S.C.14321 et seq. The i

. First Circuit held that CAN was entitled to a hearing opportunity because the original Commission policy " required NRC approval of a decommissioning plan l

before a licensee undertook any major structural changes to a facility" and could not be altered "without complying with (the Atomic Energy Act's] notice and hearing provisions." 59 F.3d at 291-92. Similarly, the First Circuit held that "YAEC's original license did not authorize it to implement major-component l

disassembly..." without a hearing opportunity. 59 F.3d at 294.

De Commission subsequently announced in the federal Register that it would not seek further review of the First Circuit's decision, and requested public comment on what sort of hearing the Commission should offer on remand.

See 60 Rd. Reg. 46,317 (Sept. 6,1995). After reviewing the public comments, 12,1995, issued an Order announcing its decision.

the Commission on October Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-95-14, 42 The Commission decided, over YAEC's vigorous objection, NRC 130 (1995).

that it must offer a hearing on YAEC's decommissioning plan and order a halt

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_ to major YAEC decommissioning activities in the meantime.8 H.

The Hearing Opportunity In Rbruary 1995, during the pendency of the First Circuit litigation, the NRC Staff approved YAEC's decommissioning plan, which became part of the Licensee's Final Safety Analysis Report ("FSAR"). See 60 Fed. Reg. 9870 i'

'To implenwm dw Comnusuce's decision dw NRC siarf inued a letter, dated Nosember 2.1995. contamng stnct guidehnen desentung the scope of pmlubited activenes. Those guidehnes expressly prohihned YAEC rrom e

dnmanthog major systems, structures. or components soll remamng at de Yankee Rowe reactor, such as de man reacaw coolant system, the lower neutron shield tank. the vapor conhuner, the reactor veuel iucif. and other systems with sismticant raduncove contaminauon See tener from Marton B.11urule. NRC. to James A. Kay, l

Y AliC. dated Nov. 2.1995, at 3.

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(Feb. 22,1995). The Staff also approved both an Environmental Ar.sessment

("EA") and a Finding of No Significant Impact ("FONSI"). Id. But in October 1995, when the Commission decided that CAN v. NRC necessitated an offer of a hearing on the Yankee decommissioning plan, the Commission indicated that the prior Staff approval of the plan "cannot be accorded further legal effect, pending a hearing opportunity." See CLI 95-14,42 NRC at 134.

YAEC's plan, first submitted in late 1993, proposed an approach that would enable YAEC to complete its decommissioning of the Yankee Rowe facility more slowly than under the pure DECON alternative but more quickly than under the other decommissioning alternative, SAFSTOR.2 More specifically, the plan provided that YAEC would dismantle the plant (except for those systems that are required for safe maintenance of the spent fuel pool), dismantle the spent fuel pool when other options for fuel and high-level radioactive waste ("IILRW") storage and/or removal become available, ship contaminated radioactive materials to an LLRW facility, and decontaminate the site to a sufficiently low radioactive level that it can be released for unrestricted use.

See 60 lid. Reg. 55,069 (Oct. 27,1995).

On October 23,1995, the Commission issued the notice of hearing opportu-nity promised in CLI 95-14, stating that the NRC was considering the issuance of an order under 10 C.F.R. 5 50.82(e) to YAEC approving its decommissioning plan as it related to the decommissioning of the remaining portions of the Yan-kee Rowe facility. Also, the Commission in its October 23rd notice required any petitioners to submit all their contentions simultaneously with their petitions to intervene. 60 ftd. Reg. 55.069 (Oct. 27,1995).

On November 30,1995, petitioners sought to intervene in this proceeding. In that pleading, they argued that they had standing to participate in this proceeding and proffered five contentions:

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A.

YAEC's proposed deconuntssioning plan violates 10 C F R 6 20.1101 by failing to nuuntain occupational and pubhc radtation doses as low as reasonably achievable 1

("ALA R A");

2Di(1)N and sAlSToR are two alternauves slut the NRC Staff set forth in its hnal Generic l.nvironnental impuet Statenrnt on the decomnusuoning of nuclear facihues Under the DECoN ahernauve, de hcensee removes sa decunianunates the onsite ratioacuve cornanunants to a level that pernuts the sue to be releaned for unrestncted une shortly after tir iscennee concludes plant operation. By contraat. under SAFSToR. the beenwe nuuntains tir facihty in such a way that alkms the facihty to be safely "sured" (lence the acronym SAFSToR) for an estemled penod of une te g. 30 years) and then decontaminated to levels that would pernut the saw to be releawd for unrestncord une. See NURI G 0586. " Final Genenc IUnvuunrrrntal Impact Statenrnt on Decommiuiomng of Nuclear lacahues" at p 2-6 ( Aug. l988)("GLIS"), prepared m support of Final Rule " General Reqwrenrnts for Decomnuniomng Nuclear f*ihties." 53 fed Reg 24.018 Uune 27.1988)("I'inal Deconmusuomng Rule").

j L.ike the Doard, we will refer to the YAEC's nuxhhed DLCON appnu,ch simply as "DE con."

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ft The proposed decomminioning plan violates 10 C.F.R. t 50.82(bXI) and (2) by inadequately describing both YAEC's planned decomminioning activities and its controls and linuts on procedures and equipment; C.

The decomminioning plan does not comply with the decommissioning funding requirements of 10 C.P.R. I 50 82(bX4) or (c);

D.

The decornnuuioning plan fads to include measures necessary to ensure that workers and the public are adequately protected from health damage caused by the exccasive radiation doses they received durmg the unlawful" CRP; and E.

The NRC Staff violated NEPA by failing to prepare a supplemental EIS for the decomnussioning of Yankee Rowe.

C.

Commisalon Guldance On January 16,1996, we issued CLI-96-1, referring the intervention petition and hearing request to the Licensing Board, establishing an expedited schedule for the proceeding, and providing guidance to the Board regarding the following four issues presented in this proceeding.

First, we addressed the relationship between standing and contentions. We pointed out that although a prospective intervenor cannot derive standing to participate in a proceeding from another person who is neither a party to j

the action nor a member of the prospective intervenor (if the latter is an organization), the prospective intervenor who becomes a party may nevertheless raise any contention that, if proven, will afford the party relief from the injury on which it relies for standing. CLI-96-1, 43 NRC at 6. This observation pertained to this case because Petitioners, consisting of kical citizens' groups, raised " contentions related to occupational dose issues." /d. (emphasis added).

Second, regarding Petitioners

• Conteration A, the Commission stated that the ALARA standards are now " mandatory requirements" rather than merely "horta-tory suggestions" and that "[w]e assume... an ALARA challenge can properly 1

be made against a Licensee's decommissioning alternative choice, if an adequate basis for the challenge is offered." 43 NRC at 7 & n.4. However, we also con-cluded that under "a fair reading of our decommissioning rules

, it is for the Licensee in the first instance to choose the decommissioning option and that neither DECON nor SAFSTOR can be deemed unacceptable a priori." 43 NRC at 7 (footnote omitted). We ruled out challenges to the DECON-SAFSTOR choice if they rest solely on the generic 900 person-tem estimated difference between these options used in the 1988 GEIS underlying our decommissioning rule, 43 NRC at 8. We reasoned that the GEIS found both options accept-able,"despite the acknowledged likelihood of reduced occupational dose under SAFSTOR." Id. We therefore saw no point to case-by-case litigation over dose differentials "on the order of magnitude of the estimate in the GEIS"- barring 244

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i some "extraofdinary aspect to the case not apparent to us from the pleadings."

i 43 NRC at 8-9.

Third, regarding Contention C, we considered Petitioners

• argument that YAEC's updated cost estimate was not reasonable. We found that the " essential purpose" of the estimate requirement "is to provide ' reasonable assurance' of adequate funding for decommissioning." 43 NRC at 9. We therefore concluded that, to receive relief, Petitioners would need to demonstrate "not only tha.t the l

estimate is in error but that there is not reasonable assurance that the amount will j

be paid." /d. "Thus, a contention that a licensee's estimate is not ' reasonable,'

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standing alone, would not be sufficient in and of itself because the potential j

relief would be the formalistic redraft af the plan with a new estimate." Id.

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Iburth, regarding Contention D, we ruled that Petitioners' allegations of

" illegal" past conduct by YAEC were not relevant in a decommissioning proceeding where the " focus... is prospective only" 43 NRC at 9. The

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Commission viewed Petitioners' "past conduct" allegations as "more properly l

the subject of separate enforcement action." 14.5 i

D.

He Licensing Board Decision j

On Rbruary 21,1996, the Licensing Board held a prehearing conference at

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which the Board heard oral argument on the issues of standing and contentions.

At the conclusion of this hearing, the Board indicated that it intended to issue an order by March ! concluding that Petitioners had standing to participate in I

this proceeding, that they had failed to raise any admissible contentions, and -

l that the proceeding would therefore be dismissed. In anticipation of the Board's promised order, the Commission on Rbruary 27,1996, issued an unpublished order staying the effectiveness of any Licensing Board order dismissing this case.

1 On ' March 1,1996, the Licensing Board issued LBP-96-2. In that order, the Board first concluded that the two intervenor organizations had established standing to intervene and seek relief regarding alleged health and safety or 3 r'.

% 1e day as de Comnunion suued its guidance (Lin.16.19%), dw Comnunion also inued a separate dotie 41 nutled "Nouce of Appointnwns of Adjudicatory 1:msdoyee and of Commumcauon Covered by 10 C F se v 4,el(c)"("Nunce"), which advised de parues: (1) thal a nwmber of the NRC Staff had been appomted as an adjudicatury employee; and (2) that there hat been a cumnumcanon m violauon of the separauen-of-functions rentnctmns corumned in 10 C F R. 4 2 781(a) and that this commumcanon was being placed on the recewd en accordance with alw requirenwnts of 10 C F R 1278l(c).

The Noace also imhcated that the prohibited conunumcauon had not reached de Comnunion itself and had tuu affected de Comnunion's gund.mce. This Nunce led to a motion by Peuuoners for reconsiderauch of the Conummon's guidance and fur 6squahficauon of certan Comnuuioners and tlw NRC staff. Peuuoners a;gued that the guidance was inconect, that is resulted from an impnter Staff communicauon. and that it rested on factual prejudgnwnts. on Mach 7.19%. the Comnussion rejected Peuponers' monon except innofs as it challenged the substance of the Conumanion gedance - an suur dw Comnuuum merved far this appeal CtJ45. 43 NRC 53 245

1 environmental injuries to their members who reside and/or engage in various activities near Yankee Rowe. Next, the Board examined each of Petitioners' J

five contentions. Applying both the Commission's guidance from CLI-96-1 and the Commission's standards for acceptance of contentions as set forth in its

~

case law and 10 C.F.R. 9 2.714(b)(2)(iii), (d)(2)(i)-(ii), the Board concluded that none merited acceptance. Consequently, the Board denied Petitioners' motion to intervene and their request for hearing, and terminated the proceeding.

l On March 18,1996, Petitioners appealed LBP-96-2, challenging the Board's i

rejection of their five contentions and reasserting their Prior arguments challeng-ing th Commission's guidance in CLI-96-1.' On April 2,1996, YAEC and Staff cach filed a brief in opposition to Petitioners' appeal. YAEC also challenged the Board's grant of standing to Petitioners. On April 10,1996, Petitioners filed a brief responding to these two reply briefs.8 III. DESCRIPTION AND ANALYSIS OF PARTIES' POSITIONS REGARDING STANDING AND CONTENTIONS l

' To place in context the following discussion of the parties' positions, we i

note that the radiological effects of decommissioning a power plant are far less than those associated with the operation of a plant. Although the licensee must continue to control the contaminated areas of the plant to minimize radiation exposure to personnel, the situation during decommissioning is more similar to that of a contaminated materials facility than to that of an operating reactor. Also, both the maintenance of spent fuel in the spent fuel pool and the containment of residual contamination in the facility are far simpler tasks than operating a nuclear reactor. As a result, the decommissioning activities have considerably less plential to impact public health and safetyc A.

Standing Petitioners allege that they have organizational standing to intervene in this proceeding because their membership includes individuals living between 4 and

+

d 10 miles from the Yankee Rowe facility, participating in recreational activities 4

along local waterways that receive effluent discharges from the facility, and using roadways that may be t-mployed by trucks to carry waste away from the facility.

I i

4 on M, arch 7,19%, Peuunners had subnutted a document styled " Supplement to Mouon for Reconsideranon i

d amd Pnrual Resciu;on of CtJ401," In this pleading. Peutioners agaan urged the Conumsaion to reviet the ALARA 6uur in general as well as the Cumnunion's specitic auumpoons regarding the level of radianon dmes i

that can be espected imrn YALC's deconumummns acuvines. The Comnussion has conudered this pleadmg m connecuan with this appeal. See axe 3. supra.

8 The Comnuuion grants Peuunners' nudson for leave to hie its April IM bnef i

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These individuals have expressed concern about the impact of the Yankee Rowe decommissioning upon their health and safety and upon the local environment, and have authorized Petitioners to represent them in this proceeding.

Although neither YAEC nor the Staff contested Petitioners' standing to raise public health, safety, and environmental challenges to the decommissioning plan, both of these parties initially objected to Petitioners' standing to raise arguments based on the health and safety of workers at the plant. As noted above, the Commission in CLI-96-1 took the position that "once a party demonstrates that it has standing to intervene on its own accord, that party may then raise any-contention that, if proved, will afford the party relief from the injury it relies upon for standing." CL1-96-1,43 NRC at 6.

Interpreting this ruling in CLI-96-1, YAEC argued to the Board that Petition-ers' reliance on public exposure doses (which were substantially less than occu-pational doses) is insufficient to give them standing to intervene as to any aspect of their contentions, including radiological impacts on workers at the facility.

By contrast, Petitioners and Staff interpreted CLI-96-1 to support Petitioners' standing to pursue all their contentions, including those related to occupational impacts.

The Board in LDP-96-2 ruled that Petitioners had standing to intervene in this pn>ceeding. 'Ihe Board reasoned that "some, even if minor, public exposure can be anticipated from the decommissioning process" (citing the GEIS) and the Board was therefore not "in a po ition at this threshold stage to rule out a a nuuter of certainty the existence of a i

reasonable possibility" that decommissioning might have an adverse impact to those, such I

an ittitioners' members, who hve or recreate in such close proximity to the facility, or uw local waste transportation routes.

4 LBP-96-2,43 NRC at 70, quoting Virginia Electric and Power Co. (North Anna Fower Station, Units I and 2), ALAB-522,9 NRC 54,56 (1979).

YAEC, in its Brief opposing Petitioners' appeal ("YAEC's Brief"), argues that Petitioners' mere proximity to the Yankee Rowe reactor does not give them j

standing to challenge YAEC's decommissioning plan.' YAEC is correct that,

)

under Commission jurisprudence, proximity alone normally does not establish standing (outside the nuclear power reactor construction permit or operating license context) absent an " obvious potential for offsite consequences." See Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2),

• Altimugh YALC did not itself appeal the Board's ruhng on staruhng. YAL C was neverthelesa enutled as the previuhng party triow to ague any ground that would defend the ulurnate result reAhed by the Bowd -

sncluding agumena that the Bowd had rejected, such as timse regarding standsng. Sce, t g. Leg hland hghruig Co (Shoreham Nuclew Power Statmn. Unit 1). ALAR-832,23 NRC 135.141 (1986) 247

CLI-89-21, 30 NRC 325, 329-30 (1989); cf Georgia Institute of Technology (Georgia Tech Research Reactor), CLI-95-12,42 NRC 111,116-17 (1995).

liere, however, the Licensing floard did not rest its finding of standing on proximity alone. Pointing to Petitioners

• description of their everyday use of the area near the reactor and to the decommissioning effects described in the Commission's 1988 GEIS, the lloard reasonably found "that some, even if minor, public exposures can be anticipated" and "will be visited" on Petitioners' members. LilP-96-2,43 NRC at 69-70. We defer to the Board's resolution of the standing issue. See Georgia Tech Research Reactor,42 NRC at i16.

IL Contentions in 1989, the Commission issued a new " rule heightening the specificity re-quirements for pleadings filed by parties seeking to intervene in [ formal] li-censing proceedings." Union of Concerned Scientists v. NRC, 920 F.2d 50, 51-52 (D.C. Cir.1990). Under this " Contention Rule," 10 C.F.R. 9 2.714,7 a petitioner must not only demonstrate standing but also must proffer with speci-ficity at least one admissible contention. For a contention to be admissible, a petitioner must refer to the specific portion of the license application being challenged, state the issue of fact or law associated with that portion, and pro-vide a " basis" of alleged facts or expert opinions, together with references to specific sources and documents that establish those facts or expert opinions.10 C.F.R. 66 2.714(b)(2), (d)(2). The basis must be sufficient to show that a genuine 5cc 17 nal Rule. " Rules of Pracuce for Durnenue Licenung Proceedmgs - Procedural Changes in de Hearing 7

Procen." 54 Nd Reg 33.168 (Aug. II,1989) A peuuoner's burden of going forward at one ume was hghter j

than undrr the current veram of section 2 714. and was nmre unuls to the "nouce pleadmg" approah generally 1

taken by the courts Isorn 1968 to 1972 the Comnunion required only that a grouoner's contennon be set forth "in teamonably specahc det.ul" (3) fed Reg 8587. 858R (June 12.1968)) - a standed analogous to the test apphed in civil canes Licensing and Regulauon of Nuclear Reactors. Hearings before the Joint Comeruttee on Aumuc Energy. 90th Cong., ist Sess-. pt.1. at 471 (1%7). rued m Summen und Profesuonal Prople for ihr PuMic Interen v Atomac Lnergy Commuswn. 502 V 2d 424. 428 (D C. Cir-l974) hom 1972 urail 19149. peuuoners needed to profter no e idenusy foundauon whatever for their contenuons, j

so kmg as those contenoons thenwelves were steed wnh haus and specihetty Ser Murunppe Power and link Co (Grand Gulf Nudcar Stauon. Units I and 2). ALAB 130. 6 ALC 423. 426 (1973). Noaston tJakmg and Power Co (Allens Creek Nucles Genermung stauon. Unit 1). ALAB-590. II NRC 542 (1980) Pro se hugants' contermons were held to even lowee standsds of clanry and precanon See, e g. PuNu Servar Drctnr and Gus Co (Salem Nutleur Generaung Stauon. Units I and 2). ALAB 136. 6 ALC 487,489 (197h The result of this pe-nM9 approach was that the actual heanngs were delayed by numths and even years of prehcanng confercices. negvianons and ruhngs on nmuons for summary dnpouuon Str. e p. Carrdma Power and 14ght Cn (She von Haru Nuclear Power Plant). LBP-85 5. 21 NRC 410, 413 (1985) (500 contenuons proposed. 60 aderurted for dncovery, and approumately 10 actually hugated after 21/2 years of negouation) Thn pmblem drove the Commisnon to revne its rules by promulgaung Lae current veren of necuon 2.714 whah was

]

drugned "to ruine the threshold for the adtramuon of contenuuna " $4 kd Reg at 33.168 248 l

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'd spute custs on a material issue of fact or law. 10 C.F.R. 5 2.714(b)(2).'

"A contention may be refused if it does not meet the requirements of section 2.714(b) or if the contention, even'if proven, would *be of no consequence in the proceeding because it we tid not entitle the petitioner to relief.' 10 C.F.R.

5 2.714(d)(2)(ii)." Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-93-3,37 NRC 135,142 (1993).

Although section 2.714 imposes on a petitioner the burden of going forward with a sufficient factual basis, it does not shift the ultimate burden of proof from the applicant to the petitioner. Final Rule, supra note 7,54 Fed. Reg. at 33,171.

Nor does section 2.714 require a petitioner to prove its case at the contention stage. Ihr factual disputes, a petitioner need not proffer facts in " formal af fidavit or evidentiary form," sufficient "to withstand a summary disposition motion."

Georgia Tech Research Reactor,42 NRC at i18. On the other hand, a petitioner "must present sufficient information to show a genuine dispute" and reasonably

" indicating that a further inquiry is appropriate." id.'

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' We assess Petitioners' contentions under these standards.

1.

Contention A: YAEC's Decommissioning Plan Violates 10 C.F.R.

f 20.1101 by Failing to Maintain Occupational and Public Radiation Doses as law as Reasonably Achiemble a

a.

Background

in Contention A, Petitioners asserted that the Licensee is required under 10 C.F.R. 6 20.1101(b) to maintain radiation doses as low as reasonably chievable.

That section provides that each licensee shall use. to the extent practicable, procedures and engmcenng controls based upon sound radiation protection principles to achieve occupational dores and doses to nwmbers of the pubhc that are as low as is reasonably achievable ( ALAR A).

"ALARA" is in turn defined in 10 C.F.R. (20.1003 as making every reasonable effort to ununtain exposures to radiation as far below ur dose huuta in this pan as is practical cont.istent with the purpose for which the licensed activity is undenaken, taking into account the state of technology, the economics of improvenrnts in relation to state of technology, the econonucs of improvenents in relation to benefits to he rules for contentions under NITA are thghtly different. ser l's C F R. 8 2 714(bM2Xin) (requinng NLTA comenuons to be b ned on the applicant's envimnnwraal report, but permitung ieuuoners to anend their contenuona if tiw data or conclusions in autacquent Comnunnion environnental docunents differ nigruficantly from t!w data or concluuons in the apphcant's environnental repartl

'sre alm hnal Rule. supra note 7. $4 fed Reg at 33.171 (requmng " sone factual twis" for the comennon).

Centle v Pac @c isgan Founductum,441 U $ 198,204 (1980), Vermamt Yanker Nuclear Pmr Carry v NRC. 435 U.S $19,5$4 (1978).

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the public health and safety, and other societal and socioeconomic considerations, and in relation to uuhzation of nuclear energy and hcensed materials in the public interest.

According to Petitioners, if an alternative is available that reduces radiation exposure and lowers cost, then 10 C.F.R. 5 20.110!(b) requires the licensee to use that alternative. They further argued that, even where a dose-saving alter-native costs more than the other alternatives, the Licensee must still determine whether the health and safety benefits associated with the reduction in exposure outweigh the additional cost. Petitioners asserted that YAEC's selection of a DECON approach violates these principles by ignoring SAFSTOR's capability of achieving significant dose reductions in a cost-effective manner, in CLI-96-1, the Commission ruled that a challenge to YAEC's choice of the DECON rather than the SAFSTOR option for Yankee Rowe cannot be based solely on dose differences on the order of 900 person-rem - barring some

" extraordinary aspect to the case not apparent to us from the pleadings." /d.

at 8-9. We reasoned that our 1988 decommissioning rule, and its supporting GEIS, had aircady found both DECON and SAFSTOR acceptable, despite the recognized potential for a 900 person-rem differential in occupational dose. /d.

'Ihe Commission concluded that its approach was " entirely consistent with the ALARA concept," which focuses not only on radiation exposure but also on costs and "other societal and socioeconomic considerations." /d.

Given the lloard's nearly exclusive reliance on CLI 96-1 regarding Con-tention A, Petitioners' Appeal lirief focuses on the Commission's rather than the lloard's order and, in many respects, repeats the arguments previously prof-fered in their January 26th and March 7th pleadings seeking Commission re-consideration of its guidance. In these three pleadings Petitioners claim that the Commission, in discussing the relative merits of DECON and SAFSTOR, improperly prejudged the facts, relied on communications prohibited by the Commission's separation-of-functions regulation, misperceived the meaning of Petitioners' Contention A, and provided erroneous guidance.

b.

YAEC's Threshold ALARA Argument At the outset, to clear away a preliminary matter, we deal with a fresh propo-sition urged by YAEC as a ground for affirming the dismissal of Petitioners' ALARA contention. YAEC asserts that, in this proceeding, it is a license ap-plicant rather than a licensee and that section 20.1101 (the ALARA regulation),

"[b]y its terms, only applies to licensees, not applicants for licenses."

YAEC llrief at 5. The simple answer to YAEC's argument is found in 10 C.F.R.

6 50.82(e) - which expressly requires decommissioning to "be performed in 250

accordance with the regulations in this chapter" These regulations include, of course, the ALARA rule in 10 C.F.R. Part 20F c.

Soundness of Commission Guidance In our view, the Commission guidance on Contention A remains sound.

- Ihe guidance means, in essence, that a licensee's choice between DECON and SAFSTOR (or their variants) is presumptively reasonable under the ALARA principle. This presumption does no more than restate what the Commission found in its 1988' decommissioning rulemaking: that no likely cost or dose differential between DECON or SAFSTOR.made one or the other option preferable from a safety or environmental perspective. See 1988 GEIS 14.5, at 4-17 through 4-20. Notably, the 1988 rule forces no choice on licensees,

. stating only that a licensee-chosen " alternative is acceptable if it provides for completion of decommissioning within 60 years." 10 C.F.R. 6 50.82(b)(1)(i).

Despite the NRC's 1988 generic review of the DECON-SAFSTOR choice, Petitioners seek to revisit that choice case-by-case, basing their objections on essentially the same factors that the Commission weighed when concluding that either SAFSTOR or DECON was a reasonable decommissioning choice."

But Petitioners' approach unreasonably "would require the agency continually to relitigate issues that may be established fairly and efficiently in a single rulemaking proceeding." //eckler v. Campbell, 461 U.S. 458, 467 (1983).

Accord Nuclear Information and Resource Service v. NRC, 969 F.2d 1169, 1174 77 (D.C. Cir.1992) (en banc). "Significantly, the Supreme Court has found agency reliance on prior determinations to be perfectly acceptable, even when the statute before it plainly calls for individualized hearings and findings."

/d. at i175 (citing cases). See Kelley v. Selin, 42 F.3d 1501,1513,1518-20 (6th Cir.), cert, denied,115 S. Ct. 2611 (1995).

Petitioners argue that the likely unavailability of spent fuel disposal facilities in the near future renders illusory the early site release advantage of DECON (which would offset the disadvantage of DECON's somewhat higher radiation doses). This argument, however, raises a generic issue affecting the decommis-sioning plans for all reactors in this country. Petitioners' position amounts to an argument that SAFSTOR is always preferable to DECON, especially until Contrary to the concern cspeeswd in YAEC's appellate brief (e g., at p 5 6 n 5), our gmdance does not suggest l

N that ALARA inay be invoked to restrict hcensee decisions on, for esample, whether to decomnussion an operaung nuclear power reactor or whether to bmid one in the first place (as opposed, say, to a coal plano. ALARA cones l

d into play only after such basic choices are made and requires a heenwe to carry ou its acuvity in a manner caicuhued to numnuse radiauon esponures as much *as is pracusal conustent with the purpose for which the bcenned activity is undertaken 10 C F R. 5 20.1003 U TIr 1488 rulensking considered the sanw quesuons as Petiuoners raiw in this lawsuit - e g.. the availabibty and easts of maste disposal, the possitwhey that spent fuel may require long-term onum storage, and the cost and dose esposure trade offs between sAfsToR and DECoN See Gels 14 5. at 4-17 through 4-20.

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the completion of an llLRW repository - an argument that flies in the face of what the Commission concluded in its 1988 rule and GEIS. An adjudication of a single case is not the place to consider Petitioners' across-the-board challenge to the Commission's 1988 decision generically approving both SAFSTOR and DECON.

Petitioners

• argument fails for two other reasons as well. He fut that a very small portion of the 2000-acre site may not be releasable does not preclude the release of the overwhelming remainder of the site. In addition, early site release was only one of a number of benefits to DECON cited in the GEIS. See pp.

275-76, supra.

His is not to say that Petitioners are absolutely barred from litigating the DECON-SAFSTOR choice at Yankee Rowe on ALARA grounds. But, as the Commission's guidance suggests, it is Petitioners

• burden to show " extraordinary circumstances" rebutting the presumption established in the 1988 rulemaking that the Licensee's choice is reasonable. With one exception - the claim that occupational exposures during the Yankee Rowe reactor's decommissioning have been much higher than what the 1988 GEIS anticipated - Petitioners' r

various arguments on appeal do not persuade us that further ALARA litigation is necessary in this case. Petitioners also advance no good reason for the Commission to reconsider its guidance.

Petitioners first assert that the 900 person rem dose savings discussed in the GEIS equates to the avoidance of between 0.6 and 2.4 deaths, plus the same number of other health and genetic effects. According to Petitioners, the Commission errs in considering this level" trivial," and the ALARA regulation (10 C.F.R. 5 20.1101) therefore requires YAEC to take reasonable mitigation measures - i.e., to shift to the SAFSTOR option. Appeal at 16-17. But the Commission and its Licensing Board nowhere suggested that the health effects of 900 person-rem were " trivial." The Commission's guidance means only that it would not permit case-by-case litigation over health effects already considered acceptable in the 1988 decommissioning rulemaking. This deference to prior generic findings reflects a sensible allocation of the Commission's decisional resources.

Petitioners also claim to have demonstrated (with sufficient specificity to require a hearing) that significant dose savings can be accomplished at a lower cost under SAFSTOR than under DECON. Petitioners point to evidence, based on the GEIS. that the use of SAFSTOR over a 50-year period will result in a 9(Yh reduction of LLRW volumes. Appeal at 17.

This argument fails for two reasons. First, Petitioners point essentially to the same facts and policy choices already considered in the Commission's 1988 decommissioning rulemaking. This conclusion is supported by the very fact that the information on which Petitioners rely for their argument comes from the Commission's own GEIS. Second, although Petitioners are correct that, due i

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to radioactive decay, the volume of LLRW at Yankee Rowe will be less in 50 years than now, this does not necessarily or logically require the conclusion that decommissioning costs will be lower. It is just as likely that site availability or pricing concerns will raise costs substantially, even for lower volumes.

Petitioners

• argument also ignores expenses associated with maintenance of the site during the 50-year waiting period. Petitioners' contention, therefore, shows no such obvious cost advantage to SAFSTOR over DECON that the Commission's generic approval of both options in 1988 is seriously brought into question.

d.

Alleged Prejudgment of Facts Petitioners focus most of their appellate arguments regarding Contention A on several instances in which, according to Petitioners, the Commission's guidance prejudged the facts regarding the comparative doses and costs associated with DECON and SAFSTOR. We already have ruled that the Com. mission statements to which Petitioners refer are not prejudgments of the facts but are instead

" regulatory interpretations and policy judgments, and tentative observations about dose estimates that are derived from the public record." CLI-96-5,43 NRC at 59. We will reiterate briefly why Petitioners' charge of improper

" prejudgment" cannot be sustained and does not require further Licensing Board litigation."

Petitioners' reargument of the " prejudgment" issue overlooks two key points.

First, as the Commission stressed in CL1-96-5, the Commission statements singled out by Petitioners resolved no facts and simply pointed to a number of salient features in the record and in Commission policy that might bear on Contention A. Second, none of the alleged factual prejudgments was necessary to the Commission's guidance, which rested on the Commission's generic inquiry into the DECON vs. SAFSTOR question in its 1988 decommissioning rulemaking.

Petitioners question in particular the Commission's comment that, under it.

current policy, the "value" of avoiding 900 person-rem is relatively low -

about $2000 per person-rem or $2 million - particularly in relation to a project costing hundreds of millions of dollars over many years. Petitioners are quite correct that the $2000 figure does not reflect a binding legal rule, but simply an NRC policy judgment, albeit a recent and well-considered one. See SECY 028 (lib. 7,1995); SRM 95-028 (June 30,1995). The "value" of an avoided U Sinularly, the Comnusson i.ces no reason to revist the "separauon of funcuons" quesuon razed by Peuuoners on appeal, but resolved by the Comnviuon in Ct.1 %5. Peuuoners fel to corne to grips mth the deciuve finding of the Commission and its todrperident inspector General that the prohibited conununicauon did not affect the Conmsuon's " guidance" deciuon. Ct.I-El. See senemtly C1.1-%5. 4 3 NRC 53 253

person-rem, of course,is try nature a fairly subjective judgment and Petitioners themselves have not proffered or justified any specific alternative value, We need not, in any event, definitively resolve the value of avoided person-rem in this adjudication, e.

New Dose Igormation Petitioners, in their pleadings pending before us, bring to our attention the following two new pieces of information relevant to the level of radiation doses that can be expected from YAEC's decommissioning activities. First, YAEC wrote the Commission staff on Itbruary 28,1996, proposing to conduct eleven

" minor" decommissioning activities which the Licensee expects to result (at least according to letitioners) in 82 person-rem of occupational dose." Petitioners note that this is fully half of the dose (160 person-rem) that YAEC predicted from the entire CRP, and more than 10% of the total remaining radiation dose projected for the rest of YAEC's decommissioning activities. Second, according to Petitioners, NRC Inspection Reports reveal that, in 1994 alone, the occupational doses for the CRP (197 person-rcrn) exceeded the total CRP dose estimate (160 person-rem) in the PSAR and that, as of October 10/11, 1995, workers at Yankee Rowe had received additional doses of between 21 and 57 person-rem."

llased on these two pieces of information, Ittitioners assert that the total occupational radiation dosage from the CRP is hundreds of rems higher tFan the Licensee's latest (1995 FSAR) estimated level of 160 person-rem for the CRP, drawing into question the accuracy of not only the CRP dose estimate but also YAEC's dose estimates for all decommissioning activity at the Yankee Rowe facility. See Petitioners' Supplement to Motion for Reconsideration at 4-11; Appeal at 11, 17-18; Reply Brief at 3-5, in addition, Petitioners have raised the following argument: According to YAEC, 99% of the plant's remaining nonfuel and non-Greater-Than-Class-C radioactivity is in the reactor vessel and lower neutron shield. Consequently, j

according to Petitioners, the radioactivity in all of the components found in the eleven activities discussed in YAEC's Itbruary 28th letter (none of which involves the vessel or shield) necessarily totals less than 1% of the plant's remaining radioactivity Petitioners go on to argue that, assuming some l

U Peuunners' supplement to Mution sur Ruonsderatmn of CLl%I, dated March 7,1996, at 4-5. refemas

> YALC titter from Runnell A. Mellor. YALC, to Morton H liurule. NRC, dated leb 28, lW6. appended as Attachnwnt I to IVunoners' March 7th Supplenent.

" Refernag to inspecuan Report No M29M5415 at S (Dec. $.1995) Ootal IW5 effecove &ne assignments to aH workers through october 10th was 57 rena, and the 1995 &ne to workers for reactor vennel removal preparauons was approdmately 2t rena en of oct. lith) Pruhoners' Supplenent to Motmn for Reconsidersuon and Nual Rewission of C1J41, hird March 7,19%. at 7-254 l

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proportionality between the level of radioactivity in these components and the radiation dose to workers involved in decommissioning these components, then 82 person-rem is a very small proportion of the total occupational dose that workers will receive from the decommissioning of Yankee Rowe, and the total DECON dose would be far above the 1215 person-rem postulated in Table 43-2 of the GEIS for the decommissioning of a ll75-MWe pressurized water reactor. GEIS at 4-1 and 4-5 to 4 6. Consequently, Petitioners' theory goes, the dose differential between DECON and SAFSTOR is likely to exceed greatly the 900 person-rem assumed by the Commission in CLI-96-1. See Petitioners' Supplement to Motion for Reconsideration and Partial Rescission of CLI-96-01, dated March 7,1996, at 9-10.

This recently proffered information and new argument, if substantiated, may constitute " extraordinary circumstances" justifying further litigation on whether YAEC's DECON approach meets the ALARA standard. The NRC Staff and YAEC do not counter Petitioners' argument on its merits, but contend only that the argument comes too late and should not be considered for the first time on appeal. Staff Brief at 11; YAEC Brief at 10-11. Ilowever, on the current record, we cannot say that Petitioners

• lateness is fatal, as their argument rests significantly on a document dated February 28,1996, and Petitioners promptly (on March 7) brought it to the Commission's attention.

'lhe current record does not provide enough information for us to assess whether Petitioners meet the standard for late-filed contentions set forth in 10 C.F.R. 6 2.714(a)(1)" or to evaluate fully the substance of their new dose argument. "In Commission practice the Licensing Board, rather than the Commission itself, traditionally develops the factual record in the first instance."

Georgia Institute of Technology (Georgia Tech Research Reactor), CLI-95-10, 42 NRC 1,2 (1995). We therefore remand to the Board the questions whether Petitioners

• new dose argument satisfies the " late filed contention" standards :et forth in 10 C.F.R. 6 2.714(a)(1) and, if so, whether it provides a sufficient basis for the ALARA challenge to YAEC's choice of a decommissioning alternative.

The Board may wc!! be able to resolve these questions by our original anticipated midduly endpoint to the Board proceeding. See CLI-96-1,43 NRC at 10. But if the remanded questions prove too complex for final resolution by July 31, 1996, we ask the Board to establish a fresh expedited schedule and to refer it to the Commission for approval.

" h appears that the Conmussion ha not previou ly ruled on the standards for conuderuuon of late-hied been and informanon submained in support of an unadnvited contenuon prior to the ternunauon of the proceeding. However.

we connsder Feuuoners' new done inforrnauon to be, in enence. a supplenent to their peuuan to intervene. The informauon is therefore subject to the following language in 10 C F R I2 714(bXI)

"taldditional unw for hhng the supplenent may be granted beed on a balancmg of the factors in paragraph (aXI) of this secton."

1 255 i

2.

Content. B: The Proposed Decommissioning Plan Violates 10 C.F.it. f 50.82(b)(.f) and (2) by inadequately Describing Both YAEC's Planned Decommissioning Activities and its Controls and Limits on Procedures and Equipment Section 50.82(b)(1) and (2) of 10 C.F.R. provides that a proposed decom-missioning plan must include, inter alia, a description of the decommissioning

" activities" and also a description of the " controls and limits on procedures and equipment to protect occupational and public health and safety." Petitioners in their second contention assert that the Licensee's plan satisfies neither of these regulatory requirements, and that this failure raises significant safety questions regarding the storage of both LLRW and IILRW at Yankee Rowe.

In evaluating this contention in LBP-96-2, the Board initially noted that this regulatory language is quite broad and appears to leave considerable discretion to both the Licensee and the Commission regarding what the plan must contain.

The Board also pointed out that the Commission has not issued a Regulatory Guide or standard review plan to provide specific criteria for an acceptable plan.

LDP-96-2,43 NRC at 74 75.

'ihe Board turned for direction to the Commission's guidance on Petitioners

• Contention C, where the Commission ruled that challenges to the reasonableness or accuracy of a decommissioning plan's cost estimate would be insufficient if the potential relief would be nothing more than "the formalistic redraft of the plan." LBP-96-2,43 NRC at 75, quoting CLI-96-1,43 NRC at 9. From this guidance, the Board concluded that "an allegation about the plan's completeness or accuracy is worthy of further inquiry only if it is coupled with a showing that the alleged deficiency has some independent health and safety significance."

LDP-96-2,43 NRC at 75. Applying this test to the LLRW and HLRW arguments that Petitioners proffered in support of Contention B, the Board concluded that the contention was inadmissible.

On appeal, Petitioners agree with the Board's conclusion that the claimed deficiencies in a decommissioning plan must have health and safety significance in order to be admissible as contentions. Appeal at 21-22. However, according to Petitioners, the Board failed to comprehend the fundamental health and safety significance of the relief sought in Contention B, i.e., " reasonable accuracy regarding the nature and timing of basic steps in the planned decommissioning process for Yankee Rowe." Id. at 22. In support of this position, Petitioners do not directly challenge the rulings in which the Board rejected their LLRW and IILRW arguments. Rather, they proffer the three general arguments set forth and discussed below.

256

a.

Distortion of Cost-14. ejst Analysis Petitioners assert that YAEC's decommissioning plan fails to provide a reasonably accurate description of the nature and timing of waste disposal and therefore distorts the ALARA cost-benefit calculation. As an example, Petitioners point to YAEC's claim that DECON is preferable because "the site is remediated as soon as possible after cessation of power operations, allowing unrestricted use of the site." According to Petitioners, this assertion is based on the unreasonable assumptions that HLRW will be removed from the site by the year 2025 and that, by transferring spent fuel from the spent fuel pit to dry casks by the year 2000, YAEL can complete decommissioning activities that cannot otherwise precede closure of the pit. Appeal at 22-23, referring to FSAR at 4.

We cannot agree with this argument. The factors cited by Petitioners, of course, represent uncertainties. However, that fact does not, without more, make the plan unsound. A decommissioning plan by its very nature deals with a myriad of uncertainties, and our regulations cannot be construed to require the plan to do the impossible, i.e., predict the future with precision.

Also, Petitioners inappropriately assume that YAEC plans to move the spent fuel from the pool into dry cask storage. The Commission has not approved any license amendment authorizing YAEC to do so, nor has the Licensee submitted an application for such an amendment. Indeed YAEC has indicated several times in this proceeding that it has not yet made any decision whether to seek such an amendment. Our regulations do not require YAEC at the time it seeks approval of its decommissioning plan to decide whether it will move spent fuel into dry cask storage. Again, YAEC is dealing with uncertainties, and YAEC's inclination to defer this decision is hardly unreasonable.

b.

Effect on liasisfor Cost Estimate Petitioners next contend that the absence of reasonably accurate and reliable strategies and schedules in YAEC's decommissioning plan deprives the Licensee of an adequate basis for a reasonably accurate decommissioning cost estimate.

Appeal at 23-24.

This argument runs afoul of the Commission's ruling in CLI-96-1 that a con-tention challenging the reasonableness of a decommissioning plan's cost esti-mate should not be deemed litigable if reasonable assurance of decommissioning costs is not in serious doubt and the only available relief would be a " formalistic redraft of the plan with a new estimate." CL1-96-1,43 NRC at 9. We discuss l'YAliC recently annotmced that it has aclected a company to design an interim dry cask storage facihty for Yankee Rowe's spent fuel However. YAI.C indicated that it had "not yet male the deciuon to actually build a dry cask storage facihty at the Rowe ute " YAl C Press Releaw. mued May 16.19%

257

- the cost estimate issue at length in connection with our analysis of Petitioners' Contention C, lqfra.

c.

Public Accountability According to Petitioners, the Licensing Board improperly ' discounts the importance of requiring a reasonably accurate and reliable decommissioning

. plan so as to maintain Licensee accountability to the public regarding both the impacts of decommissioning on their health and safety and the nature of Licensee's and Commission's cost. benefit judgments. Petitioners also argue

. in the abstract that Commission approval of a flawed plan would somehow implicate the government in a deception of the public that directly affects their health and safety. Appeal at 24-25.

We find this argument unpersuasive. Petitioners appear to believe that an allegation of errors in a decommissioning plan should be sufficient in and of itself to entitle them to a hearing on the plan. The NRC adjudicatory process requires more than that. To obtain a hearing, Petitioners must show some

- specific, tangible link between the alleged errors in the plan and the health i

and safety impacts they invoke. (Elsewhere in their appeal, e.g., at 22, they appear to acknowledge this.) Ibr all their heated rhetoric, Petitioners have not attempted to make such a showing.

i 3.

Contention C: The Decommissioning Plan Does Not Comply.

l with the Decommissioning Funding Requirements of 10 C.F.R. f 50.82(b)(4) or (c) i Section 50.82(b)(4) requires that a decommissioning plan contain

[aln updated cost estimate for the chosen alternative for decommissioning. comparison of that estinute with present funds set aside for decommissioning, and a plan for assuring the availability of adequate funds for completion of decommissioning.

Section 50.82(c)(1) provides that plans that " propose an alternative that delays completion of decommissioning by including a period of storage or long-term surveillance" must either provide that the decommissioning funds are placed "into an account segregated from licensee assets and outside the licensee's administrative control during the storage or surveillance period" or maintain "a surety method or fund statement of intent" in accordance with the criteria in 10 C.F.R. I 50.75(e). Finally, pursuant to section 50.85(c)(2), the decommissioning plan must include means for " adjusting cost estimates and associated funding levels over the storage or surveillance period." Petitioners argued in Contention C that YAEC had satisfied none of these requirements.

.258 I

h f

a 9

m

ne Commission ruled in CLI 96-1 that to prevail on this contention, Pe-titioners would need to demonstrate not only that YAEC's decommissioning cost estimate was incorrect, but also that there was no reasomtble assurance that the decommissioning costs would be paid. De Commission explained that a contention challenging the reasonableness of a decommissioning plan's cost estimate provisions should not be litigable if the only relief available would be a " formalistic redraft of the plan with a new estimate." CL1-96-1,43 NRC at

9. Petitioners responded at the prehearing conference that they were entitled under section 50.85(b)(4) to have the decommissioning plan changed to include a " reasonable number" for the decommissioning costs. Transcript of Prehearing Conference, feb. 21,1996 ("Tr."), at 128.

The Hoard applied the guidance from CLI-96-1 to Contention C and found that Petitioners had failed to make the required showing. LBP-96-2,43 NRC at 83-84.

On appeal, Petitioners question the legality of the Commission's ruling in CLI-96-1 and argue that their challenge to YAEC's ability to pay the decommissioning expenses is sufficiently strong to merit a hearing.

They claim that the ruling was an effort to " amend by fiat the unconditional language of the 1988 decommissioning funding rule which requires decommis-sioning plans to include an ' updated cost estimate for the chosen [decommis-sioning) alternative.'" Appeal at 28, quoting 10 C.F.R. 6 50.82(b)(4). Petition-ers describe this as an improper rule change, accomplished without notice and the opportunity for comment guaranteed by the Administrative Procedure Act.

5 U.S.C. 0 553, and the Atomic Energy Act, 42 U.S.C. 0 2239(a). Appeal at

28. According to Petitioners, the guidance means that the Licensee need not produce an updated cost estimate for the chosen alternative unless Petitioners can demonstrate that the Licensee lacks reasonable assurance of its ability to pay the decommissioning costs; this, Petitioners say, shifts to them the burden of proving compliance with the decommissioning funding regulations. Appeal at 28, citing 10 C.F.R. 5 2.732.

Petitioners have misconstrued the Commission's guidance, which was in-tended neither to rewrite the decomtnissioning rule nor to add new and higher hurdles for Petitioners to meet. Rather, its purpose was to make clear that the decommissioning rule, like all other NRC rules, does not stand in a vacuum, i

but needs to be read in conjunction with other pertinent regulations, including, in this case, the contention rule. For it should be evident that not all actual or alleged errors in a decommissioning plan are of equal significance; to be significant enough to be " material," within the meaning of the contention rule, there needs to be some indication that an alleged flaw in a plan will result in a shortfall of the funds actually needed for decommissioning.

In the present case, however, Petitioners have made only a perfunctory effort, relying heavily on speculation, to show why the alleged flaws could lead to an 259

)

1

)

l

I i

insufficiency of necessary funds. Moreover, the " Power Contracts" on which

. the Licensee is relying are not mere unsupported promises, but firm contractual agreements, and offer solid evidence that the necessary funds will be available when needed. A recent decision by the Federal Energy Regulatory Commission, as we shall describe below, has further confirmed the very high level of assurance that the funds for decommissioning the plant will be forthcoming. Again, the standard to be applied is whether there is " reasonable assurance" of adequate funding, not, as Petitioners suggest, whether that assurance is " ironclad." Appeal.

j at 31. We see no reason to disagree with the Licensing Board's judgment that

)

though a " gross discrepancy" in the decommissioning cost estimate might suffice l

to establish a litigable issue, nothing presented by the Petitioners suggested that such a discrepancy existed. See LBP-%-2, at 41 n.19." Accordingly, Petitioners

' have failed to meet the burden of coming forward that the NRC's contention rule

{

requires; contrary to their reading of the Commission's January 1996 guidance, the burden of persuasion remains, as always, with the Licensee applicant.

i We now turn to Petitioners' specific challenges to the Licensing Board's j

decision on Contention C.

a.

YAEC's Power Contracts as Alleged " Internal Reserves" Petitioners assert that the Commission has stood the decommissioning rule i

on its head by permitting reliance on YAEC's Power Contracts to excuse YAEC

]

from the requirement to provide an updated and reasonable cost estimate. Ac-cording to Petitioners, such contracts constitute an " internal reserves" financing mechanism to satisfy YAEC's decommissioning obligations - a mechanism expressly rejected in the decommissioning rulemaking. Appeal 28-31, referring to Final Decommissioning Rule, supra note 2,53 Fed. Reg. at 24,033. This challenge fails for both procedural and substantive reasons.

First, Petitioners improperly raise this argument for the first time on ap-pealW and fail to address the five balancing factors for admission of late-filed contentions, as required in 10 C.F.R. 6 2.714(b)(1), incorporating 10 C.F.R.

5 2.714(a)(1)(i)-(v). We reject the argument for that reason alone.

Moreover, Petitioners are incorrect in characterizing YAEC's funding mecha-nism as involving " internal reserves." As explained in the Statement of Consid-U on appeal, Peutioners offer almost no cl.allenge to YALC*a cost enunwe as such. Their aspellate bner huts -

but does not ugue or explain - varnius alleged analequases in YAEC's cont enunwe. See Petiooners' Appeal Bnefat26.

"Sce the Statenrnt of Considerauon acconpanymg the 19:19 comenoon rule 54 lid Reg at 33.871.

i "See. e g. Hounos lightmg and Amrr Co ( Allens Creek Nuclear Generaung stauon. Unit 1), ALAll-582.

Il NRC 239, 242 (1980), fuerra Ksco Eintere An er Aarhartry (North Coast Nuclear Power Plant. Ume 1).

ALAD 648.14 NRC 34,37 (1981), Dale h=cr Co. (Catawba Nuclear station. Umin I and 2). ALAB 813. 22 NRC $9. 83 (1985).

I 260 j

1 I

i i

eration for the Final Decommissioning Rule, "[i]n an internal reserve, funds are placed into an account or reserve which is not segregated from Licensee assets and is within the licensee's administrative control." $3 Fed. Reg. at 24,031. By conuast, YAEC's mechanism is external in nature. As described in the decom-missioning plan,"[t]he decommissioning collections are made through YAEC's Power Contracts and are deposited in an independent and irrevocable trust at a commercial bank" and the trust is executed in compliance with 10 C.F.R.

6 50.75(e)(1)(ii).2o The Licensee provided the Commission with copies of those trust documents (ser /d.) and they have also been publicly available at the Fed-eral Energy Regulatory Commission ("FERC") since r.t least March 31.1995.28 Petitioners provide no evidence that would call into question the external nature of the trust fund.

In their Reply Brief on appeal, Petitioners belatedly contend for the first time that YAEC's failure to collect all the necessary funds renders the uncollected funds a de facto internal sinking fund that is both subject to Purchaser /Co-owners' revocation and vulnerable to their creditors in the event of bankruptcy, Petitioners' Reply Brief on Appeal, dated April 10,1996, at 14-15. This argument (like Petitioners' other " internal reserves" argument) comes too late in the day to save Petitioners' Contention C. See cases cited in note 19, supra.

Moreover, the argument is based on pure speculation; Petitioners offer no evidence whatever suggesting that a Purchaser /Co-owner will either default on its obligations under the Purchase Contract or go bankrupt. Petitioners must submit more than this in order for a contention to be admitted for litigation.22 b.

Alleged lack of Reasonable Assurance Petitioners argue that, even accepting the Commission's guidance that cost estimates are litigable only to the extent Petitioners can show a lack of reason-able assurance of payment, Petitioners have still raised a sufficient challenge to YAEC's ability to pay the decommissioning expenses. Petitioners claim to have demonstrated that (i) YAEC's Purchaser /Co-owners' ability to pay decommis-2"Decomrruuiomng Plan ut 1.3-2. See afw id at 5 21. Tim trum fund's balance as of october 1.1995, was

$115 nulhon letter from Andrew C. Kadak. YALC. to Mr Janus M Taylor. NRC. dated Jan. 29.19%. attached as Lahabit I to Peutioners' Mouon for Esercew of Plenary Comnunion Authonry to Reverse NRC Staff 2.206 Decimon. and Renewed Emergency Request for Compliance with Circuit Court opimon, d.ited Feb 9,1996 2'See Imienture of Trust between Yankee Atomic Elictne Company & Mellon Bank. N A., dated Aug 1.1990.

subnutted an Eshibit No YA lG4 in support of YALC's rate apphcut on in l'ERC Docket No. ER-95 8354m Pursuant to 10 C.F R. 4 2 7430). we take official notae of thene trust documents and wanous other pubhcly available documents hied in that 11RC docket 22 Moreover, Peuhoners ignore the fact (pointed out in our Iinal Deconutuniomng Rule) that esternal reserves smking funds such as the one at suue in this prtweeding are. by their nature,"accunnilated over a penod of time,"

and that the Comnuswon m that Rule espreuly rejected Petiooners' preferred mandaiory lump sum advance-t pay nent approach to hnancing a saking fund, noung that such "prepaynent generally has a cost too high for the beneht that would be reahted

• Fmal Decomnumomns Pule 53 Fed Reg at24,033. 24,034.

261

sioning costs is not ironclad, and that at least one Purchaser /Co-owner (Public Service Company of New Hampshire, or "PSCNH") has defaulted on its fi-nancial obligations to YAEC;(ii) the FSAR shows that YAEC intends to rely not only on the Power Contracts but also on tax loss carrybacks and the earn-ings realized from the investment of contributions (but YAEC provides none of the required information regarding these two other sources);23 (ii ) the prema-ture shutdown of Yankee Rowe and YAEC's consequent inability to meet its own contractual obligation to produce c!cctricity from Yankee Rowe for the full term of the plant's operating anticipated life raises a reasonable inference that the Purchaser /Co-owners will not meet their obligations; and (iv) experience at other nuclear facilities such as those of the Washington Public Power Supply System ("WPPSS") shows that cancellation of a project may have a devastating effect on nuclear financing contracts. See Appeal at 31-32.

I All!LITY OF PURCilASER/CO-OWNERS TO FUND DECOMMISSIONtNG We find (as did the Board) that the first of these four arguments is insufficient for acceptance of Contention C. Petitioners

• argument regarding the absence of an ironclad funding guarantee is based on a misreading of our decommissioning funding regulation. That regulation was intended only to require " reasonable assurance of funds for decommissioning," not an absolute guarantee of such funds. /d. at 24,031 (emphasis added). See also id. at 24,034 (the funding methods listed in the rule are adequate, given "the unlikely nature of the various events and the cost and practicality of providing more absolute assurance by certain methods"). Indeed, in the case of prematurely shutdown reactors like Yankee Rowe, our rules provide that "the collection period for any shortfall of funds" may be assessed on a " case-by-case basis taking into account the specific financial situation of each licensee." 10 C.F.R. 5 50.82(a). This rule obviously does not contemplate the sort of ironclad guarantee that Petitioners envision.

Moreover, as we have stressed throughout this opinion, our Contention Rule (10 C.F.R. 6 2.714) places an initial burden on Petitioners to come forward with reasonably precise claims rooted in fact, documents, or expert opinion in order to proceed past the initial stage and toward a hearing. On their face, the Power Contracts commit YAEC's Purchaser /Co-owners to full decommissioning funding. Petitioners say that the Power Contracts are nonetheless insufficient to provide reasonable assurance of decommissioning funding, but Petitioners offer no contract language, case law, or expert opinion justifying their view. Instead, they merely argue, based primarily on the prior (and now resolved) bankruptcy 23 As presented on appeal, tius accond argunent included only the poruon precedmg the puenthenes. However.

we have reviewed Peuuoners' earher rierauona of the argunent and have added the parentheocal language to rened our understanding of its mtended neanmg 262

of PSCNil, that the YAEC plan rnay not be fully funded because of possible contract breaches. Petitioners not only effer no supporting evidence for their conjecture, but they also ignore the fact that PSCNH continued payments to Yankee while under bankruptcy protection. See Yanker Atomic Electric Co.,

Op. No. 390,67 FERC 161,318,1994 WL 270437 (F.E.R.C.) at *17 (1994).

We conclude that Petitioners' conclusory fears of contract breach do not justify a challenge to the reasonable assurance provided in the Power Contracts.

Our conclusion is reinforced by a look at rate proceedings conducted by our sister federal agency, the FERC, which recently studied the decommissioning funding issue at Yankee Rowe in some depth. The FERC concluded that the Yankee Rowe decommissioning contracts were binding and would require full decommissioning funding. An understanding of the FERC conclusions requires a digression of some length.

Tne FERC has repeatedly found that the Purchaser /Co-owners of YAEC are obligated under their Power Contracts to pay for the entire costs of decommis-sioning Yankee Rowe.2d We have reviewed the Power Contracts and agree with the FERC's reading of their language. We rely specifically on sections 2 and 6 of the Power Contracts' composite conformed version, which state, respectively, that the applicable provisions of this contract shall continue in effect after any termination hereof to the extent necessary (i) to complete the billings and payments required hereunder with respect to the Customer's obligation to pay its power percentage of the full cost of decomnussioning the plant.

[T]he customer will pay Yankee an amount equal to the Custonrr's power percentage of the total cost of service.

. The " total cost of service"

. Shall [includel Yankee's operating expenses.

[OJperating expenses shall include.. (iv) costs incurred in connection with decommissioning the plant, including (a) the direct and indirect costs of operating, maintaining, or dismanthng the spent fuel storage facihues and other plant facihties after the cessation of electricity production and (b) the accruals to any reserve estabhshed by Yankee's board of directors to provide for physical decommissioning of the plant over the estimated remaining useful hfe of the plant, provided. hawever, that if a decision is made to i

cease electricity production at the plant prior to July 9,2000, then the accruals to the reserve l

referred to in clause (b) shall be made over a period extend ng to July 9,20(n25 1

24 See runAre Aivmsc Electnc Ca. 71 II RC 161.200.1995 WL 308632 (F E R C ) at 'l (19951, runker Atomic Electnc Co, Op. No 390,67 ILRC 161,318.1994 WL 2704 37 (F E R C ) at '2. *3. *l8 (1994). Yanker Ahemic Electric Ca. Op No 285. 40 FERC 161.372,1987 WL 118208 (F E R C ) as 'R. *19-21 (1987). See alw Town of Nurwml v. federal Encrp Nrgulurury Commumm. No. 94-1710. shp op at 7-8.14-15 (D C. Cir. Apnl 9.

1996L Yankee Asmuir Eletsnc Co. 65 lERC 163.001,1993 WL 390545 (F E R C.) at '23 (All, huu.d Decison.

1993).

25 Congoute Confarnrd Ctry of Power Conuact. sulmutted as YALC's Estutut No YA.102 in support of Y AICs 3/3tM5 rute apphcation in ILRC Dudet No ER-95 8354XA). at 3,5-6 l

263 l

1

Although Petitioners correctly point out that the mere obligation to pay does not ensure the actual payment, we find no reason to conclude that the Purchaser /Co-owners will shirk their decommissioning obligations Indeed, the j

evidence supports the contrary conclusion We initially note that, pursuant to a i

FERC-approved 1992 settlement of a rate proceeding, YAEC is " contractually guaranteed recovery" of $235 million in decommissioning costs.2* The FERC has authorized YAEC's Purchaser /Co-owners to pass through this entire amount to their own customers" and, with the exception of one small customer,2 those customers have agreed to pay the pass-through amounts. Those obligations cannot be overruled by state public service commissions, so the $235 million in l

payments to YAEC are essentially guaranteed 29 1he FERC rejected the argument (similar to that proffered by Petitioners in the instant proceeding) that the increase in decommissioning costs (to $235 million) will increase the possibility of default by one or more of the Purchaser /Co-owners. The FERC reasoned that the Co-owners are entitled to pass the cost of purchased power through to their own customers and that this reimbursement of costs would result in the Co-owners paying the FERC-approved rate to Yankee rather than defaulting on their obligation and losing their investment in the Yankee Rowe facility." We agree that it is unlikely that a financially troubled i

1 26 knAre Anemh Llenric Co, op No 390,67 ILRC 161,318,1994 WL 270437tl E R C ) ar 'l7 0994). On t)ecernber 17,1992. Yankee filed wnh the i1 RC a acetienent to wtuch all parues except one to a IIRC electne rate 4

pmceedmg had agreed. As to de connenung paties the nettienent audmed Yankee to collect decomnuuiomng i

funde baned on a cunt ruunate or s235 nulhon (as compued with Yankee's proposed decomnvunnung enumale i

of s247 I nuihon m 1992 adimst IJ. at *4 and n 19. EnArs Anunir L!st rnc Co.,65 i E.RC 163.008,1993 WL 390545 0: L R C.) at *) (AL), Imtial Deciuon,1993) The Conuniumn approved die acttlenwns in opimon No.

l 190. supra U As previously emted, de i LRC conuders decomnuniomng espenwn to be a buuneu empenw for which unhues

+

are enutled to remihursement from their ratepayers. it.RC 7tunt hnd Guidehnrs No frd. Heg 34 109, 34.117 i

Oune 10,1995L 2sThe custoner, de Town of Norwood. Mau, pays only 0 413% of YAl'C's cost of acrvke Lakre Aromsc l

Elsdnc Co., 6$ 11 RC 163.001,1993 WL 390545 (F E R C ) ( AIJ Imual Deciuon 1993) si

• l, *3, *4. 's.

• 17.

• 18, *20, *26, *27, *29, *31, ag'J m relawar swer, op No. 390,67 II RC 16),318,1994 WL 270437 0: E R CJ, re A's demed, op No 390- A. 68 iLRC 161.364.1994 WL 518969 (F.E R C ) 0 994L rev'd on otArr ground.n sub nom. Town of Normwd v irJeral Energy Regulatory Commmwn, No 941710, (D C. Cut. Apnl 9, 1996), l'SAR at p 501-2,5 501.2 (rev 6/95), altshed to ticenwe's Answer to petiuon to intervene, dated Dec.

15,1995 2' runAre Anmus Elrora Co. op No 390,6711 RC 161,318,1994 WL 274637 (F E R C.) at *18 0994)("the recovery pernutted thmugh the Comnusuon's approval of the settlenunt and m this (hnmon and order cannot be buried by state regulators") 3rr aim knArc Aroma Etrunc Co, op No. 394 A,6811RC 161,364,1994 WL 1

518969 (F I: R C) at *6 0994)(ruhng that a cu toner of one of YMCs purchaner/Co-owners "can reasonably J

be requued to bear, through pen through an rates of { die Co-owneGl conts, the nska and conts auociated with j

tte premature shutdown of the Rowe plant")

l 3" LnAre Aremur Etrunc Co, op No 390,67 fl.RC 161,318,1994 WL 270437 (F.E R C1 at n 115 0994L staung that "telhile n is posuble that the purchner(/Co ownerla could default on their contractual ohhganons by j

chone, nr through bankruptcy, we f nd that posubthey remore for the reaums enunciated by Tnal Staff *'(emphasis j

aAled, refernng wuh approval to FLRC stafr's arguments whah were drsenhed at *l6 and which we paraphrase i

in the teat asumated with tlus footnote). See alm knare Aamuc Elednc Comop No 285-A,43 IIRC161,232, 1988 WL 244955 (F E R C ) at *6 (1988)("the hkehhomi of a purchmerl/co-ownerl defaulung on its obhgabon is mammar7 (emphasis added) 264 1

Purchaser /Co-owner would default and thereby lose the opportunity to pass through to its own customers so large a debt.

Regarding the decommissioning costs in excess of $235 million, the Power Contract imposes a general obligation on each Purchaser /Co-owner to pay its pro rata percentage of the plant's full decommissioning costs.38 Petitioners have offered us no reason to conclude that any of the Purchaser /Co-owners will default on this pro rata payment obligation. Indeed, as indicated below, all indications point to a contrary conclusion.

In the following discussion, the ITIRC further determined that YAEC's overall business and financial risks (including the risk of Purchaser /Co-owner default) have decleased as a result of shutting down the Yankee Rowe facility:

Business Risk [" l We find that Yankee's business risk has certainly not increased. As [FERC] Trial Staff notes

, the Purchaser [/Co-owner]s have no more incentive to defauk now than they did before. The Purchaser [/Co-owner]s would, in fact, be better served by meeting their contractual obhgations and passing the cost through to thett customers, thereby nmintaining their investment in Yankee, rather than defaulting and losing their investnent.

Nrthermore, there is no evidence that any of the Purchaser [/Co-owner]s are in financial difficulty. Ilowever,if a Purchaser [/Co-owner) were to enter bankruptcy, as was tie case with Public Service Company of New flampshire (who, we note, continued paynents to Yankee while under bankruptcy protection),[H l the trustec could better protect the estate of the Purchaser [/Co-owner) by fulfilling its contractual obligations and maintaining its investment in Yankee, rather than defaulting and losing the bankrupt Purchaser [/Co-ownerl's investment.

Finally, given the incentive for Purchaser [/Co+wnerls to avoid default, and the fact that all Purchaser [/Co-ownerls of Yankee operate in New England, and thus generally face the sane competitive pressures, we are unconvinced that competitive pressures would induce any particular Purchaserl/Co-ownerj to default on its paynent obligation.

Now that the [ Federal Energy Regulatoryj Commission has approved the settlement and issued this Opinion and Order, regulatory and competitive pressures become non-factors; the recovery of the Purchaser [/Co-ownerjs' investment and of the costs that flow from muntaining the Rowe plant until decommissiomng occurs, and also of the costs of decommissioning the Rowe plant, are now largely assured [3d i Moreover, the recovery 3'Compouts Conformed Copy of Power Contract, rl;RC Docket No. I;R-95-8)5-OlX), Yankee Eshibit YA 102 (subnursed March 31,1995) at 3 5 2. See aim At at 5-6 6 6 (obhgaung each PurchmerCo+wner to pay its power percentage of "operaung capenws"- a term that includes all costa incuned in ConnecDon with decomrrunssoning the plant) s U The IIRC dehnes " business nsk" as "the nsk asacciated with doing buuness generally, such as changing econonne condsuona, changmg industry condiuons, and changing operaung condiuons

• Yankee Afamac Electric Ca 65 IIRC 163.001,1993 wL 390545 (F E R C.) at *22 (AU, iniual Decimon,1993).

H We note that Pubhc service Company of New Hampsture energed from bankruptcy three years ago (see funAce Atomic Electric Ca. 65 II.RC 163,001, t993 WL 390545 (F E R C ) at *24 (AU. Imtial Decision,1993)), and that Itutioners have given us no remon to quencon that purucular ut hty's cunent abihty to meet its decomtruuionmg coat obhganons under its Power Contract H The quahfying tenn ("largely") in the II.RC's statement that YAEC's recovery of us decomnusuomng costs was "now largely assure (' was evidently intended to reflect the fact that the IIRC had denied without prejudice (Continued) 265

pernuued through the Comnussion's approval of the settlement and in this Opinion and Order cannot be barred by state regulators.

Thus, the risk associated with the Rowe plant, and in particular the regulatory risk of rate approval for the collection of adequate funds for decommissioning and the nsk of actually decommissioning the Rowe plant, are at least no higher than, and are, in fact, lower than before the shutdown.

financial Riskl'8 ]

Wlule Yankee was subject to hnancial risk as a result of the shutdtmn of the Rowe plant, that nsk has similarly been clinunated with the approval of the settlement and the issuance of this Opinion and Gider. In addition. Yankee witness Tracy testined that Moody's viewed the regulatory treatment of the settlement with the Purchaser [/Co-ownerjs as a positive result.

The parties also do not dapute that Yankee's day-to-day operating risk and the related fmancial risk have declined since the shutdown of the plant and approval of the settlement, respectively. Not are we convinced that Yankee's decommissioning risk luis replaced its day-to-day operating risk; in tlw past, Yankee faced both deconunissioning risk and day to-day operating risk, and, at a minimum, it no longer faces the latter.

Op. No. 390 at *17-18 (footnotes omitted).

Notably the FERC, in issuing the ruling quoted above, expressly reversed an AIJ conclusion that YAEC's shutdown of Yankee Rowe increased YAEC's business and financial risks due to such factors as the risk of further increases in decommissioning costs, the risk of default by one or more Purchaser /Co-owners due either to bankruptcy or to the fact that Yankee Rowe is no longer providing power, doubts as to DOE's ability to accept spent fuel in 1998, and doubts as to the availability of an LLRW disposal site - all factors cited by Petitioners in our own proceeding. See Yankee Afomic Electric Co.,65 FERC 163,001,1993 WL 390545 (F.E.R.C.) at *23-25 (AIJ, Initial Decision,1993).

Moreover, the FERC, by recently approving YAEC's December 29, 1995 settlement, has authorized YAEC to collect from the Purchaser /Co-owners all estimated decommissioning costs (including site restoration expenses, see note 34, supra), up to $306.4 million.)^ Under Supreme Court precedent, those Purchaser /Co-owners would appear to have a similar right to pass through those YALC's request to recover in espected site restorauon costs Ootahng about $12 nuthon). See runAce Aumiic Ucctrac Ca. op. No. 39(L 67 IIRC 161.318.1994 wL 270437 (l' E R C) at n.48 fl994). The quahhed nature of IERC's samenwns now appears ouidmed YAEC included a site restoraaon cost estimate in ses revised cost hgunt of $368 5 null on whwh YALC subnuited to IIRC in Ducket No LR-95-8354X10 (ice runAce Atomic i

Nenric Ca, 7I I LRC 161.2tXh 1995 wL 308632 (F E R.C.) al *12 (1995)L and also in the December 29.1995 neulenent of thm rme proceedmg (approved by I LRC letter order dated Apnl 10.1996) 1 "The II;RC dennes " financial risk" as "the nsk incurred by uung debt capital which entails takmg on a Gaed obhgatmn to pay interene on the debt" Yanker Ahmiic Mettre Ca, 65 IIRC 163,001,1993 wL 390545 (I E R.CJ at *22 (AL). Iniual Decnion 1993).

N in YALC's thember 29.1995 offer of neuleme.s in an FERC rate proceeding, the Licensee revised its $368 8 milhon decomnusuonang cost esunute (of March 31,1995) downward to $306 4 nullion On 1995 dollss), based on bt4h the reopening of the Danwell(LRw thsposal facihty on July 1,1995, and on the assunpuon the Barnwell (ContmueJI

\\

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costs to their own customers, See Mississippi Power and Light Co. v. Mississippi, 487 U.S. 354,370-74 (1988)(ruling that states may not bar regulated utilities from passing through to retail customers FERC-mandated wholesale rates and that the Supremacy Clause compels the states to permit such vilities to recover as a reasonable operating expense any costs incurred as a resuh of paying a FERC-determined wholesale rate for a FERC-mandated allocation of power).

Mississippi Power and Light Co. suggests that YAEC's Purchaser lCo-owners are entitled to pass through to their own customers the cost of purchased power

- including decommissioning costs. Such a situation would remove virtually all remaining risk that a Purchaser /Co-owner would default on its obligation to pay its pro rata share of decommissioning expenses.

II. OTIIER ARGUMENTS Petitioners' second argument complains that YAEC has failed to provide information on any funding sources other than the Power Contracts - specif-ically, the tax loss carrybacks and the earnings realized from investment of the Purchaser /Co-owners' contributions to the trust fund. Ifowever, given that YAEC has provided sufficient proof that its Purchaser /Co-owners are obligated under the Power Contracts to pay all decommissioning costs, and given Peti-tioners' failure to demonstrate any likelihood that any Purchaser /Co-owner will default on that obligation, we need not rely on these other two sources of income in rejecting Petitioners' Contention C, and the Licensee's alleged omission of specific details as to these two sources of income is consequer,tly of no moment.

We reject Petitioners' third argument (that the Purchaser /Co-owners will not meet their obligations) on the same grounds upon which we relied in rejecting Petitioners

• first argument. Moreover, the third argument is mere speculation, and therefore insufficient to merit further consideration. See generally Rancho Seco, CLI-93-3,37 NRC at 145-46 (rejecting contentions in a decommissioning i

proceeding as too speculative).

Finally, we reject Petitioners' fourth argument (regarding WPPSS) on the grounds that they have shown no logical relationship between the WPPSS situation and that at Yankee Rowe and have therefore failed to demonstrate the relevance of their argument to this case. Id.

j or none odwr LLRW dnposal fachty would be avalable to YAEC for the duranon of its decomnuniomng activiues See offer of seulenunt, d.ited Dec. 29.1995, en i1.RC Duket No. I.R-95-8.15-GU. at 4. 5. approved by rERC lener order dated Apn110.1996.

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4.

Contention D: The Decommissioning Plan Fails to include Measures Necessary to Ensure That Workers and the Public Are Adequately Protectedfrom Health Damage Caused by the Excessive Radiation Doses They Received During the Unlawful CRP Petitioners in-Contention D complained that YAEC had begun the CRP

" unlawful [ly]" and "in violation of 10 C.F.R. 5 20.1101" (Petition to Intervene at 27) without considering decommissioning allematives that would minimize radiation doses to workers and the public, such as a 30-yea SAFSTOR period.

Petitioners further complained that the Commission's approval of the CRP was unlawful because the NRC had refused to provide an opportunity for a hearing on the CRP or other aspect of the decommissioning plan. Petitioners claimed that, as a result of these unlawful activities, the workers and the public have received doses far above those reasonably achievable.

Specifically, Petitioners pointed to YAEC's estimate that the total occupa-tional exposure for the CRP would be 350-400 person-rem. Petitioners placed-

- this level in the following three contexts: (1) it far exceeds the 181 person-rem estimate that the Commission projected for the entire decommissioning of the Yankee Rowe facility following a 30 year SAFSTOR period; (2) it constitutes up to 80% of the $13 person-rem estimate that the Commission projected for the entire decommissioning of this facility under the DECON alternative;" (3) it corresponds to 0.31.2 additional latent cancer fatalities plus an equivalent number of health and genetic effects.

For relief Petitioners asked that YAEC be ordered both to commission an independent study of cancer incidence and mortality in the Yankee Rowe facility's effluent pathway and to establish a fund for the treatment of cancers that are caused by radiation exposures during the CRP. Such relief, according to Petitioners, would constitute a prospective remedy appropriate to this pmceeding (as opposed to the section 2.206 proceeding referenced by the Commission in CLI-96-1). Tr. at 163,165. They analogized the Yankee Rowe facility's contamination of the environment and people to a spill that cannot be cleaned up completely and for which the Commission has, in section 50.75(g)(1), provided for monitoring and protection. Tr at 163-64.

The Commission in CL196-1 addressed this contention as follows:

To the catent that the contention alleges that YAEC has violated NRC regulations, those allegations are mow croperly the subject of separate enforcement action. The focus of this proceeding is prospective on.y - the future decommissioning of the remainder of the facility under the proposed decommis6ioning plan.

"Refernes to NURIG/CR-0130. "rechnology, Safety and Conta of Decomnunioning a Reference Preuurized Water Restor Power Stauon." Addendum at 2-4 (rable 2.12). Battelle Pacehc Northwest Laboratory (Aug.1979)

(on wtuch the GLIS rehed. at p. 4 21. ref 2), appended an Anachnent 18 to Petition to iniervene.

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43 NRC at 9. He Board considered this guidance dispositive of Contention D and, accordingly, rejected it. LBP-96 2,43 NRC at 85.

On appeal, Petitioners reiterate their arguments and contend again that they seek prospective rather than retrospective relief. Appeal at 32-33. We reject Petitioners

• arguments for two reasons.

First, they cite no authority supporting their novel prayer for relief. Although the Commission has a general responsibility to ensure that decommissioning operations do not jeopardize public health and safety, no statute or regulation grants the Commission authority to' require the Licensee to pay (in effect) compensatory damages to private individuals.

Second, the activities :ompleted under the now-concluded CRP are beyond the scope of this proceeding, which deals solely with the propriety of YAEC's decommissioning plan and its future decommissioning activities. Insofar as Petitioners contend that YAEC's alleged regulatory violations call for NRC enforcement action, agency rules provide a procedural mechanism for requesting such relief. See, e.g.,10 C.F.R. 5 2.206.

L Contention E: The NRC Stqff Violated NEPA by Failing to Prepare a Supplemental EISfor the Decommissioning of Yankee Rowe In Contention E, Petitioners argued that NEPA requires the Commission to prepare a Supplemental EIS ("SEIS") to address the significant environmental impacts that are specific to Yankee Rowe and were not addressed in the GEIS that the Commission prepared in 1988 in support of its Final Decommissioning Rule,28 and to address assumptions that were relied on in the GEIS but are in-valid for the Yankee Rowe facility. According to Petitioners, this requirement is applicable because the Commission's approval of the Yankee Rowe decommis-sioning plan constitutes a " major federal action significantly affecting the quality of the hurnan environment." NEPA i 102(2)(C),42 U.S.C. I4332(2)(C).

He standard for issuing an SEIS is set forth in 10 C.F.R. 6 51.92: There must be either substantial changes in the proposed action that are relevant to environmental concerns, or significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.

l Petitioners proffered five bases in support of this contention, the following four of which are still at issue in this appeal."

1 8 See NURLG4)$86. Tmal Genenc Environnental impact Statement on Decommissioning of Nuclear fiscihues"

( August 1988); final Rule. " General Requnenrnes for Decomnnamomng Nuclear Imhurs." 53 fed. Reg 24.018 dune 27.1988).

M in the basis that Peuuoners did not rmse on appeal. they rehed on a Sandia Nauonal taboratones report to argue i

that tran9ertauon of 11RW pones the nak of a trannportanon accident involving a long durauon high-temperature fire that mehs the pimuc renn and vaporizes the rahaucuve liquid contained math a the inn exchange resia mams that is nuned with the 11RW.

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a.

Decommissioning Financing Petitioners claim that the GEIS failed to consider the environmental impacts of potentially inadequate decommissioning financing for prematurely shutdown reactors such as Yankee Rowe The Board in LBP-96-2 rejected this basis, noting that the GEIS did in fact include a discussion of the problem ofinadequate funding (citing GEIS at pp. 2-14 to 2-20). He Board also concluded that, under the guidance offered by the Commission regarding Contention C, Petitioners have not provided a sufficient basis to question the adequacy of funding for Yankee Rowe's decommissioning and therefore "have not provided any material factual or legal dispute regarding the need for additional discussion on this topic in an SEIS for Yankee Rowe." LDP-96-2,43 NRC at 83-84.

The Board ruled correctly. He GEIS did in fact consider the situation of a plant being decommissioned prior to the full funding of its decommissioning account. GEIS at p. 2-15,13:

The weakness of the 6 inking fund approach is that in the event of prernature closing of a facihty the decommissioning fund would be insu'ficient. Therefore the sinking fund would have to be supplemented by insurance or surety bonds, or letters or hnes of credit or other guarantee rnethods.

Petitioners have pointed to no factors that were not already considered in the GEIS and that are peculiar to the Yankee Rowe facility (other than Petitioners' concerns about the Power Contracts, discussed and dismissed above). Finally, we reject Petitioners' argument on the same grounds as we rejected their Contention C (see pp. 258-67, supra).

b.

Occupational Dose Estimate According to Petitioners, the NRC Staff erroneously asserted in the EA that YAEC's occupational dose estimate is within the range that the GEIS evaluated and found acceptable. Petitioners argued to the Licensing Board that this claim is flawed because Staff failed to " scale" the acceptable dose level downward to reflect the small size of the Yankee Rowe plant (185 MWe) as compared to the size of the model plant considered in the GEIS (1175 MWe). According to Petitioners, the projected occupational doses for Yankee Rowe exceed the decommissioning doses that were anticipated for Yankee Rowe in an NRC study on which the GEIS relied.

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In support of this basis Petitioners proffered two arguments: They pointed out the discrepancies in YAEC's various occupational dose estimates (755,"

744,48 and 350-400" person-rem), and they claimed that the EA erroneously compared YAEC's estimate of 755 person-rem with the GEIS's estimated dose level of 1215 pnson rem for the DECON decoinmissioning of a generic 1175-MWe prenurized water reactor. According to Petitioners, Staff should have instead compared YAEC's estimate with the 513 person-rem estimate that had been calculated specifically for the decommissioning of Yankee Rowe in a 1979 NUREG document on which the GEIS relied." Petitioners concluded that an SEIS is required to evaluate these previously unexamined impacts.

%e Board rejected the first of Petitioners' two arguments on the grounds that the 350-400 person-rem estimate from,Iune 1993 has been superseded by a more-recent (1995) estimate of 160 person-rem (FSAR at pp. 507-4 and 507-15) and that Petitioners have presented no evidence to show that this latter estimate is incorrect. Consequently, the Board reasoned, Petitioners have failed to establish any disputed material issue warranting further litigation. LBP-96-2,43 NRC at 87.

The Board, in rejecting Petitioners

• second argument, determined that the GEIS's assessment of the impacts of occupational exposure was based on a comparison of the ifnpacts of exposure during decommissioning with the impact of exposure during operation of the facility and that the GEIS concluded that the former impacts were acceptable. %e Board concluded that Petitioners had neither challenged the substance of the GEIS's conclusion in this regard nor attempted to show that such a comparison for Yankee Rowe would yield a different result, LDP-96-2,43 NRC at 88."

On appeal. Petitioners interpret the Board's response to their first argument as a finding that the difference between the 1993 dose estimate of 350-400 person-rem for the CRP and the decommissioning plan's more recent CRP estimate 1

"YALC*s December 14, 1994 esumauon of the done for the cimre decomnusuoning process over de 14 year 1

period of June 1993 to 2003 See LA at 22 Peuuan to intervene at 32. Peuuoners' Appeal Bnef at iI, t. smee's Answer to Prunon to intervene, dated Dec. 18.1995, at 25 n 74 48 YALC's 1995 enunuded dose for the enure decomnusuoning process See FsAR at 507-3 to 507 4. 507-15 (Table 507.1). Pet. don to intervene at 32, Peuuuncts' Reply to licensce's and Staff's Responses to the Peuuon to Intervene, dated Dec. 24.1995, at 18 n 41, Peuuoners' Appeal Bnef at 11.

"YAl:C's June 1993 preluninary enumate of the dosage for the CRP dunog the project's expected two-year varauon (1991 '995) Leuer from J K. Thayer. YALC to M. Imrule, NRC, at 2 Oune 17,1993). (h is unclear frtm the record whether the 350-400 person-rem hgure was intended to emmate dose during only Phase I of the CRP pmiect or during both PI ases I and il )

" Ac/cinng to NUREGK%ol30, " Technology. Safety and Costs of Decomnuniomng a Reference Pressurized water Reactor Power Station." Addendum at 2 4 (Table 2.12). Battelle Pacinc Northwest talwratory (Aug.1979)

(on wiuch the GLIS rehed, at p 4-21, ref 2)- Attachment 11 to Peuuon to intervene.

'd Regarding a related argunrnt, the Board acknowledged Peuuoners' argumerd that the uw of annual dose is a scactmhcally invahd nrthod of anessmg environnental ampacts. Ilowever, the Board concluded that the occupauonal exposure resulung from deconviusmorung will be far less than the esposure dunng facshty operation

- regardicas of whether viewed in terms of annual dose or total dow. l BP 96-2,41 NRC at 88 n 23.

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of 160 person-rem is " inconsequential." Petitioners assert that "such a large discrepancy cannot be explained away by merely claiming to correct it." Appeal at 36. Petitioners also argue on appeal that " dose records submitted by YAEC l

and the NRC Staff for the CRP and YAEC's current activities show that, in fact, the radiation doses caused [byl YAEC's decommissioning activities thus far are far in excess of the doses represented in the decommissioning plan." According to Petitioners, these showings raise a sufficient factual and legal basis to justify admission of Contention E.

We fail to see the significance of Petitioners' cursory assertion that Staff and YAEC have proffered inconsistent representations about decommissioning dose levels. Petitioners on appeal fail both to identify the inconsistent representations about which they are concerned and to describe those concerns. See Curators of the University of Missouri, CLI-95-1,41 NRC 71,132 n.81 (1995); Public Service Co. of Oklahoma (Black Ibx Station, Units 1 and 2), ALAB-573,10 NRC 775,786-87 (1979). We already have found the remainder of Petitioners' argument - that "new" dose information raises a question whether excessive occupational dose will be incurred at Yankee Rowe - worthy of further scrutiny by the Board. See pp. 254 55, supra. If Petitioners can substantiate that argument on rernand, they are free to pursue it on NEPA, as well as ALARA, grounds.

Petitioners also challenge the Board's rejection of their " scaling" argument.

They characterize the Board's decision as " appear [ing) to concede" the appro-priateness of scaling but then finding that doses are acceptable because they fall within the range of doses experienced during plant operation. Petitioners respond that the actual decommissioning dose amount is unknown and that the record is filled with inconsistent representations by YAEC and the Staff. Accord-ing to Petitioners, these factors undermine the Board's dismissal of Contention E. Appeal at 37 n.II.

We reject these arguments for two reasons. First, Petitioners

• argument that Staff improperly failed to " scale down" the occupational dose estimates to reflect the smaller size (185 MWe) of the Yankee Rowe plant fails to take into account the reason why the GEIS found acceptable a 1215 person-rem total estimated dose for decommissioning a i175-MWe pressurized water reactor.

This acceptability was not based on dose per megawatt of capacity, as Petitioners apparently suppose, but was premised instead on the fact that the 1215 person-rem dose estimate compared favorably on an annual basis (279 person-rem / year for the 4-year DECON period in the case of the GEIS's reference ll75-MWe plant) with the annual occupational radiation doses (between 550 and 1101 person-rem) seen over the period 1974-1980 from operation, maintenance, ami refueling of PWRs. See GEIS at p.151. See also LBP-96-2, 43 NRC at 87 n.21.

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Smond, Petitioners have not alleged any facts supporting their assumption that size has any effect on the decommissioning dose estimates, nor hav : they shown why the dose from decommissioning a smaller prrver plant must be less than the dose from decomrnissioning a large plant in order to be acceptable.

We see no necessary correlation between the size of a plant and the dose from decommissioning that plant. The decommissioning of a larger plant might even result in less dose than the decommissioning of a smaller plant, depending on such factors as the difference in the twe T nts' designs, operating practices, S

fuel failures, and contamination levels. M,o, Petitioners admit that there is no specific language in the regulations or the GEIS that would support their position regarding scaling the dose to fit the size of the plant. Tr. at 61.

j c.

Cask Dmppage Accident Petitioners claim that the GEIS fails to consider the potential for an accident i

involving the dropping of a cask into the spent fuel pit.

'Ihe Board responded that this matter is most directly relevant to a possible future application from YAEC to change Yankee Rowe's Technical Specification 3.2 (which effectively precludes the Licensee from moving larger multipurpose canisters over the pool), that any agency action on such an application would have to be accompanied by an appropriate safety and environmental analysis, and that such an analysis would then be subject to challenge at an adjudicatory hearing. The Board concluded that Petitioners had failed to show that current rather than future analysis of such a change in the technical specification j

has any relevant impact on the approval of YAEC's decommissioning plan, and that Petitioners have therefore failed to demonstrate any violation of the 4

Commission's NEPA responsibilities. LBP-96-2,43 NRC at 90.

Petitioners respond in their appeal that the Commission has an obligation under NEPA to mitigate significant environrnental impacts of proposed licensing actions; that the health and environmental impacts of decommissioning Yankee Rowe can be mitigated by selecting the SAFSTOR alternative; and that the cask drop accident scenario is relevant to any analysis of whether SAFSTOR must be employed as such a mitigating measure because the scenario relates to YAEC's claim that the benefits of speedy decommissioning under DECON outweigh any benefits under SAFSTOR.

Petitioners go on to argue that YAEC's assumption that it will be able to complete its decommissioning rests on the feasibility and cost-effectiveness of its plan to place spent fuel in dry casks for long-term storage, thereby

)

enabling YAEC to close the spent fuel pit and obtain access to the as-yet-undecommissioned remainder of the plant. Petitioners conclude from this line of reasoning that, to compare DECON and SAFSTOR adequately under NEPA, the Commission must evaluate the risks and feasibility of the Licensee's proposal 4

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to use dry cask r,torage -including the risk of a cask drop accident. Appeal at 38.

We reject Petitioners' arguments for two reasons. First, Petitioners fail to demonstrate that risks of exposure from a cask droppage accident (or even the use of casks) are affected by the Licensee's selection of DECON over SAFSTOR. Such an accident could occur under either of these decommissioning options. Second, we agree with the Board that the issue of the risk of a cask droppage accident is not now ripe, and will not be ripe unless and until YAEC seeks a license amendment to permit it to remove fuel from the spent fuel i

pit. YAEC at this point disclaims any decision to use dry storage casks.45 As previously noted, if YAEC ultimately adopts the dry cask :.torage option, it will have to follow the proper licensing procedure.

d.

Improper Consideration of Early Site Release Petitioners point out that NEPA requires the agency to consider alternatives 4

that could mitigate the adverse impacts of a proposed action, and that the

)

Commission's implementing regulations require a draft EIS that includes an analysis that considern and balances the environnental and other effects of the proposed action and the i

alternatives available for reducang or avoiding adverne environnental and other effects, as wc!! as the environnental. econornic, technical and other benefits of the propowd action.

10 C.F.R. 6 51.71(d).

According to Petitioners, the GEIS's balancing of the advantages of DECON and SAFSTOR for plants in general fails to reflect the advantages of DECON and SAFSTOR for Yanue Rowe in particular. Petitioners refer back to their earlier contentions A(1) and B(2)(a) that the use of the DECON alternative will not result in an early release of the facility for unrestricted use. Petitioners estimate that Yankee Rowe's spent fuel will remain on site for at least 30 more years. They conclude that the consequent absence of any early release under DECON swings the balance in favor of SAFSTOR. According to Petitioners, this swing in the balance necessitates the preparation of an SEIS.

The Board rejected this basis on the ground that Petitioners have failed to satisfy the requirement of 10 C.F.R. 5 51.92(a)(2) to show "significant new cir-cumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." The Board pointed out that the GEIS already contains an analysis of the environmental impacts of the SAFSTOR

'8 Su p. 257 A note 16. supra 274

option in the event that a longer storage period for IILRW becomes necessary."

The Board also noted that, although the afgument is couched in terms of NEPA compliance, it is essentia!!y just another challenge to the Licensee's choice of DECON instead of SAFSTOR. The Board concluded that such a challenge does not produce a litigabic NEPA issue, absent a showing grounded in dose estimates or other information outside the analytical framework of the GEIS. LBP-96-2, 43 NRC at 91.

Petitioners in their appeal reiterate their argurnent that the GEIS approved both DECON and SAFSTOR because each option balanced the level of exposure with the speed with which the site would be released, but that this balance is inapplicable to Yankee Rowe. According to Petitioners, this is due to DOE's apparent inability to open a liLRW repository in the near future and the consequent need for YAEC to retain the spent fuel on site for at least 30 more years. Petitioners assert that such retention will preclude the early relea.se of the site and thereby alters drastically DECON's expected "balarice" of greater dose with early site release. Accordingly, argue Petitioners, an SEIS is necessary to examine both this change in balance and the health and environmental advantages of SAFSTOR, Appeal at 38-39.

Petitioners essentially construct their argument around the following syllo-gism: (1) the GEIS found DECON acceptable only because the site would be available for unrestricted use sooner rather than later; (2) a licensee must remove the spent fuel from the site before releasing a site for unrestricted use; (3) as YAEC does not propose, or cannot accomplish, an early removal of spent fuel, DECON is inappropriate as to the Yankee Rowe site, We find problems with both the first and second prong of this syllogism.

Regarding the first prong, the GEIS's approval of DECON was not premised solely on the early availability of the site The first prong ignores the following other benefits of DECON cited in the GEIS:

availabehty of a work force highly knowledgeable about the facihty and tir chmmation of the need for long-term secunty, maintenance and surveillance of the facihty which would be required for the other decomnussioning activities. [GE!S at p. 2-9, see also kl. at p 211 )

"Tlw Hoard rehed specihcally on the fonowing &scusuon in the GilS at p 4 20-Conuderetton was given to dw situauan where, at the end of the reactor operauon life, it is runt possibk to &spmc of waste offsite for a hnuted penod of unw, but not caceceng 100 years Such a constramt needs to be accounted for in the decomemsuomng alternauves Dased on an ana'ysis by

[Hattelle Pacific Northwest taboratoneal of the technology, safety and cost consuleruuona on selecuan of decomnussiorung alternauves, et is concluded that S AFSioR is an acceptably viable shcrnative. While Di CON and conversion of the spent fuel pool to an independent spent fuel storage pool is certainly a punuhahey for the case where all other radioacuve wastes can be removed offsite, there does not appear to be any signihcant safety efference between stus alternauve and SAF SToR and (tw choice should be a licennee decnion.

L.HP-9t>2,43 NRC at 91.

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e avoidance of regulatory uncertainty that would result froin long-terrn retention of the site. [ld or p 2-11.1 e lower cost than S AFSTOR. (14 at p. 4-17.]

Moreover, as already noted, the GEIS also focused on the fact that neither DECON nor SAFSTOR was expected to result in more than a minor fraction of the dose from a typical operating plant. NEPA does not require preparation of an EIS for governmental actions having such a minimal impact.

The second point of the syllogism is also flawed in that it erroneously treats the enWe se as indivisible, assuming that if one square foot had enough residual activity to preclude its release to the public, then none of the site would be releasable. According to YAEC, the buildings on the Yankee Rowe site take up only 10 of the site's 2000 acres, and the spent fuel area takes up only about one-tenth of an acre. Petitioners have offered no reason why 1990 or 1999.9 acres should be essentially " held hostage" by the 10 or 0.1 acres with residual activity."

In addition to their syllogistic argument, Petitioners also disagree with the lloard's statement that the GEIS actually assessed the potential impact of longer-term onsite storage of spent fuel. Pointing to the statement in the GEIS that " consideration was given" to situations "where, at the end of the reactor operation life, it is not possible to dispose of waste offsite for a limited period of time, but not exceeding 100 years," Petitioners assen that "it is not at all clear what that ' consideration' amounted to." They similarly point to the use of the word " appear" in the GEIS's following statement:

While DECON and conversion of the spent fuel pool to an independent spent fuel storage pool is certainly a possituinty for the case where all other radioactive wastes can be rernoved offsite, there ducs not nppear to te any significant safety difference between this alternative and SAFSTOR and the choice should be a licenriec decision They say that this passage reflects the " superficial [ityj" of the GEIS's conclusion that the difference between SAFSTOR and DECON under such circumstances is insignificant. Appeal at 39-40, quoting GEIS at p. 4 20. For these reasons, btitioners claim that the Commission must take a hard look at environmental impacts that it had previously considered unlikely.

We cannot accept Petitioners' second argument. Regardless of their efforts to find " tentative" words in the GEIS's discussion of prolonged onsite storage of spent fuel, Petitior.ers cannot (and do not) gainsay the critical fact that the GEIS does address that very issue. Consequently, as the Board correctly "The Comnuwon recognues that tie 10 acre tw 01 acre hgures do emi reflect itw additional surrounding area needed for an esclununary mone and that thew two numbers are therefore shghtly arrudler than tie unreleanable area (s) 276

pointed out, Petitioners have failed to demonstrate the necessary "significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." LHP-96-2,43 NRC at 90 (emphasis added).

As we explained earlier in this opinion (at pp. 251-52), the Commission need not revisit in case-by-case litigation matters resolved generically in prior rulemakings, including NEPA matters. See Kelley v. Selin, 42 F3d at 1519-I

20. If parties believe that the agency's prior generic review reached the wrong conclusions, the proper remedy is a petition for rulemaking, not a litigation contention challenging the basis for a Commission rule.

IV. CONCLUSION Ibr the reasons set forth above, the Commission grants in part and denies in part Petitioners' appeal, rejects YAEC's arguments regarding standing, and remands for the lloard's further consideration the questions whether Petitioners' new dose argument satisfies the " late-filing" standards in 10 C.F.R.12.714(a) and whether it provides a sufficient basis for an ALARA or NEPA challenge to YAEC's choice of a decommissioning alternative. See pp. 254-55, 271-72, supra. If a final decision on remand cannot be reached by July 31,1996, the Board shall establish a fresh expedited schedule and refer it to the Commission for approval.

It is so ORDERED.

For the Commission JOIIN C. IlOYLE Secretary of the Commission Dated at Rockville, Maryland, this 18th day of June 1996.

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ATOMIC SAFETY AND UCENSING BOARD PANEL B. Paul Cotter, Jr.,* Chief Administrative Judge l

Jamer. t'. Ost,0sor\\

• Deputy Chief Administrative Judge (Executive) l Fredadck J. Shon,* Deputy Chief Administrative Judge (Technical) l Members Dr. George C. Arderson Dr. Rchard E Foster Dr. Kenneth A. McColiom j

Charles Bechhoefer*

Dr. David L Hetrick Manshall E. Miller

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Peter B. Bloch*

Emest E. Hill Thomas S. Mooro*

i G. Paul Bollwerk lil*

Dr. Frank E Hooper Dr. Peter A. Morris I

Dr. A. Dhon CaEhan ENzabeth B. Johnson Thomas D. Murphy

• l Dr. James H. Carpenter Dr. Charles N. Kolber*

Dr. Achard R. Partzek j

Dr. Rdiard E Cole

• Dr. Jerry R. Klins*

Dr. Hany Rein l

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

• Lester S. Rubenstoni l

Dr. George A. Ferguson Dr. James C. Lamb til Dr. David R. Schink I

Dr. Harry Foreman Dr. Emmoth A. Luebke Dr. George E Tidey i

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Cite as 43 NRC 279 (1996)

LBP-9611 l

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

G. Paul Bollwerk,111, Chairman Dr. Charles N. Kolber Dr. Richard F. Foster in the Matter of Docket Nos. 030-05373-EA 030-32163-EA (ASLBP No. 96-714-02-EA)

(EA 96-085)

(Order Suspending Byproduct Material License Nos.

29-09314-01 and 29-09814-02)

EASTERN TESTING AND INSPECTION, INC.

June 11,1996 Ruling on a joint request by Licensee Eastern Testing and Inspection, Inc.,

and the NRC Staff to approve an agreement settling this license suspension enforcement proceeding, the Licensing Iloard approves the parties' accord and dismisses the case.

RULES OF PRACTICE: SETTLEMENT OF CONTESTED PROCEEDINGS As is true with court proceedings requiring judicial approval of settlements, see, e.g., Emns v. JegD., 475 U.S. 717,727 (1986); JegD. v. Andrus, 899 F.2d 753,758 (9th Cir.1989); In re Warner Communications Sec. Litig., 798 F.2d 35,37 (2d Cir,1986), a presiding officer does not have the authority to revise the parties' settlement agreement without their consent. A presiding officer thus must accept or reject the settlement with the provisions proposed by the parties.

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ENFORCEMENT ACTIONS: SETTLEMENT OF CONTESTED PROCEEDINGS (LICENSING BOARD JURISDICTION) i LICENSING BOARDS: JURISDICTION (SE'ITLEMENT OF CONTESTED PROCEEDINGS)

RULFS OF PRACTICE: SETTLEMENT OF CONTESTED PROCEEDINGS (LICENSING BOARD JURISDICTION)

When the parties agree to settle an enforcement proceeding, the Licensing Board loses jurisdiction over the settlement agreement once the Board's approval under 10 C.F.R.12.203 becomes final agency action. See Carolina Power and Light Co. (Shearon liarris Nuclear Power Plant, Units 1,2,3, and 4), CLI 12, II NRC 514,517 (1980); Philadelphia Electric Co. (Limerick Generating Station, Units I and 2), ALAB-726,17 NRC 755,757-58 (1983). Thereafter, supervisory authority over such an agreement rests with the Commission.

MEMORANDUM AND ORDER (Approving Settlement Agreement and Dismissing Proceeding)

Pending before the Board is a joint request by Licensee Eastern Testing and Inspection, Inc. (LTI), and the NRC Staff to approve an agreement settling this case. Because we find the settlement agreement consistent with the public interest, we approve their accord and terminate this cause.

At issue in this proceeding is the validity of a March 29,1996 NRC Staff order that suspended, effective immediately, two byproduct material licenses held by ETI. See 61 Fed. Reg. 15,836 (1996). The suspended licenses authorized ETI to possess and use iridium 192 and cobalt-60 in a compatible radiographic exposure device for performing industrial radiography, and cesium 137 and americium-241 in specified portable gauges. In its March 1996 order, the Staff asserted that an immediately effective suspension was necessary because of problems identified during agency inspections and an NRC Office of Investigations investigation. Cited by Staff in support of the order were purported violations of NRC requirements, some categorized as deliberate, concerning matters such as training, records accuracy, and alleged Licensee threats against a former employee because of his cooperation with agency inquiries.

In filings dated April I and 16,1996, in accordance with 10 C.F.R. 5 2.202(b),

(c)(2)(i), ETI both requested a hearing to contest the Staff's March 1996 order and challenged the Staff's determination to make the license suspensions immediately effective. After receiving responses from the Staff, on April 30, 1996, the Board held an oral argument concerning ETI's immediate effectiveness recision request. Thereafter, the Board denied ETI's motion, concluding that 280 a

the requisite " adequate evidence" existed for some of Staff's charges and its immediate effectiveness determination. See LDP-96-9,43 NRC 211 (1996).

Nilowing the April 30 oral argument ETI and the Staff began settlement negotiations. To permit negotiations to continue, on May 22 and again on May 28,1996, the parties requested, and subsequently were granted, extensions to file a Board-ordered joint prehearing report. On June 3,1996, the parties submitted the joint motion now pending with the Board. After reviewing the proposed settlement agreement, on June 5,1996, the Board held a telephone conference with counsel to discuss several points the Board felt needed clarifying. As a result of that conference, on June 6,1996, the parties submitted a revised settlement agreement.

Under the terms of the revised settlement agreement, prior to resuming NRC-licensed activities ETI must (1) have Staff approve ETI's choice of an experienced, outside, independent auditor who will then be retained as ETI's Radiation Safety Officer (RSO), and (2) have the auditor /RSO rnake various certifications to the Staff concerning employee qualifications and training as well as the auditor /RSO's knowledge of applicable regulatory requirements and agency concerns relating to ETI's operations. The agreement also provides that the auditor /RSO has the authority and responsibility to stop unsafe work, make reports to the NRC regarding any concerns about safety or regulatory compliance and "whistleblower" harassment, and conduct ETI's training and radiographer certification program. In addition, the auditor /RSO is to plan and implement an audit program that will review and suggest improvements in various ETI headquarters and field activities, including training and radiographic operations.

Although the various requirements in the agreement could remain in effect as long as the two ETI licenses are extant, the agreement provides that one year after Board approval of the agreement the NRC Region I Regional Administrator may grant any ETI request to rescind any of the agreement's provisions. Such recision, which would require a showing of good cause, would be in the sole discretion of the Regional Administrator.

Pursuant to section 81 and subsections (b) and (o) of section 161 of the Atomic Energy Act of 1954, 42 U.S.C, 6 6 2111, 220l(b), (o), and 10 C.F.R.

9 2.203, we have reviewed the parties' revised joint settlement accord to deter-mine whether approval of the revised agreement and termination of this proceed-ing is in the public interest. Based on that review, and according due weight to the position of the Staff, we have concluded that both actions are consonant with 281

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Rr the foregoing reasons, it is, this eleventh day of June 1996. ORDERED that:

1, The June 3,1996 joint fnotion of the parties is granted and we approve their June 6,1996 " Settlement Agreement /* which is attached to and incorpo-rated by reference in this Memorandum and Order, 1

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' During the Jurr 5,1996 selephone conference with the parues, the Dowd remed a concern about the poruon of paragraph 13 of the setdement agreenent that, as we have need above, penruts the Regional Adnunistrator to resemd any provismn of de agreenunt if, in the esercise of his dncrenon, he finds good cause fur such a recision The Board suggested de provisma be revised to provide for nonce to the Conumuion of sua a Staff acuan, preferably before it was taken. The Staff, however, dechned to accept such a change, asserung the paragraph's language without any Conunission smuce provision was consistent with esisung agency cofon:errent policy.

As is true with court proceedings requirmg judicial approval of settienrnts, sea, e s. Ewn. it /cgD.,475 U.S.

737,727 (19N6); /cp D. v Andrus, 899 F.2d 753,758 (9th Cir 1989); /s re Warncr Communkatums Sec. Liis.,

798 F 2d 35,37 (2d Cir,1986), a presiding ofhter does not have the authonry to revise the partes' agreenrnt

- without their consent. We thus must accept or reject the settlenent with paragraph 13 as proposed by de parties.

We are sull concerned about pmagraph 13, nonetheless, we have concluded that withhol&ng our approval of de ETl'$taff settlernent because of the Conurussion nouce inue would not serve the best interests of the parues or the hearmg piocess When, as here, all the puroes agree to settle an enforcement procce&ng, the Board loses jurimhction over their settknem agreenent once its approval under 10 C.F.R. I 2.203 becones hnal agency schon.

Sea Carohna Anver and ught Co. (Shenron Haris Nuckar power Flant, Umts I,2,3, and 4), CIN12,11 NRC 514,517 (1980); PAdadelphia Dectnc Co (tirrenck Generaung Stauon, Units 1 and 2), ALAB-726,17 NRC 755,757 58 (1983). The matter, derefore, ultimately involves a Commission choice about how it wishes to supervise pwry revisions to such ngreemena We thus outhne our concern below and leave is to the Cumnussion to give the mauer whatever consderanon it deems appropnate during its sua sponte review of this deciuon.

When a judicial pouccedmg is concluded bawd on un agreenent by the partes that is approved by the court.

the paues generally are not enutled to vary de terms of that agreement without the court's approval. Ser SEC

v. kvue, 881 F.2d i165,1180 (2d Car 1989) Paragraph 13 of the settlenent agreenrnt here contemplates that one of the panics will be able to rescind any part of (or arguably all of) the agreement after one year, but makes no specdic provision for review of, or even nouce to, the ultimate approving adjudicatory body

- the Comnussion. As we understand the explanacon provided dunng the June 5 telephone conference, the Staff beheves that its authonty to escise any poruan of this agreenwns (or andeed any settlement agreement in an enforcement case, includmg a civil penalty proceeding) is part of its delegated autimnty to iniuate and conduct enforcenent proceedmga generally I'urther, the Staff auerts that a specific provision regardmg notice or Comnuuion consultauon concermng any recision is not necessary under the terms of the agency's general enforcenent puhey statement That pohcy statenrnt, which declares "Itjle Comnunion will be provuled wntien nouticauon of all enforcenent accons involving civil penalues or orders," requaes Comnussion consuhanon regardmg Staff enforcenrnt actions only in specahed instances 60 Ird Reg 34,381, 34,384 (1995), reprmied in Office of Enforcement. U.S. Nuclear Regulatory Comnussion, " General Statenrnt of Pohey and procedures for NRC i nforcement Achons? NUREG-ifd10, at 6 Ouly 19951. As it was esplained to os durms the teleptmne conference, the only escepuun in this policy that apparently would be relevant to dus setdement agreenrnt is for "islny action the (Enecuuve thrector for operanons (E!Xbl beheves warrants Comnusuon involvenrnt? id, a provision that essenually nudes Comnusson conauhanon a matter within the LIXTs escreuon in a&huon, the Shaff noted during the telephone conference that a recent enforcenent procee&ng settlement agreenwnt containing a proviuon twgely idenocal to paragraph 13 was approved by a Licensing Board, which approval became fmal agency acuan after Comnuuion sua spanne review. See Wursern Industnal X Ray inspection Co., LDP 95 22,42 NRC 205,212-13 (1995)(paragraph 5fk)).

Tius inue of Comnusuon nouticauon/ consult.umn about changes to an adju&catory heanng settlenent is a ognihcant questson that neither the enforcenens pahey statenrnt nur tte Western Indartnal X-Ray litrpectmn Co.

(Contmurd) 282

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~ 2. 'Ihis' proceeding is dismissed.8 i

THE ATOMIC SAFETY AND

- LICENSING BOARD s

G. Paul Bollwerk, III, Chairman.

ADMINISTRATIVE JUDGE "

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' Charles N. Kelber i

ADMINISTRATIVE JUDGE '

Richard F. Ibster ADMINISTRATIVE JUDGE i

Rockville, Maryland -

1 June 11,1996 h

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saw directly address. Under 10 C.F.R. 4 2.203 and the sua sponte review provisions of 10 C F.R. 5 2.786, both the presiding othcer and the Conmasion assess whether a settknent agreernem proffered to end an enforcement order or civil penalty adjuchcauon serves "the pubhc imerest." A leer substanuve change to the agreernem at the instance of one or nuwe of the parties snuld signihcamly irnpact those assessnwnts. As the adjudicatory body with cominuing supervisory authority over the settienent, the Comnussion arguably has an interest in ensunng that any settlemem agreenes change by the partwa does not abrogme its judgment about what serves the "public imercat." Whether tie terms of this agreement are sufhcient to protect thm 6nterest is a quedion the Comnussion

. may now wie to consider. ;

'2 Copies of this Menerandum and Order, without the attachmem, have been sem this dme to counsel for ETI by facsimik transmission and to Staff counsel by E-Mail transnussion through the agency's wide area network.

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i ATTACHMENT 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD in the Matter of Docket No. 030-05373 (License No. 29-09814-01)

Docket No. 030-32163 (License No. 21HMl814-02)

(EA No.96-085)

(Byproduct Material License Nos. 29-09814-01 & 29-09814-02)

EASTERN TESTING AND INSPECTION.

June 6,1996 SETTLEMENT AGREEMENT INTRODUCTION On March 29,1996, the staff of the Nuclear Regulatory Commission (Staff) issued an Order Suspending Licenses (Effective immediately)(Order) to Eastern Testing & Inspection, Inc. (Licensee or ETI). 61 Rd. Reg.15836 (April 9, 1996). The Licensee is the holder of Byproduct Nuclear Material Licenses Nos.

29-098:4-01 and 294)9814-02, Order at 1; 61 Rd. Reg. at 15836. License No.

294)9814 01 authorizes the possession and use of iridium-192 and cobalt-60 scaled radiography sources for use in a compatible radiographic source exposure device. License No. 29 09814-02 authorizes the use of americium-241 and cesium-137 sealed sources in portable gauging devices. 'Ihe Order alleged numerous violations, including some deliberate violations of NRC requirements, which were identified as the result of NRC inspections and an investigation conducted by the NRC's Office of Investigations (01). The Order provided that:

(A) all NRC-licensed material in the Licensee's possession must be placed in locked storage; (B) all activities under the licenses must be suspended; (C) no NRC-licensed material may be received while the Order is in effect; and (D) all 284

records related to licensed activities must be maintained in their original form and not be removed or altered in any way. Order at 8-9,61 Rd. Reg. at 15838.

By letter dated April 1,1996, the Licensee requested that the immediate effectiveness of the order be set aside. On April 10,1996, an Atomic Safety and Licensing Board was established to preside over the proceeding. Eastern Testing and Inspection, Inc.; Establishment of Atomic Safety and Licerning thard, 6i Rd. Reg.16654 (Apri! 16,1996). On May 10,1996, following oral argument, the Board denied the Licensee's request. " Memorandum and Order (Denying Licensee Motion to Set Aside Immediate Effectiveness)," LBP-96-9, May 10, I996.

On April 16,1996, the Licensee requested a hearing on the Order. " Eastern Testing and Inspection, Inc.'s Demand for a Hearing on Order Suspending Licenses." On May 2,1996, the Licensee submitted its answer to the Order (Answer). " Eastern Testing and Inspection, Inc.'s Answer to Order Suspending Licenses (Effective Immediately)." In its Answer, the Licensee admitted certain of the allegations in the Order and denied the remainder. Specifically, the Licensee denied any deliberate misconduct by its President and Radiation Safety Officer (RSO) as alleged in the Order.

'Ihe Staff and the Licensee agree that it is in their respective interests and in the public interest to settle this enforcement action without further litigation and agree to the following terms and conditions:

1.

Prior to resumption of NRC-licensed activities:

a) In addition to implementing the corrective actions identified in its Answer dated May 2,1996 to the March 29,1996 Order, ETI agrees to submit to the NRC for approval, the name of an experienced outside independent auditor who also can qualify as the Corporate Radiation Safety Officer. The NRC staff will review and approve the auditor based on the auditor's qualifications. Upon NRC

)

approval of the auditor, ETI will retain that individual.

b) The auditor will (1) review the qualifications of all employees who perform NRC-licensed activities for ETI, (2) conduct or supervise any additional training needed, and (3) test, in the area of radiation safety, each employee j

who performs NRC-licensed activities to assure that the employee is qualified, consistent with the training provisions of 10 C.F.R. Part 34 and the license, to act as a radiographer, radiographer's assistant, or gauge operator. The auditor will certify to the NRC completion of this step before cach individual may resume performance of NRC-licensed activities.

c) The independent auditor will certify to the NRC that he or she has read and understands the concerns of the NRC expressed in the Order of March 29, 1996, the Inspection Reports issued April 22,1996, the terms and conditions of I

this Settlement Agreement, the applicable NRC regulations, and ETI's license requirements, and understands that he or she may be held personally accountable 285 l

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for any violations of NRC regulations or ETI licenses pursuant to 10 C.F.R.

0 30.10.

2.

De auditor will make findings and recommendations based upon his or her own discretion and professionaljudgment in any area of LTI licensed oper-ations, including, but not limited to: ETI management oversight, procedures, radiographer training, testing, and qualifications, recordkeeping, field operations and audits.

3.

The auditor has the authority and obligation under this Settlement Agree-m Cnt to:

a) stop work on any operation that is unsafe or which either violates ETI's licenses, applicable NRC regulations, or the provisions of this Settlement Agreement; b) make required reports to the NRC and report to NRC any concerns relating to safety or compliance with NRC requirements, ETI's licenses, or this Settlement Agreement, if ETI is not taking prompt and appropriate corrective action as required; and c) report to the NRC any interference by ETI management or employees with his or her duties and obligations pursuant to this Settlement Agreement or the proper conduct of NRC-licensed activities by any ETI employee.

4.

He auditor shall implement the following audit program:

a) I%ase One: The auditor will submit an audit plan for NRC approval within 30 days of approval of this agreement by the Atomic Safety and Licensing Iloard, describing the audit scope and methodology, including but not limited to performing a check on equiprnent and storage practices, including radiation.

production devices and monitoring devices, qualifications of staff, training, field audits of radiographers' performance, and reviewing selected ETI records to verify compliance with ETI's radiation safety program. Within 30 days of approval J the audit plan, the auditor will commence the audit. He auditor j

thereafter will prepare a report on these activities, which he or she will provide i

to the NRC Staff and to ETI in a timely manner, but within 30 days of the

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completion of the audit. Within 30 days of receipt of the auditor's report, j

or at some other mutually agreeable time, ETI will notify the NRC Staff in writing concerning the status of any corrective actions as a result of the auditor's findings, including an explanation of and justification for any recommendations by the auditor that will not be addressed in ETI's corrective actions.

b) Phase Two: Within three months after completion of Phase One activ-ities and at quarterly intervals thereafter, the auditor will perform unannounced field audits of radiographic operations and each radiographer or radiographer's J

assistant, at various ETI job sites consistent with the NRC-approved audit plan, j

Within 30 days of completion of these audits, the auditor will report his or her j

findings to ETI and the NRC Staff. Within thirty days following receipt of the auditor's report, or at some other mutually agreeable time, ETI will notify the 286 i

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-t NRC Staff in writing concerning the status of any corrective actions as a result of the auditor's findings.

5, The auditor will act as the " Corporate Radiation Safety Officer," on NRC license 29-09814-01, with the following duties and obligations:

. a) be responsible, at all times, for the training, qualification, and testing of-j all individuals performing NRC-licensed activities, including, but not limited to.

f radiographers and radiographer's assistants; b) will certify to the NRC Staff that he or she has personally attended any and all training sessions and that the required subject matter was adequately covered, that any tests given at the' training session were appropriately monitored and graded, that the individuals attending the training were present during the f

entire time of training, and that the individuals who attended the training were appropriately trained for his or her duties in accordance with NRC regulations and license requirements;.

a c) will verify and certify to the NRC, on a quarterly basis, that all utilization logs are accurate and complete; and d). not take direction on any compliance issue or radiation safety matter i

from any officer or employee of ET1.

6.

In addition to the Corporate Radiation Safety Officer, prior to the com.

mencement of NRC-licensed activities, ETI will propose an assistant Radiation l

Safety Officer, who must also be approved by the NRC Staff. The assistant l

Radiation Safety Officer shall:

a) be responsible for the day-to-day performance of the duties of a radiation i

safety officer as described in ETI's License No. 29-09814-01 procedures; i

b) have the authority to stop work on any operations that are unsafe and or which will violate ETI's licenses, NRC regulations, or this Settlement Agreement; I

c) report to the NRC any interference by ETI management or employees with his or her duties and obligations pursuant to this Settlement Agreement or I

the proper conduct of NRC-licensed activities by any ETI employee; d) report directly to the Corporate Radiation Safety Officer; and c) not take direction on any compliance issue or radiation safety matter from any supervisor at ETI other than the Corporate Radiation Safety Officer.

7.

ETI also agrees to inform all employees, including radiographers and radiographer's assistants, of the terms and conditions of this Settlement Agree-ment, the terms and conditions of ETI's licenses, and the applicable NRC Reg-j ulations. ETI specifically agrees to inform, in writing, its employees of the

]

requirements of 10 C.F.R 6 34.44, " Supervision of radiographer's assistants" and to require employees to certify that they have read these requirements and provide to the NRC Staff each employee's certification.

8.

ETI agrees to ensure the cooperation of its officers and employees with the auditor, the Corporate Radiation Safety Officer, and the assistant Radiation 287 4

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i Safety Officer, and will provide these individuals upon request with access to records kept in the ordinary course of ETI's business and in accordance with NRC requirements.

9.

To ensure his or her independence from ETI, the auditor will not be an employee of ETI and will have no financial interest in ETI. Except as provided in this Settlement Agreement, nothing in this Settlement Agreement will be construed to provide the auditor with any legal authority to bind ETI with respect to any matter relating to ETTs NRC-licensed activities, and further, the auditor will not represent ETI s interest to the NRC or other authority.

10. ETI will also propose and obtain approval of a new Radiation Safety Officer for License No. 29-09814-02 prior to conducting activities under that license.1he new Radiation Safety Officer may be the same individual named on License No. 29-09814-01 as the assistant Radiation Safety Officer.

11. Upon the resumption of NRC-licensed activities, ETI will, at the start of each work week, provide, in writing, the NRC Region I Staff and the auditor, with its work schedule for the week. The notification shall include the name of the customer, the schedule of work hours and location of the work. If there are any changes to this schedule, L:TI will make its best effort to inform NRC Region I staff and the auditor at least 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> in advance, if possible. These submissions may be made by facsimile. Notification to the NRC shall be made to liank Costello, Region I,610-337-5275; FAX: 610-337-5269.

12. ETI agrees that its President, liimat J. Soni and the current Radiation Safety Officer named on License No. 29 09814-01, Joseph Dadiali, will not be involved in the supervision of NRC-licensed activities or ETI's radiation safety program. Ilowever, Messrs. Soni and Badiali may perform the duties of radiographer and supervise radiographers' assistants as part of those duties. In addition, Messrs. Soni and Badiali may be involved in other business activities of ETI, including marketing, record keeping and technical training exclusive of radiation safety.

13. Ihr good cause shown, the Staff may, in writing, extend the time to complete any action set forth in any provision of this Settlement Agreement. No earlier than one year from the date this Settlement Agreement is approved by the Atomic Safety and Licensing Board, ETI may request that the NRC Regional Administrator, Region I, rescind any of the provisions of this Settlement Agreement upon a demonstration of good cause. The decision as to good cause is in the sole discretion of the NRC Regional Administrator, Region 1.

14. The NRC Staff agrees to withdraw the Order dated March 29, 1996.

ETI agrees that a failure on its part to comply with the terms of this Settlement Agreement will constitute a material breach of this Agreement, and that any such breach may result in the revocation or suspension of the license, effective immediately, if the NRC Staff, in its scle discretion, determines such action i

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to be appropriate, and may result in further enforcement or other action as the NRC Staff may determine, in its sole discretion, to be appropriate.

15. Im agrees to withdr w its d rnard for a hearing dated April 16,1996.

The Staff expects that good faith implementation of this Settlement Agreement should resolve the concerns stated in the March 29,1996 Order, Nothing in this Settlement Agreement precludes the NRC Staff from taking additional regulatory action if warranted. The Staff and ET1 agree and understand that this Settlement Agreement is only binding on the NRC and ETI and only relates to NRC's March 29,1996 Order. This Settlement Agreement shall not be relied upon by any person or other entity as proof or evidence of any of the matters set forth in the Order.

16. This Settlement Agreement shall be binding upon the legal representa-tives, successors and assigns of each of the parties hereto.

17. The Staff and ETI shall jointly move the Atomic Safety and Licensing Iloard designated in the above-captioned proceeding for an order approving this Settlement Agreement and terminating this proceeding.

In Witness Whereof, the parties have caused this Settlernent Agreement to be executed by their authorized representatives.

FOR EASTERN TESTING AND INSPECTION FOR Tile NRC STAFF liimat J. Soni Marian L Zobler President Eastern Testing and Inspection, Inc.

Richard G. Bachmann Counsel for NRC Staff Daniel F. Stenger Robert E. IIelfrich Counsel for Eastern Testing and inspection, Inc.

Dated at Rockville, Maryland, this 6th day of June 1996.

289

Cite as 43 NRC 290 (1996)

LBP-96-12 UNITED STATES OF AMERICA -

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

James P. Gleason, Presiding Officer Jerry R. Kline, Special Assistant in the Metter of Docket No. 404027-MLA 3 (ASLBP No. 94 700-04-MLA-3)

(Source Materials License No. SUB 1010)

SEQUOYAH FUELS CORPORATION June 21,1996 In this Decision, the Presiding Officer finds that intervenors fail to prove deficiencies in a management reorganization and sustains a Staff issuance of a license amendment for that purpose.

INITIAL DECISION (License Amendment Application)

This opinion concerns challenges to a materials license ameadment applica-tion of the Sequoyah Fuels Corporation (SFC), a Nuclear Regulatory Commis-sion (NRC) Licensee. Pursuant to NRC's regulations, the applicant is involved in the development of a decommissioning program at its facility in Gore, Okla-homa.

Ihr reasons set forth below, the Presiding Officer finds no justification for determining that Licensee's proposed amendment should be disapproved.

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BACKGROUND

-On May 6,1994, the~ Licensee submitted an application for amending its materia's license to effect. administrative organizational changes. Allegedly.

the' changes are designed to reassign management responsibility for SECS reduced and limited decomntissioning activities. Native Americans for a Clean i

Environment and the Cherokee Nation (Intervenors) petitioned the NRC for a hearing which was granted under the agency's Subpart L informal hearing procedures.8 The NRC Staff elected not to participate in the case, and as required by 10 C.F.R. 5 2.1231, submitted a hearing file, with updates, of relevant documents in the proceeding.8 'Ihe Licensee revised its amendment application on November 23,1994,.

and March 3, 1995.8 In several pleadings, Intervenors l

submitted a number of areas of concern of the proposed organizational changes, and the Presiding Officer recognized six as germane to the subject matter of the proceeding.' The Intervenors contend that these concerns or issues demonstrate that the proposed amendment is deficient in the following areas:

l 1.

Management and supervision of contractors.

2.

Oversight of reporting requirements on safety and environmental work.

3.

Qualifications of health and environmental protection positions.

l 4.

Description of critical safety and environmental functions.

i 5.

Compliance with regulatory timing requirements in decommissioning.

l 6.

Quality assurance program.

in addition to the issues above, Intervenors presented legal arguments that j

SFC has violated provisions of the-Atomic Energy Act (Act) and NRC's regulations. It contends that these violations resulted from SFC implementing the changes requested in its license amendment application prior to filing the amendment itself.

LEGAL STANDARDS

'Ihere are general rules applicable to informal adjudications under the Com-mission's Subpart L regulations. These regulations govern the procedure initi-ated by a request for a hearing in a proceeding for the grant, transfer, renewal, or amendment of a materials license subject to Parts 30,32 through 35,39,40, l

or 70. See 10 C.F.R. 6 2.1201(a).

I I lntervenors' Heanng Request. July l's.1994, Board Memorandum and thder. october 14.1994 (unpubhahed).

2 letters. Ham to Gleason. September 6.1994. November 10.1994. and rehnuuy 23.1996 3 1he changes in the Novernher 23 suhnunsion were purportedly to incorporate revidons baned on Staff comments (latser. EJhs to Bernero) and on March 3 to connohdase additional SfC functir.s and responsibihties.

d Board Memoranda and orders, october 14.1994. and June 9,1995 (ungr.chshed).

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l Any person whose interest may be affected by a proceeding under Subpart L may file a request for hearing.10 C.F.R. 6 2.1205(a). Ilowever, a request for a hearing filed by a person other than the licensee must describe in detail "It]he requester's areas of concern about the licensing activity that is the subject matter of the proceeding." 10 C.F.R. 6 2.1205(d)(3). In ruling on a request for a hearing, the Presiding Officer "shall determine that the specified areas of concern are germane to the subject matter of the proceeding." 10 C.F.R. I 2.1205(g). The petition to intervene must be ruled upon, taking into account matters set forth in section 2.1205(g).10 C.F.R. 6 2.1205(j)(3). An order granting a request for a hearing or petition for leave to intervene may condition or limit participation in the interest of avoiding repetitive factual presentations and argument.10 C.F.R.

5 2.1205(m). 'Ihe Presiding Officer has the duty to conduct a fair and impartial hearing according to law and has all powers necessary to regulate the course of the hearing and the conduct of the participants.10 C.F.R. 5 2.1209(a).

In the Order of October 14,1994, which granted Intervenors' hearing request, and the. Order of June 9, U95, the Presiding Officer limited the scope of the hearing snd specifica!'y set forth the areas of concern which the parties subsequently supported or opposed if. written presentations.5 On fbbruary 23 of this year, the S'.aff accepted the license amendment, and the organizational changes proposed by SFC were authorized. See Staff Letter updating file,Ibbruary 23,1*.)6.

The relevant arguments in support of the palties' positions, and the decision 3 by the Presiding Officer with respect to them, are set forth below.6 DISCUSSION' Management and Supervision of Contractors Intervenors contend that SFC's preliminary plan for completion of decom-missioning (PPCD), as submitted to the NRC, reflects that private contractors would be utilized for major decommissioning projects. However, no informa-tion was presented in either the PPCD or the current amendment application on the nature of the work to be performed or the management systems required to provide information on contractor performance. A reduction in SFC personnel 8 See Nauve Anuncans for a Clean I.nvironnrnt and Cherokee Nauon's Uncf Untervenurs' Bnef) and f.arl Testimony in ogyosinon to Sequoyah lucia Corporabon's t.icenw Anendnent Apphcauon d'.arl Testirrumy), and Sequoyah ivets Curporation's Brief an Respone to Intervenors' Hnef (SIC Bnef) and I.lks Afhdavit

• huervenors and SIC subrnstted nonons for leave to hie Reply Dnefs and espert tenunumy. Although the tenunumy is frequently repeuuve, m the interest of tinr. these nmtums are granted and, where cited, are referred to as Intervenors' or 1:arl Reply and 5fC or l'.lbs Reply.

7 The wrinen bnefs and responnes contam numerous references to NRC mapecuan reports and reviews wluch, cacept as they relate to the operauons of the current SIC numagerrent, are considered irrelevant to the issues of this proceedmg.

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and the magnitude of the work to be undertaken suggest, in Intervenors' view, that SIC will rely heavily on contractors in decommissioning. See Intervenors' Brief at 17; Earl Testimony at 29-32.

He Licensee responds that SIC is not relying extensively on contractors, with their use being limited to activitics customarily performed at the facility, such as consulting, land surveying, well drilling, and fertilizer distribution. See SIC Brief at 18; Ellis Affidavit at 8,14-15.

Intervenors argue, in reply, that SIC provides no evidence that its manage-ment structure is adequate to supervise existing levels of contractors, let alone any increase, and that its PPCD provides illustrations of" weak" project planning capabilities, such as not providing a breakdown of contractor tasks, number of contractors required, and supervision information. Dey also contend that prior inspection reports show a facic of strong project planning efforts. See Earl Reply at 16-17.

Decision

. SIC's application makes no reference to the utilization, supervision, or re-sponsibilities of private contractors. See License Application, IIcaring File. No judgment can be made on the basis of the facts in evidence that the amer.dment raises a deficiency at this point in SFC's decommissioning mode. The pro-posed amendment is intended to reassign basic responsibilities among a fewer number of employees for performing a diminishing number of activities pend-ing the submission of the Licensee's final decommissioning completion plan.

The allegations of Intervenors concerning the responsibility of management in monitoring private contractor work at the site may be validated during future decommissioning operations at the facility. Ilowever, no conclusion may be reached now concerning such a happenstance. The Licensee has testified, with-out challenge, that the role of contractors at the present time is limited to routine activities. Not demonstrating a regulatory necessity for referencing the utiliza-tion of private contractors in SFC's ongoing work, the issue must be resolved in the Licensce's favor.

Oversight of Reporting Requirements on Safety and

{

Environmental Work Intervenors allege that, in the proposed amendment, SFC's Director of Regu-i latory Affairs assumes responsibility for the quality assurance (QA) function over j

the llealth Safety, and Environmental departments. This, it contends, presents a conflict of interest with the Director having audit duties over operations in departments he regularly supervises. See Earl Testimony at 50-51.

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SfC answers that the Director of Regulatory Affairs has been responsible for the auditing function prior to the amendment under consideration. It contends that section 2.8 of the proposed changes protects against any conflict by having General Atomics (GA) perform audits of operations under the Director's jurisdiction. And to provide further protection against conflicts, the Director is authorized to provide additional audits by independent sources if needed. See Ellis Affidavit at 22 23. Intervenors argue, in rebuttal, that a conflict is presented by the Director having authority to decide whether an audit will, in fact, take place and to determine the areas to be audited. See Earl Reply at 27-28.

Decision

'Ihe Licensee has instituted an audit procedure that insulates the Director, Regulatory Affairs, against conflicts by providing a periodic audit by GA with additional audits to be performed by outside sources as requested. It is evident that when such audits occur, they will not be performed by individuals supervised by the Director. That is the dividing line that immunizes against the type of conflict envisioned by the Intervenors' concern. No grounds exist here to justify disapproval of the license amendment.

Qualifications of IIcalth and Environmental Protection Positions Intervenors allege that a "high turnover" in SFC personnel and increased "re-liance" on contractors calls for a premium to be placed on training requirements but that the position responsible for managing and certifying training, the Tech-nical Training Coordinator, is being eliminated by the proposed amendment.

Further, the sole duty of the Manager, Health and Safety, to whom training duties are being transferred, appears to be one of merely documenting that adequate training has been conducted. Additionally, Intervenors claim, the Manager's predecessor had to have 3 years of experience in training and development but none is required of the Manager. See Earl Testimony at 51-52.

The Licensee avers that training requirements at its facility have been reduced with fewer staff on board and also simplified with fewer tasks, with training basically limited to radiation protection and industrial safety. On the question of experience, the Manager, Health and Safety, has helped develop the current training program - rated a " programmatic strength" by the NRC in 1994

- and conducted several training courses at the facility. Also, Licensee asserts, the Manager has a Masters degree in health physics with 8 years of industrial experience in the field. Finally, it notes, the training program is the Manager's responsibility, and his documentation of course completion is adequate certification that it has been conducted. See Ellis Affidavit at 23-24.

294

' Intervenors contend that' having' fewer employees does not require less of a training effort andialthough no obligation exists that a certificate of training completion be issued, SFC's license does require that the training be certified.

See Earl Reply at 14-15, 28-29.

Decision With respect to an alleged inappropriate reduction in the qualifications of these positions, the facts verify that the position of Training Coordinator has been abolished in the proposed license amendment and the responsibilities of that position transferred to the Manager, Health and Safety. It is uncontested that

- the incumbent of that position has an exceptional training background and has previously conducted training courses. We do not subscribe to the Intervenors'

- proposition that, even with substantially fewer employees, the same level of

' training resources are required, nor do we, in light of the limited activities to be performed, evaluate the training requirements to be imposed here as burdensome

.or complicated. Certainly, they are far less than the period when SFC was in an operating mode. Accordingly, it cannot be said on the basis of the evidence, that there is a deficiency in training requirements called for by the license amendment or that the Intervenors have successfully carried the argument on an inappropriate reduction in qualifications here. The Presiding Officer finds that the Licensee

~

has carried its burden of proof on this issue.

Description of Critical Safety and Environmental Functions intervenors allege that a number of safety and environmental functions have incomplete and unclear descriptions in the proposed amendment. These involve staff positions responsible for audits, a number of unlisted manager positions under the Director, Decontamination and Decommissioning (Director, D&D),

unauthorized positions on the Plant Safety Review Committee (PRC), and designee to act as Chairman of that committee, and a Project Supervisor, a safety-related position, whose description, qualifications, and line of support are unspecified. The testimony cites Regulatory Guld 3 3.55,9 2.2, as requiring license applicants to describe minimum requirements iar safety-related positions.

See Intervenors' Brief at 15, 17-18; Earl Testimony,tt 52-56.

'Ihe Licensee claims that, in view of the limi.ed nature of authorized decommissioning activities under the license, only the Director, D&D, is required to handle that position's responsibilities, and no plan is contemplated to employ additional managers. SFC states that the PRC is composed of senior facility managers with safety roles, but the President, who has overall responsibility for the plant's sale operation, is being provided the authority to 295

make additional assignments if assistance is required by the Committee. He license assigns authority to the President to fill safety-related positions. De word

" designee" was added by the amendment to provide someone to fill the role of Chairman in the President's absence. And the Project Supervisor is a position carrying no safety responsibit, ties. See Ellis Affidavit at 24-26. Finally, SFC states that Regulatory Guide 3.55 is guidance only, and is written for operating i

facilities seeking license renewal.

Intervenors argue that the workload of the Director, D&D,is too heavy for a single person and the Licensee has failed to provide enough inforr<jon regard-ing the responsibilities of that office and how its duties would distributed among subordinates. Also, SFC provides no justification for tb President's proposed authority to appoint additional members to the PRC even though they

~

hold no safety-related position. Additionally, the current license does not permit the President to appoint some nonmember of the PRC to serve in his place as Chairman. And finally, it is stated that, since the SfC testimony lists for the first time the Chief Executive Officer as part of SFC's management organization, the responsibilities and relationship of that office to other positions should be described in the application. See Earl Reply at 30-31; also, Ellis Affidavit at 5 8 in reply, SFC states that the purpose for referring to the Chief Executive Officer was to identify the number of employees on SFC's payroll and not to indicate that the position has safety-related responsibilities, which it does not.

Ily providing for a " designee" to be appointed to the PRC, the amendment was merely attempting to clarify the wording on the license, which is silent on who may serve as Chairman in the President's absence. The Licensee argues that the President, who is responsible for the overall safety of the plant, should have the authority to select additional members for the PRC as well as designate someone to act as Chairman in his absence. See Ellis Affidavit at 6.

Decision Intervenors' allegations challenging the description of critical safety and environmental functions embrace a number of assumptions, the validity of which has been vitiated by SFC's responses. No subordinate employces are intended to help carry out the responsibilities of the Director, D&D; the Chief Executive Officer position is not safety-related; the necessity of having someone preside as Chairman of the PRC in the President's absence requires some indication of that intention in the license; and finally, it cannot be successfully averred that j

the President of the corporation who carries ultimate responsibility for the safety

)

'In wveral pages or Intervenurs' Reply (at 1518) and the I:ths Reply (at 7-9L argunents are rnade concertung Mr. Elks' prior occupauon and recurd at the llanford Pures plant. The Presiding ofheer ducs not teheve that I

this rnattet is relevant to the mues dehneated in then caw and accordingly disregards the rnatter herein.

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of the facility should be unable to make additional appointments whenever the PRC - which serves an important function ---

'v need specialized assistance.

'lhe Licensee prevails on this issue.

Compliance with Regulatory Timing Requirements in Decommissioning j

Intervenors state that Commission rules require the submittal of the Licensee's final decommissioning plan by September 15, 1995, and, unless a schedule change is requested and approved, the completion of decommissioning within 2 years of approval of the decommissioning plan. 'Ihe contention is that SIC neither requested nor had approved a decommissioning schedule extension. As a consequence, Licensee's proposed management and organizational structure will be inadequate to meet decommissioning deadlines and the schedule for completion of decommissioning will be delayed.

According to Intervenors, the Timeliness-in-Decommissioning Rule (10 C.F.R. 640.42) injects considerations of time and efficiency into the agency's evaluation process. Except for NRC approval of SFC submitting its site char-acterization plan (SCP) late to conform to an Environmental Protection Agency (EPA) schedule date, the argument is that there has been no approval of any other time change in the decommissioning schedule. Intervenors argue that SFC is already 2 years behind the Timeliness-in Decommissioning Rule date.

Related to this contention, intervenors assen that an efficient and effective or-ganization requires full-time directors and managers in key positions, llowever, SFC's application does not provide essential information for the assessment of time burdens imposed on key safety positions. Instead, it appears that SFC is assigning one of its most critical positions, Director, D&D, to part-time status.'

Due to the large workload and responsibilities of that position, where four po-sitions with substantial duties have been combined into one, it is inappropriate, in intervenors' view, to treat that position as part-time. Its employment status, whether full-or part time, should be set forth explicitly in the license applica-tion.

Intervenors also contend that substantial responsibilities of several other functions have been consolidated in the new position of Manager, Health and Safety. This, without apparent consideration of whether the workload can be handled in a timely manner. This position, among other duties, they assert, carries training program responsibilities, the effective performance of which is unclear due to toe lack of demonstrated training experience. Consequently, Intervenors concluu, the Licensee's amendment fails to demonstrate that its

' truer. Ancirad to Curra.i. March 6.1995 297

proposed organization and management structure has the manpower resources to conduct its decommissioning timing responsibilities, and must be rejected.

See Intervenors' Hrief at 6-13; Earl Testimony at 12-29.

The Licensee argues that its decommissioning schedule is irrelevant in this proceeding but that SFC is operating with an NRC-approved schedule under the rule. It cites correspondence from the NRC as substantiating the approved schedule. See Ellis Affidavit, Attach. 8. The schedule, it claims, calls for the e

submission of the Plan for Completion of Decommissioning (PCD) 6 months i

after NRC approval of a site characterization report, or approximately late 1996.

Stating that its proposed amendment deals with organization and not staffing levels, SFC contends that the only relevant questions are whether the proposed organizational structure satisfies NRC's regulatory requirements and whether managers performing safety-related functions are appropriately specified.

With respect to the near-term activities at the SFC facility, the L.icensee alleges that management responsibility has been delegated to two officials and characterizes the activities for which they are responsible as " easily manageable" and " routine " It asserts further that contract support would be solicited if SFC's workload increases or additional expertise is required. Licensee concedes that the functions previously assigned to several individuals have been assigned to single persons but claims that the responsibility of SFC's President (Ellis) who also serves as Director, D&D, and that of the rest of the organization, will be reevaluated as part of the final PCD when the scope of its decommissioning effort and activities is fully determined. The Licensee argues that it would be irresponsible and inefficient for assignments that can be carried out on a part.tirne basis to be alh>cated for full-time assignments. In connection with Intervenors' comments on the Manager, IIcalth and Safety, SFC states that the workload and training responsibilities of that office have been lessened as a result of the decrease in activities and personnel at the site. See SFC Reply at 8-14; Ellis Affidavit at 614.

Intervenors concede that, in practical terms, NRC has permitted a delay in SFC's decommissioning scheduling by not timely approving a draft SCP.

Ilowever, they assert that the delay in submitting a PCD must be judged against SFC's new proposed submittal date of late 1996. Further, they contend that SFC has not committed itself to complete decommissioning within 24 months of NRC's approval of the PCD, which violates the regulations in 10 C.F.R.

l 140.42(f)(4)(iv). Intervenors assert that SFC plans a completion date of 2004, four years after the proposed approval date of the PCD.

With regard to the part-time positions issue, Intervenors argue again that unless key positions are explicitly stated as full or part-time, it is impossible to evaluate whether the proposed organization is capable of handling the workload associated with the regulatory requirements of 10 C.F.R. 5 40.41. See Intervenors' Reply at 9-11.

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Licensee's Reply restates that, despite Intervenors' claim to the contrary, NRC has approved a change in its decommissioning schedule. The brief argues that no regulatory requirement exists on specifying full-versus part-time employment, but the performance of functions of safety related positions by qualified in,dividuals is required, and that satisfying such a requirement can only be confirmed by NRC inspections. See Licensee Reply Brief at 34; Ellis Reply Affidavit at 1-4,5.

Decision The arguments alleging noncompliance with regulatory decommissioning timing requirements are confusing and seemingly disparate. Summarized, they can be stated as follows:

1.

SFC has not had an NRC officially approved schedule extension change to complete decommissioning although the agency, in fact, endorsed a change by not timely approving an SFC draft SCP.

2.

SFC violates 10 C.F.R.140.42(f)(4)(iv)* in its proposed deadline of 2004 for decommissioning completion as it has not obtained a schedule extension approval.

3.

In order to comply with regulatory timing requirements for decommis-sioning and the protection of health and to minimize danger to life or property, it is essential for SFC to designate which of its positions are part-time. Its failure to do so makes it impossible to evaluate whether SFC's proposed organization can handle its work responsibilities to meet timing requirements.

Although the parties have a conflict on the current approved schedule for de-commissioning, it is not clear how that schedule is relevant to the evaluation of a proposed amendment dealing with organizational changes. The issue of concern raised by the Intervenors and relevant to the subject matter of this proceeding is whether the Licensee's proposed organization violates regulatory requirements.

The regulations cited by Intervenors (10 C.F.R.19 40.41 and 40.42(g)(4) and (h)) deal with the terms and conditions of materials licenses; the expiration and termination of those licenses; and the decommissioning of sites, buildings, and outdoor areas. Although provisions of section 40.42 are concerned with the submission and completion of decommissioning plans, it is silent with respect to questions concerning the capability of personnel to implement and complete decommissioning, the employment of full-time or part-time personnel, or re-quirements to maintain an organizational structure and staffing levels to meet specific time periods for completion of decommissioning. In connection with

• The Presidmg onicer beheven that the cormt enauon tere is nectmn 40 42(gX4) and (h).

l 1

299

l decommissioning schedule deadlines, the regulations provide for changmg tim-ing schedules for the submittal and cornpletion of decommissioning. A recent i

Staff status report reflects an agency determination that the submittal of the PCD will not occur prior to late 1997 rather than 1996." Based on this infor-marion and the evidence submitted, no significant challenge has been raised to regulatory timing requirements concerning decommissioning, and this issue is

)

accordingly ruled on in the Licensee's favor.

Quality Assurance Program Intervenors assert that an adequate and effective quality assurance (QA) program is jeopardized by the proposed license amendment at the Licensee's facility. It claims that the changes in SIC's operation will not ensure the safe handling of existing radioactive and toxic materials or avoid contaminating the environment. Through deleting a requirement for an internal audit function and assigning the primary QA function to SFC's parent organization, GA,Intervenors contend that the proposed application undermines the QA system's checks and balances and the comprehensiveness and independence of the program.

Additionally, Intervenors assert that written procedures are not available that limit SFC's ability to conduct additional endi s on an "as needed basis." The t

brief cites these changes as violating a " principle" from NRC's Timeliness-in-Decommissioning Rule (59 Fed. Reg. at 36,032) that QA programs governing operations equally apply to decommissioning. Intervenors contend that the technical precision required for preparing SFC's site characterization report and the ongoing work at the facility, although reduced in scope, calls for an adequate and effective QA program to ensure that employees are following health and safety requirements.

Basically, Intervenors assert that the independence of SFC's auditing pro-cesses is undermined by placing responsibility for the QA function with the Director, Regulatory Affairs, who has operating responsibilities, and GA, which has operational and conflicting responsibilities of its own. Tl;e elimination of internal audits dispenses, Intervenors contend, with a system of checks and bal-ances for a review of GA's auditing work. liaving GA perform its auditing function on a quarterly basis demonstrates a substantial downgrading of SFC's QA program. Finally, Intervenors argue that GA is engaged in another litigation involving the NRC and is attempting to distance itself from SFC in that proceed-ing. This creates a conflict with GA simultaneously having responsibility for U See Staff Responne to Presiding otheer. May 7,19% in correnpondence to the Presiding ofheer on May 27.1995t6L a reprnentauve of N ACE. one or the two Intervenors in the proceeding, challenges the Staff's schedule infornuiuan. No not ce of appearance having been provided by that individual, the subsunce of that correspondence has not teen considered herein.

300

auditing under the proposed SFC amendment. See Intervenors' Brief at 13-15; Earl Testimony at 32 50.

He Licensee asserts that, for QA purposes, no large quantities of radioactive or hazardous materials exist at the site, as Intervenors contend, and even the emptying of the site's pools has been deferred until the final PCD is approved.

Ahhough SFC claims that there are no regulatory requirements or guidance on QA for a site in a decommissioning mode, nevertheless, the provision for GA and additional iadependent audits, if needed, meets the regulatory criteria of Regulatory Guide 3.55. De Guide merely provides guidance and calls for the performance of audits and inspections pursuant to a written plan by people not responsible for production activities. SFC contends that GA"s audits satisfy this requirement, that SFC is implementing an effective QA program tailored to the company's ongoing activities, and that no inspector's repoits have cited its QA program for any deficiencies.

In regard to the independence issue, the Licensee asserts that there is no regulatory requirement that internal and external audits must be conducted during decommissioning and the current level of activity at the site does not warrant an internal audit function. The audit function performed by GA under the license has been retained in the amer.dment and, again, GA has been directed to perform audits of areas and departments responsible and reporting to the Director of Regulatory Affairs. If additional audits are needed, the Director of Regulatory Affairs will arrange to have them performed by an independent auditor. Referring to a recent inspection report on August 9,1995, the Licensee claims that the NRC Staff characterited the oversight of the SFC as evidenced by audits as adequate. SFC regards the argument questioning GA's independence within its own organization an irrelevant concern.

On the challenges asserted to comprehensiveness and downgrading of the QA program by quarterly audits, SIC contends that no necessity exists for GA to be available on a daily basis. SFC's other resources, it claims, routinely handle daily inspections. It states that an NRC 1994 inspection report cited the audit j

plan and audits at the site as appearing to be very comprehensive. Admitting i

that there had been some previous confusion regarding lines of reporting due to changes in personnel, the present functions and responsibilities, SFC contends, remain basically unchanged and all activities and responsibilities are assigned to SFC personnel who meet license qualifications. It states that the fact that GA is continuing the audit function that it holds m the current license evidences the fact that GA's position in another proceeding is unrelated to its audit responsibilities for the SFC.

De Licensee contends that the workload associated with audits and the QA function is not heavy for the limited activities currently taking place. It asserts further that the noncompletion of written procedures referred to by Intervenors involved SFC in an operating mode, not its current decommissioning one. SFC 301 4

decided not to complete those procedures and has not been cited by the NRC for a failure or lack of appropriate procedures in its QA. SIC cites section 2.8 of the license application as requiring GA to audit the Director, Regulatory Affairs, and as also authorizing the Director to direct the perfortnance of additional audits of functions under his responsibility. See SIC llrief at 14-16; Ellis Affidavit at 15 23.

Despite the lack of a regulatory requirement on audits, Intervenors contend that the floard [" Presiding Officer"j can impose conditions when health and safety protection concerns require it. Alleging that there still may be activities involving radioactive materials, intervenors contend that the spotty operating history of SFC requires frequent QA oversight.

They allege that the EPA has irnposed stringent QA requirements on SFC, and Intervenors find it difficult to understand, therefore, how the Licensee would not need internal audits. The Intervenors claim that GA's auditing ro!e is not clearly outlined by the License amendment and insist that the Director of Regulatory Affairs has a conflict in being able to decide on additional audits over areas i

in which he has program responsibility. See Intervenors' Reply at 11 14; Earl Reply at 18-27, in the Licensee's view, a quarterly audit program conducted by GA and backed by selected independent audits is sufficient for the current level of limited activities at SIC. The QA program is not being degraded and it satisfies EPA and NRC requirements. SIC argues inat other proceedings that GA is involved in are irrelevant to this proceeding and no one has previously challenged GA handling the QA function under SFC's current license.

According to the Licensee, the Intervenors are seemingly confused and are mistaken in referring to SFC as discontinuing its internal QA program. Internal inspections, SIC states, are still being performed on quality control functions and only internal QA audits have been climinated. NRC's inspection program has not identified any of the problems cited by Intervenors. Finally, the Licensee asserts that the authority of the Chairman, who has overall responsibility for the plant's safety, is not limited by the license from designating someone to serve m his place or to appoint additional members to the PRC. See Licensee Reply firief at 5 6; Ellis Reply Affidavit at 4.

Decision Intervenors challenge the amendment application as undermining the checks and balances of the Licensee's QA program as well as its quality and inde-pendence. It argues that making GA's audit function the responsibility of the Director of Regulatory Affairs, who has operating supervisory authority, and climinating internal audits presents a conflict of interest, dispenses with a check-302 1

and-balance system, and removes any method of validating GA's auditing per-formance.

It cannot be demonstrated that a licensee in a decommissioning posture where its activities are greatly decreased requires the same level of resources as in an operating mode. Hat is the case here where unchallenged testimony shows an overall personnel reduction from 350 at the peak of SFC's operations to less than 30 currently." As resources and activities decline, similarly will the QA effort to which it applies. Since GA has been performing its audit responsibilities while in a decommissioning stance and no one has produced evidence of current QA deficiencies being cited by NRC inspectors, it is impossible to conclude that SFC's QA audit procedure has any basic flaws at this point in time.

In view of its decreased activities, a successful challenge cannot be made that NRC has a requirement for an internal audit function at present. We need not debate the issue of a regulatory requirement for QA during decommissioning since the QA function, although lessened, is being performed here. No substantial challenge has been made to SFC's arrangement to have GA continue the QA function it has performed previously or the additional independent audits whenever needed to review GA's work or other activity. The fact that the authority to request such additional audits rests with a person who has authority over the areas to be audited does not, in and of itself, represent a conflict of interest. Nor is the independence of SFC's QA program threatened by the utilization of GA as an outside auditor. Dat company has been exercising the same responsibility for years without any regulatory challenge to its independent performance.

In light of the present level of activity, Licensee's QA effort appears at this stage as adequate. And lack of independence or conflict of interest cannot be successfully claimed where GA's QA work is deliberately interposed between the Director, Regulatory Affairs, and the departments supervised. Further, it cannot be maintained that the question of GA's independence within its own organization is relevant to this proceeding. If the Intervenors' argument that GA is trying to distance itself in another proceeding from SFC is correct, one can only conclude that a willingness to continue an audit function with the same company is an odd way to demonstrate that fact. It is difficult to understand how SFC's QA effort, at this limited stage of its decommissioning activity, can be reviewed as deficient. At a time when the PCP is forwarded for approval to the agency and the effort to dispose of contaminated materials is clarified, the QA program can be screened with more pertinency than it can under the present state of affairs. It should be noted that the Staff now requires SFC to review its staffing levels and qualifications whenever there is a change of activities at U llha Athdavit at 11.

303

1 the facility, and there is a requirement that such reviews will be made available.-

See Amendment of SFC License. Weber to Ellis (Ibb. 21,1996).

Legal Argument The Intervenors claim that section 103 of the Atomic Energy Act (Act)

- and 10 C.F.R. 5 40.3 of the Commission's regulations control the issuances of l

licenses to conduct activities with radioactive materials. 'The Staff ordinarily issues requested licenses, but in this case, it is asserted "because a hearing _

was requested by the Intervenors, the authority to issue a license rests with the Licensing Board." Intervenors' Brief at 2-3. Intervenors cite 10 C.F.R.

6 2.104(d)(3) as support for this proposition. /d. at 3.

l' Intervenors argue that NRC Staff inspectors, acting on behalf of the agency, acquiesced in the unilateral organizational changes made by SIC prior to obtaining licensing authority to do so. 'Ihis violated section 189a of the Act i

and abrogated Intervenors' hearing rights. firom this argument, Intervenors conclude, the Presiding Officer should decline to exercise his authority to consider a license amendment application as a " fait accomplis." instead, SIC's

license application should be denied; the Presiding Officer should order SIC to l

' restore the staffing and management organization as they existed prior to April l1993; and the Presiding Officer should refuse any further license amendments

" implemented prior to receiving approval from the NRC Staff or the Board [ sic),

as appropriate." /d. at 5.

l In its Reply Brief, SIC counters that Intervenors have relied upon the wrong i

provisions of both the Al!A and NRC regulations. SFC claims that the provisions cited for support refer exclusively to the licensing of nuclear reactors and fuel reprocessing facilities. According to SFC, section 103 of the Act is not relevant to a source materials licensee "which is subject to NRC jurisdiction under Section 62 of the AEA (42 U.S.C. I 2092) and licensed under 10 C.F.R. Part 40."

SFC Brief at 3. SFC argues that 10 C.F.R. 5 2.lbt(d), upon which Intervenors rely, is applicable to production and utilization facilities under Part 50 and only to antitrust questions, neither of which is a concern in this proceeding. The Intervenors, SFC contends, ignore the provisions of 10 C.F.R. 5 2.1205(l) where "the staff retains its authority to act upon the pending application notwithstanding the granting of Intervenors' hearing request.". Id. at 4.

As to the substance of Intervenors' argument that many of the administrative changes requested by the Licensee's amendment request are already a fair accomptl, SIC answers that all the individuals assigned to decommissioning responsibilities are fully qualified for those positions under the current SFC license, and therefore, SFC is meeting its regulatory responsibilities. SFC states

- that Intervenors have failed to identify any regulatory requirements concerning the assigning of more than one position to a single individual. Id. at 5. SFC 304

further argues that Intervenors' requests - that the Presiding Officer decline to consider the amendment application, that the application be denied, and that the staffing levels be returned to the April 1993 level - are, except for denying the application, beyond the scope of the Presiding Officer's authority. According to SFC, that authority is limited to the resolution of the admitted creas of concern in determining whether the pending application should be granted, denied, or conditioned. Id. at 6.

SFC also argues that In:ervenors have not been denied their hearing rights under the AEA. It states that under the provisions of 10 C.F.R. Part 2, Subpart L, a heari: on a rnaterials license can be held before or after the issuance of the license, depending upon the circumstances of the hearing request. SFC cites, for an example, if the Federal Register notice of a licensing action has not been published, a hearing on the issuance of a license or license amendment can be requested until the earlier of 30 days after the requester receives actual notice of the NRC action granting an application or 180 days after such action. Id. at 7, citing 10 C.F.R. 5 2.1205(c)(2).

In their Reply Brief, Intervenors agree that they inappropriately relied on section 103 of the AEA in their earlier written presentation. See Intervenors' Reply, flowever, they point to language in section 62, cited by SFC, that carries "even more explicit prohibition than 6103 against the conduct of unlicensed activities." /d. at 1. Again Intervenors argue that changes in the management structure at the SFC facility "in the absence of prior staff approval, required SFC to wait for the Board's ruling that the amendrnent was lawful and I

reasonable before it could implement the proposed license amendment." lti at

3. Intervenors question the validity of 10 C.F.R. 6 2.1205(a)(1) under section 189(a) of the Act. Intervenors state that section 189(a)(2)(A)of the AEA (which clearly enunciates " construction and operating licenses") " applies to all licenses issued under Chapter 23 of the U.S. Code" and further presumes "all hearings on license amendments which are offered under i189(a) of the AEA will be held prior to the issuance of the license amendment unless they are subject to a no significant hazards determination." Id. at 3-4.. The Board has an interest in seeing that the integrity of its adjudicatory process is respected, Intervenors say, and in the absence of fcimal licensing approval from the NRC staff, SFC is required to wait for the Board's resolution of the pending hearing request before implementing those changes. Id. at 5. The Licensee's Reply alleges the inapplicability of the "no s gnificant hazards" determination of section 189(a) to materials licensees.

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Decision There are substantial flaws in Intervenors' legal arguments. Notwithstandmg the Intervenors' beliefs, a Presiding Officer does not have the authority to issue a license or license amendment. That authority is solely the province of the Staff. The Presiding Officer's duty is to determine whether or not challenges to the license amendment application and the granting of the license by the Staff are against either statutory or regulatory law. In its Reply Brief, the Licensee has set forth the relevant provisions of the law and regulations governing materials licensing. Summarized and as they pertain to the matters raised by the Intervenors, they are:

1.

The Presiding Officer is limited in this case to a determination that the license application be granted, denied, or conditioned. Declining to consider the present license application on the basis that it already has been implemented is a matter beyond the scope of his authority.

2.

The regulations in Subpart L make clear that a hearing can be held before or after the issuance of a materials license. See 10 C.F.R. I 2.1205(c)(2).

3.

None of the provisions of the Atomic Energy Act and NRC's regulations cited by Intervenors have been violated through the commencement of this license amendment proceeding.

It should be noted that the legal challenges to this proceeding have not been raised prior to the written presentation of Intervenors' case. In its request for hearing, the right to a hearing was based on the substance of the amendment and contesting "the adequacy of SFC's management organization to provide adequate protection of petitioners' heath and safety.. " Although the basis i

of Intervenors' legal arguments have been considered, a deterrnination could be made that such contentions are outside the scope of this proceeding. Procedural irregularities in the manner in which managerial and administrative changes have taken place prior to the granting of a licenae amendment, as alleged by Intervenors, are reachable by recourse to the provisions of 10 C.F.R. 6 2.206.

Hat procedure authorizes the questioning of Licensee activities through a petition to the NRC's Executive Director for Operations and the issuance of an enforcement order to have protested irregularities stopped.

In light of the foregoing, and based on the complete record of this proceeding, the Presiding Officer concludes that Intervenors have not demonstrated or proven any deficiencies in the Licensee's proposed amendment at this time.

ORDER On the basis of the presentations and evidence submitted, and in consideration of the opinions and conclusions set forth herein, it is ORDERED that 306

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- 1..'Ihe iss'uance of an Amendment dated libruary 21,1996, to Sequoyah fuels Corporation Materials License SUB.1010 is sustained.

2.

In accordance with 10 C.F.R. 6 2.1251, this Initial Decision will consti-i tute the final action of the Commission within thirty (30) days after the date of i

issuance, unless any party petitions for Commission review in accordance with 10 C.F.R.12.786, or the Commission takes review sua sponte. Any other party to the proceeding may file within ten (10) days after service of a petition for' review, an answer supporting or opposing Commission review.

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James P, Cleason, Presiding '

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. Officer ADMINISTRATIVE JUDGE Rockville, Maryland f

' June 21,1996.

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Cite as 43 NRC 309 (1996)

DD-96-4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF ENFORCEMENT James Lieberman, Director in the Matter of Docket Nos. 50-528 50-529 50-530 ARIZONA PUBLIC SERVICE COMPANY (Palo Verde Nuclear Generating Station)

June 3,1996 With the exception of granting the request that the Nuclear Regulatory Com-mission (NRC) take escalated enforcement action against the Licensee, Arizona Public Service (APS) Company, the Director of the Office of Enforcement de-nies the requests set forth in the petitions dated May 12,1993 (as supplemented on May 28,1993, October 26, 1993, and January 15,1994), May 27,1994 (as supplemented on July 8,1994), and November 14, 1994, filed by Thomas J. Saporito, Jr., Florida Energy Cor.sultants, and Linda Mitchell (Petitioners).

The Petitioners requested that the NRC (1) initiate a proceeding pursuant to 10 C.F.R. 6 2.202 to modify, suspend, or revoke the Palo Verde operating li-censes; (2) initiate actions to immediately shut down Palo Verde; (3) issue escalated enforcement action against the Licensee and/or Licensee management personnel; (4) take immediate actions to survey Palo Verde employees to as-certain any chilling effect and discover any management actions effective in limiting the chilling effect; (5) issue a notice of violation to APS for continu.

ing to employ The Atlantic Group (TAG) as a labor contractor at Palo Verde; (6) investigate alleged material false statements made by William F. Conway and require that he be relieved of his duties; (7) investigate comments about Mr. Saporito appearing in an APS letter dated August 10,1993; (8) investigate the termination of Joseph Straub; (9) initiate a " chilling-effect letter" to APS re-garding Mr. Straub's termination; (10) issue an order requiring APS to bring the 309

Palo Verde units to 0% power until APS can demonstrate that corrective actions have been taken to obviate any inference of a hostile work environment at Palo Verde; (11) issue a demand for information requesting specified information from APS concerning the work environment at Palo Verde and the effect that the employment of certain named individuals has on the work environment and why the NRC should have confidence that the named individuals will comply with NRC regulations; (12) take escalated enforcement action against TAG and any of its employees found to have engaged in wrongdoing; (13) require APS to provide Mr. Saporito a make-whole remedy for terminating him and failing to rehire him; and (14) require actions by APS to abate and obviate the chilling effect caused by the failure to provide employee protection for Mr. Saporito.

He Director has reviewed the Petitioners' requests and concerns and concluded that the need for further action has not been substantiated. He reasons for the partial denial are fully set forth in the Director's Decision.

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

I.

INTRODUCTION A petition was filed by Thomas J. Saporito, Jr. (Petitioner) in accordance with 10 C.F.R. 5 2.206 on May 12,1993. The petition requested that the NRC: (1) institute a show-cause proceeding pursuant to 10 C.F.R. 9 2.202 to modify, suspend, or revoke Arizona Public Service (APS) Company's operating licenses for Palo Verde Nuclear Generating Station (Palo Verde); (2) initiate actions to shut down Palo Verde; (3) take escalated enforcement action against APS, including the issuance of civil penalties against APS and/or Licensee management personnel at Palo Verde; and (4) survey Palo Verde employees to gauge the chilling effect that may exist and whether the Licensee's actions were effective in limiting the chilling effect. On May 28,1993, Petitioner forwarded a New Times article (May 26-June I,1993) to the NRC as a supplement to

)

this petition.3 On October 26,1993, Petitioner supplemented the May 12,1993 Petition to include a copy of an October 23,1993 discrimination complaint filed by the Petitioner with the Department of Labor against APS and He Atlantic Group (TAG). In the October 26, 1993 supplement, Petitioner reiterated his carlier request for action and additionally requested escalated enforcement action against TAG and against any of its employees who are found to have engaged in wrongdoing.

I This article cont.uns accounts or wtustleblower retahauon by the Licensee agamst pl.us workers at Palo Verde.

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Another petition was filed by Petitioner on January 15,1994. 'Ihis petition, which has been treated as a supplement to the May 12, 1993 Petition: (1) reiterated the requests for escalated enforcement action against APS that were made in the May 12,1993 Petition;(2) requested that APS be required to provide a make whole remedy for Petitioner for terminating Petitioner and failing to rehire him as a result of Petitioner's engaging in protected activities; and (3) requested that APS be required to abate and obviate the chilling effect at APS arising from the failure to provide the Petitioner with employee protections afforded under 10 C.F.R. 9 50.7.

As the bases for the May 12,1993 request, Petitioner asserted that: (1) a Department of Labor (DOL) Administrative Law Judge (ALJ) ruled that APS discriminated against Petitioner (ERA Case No. 92-ERA-030);2 (2) the DOL case is evidence that "the Licensee appears to have violated numerous NRC requirements regarding operation of the Palo Verde nuclear station; and (3)

Licensee managers have made questionable if not false statements to the NRC regarding the emergency lighting at Palo Verde. Petitioner's October 26,1993 supplement to the original petition bases the request for action on Petitioner's October 23,1993 complaint filed with DOL and the ruling in favor of Ms. Sarah C. Thomas against APS. Petitioner's January 15,1994 supplement to the original

. petition bases the request for action on the admission by one of the witnesses at the Petitioner's DOL hearing that the witness lied under oath, as evidence of APS* intent to discriminate against Petitioner and that the discriminatory treatment of Petitioner has caused a chilling effect on other employees at Palo Verde.

Another petition was filed by Petitioner and Florida Energy Consultants (Petitioners) on May 27, 1994. This petition (1) reiterated the request for a show-cause proceeding, and further requested that the NRC: (2) issue a notice of violation against the Licensee for continuing to employ TAG as a labor contractor at Palo Verde; (3) investigate alleged material false statements made by William F. Conway, Executive Vice President at Palo Verde, during his testimony at Petitioner's IX)L hearing (ERA Case No. 92 ERA-030) and that, in the interim, the NRC require that Mr. Conway be relieved of any authority over operations at Palo Verde: (4) investigate the Licensce's statements regarding Petitioner Saporito in an August 10, 1993 letter from Mr. Conway to NRC Administrator, Mr. Bobby 11. Faulkenberry, in which the Licensee said that Mr.

Saporito gave materially false, inaccurate, and incomplete information on his application for unescorted access to Palo Verde so that, as a result of that event, Petitioner Saporito lacks trustworthiness and reliability for access to Palo Verde; i

(5) investigate the circumstances surrounding the February 1994 termination of I

2 5aporno y Aroms ruhlw Suth e Co. 921.RA 030 (Recommended DecWon and order of May in.1993) 311

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Licensee employee Joseph Straub, a former radiation protection technician at Palo Verde, to determine if his employment was illegally terminated by the i

Licensee for having engaged in " protected activity" during the course of his employment; (6) require that the Licensee respond to a " chilling-effect" letter regarding the circumstances surrounding Mr. Straub's termination from Palo Verde and whether any measures were taken to ensure that his termination did not cause a chilling effect at Palo Verde; and (7) initiate appropriate actions to require the Licensee to immediately conduct eddy-current testing on all j

steam generators at Palo Verde, because the steam generator tubes were recently subjected to cracking.

As the bases for these requests, Petitioners asserted that: (1) a show-cause proceeding is necessary because the public health and safety concerns that are alleged are significant and to permit public participation to provide NRC with new and relevant information; (2) past practices of TAG demonstrate that employees of TAG were retaliated against for having raised safety concerns while employed at Palo Verde; (3) citations to testimony from transcripts and numerous newspaper articles (appended as exhibits to the petition), demonstrate that Mr. Conway's testimony is not credible; (4) statements in the August 10, 1993 letter are inaccurate and materially false and characterize Mr. Saporito as an individual lacking trustworthiness and reliability for access to Palo Verde, so that such negative characterizations have blacklisted him from continued I

employment in the nuclear industry, which is all in retaliation for his raising safety concerns about operations at Palo Verde, and thus, Petitioners ask that these statements be rescinded; (5) an investigation into the termination of Mr.

Straub is warranted in view of the fact that the Licensee has engaged in similar illegal conduct in the past where the NRC has required the Licensee to pay fines; (6) Mr. Straub is entitled to reinstatement with pay and benefits pending the NRC's investigation into his termination to offset any chilling effect his termination had on the Palo Verde workforce; and (7) in addition to cooling tower problems, the stress corrosion and cracking in the steam generators is a recurring problem of which the Licensee is aware and which the Licensee has 4

failed to properly correct, so that the NRC should be concerned about proper maintenance of safety systems and equipment tnere.

Immediate action with respect to item 7 of the May 27, 1994 Petition, regarding eddy-current testing of the steam generators, was denied by William T. Russell, Director, Office of Nuclear Reactor Regulation, in a letter to the Petitioners dated July 26, 1994. The nonimmediate portion of the request is being addressed in a separate Director's Decision by Mr. Russell, and the issue will not be discussed further here.

On July 8,1994, Petitioners filed a supplement to the May 27,1994 Petition raising additional issues concerning technical matters unrelated to the issues addressed in this Decision. The requests filed in this July 8,1994 supplement 312

are being addressed in the above-noted Director's Decision by Mr. Russell and will not be addressed here.

Another petition was filed by Thomas J. Saporito, Jr., Florida Energy Consultants, and Linda Mitchell (Petitioners) on November 14, 1994. The petition requested that NRC: (1) issue a confirmatory order requiring APS to reduce power at all Palo Verde units to 0% until APS can demonstrate corrective actions for the alleged hostile work environment at Palo Verde; (2) issue a demand for information to APS asking (a) why NRC should have confidence that APS can operate Palo Verde in an environment free of harassment, intimidation,

. and discrimination; (b) about the current duties and responsibilities of certain listed employees, including whether any of those employees is currently involved in NRC-licensed activities; (c) why the Commission should have confidence that these employees will comply with NRC requirements; and (d) why the NRC should not take action to prohibit the involvement of these employees in NRC-licensed activities.

As the bases for these requests, Petitioners assert that: (1) DOL found that Sarah Romas was discriminated against by APS; (2) DOL found that Linda Mitchell was discriminated against by APS; (3) DOL found that Romas J.

Saporito, Jr., was discriminated against by APS; (4) these matters could have been settled before adjudication by DOL; (5) other recent DOL complaints by Straub and Irick are indicators that discrimination is the normal course of business at Palo Verde: (6) Petitioner Linda Mitchell lives within 2 air miles of Palo Verde and, therefore, has standing to intervene in a hearing before an NRC Atomic Safety and Licensing Board (Board);(7) Petitioners Saporito and Florida Energy Consultants have the requisite standing to intervene in a hearing before a Licensing Board through Ms. Mitchell; (8) Petitioners are subject to physical harm and loss of personal property in the event of a nuclear accident at Palo Verde as a direct or indirect result of the hostile work environment fostered at Palo Verde; and (9) a hostile work environment exists and is pervasive at Palo Verde and is condoned and fostered by Licensee management.

II. DISCUSSION Due to the numerous requests and interrelated nature of the issues raised and the bases provided by Petitioners, the items raised in each of the petitions and their supplements described above have been considered together and are described in one composite list below. The discussion that follows the list is keyed to the numbers used to identify each request. The petitions and supplements noted above request that the NRC:

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Initiate a show-cause proceeding pursuant to section 2.202 to modify, suspend, or revoke APS' licenes to operate Palo Verde (May 12,1993 Petition, request 1; May 27,1994 Petition, request 1).

2.

Initiate actions to cause the immediate shutdown of the Palo Verde reactors (May 12,1993 Petition, request 2).

3.

Issue escalated enforcement action against Licensee and/or Licensee management personnel at Palo Verde directly or indirectly responsible for the safe and proper operation of Palo Verde (May 12,1993 Petition, request 3) and issue escalated enforcement action against APS for discrimination against Petitioner Saporito, including providing a make-whole remedy for the Petitioner (January 15,1994 Supplement to May 12,1993 Petition, requests I and 2).

4.

Take immediate actions to cause an exhaustive survey of employees at Palo Verde to ascertain the scope and breadth of any chilling effect and to discover what management actions were effective in limiting the chilling effect (May 12,1993 Petition, request 4), and require actions by APS to abate and obviate the chilling effect caused by the failure to provide employee protections for Petitioner Saporito (January 15,1994 Supplement to May 12,1993 Petition, request 3).

5.

Issue a Notice of Violation to APS for continuing to employ TAG as a labor contractor at Palo Verde (May 27, 1994 Petition, request 2) and issue escalated enforcement action against TAG for discrimination against Petitioner Saporito (October 26,1993 Supplement to May 12, 1993 Petition).

6.

Investigate alleged material false statements made by William F. Con-way during his testimony at the hearing for DOL Case No. 92 ERA-030 and, in the interim, require that he be relieved of his duties (May 27, 1994 Petition, request 3).

7.

Investigate the comments made in a footnote of APS' August 10,1993 Letter to the NRC (May 27,1994 Petition, request 4).

8.

Investigate the circumstances surrounding the termination of Joseph Straub by APS to determine if the termination was illegal (May 27, 1994 Petition, request 5).

9.

Initiate a " chilling-effect letter" to APS requesting APS to respond regarding Mr. Straub's termination and to describe what measures were taken by APS to ensure that Mr. Straub's termination did not cause a chilling effect at Palo Verde (May 27,1994 Petition, request 6).

10. Issue a confirmatory order requiring APS to bring all Palo Verde units to 0% power until such time as the Licensee can demonstrate corrective actions to obviate any inference of a hostile work environment at Palo Verde (November 14,1994 Petition, request 1).

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I1. Issue a demand for information requesting that APS:

a.

explain why NRC can have confidence that the environment at Palo Verde is free of harassment, intimidation, and discrimination, both in general and with respect to certain individuals.

b.

describe the current employment duties and responsibilities of certain named Licensee employees, including whether any of those employees is now involved in NRC-licensed or -regulated activities.

c.

explain why NRC can have confidence that the named employees will comply with NRC requirements.

d.

provide information as to why the Commission should not pro-hibit the named employees from involvement in NRC-licensed activities.

(November 14,1994 Petition, request 2).

Requests for Action for Discrimination Against Petitioner Saporito - Items 3 and 5 With respect to the portion of item 3 that requests enforcement action against APS, Petitioner has based the request for civil penalties against APS and/or its managers on violations of section 50.7 for denying Petitioner Saporito employment at Palo Verde Unit 1 in 1992 based on his earher involvement in protected activities at Palo Verde. in fact, in a letter to NRC, dated August 10, 1993. APS stated that, following a hearing before a DOL ALJ concerning whether APS had violated section 210 (now section 211) of the Energy Reorganization Act of 1974 (ERA)in denying the Petitioner employment at Palo Verde (DOL Case No. 92 ERA-030), an APS supervisor admitted that he discriminated against the Petitioner in denying him employment at Palo Verde and falsely testified in the A1) proceeding. The NRC Office of Investigations conducted an investigation into the matter and concluded that the APS supervisor discriminated against the Petitioner (O! 5-93-023R). OI referred its findings to the Department of Justice (DOJ) for criminal prosecution. DOJ pursued and obtained a criminal conviction of the APS supervisor for discrimination in this case. On March 7,1996, the NRC issued a civil penalty in the amount of

$100,000 to APS (EA 93-159) and a Notice of Violation to the APS supervisor (IA 96-015) involved in the violation of section 50.7 for failure to hire Petitioner due to his earlier involvement in protected activities. Therefore, Petitioner's request in item 3 for enforcement action has been granted.

With respect to the portion of item 3 that requests a make whole remedy for Petitioner, section 210 (now 211) of the ERA gives the Department of Labor the authority to effect remedies for the complainant. The NRC has no such authority. Derefore, this portion of the request in item 3 is denied.

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Item 5 requests escalated enforcement action against TAG for TAG's alleged discrimination against Petitioner Saporito and further requests that a Notice of Violation be issued against APS for continuing to employ TAG as a contractor at Palo Verde. Petitioners based this request for enforcement action against TAG on its alleged discrimination against Petitioner Saporito and based the request for enforcement action against APS on the fact that past practices by TAG demonstrate that employees of TAG were retaliated against for having raised safety concerns while employed by TAG at Palo Verde.

Of the five complaints filed with the DOL against TAG foi alleged viola-tions of employee protection requirements at Palo Verde, four were filed by Petitioner Saporito and were ultimately settled without the DOL finding any discrimination.2 On January 14, 1994, the NRC's Office of Investigations (01) initiated an investigation of multiple allegations of Petitioner Saporito that TAG had discriminated against Petitioner by refusing to hire him for additional em-ployment and " blacklisting" him and that a TAG employee lied in testimony in a DOL hearing. Nilowing its investigation 01 issued a report on November 8, 1995 (OI Case No. 2-94-003) in which it found that these allegations were not substantiated. Accordingly, Petitioners' allegations of discrimination, " black-listing," and false testimony by TAG with regard to Petitioner Saporito do not appear to have merit and do not provide a basis for the NRC action against APS and TAG that Petitioners request.

The complaint filed by another TAG employee involved a claim that TAG violated its internal policy when a TAG supervisor divulged derogatory informa-tion about the complainant to a prospective employer. The DOL ALJ concluded that discrimination occurred in that case (DOL Case No. 94 ERA-009) and the NRC issued a Notice of Violation to TAG on January 8,1996, for a Severity Level III violation (EA 95-192).

While disputing the violation, TAG's Ibbruary 6,1996 response advised the NRC that it was going to comply with the Secretary of Labor's order requiring TAG to pay compensatory damages and attorney's fees. The response also described the corrective steps taken by TAG, including: (1) the requirement for a signed release from an employee before any information about his/her personnel file can be given out; (2) a new limitation on types of personnel j

information that can be given out; (3) training of company employees on the requirements of section 21I of the Energy Reorganization Act; (4) training of supervisors to emphasize the right and obligation of employees to maintain an environment in which employees are encouraged to raise safety concerns; 8 The Dol Area Director specshcally found no d scr:nunauon in two of the complaints (Dol Came Non 91LRA.

(M5 and 93-1 RA4126) but the Dol had not yet ruled on the other two complants (consohdated in Dol Case No 9&LRA-029) before the settlenent of all complants with respect to the Peunoner and TAG resuhed in the dismissal of de complants Cane No 941:RA 029 included the october 23.1993 compt.unt that the Peutioner submitted with his october 26.1993 supplenent to the May 12,1993 Peuuon.

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(5) specific training for the supervisor involved in the case; (6) additional correspondence from the President of TAG to its employees reminding them of the company's commitment to a proper work environment; and (7) the hiring of an individual as TAG *s Manager of Quality Assurance who had won a section 211 whistleblower complaint against another employer. The Staff has concluded that Petitioners have failed to provide information that would show that TAG retaliated against its employees and that, with regard to the one violation of employee protection requirements that was substantiated against TAG, considerable improvement and corrective actions have been implemented by TAG. Moreover, it is not a violation to utilize a contractor that has been involved in past violations. In short, there is no basis to justify further action against TAG at this time and no basis to take action against APS for employing TAG

• Petitioners

• request for additional enforcement action beyond that described above is, therefore, denied.

Requests for Action for Discrimination Against Joseph Straub - Item 8 With respect to item 8, which concerns the Petitioners' request for an investigation of the circumstances concerning the termination of Joseph R.

Straub by APS, I note that of the two complaints filed by Mr. Straub with the DOL concerning his termination by APS, the DOL AU dismissed Case No.

95-ERA-0105 on libruary 23,1995 without action, finding that its issues were inextricably intertwined with those of Case No. 94 ERA-037 and, in 94-ERA-037, the AU concluded on October 6,1995, that Mr. Straub had not established a prima facie case of discrimination.6 In fact, the DOL AU found that Mr. Straub was not credible in his assertions of discrimination or the presence of a hostile work environment at Palo Verde. 'Ihe AU recommended that the complaint be dismissed and, in an order issued on April 15, 1996, the Secretary of Labor concurred, dismissing Mr. Straub's complaint. Considering the Secretary of Labor's finding regarding Mr. Straub's complaints, and the fact 6at there has not been any other evidence of discrimination presented by the Petitioner that would establish that Mr. Straub was the subject of discrimination, an investigation into Mr. Straub's claims of discrimination is not warranted and, therefore, the request is denied.

• In fact. at the une of the imual idenut canon of a potenual violanon in TAG's divulging derogatory informauon about the Petismner, APS stactf issued us own "ctulhng-effects letter" to TAG, demandmg that TAG take action to correct the problem and preclude such problems in the future. Ttus was appropnate actmn by APS to make it clear to sts contractor that potennally dancnnunatory acts are unacceptable.

5 See Straub v. Ary<= Pubhc Serwe Co. 95 i RA410 (Recomnended Deciuon and order of Dnnussal. Ith, 23.1995).

'See Strash v A4:<w Pubhc Smhe Co. 94 F.RA437 (Recommended Decision and order, oct 6.1995).

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Requests for Action to Address Resulting Chilling Effect - Items 4,9, and 11 Items 4 (a request that NRC survey Palo Verde employees and cequire actions by APS to abate the alleged chilling effect) and 11 (a request that NRC issue a Demand for Information to APS) relate to the Petitioner's assertions about the work environment at Palo Verde, the chilling effect that might exist at Palo Verde, and whether the NRC should have confidence that certain named Licensee employees will comply with the NRC regulations. In a letter dated April 21,1994 APS described the corrective actions it has taken with respect to the violation discussed in the response to item 3 above to avoid future violations. 'these actions included: (1) retention of a consultant service to perform an independent assessment of employee attitudes and evaluate the factors that impede or encourage employees to raise concerns; (2) retention of another consultant to evaluate the effectiveness of APS' programs for handling employee concerns; (3) corporate and management changes that place a high priority on building a culture in which managers are measured, in part, on human interaction skills and effective employce-management relations; (4) development of the Management Issues Tracking Resolution program, a formal mechanism for raising and tracking management-related concerns which provides timely feedback to employees, timely resolution of the concern, and an appeal process; and (5) reduction and elimination of the backlog of existing "significant" concerns.

In a letter dated January 11,1996, APS described additional actions, includ-ing: (1) initiation of the Integrated Palo Verde Management / Issues Tracking and Resolution Process, which allows employees to raise personal or techni.

cal concerns either formally or informally; (2) issuance of a memorandum to emphasize that resolution of issues is a top priority; (3) changing the reporting structure so that the Employees Concerns Program reports to the Vice President, Nuclear Support; (4) issuance of a letter to all employees to emphasize the im-portance of open communications; (5) issuance of a memorandum to all contrac-tors informing them of the Integrated Palo Verde Management / Issues Tracking and Resolution Process; (6) a letter to TAG requesting that TAG inform APS of the actions it has taken to foster an open and positive work environment, followed up by a similar letter to 170 companies that work for APS; and (7) a commitment to the NRC to conduct yearly audits of the Integrated Palo Verde Management / Issues Tracking and Resolution Process. In addition, in a June 30,1995 response to a letter from APS regarding EA 95-192. TAG described the actions it had taken to correct the possible chilling effect associated with this violation. These actions included: (1) revision of its policy regarding the release of information to prospective employers, (2) reiteration to all employees that reference inquiries be directed to TAG's Human Resources Department, 318

(3) retraining of the supervisor involved in this violation, and (4) issuance of a memorandum to all TAG cmployees to emphasize that they are encouraged to raise concerns with TAG, the Licensee, or the NRC.

With regard to previous enforcement actions taken by NRC ngainst APS for discrimination violations (cited by the Petitioners as bases for issuance of a Demand for Information to APS), in the case involving the Petitioner (EA 93-159), the NRC did not require any further response regarding the violation, stating that "information regarding the reason for the vi>lation, and the actions taken and planned to correct the violation and prevent recurrence is already adequately addressed on the docket." The other cases referred to by Petitioners involving Ms. Linda Mitchell and Ms. t.-ah Thomas (EA 92-139) arose a number of years ago and have long-size been resolved. In light of the positive progress made by APS in the intervenir.,9 years, as noted above, and after careful consideration of the corrective actions tJen by APS for each of the above violations, the NRC does not believe that addit:onal actions are necessary at this time. The Petitioners have not presented information that would indicate that the corrective actions are inadequate or that there is a hostile work environment at Palo Verde at this time, and therefore, have not provided a basis for issuing the Demand for Information requested here. Consequently, the request is denied.

Item 9 concerns a request that a chilling-effect letter be issued to require APS to respond regarding Mr. Straub's termination and to describe the actions taken by APS to ensure that Mr. Straub's termination did not cause a chilling effect at Palo Verde. In Case No. 94-ERA-037, the DOL ALJ found no discrimination and found that Mr. Straub " failed to present evidence to suggest, let alone prove, that he was required to work in.

a hostile or abusive work environment."'

As previously noted. the Secretary of Labor agreed with the ALJ's fmding and dismissed Mr. Straub's complaint in an order issued on April 15,1996. Since the NRC normally issues chilling-effect letters only when there appears to have been discrimination, or when the circumstances suggest that other employees at the site perceive that there might have been discrimination, and since the DOL has concluded that no discrimination was shown with regard to Mr. Straub, there is no justification for a chilling-effects letter with regard to Mr. Straub's termination. Accordingly, Petitioners' request for a chilling-effects letter is denied.

Actions Against Willia n F. Conway - Item 6 As to the portion of item 6 that concerns a request that the NRC require that Mr. Conway be relieved of his duties at Palo Verde, Mr. Russell's July 26, i

Ild.

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1994 letter informed Petitioner that Mr. Conway had retired and, therefore, this request is moot. With respect to the request that the NRC investigate whether or not Mr. Conway provided false information during his testimony at trial in DOL Case 92-ERA-030, Petitioners enclosed newspaper articles to demonstrate that Mr. Conway's statement that he was not aware of a gathering of news reporters at the gate of Florida Power and Light Company's Turkey Point plant, was not credible. The credibility of witnesses in a DOL administrative hearing is a matter to be determined by the AU during the course of the hearing.

The DOL AU, in case 92-ERA-030, did not find that Mr. Conway was not a credible witness. Moreover, based on a review of information submitted by the Petitioners in support of this allegation, it is the Staff's view that the allegations regarding Mr. Conway's credibility are unsubstantiated. Therefore, the sequest for a separate investigation is denied.

Actions Relating to False Statements - Item 7 With respect to item 7, which concerns a request that NRC investigate alleged false statements made in an August 10,1993 letter from APS to NRC regarding Mr. Saporito's application for unescorted access to Palo Verde, the Petitioner quoted the Licensee's letter without giving the entire context. The Petitioners quote the letter as saying "Mr. Saporito had provided materially false, inaccurate, and incomplete information as part of his application for unescorted access to Palo Verde," which suggests an accusation on the part of the Licensee. In fact.

the letter actually states: "Notwithstanding the results of [an investigation by APS), or the facts which have thus far been established regarding Mr. [ Frank]

Warriner's state of knowledge, APS had previously concluded that Mr. Saporito had provided materially false, inaccurate, and incomplete information." The phrase bearing the added emphasis makes clear that APS was simply stating the position it had taken before it became aware of Mr. Warriner's admission that he had discriminated against Mr. Saporito and had lied to the DOL AU about the matter. Furthermore, the Staff does not believe that APS " blacklisted" Mr.

Saporito, as asserted, by stating the results of its investigation into the accuracy of the information provided by Mr. Saporito in his application for unescorted access to Palo Verde. In surr the Staff does not believe that the Petitioners have provided a basis for init. ting an investigation into this matter. Therefore, the request is denied.

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- Actions to Shut Down Pale Verde or Bring it to 0%

Power - Items I,2, and 10 items I and 2 concern requests for actions to shut down the Palo Verde re-actors and item 10 concerns a request for a confirmatory order requiring APS to bring all Palo Verde units to 0% power until such time as the Licensee can demonstrate corrective actions obviating any inference of a hostile work envi-j ronment at Palo Verde. Based on the information discussed above Petitioners have not provided information ths.1 would establish that a hostile work environ-i ment exists at Palo Verde. 'lherefore, Petitioners have not provided a basis to

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support the requested action. 'These requests are hereby denied.

III. CONCLUSION As explained above, the request for enforcement action against APS (see item 1, above) has been granted. For the reasons given in the discussion of items

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- relating to continued employment of TAG by APS, discrimination against Mr.

Straub, the alleged chilling effect at Palo Verde, actions against Mr. Conway,

' false statements, and the shutdown of Palo Verde, the remaining requests, other j

than those to be addiessed by Mr. Russell in a separate Director's Decision, l

have been denied.

A copy of this Decision will be filed with the Secretary of the Commission for the Commission to review in accordance with 10 C.F.R. 6 2.206(c). As provided by that regulation, the Decision will constitute final action of the Commission on the issues discussed herein 25 days after issuance, unless the Commission, i

on its own motion, institutes a review of the Decision within that time.

James Lieberman, Director Office of Enforcement Dated at Rockville, Maryland, this 3d day of June 1996.

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Cite as 43 NRC 322 (1996)

DD-96-5 1

1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1

1 OFFICE OF NUCLEAR REACTOR REGULATION i

l William T. Russell, Director In the Matter of Docket Nos. 50-277 50-278 PECO ENERGY COMPANY

. (Peach Bottom Atomic Power Station, Units 2 and 3)

June 10,1996 The Director of the Office of Nuclear Reactor Regulation denies a petition dated October 6,1994, filed by the Maryland Safe Energy Coalition (Petitioner).

)

He petition requests the Nuclear Regulatory Commission (NRC) to immediately shut down both reactors at Peach Bottom, stating that (1) the risk of fire near electrical control cables due to combustible insulation could cause a catastrophic meltdown; (2) cracks were found in the structural support (core shroud) of the reactor fuel in Peach Bottom Unit 3 indicating possible cracks in other parts of the reactor vessel; (3) the NRC discovered that both reactors had no emergency cooling water for an hour on August 3,1994; and (4) other chronic problems exist at Peach Bottom according to an August 16,1994 NRC report. In addition, the Petitioner raises a concern about the lack of an analysis of the synergistic j

effects of cracks in multiple reactor vessel components. After a review of the Petitioner's concerns, the Director concluded that the Petitioner's concerns do not raise substantial health or safety issues warranting the requested actions.

The reasons for the denial are fully set forth in the Director's Decision.

REGULATIONS: INSERVICE INSPECTION PROGRAMS Nuclear power reactor licensees are required by 10 C.F.R. 650.55a to implement inservice inspection programs that meet requirements set forth in the American Society of Mechanical Engineers Boiler and Pressure Vessel Code j

(ASME Code). He scope of the inservice inspection programs for reactor i

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I pressure vessels and their internal components is prescribed by ASME Code-llXI, Division 1, subsections IWA and IWB. Licensees are required by the ASME Code 6 XI, art. IWA-6(X10, to submit the results of the inspections to the NRC within 90 days of completion.

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

INTRODUCTION On October 6,1994, the Maryland Safe Energy Coalition (Petitioner) issued a press release describing'its' concerns with the operation of PECO Energy Company's Peach Bottom Atomic Power Station (PBAPS). In the press release, the Petitioner requested that the U.S. Nuclear Regulatory Commission (NRC).

take action to address those concerns. De Petitioner requested the NRC, among

'i other things, to immediately shut down both reactors at Peach Bottom and keep

. them shut down until certain conditions are corrected. Specifically, the Petitioner stated that (1) the risk of fire i, car electrical control cables due to combustible insulation could cause a catastrophic meltdown; (2) cracks were discovered in the structural support (core shroud) of the reactor fuel in Peach Bottom Unit 3, indicating possible cracks in other parts of the rextor vessel; (3) the NRC discovered that both reactors had no emergency cooling water for an hour on August 3,1994; and (4) other chronic problems exist at Peach Bottom according to an August 16,1994 NRC report.

De Petitioner seeks relief from the risk of fire (Request 1) due to cable insulation on the basis of a September 30, 1994 article in the Baltimore Sun that described the indictment of Thermal Sciences, Inc., on charges of falsifying laboratory records related to Thermo-Lag. Thermo-Lag is a material used to insulate electrical cables and other equipment from fire damage. De petition states that a fire in combustible insulation near electrical control cables could cause a catastrophic meltdown.

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De petition also seeks the correction of cracks that were discovered in the structural support (core shroud) of the reactor fuel in Peach Bottom Unit 3, indicating possible cracks in other parts of the reactor vessel (Request 2). In support of this request, the Petitioner also references an earlier demand by the Nuclear Information and Resource Service (NIRS)' that all safety-class l

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' on septernber 19,1994, NIRS nousta relier. pursuant to 10 C.F R. I 2.206. regarding surety class reactor imernal components at oyster Creek Nuclear Generaung stanon (OCNGS) on the followmg prenuses; (a) the core shroud (Cumtmud)

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component parts in both reactor vessels, including the cooling system, the heat transfer system, and the reactor core, be inspected and that an analysis be conducted of the synergistic effects of cracks in multiple parts. The Maryland Safe Energy Coalition did not, however, provide any information to support the application of the NIRS petition to PBAPS.

He Petitioner also raises equipment problems at PBAPS, stating that: (a) the NRC discovered both reactors at PBAPS had no emergency cooling water for approximately I hour on August 3,1994 (Request 3); and (b) an NRC inspection report dated August 16,1994, which the Petitioner asserts described numerous chronic problems at PBAPS2 (Request 4).

In a letter dated December 2,1994, I acknowledged receipt of the October 6,1994 Petition and denied the Petitioner's requests for immediate relief. In the acknowledgment letter, I informed the Petitioner that the remaining requests were being evaluated under section 2.206 of the Commission's regulations and that action would be taken in a reasonable time.

The issues raised by the Petitioner concerning the use of Thermo-Lag fire barriers raised by Request I of the October 6,1994 Petition have been previously considered. A Director's Decision (DD-96-3) addressing this specific request as well as the requests of other petitioners with concerns regarding the use of Thermo-Lag by reactor licensees, was issued on April 3, 1996.8 The NRC Staff's review of the issues related to cracking of reactor internal components and concerns regarding equipment problems raised by Requests 2,3, and 4 of the October 6,1994 Petition is now complete. Accordingly, I am issuing a Final 6n General Liecuic lanisng-water reactors (llWRs) ss vulnerable to age-related deteriorabon. (bl 12 donrsue and foreign llWH owners have found extenuve cracking on welds of the core shroud. (c) unty 10 of 36 O S. BWR owners have inspected their core shronds und 9 uf the 10 core shrouds hal cracks at the time of the NIRs petmon=, (d) 19 of 25 selected itWR internal cornponents are suscepuble to stress corrowon cracking and 6 of 4

19 are suscepuble to irradiauon-assisted stress corrosion crabng. (e) as the oldest operaung General Electric Mak l HWR and the tlurd oldew operaung reactor in the Umted States. oCNGS has been subjected for the longen penod to operadonal combtions that cause embrittlenent and crachng;(O according to the BWR Owners Group (IlWRoGk craking of the core shroud is a warmng signal that a&htional safety class reactor internals are increasingly suscepuble to age related detenorauon, (g) craking of any single part or muluple components jeopardisrs safe upradon of that nuclear stauon (h) oyster Creek did not inspect for core shroud cracking pnor to the canent icfuchng cutage, and oder safety class reachir internals have not been adequately inspected for 1

crabeg, and (i) a safety analyius has not been perforned on the potential synergissc cffects of muluple-component I

cracking The rehef sought in de petidon based upon these concerns was demed in a Parual Director's Decision j

inued on August 4.1995 (Scr Gencrul Pahhc Urthres Nalent Corp. (oyster Creck Nuclear Generaung Stauonk DD 9tlR,42 NRC 67 (1995D.

2 The Petiuoner stated diat dw problems described in the Augus 16,19M NRC repon included' coolmg tower leaks, coolant injection system vibranon snjection valve f.ulures, feedwater vibrauons sind leabige. fud pool hot spots, incore probe failures, uusihary toiler unrehabehty, valve failures, air notenoid fasture, and hydrauhe leaks and malfunctions.

1. All Routrar Licensers mrh knerailed Therma-lag Fire Burrier Materml. Ot>%). 43 NRC 18) (1996). In addiuon to the Maryland Safe Erergy Coahuon. Peuuoners with concerns about the use of 'themio-Lag included the Citizens for but Unhty Regulaban and de Nuclear Informauon and Resource Service, the GE Stockholder's Alliance and Dr. D K. Cinquemant. the Toledo Coahuon for Safe Energy, R. Benjan, B DeBoli. and the oyster Creek Nuclear watch. In the Decison under 10 C.I' R. 6 2 206. the thrector of t!e office of Nuclear Reactor Regulabon Mermined that the peuuoners' requests concermng de use of Thermo-Lag shmild be demed j

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Director's Decision with regard to Requests 2,3, and 4. A discussion of the Final Director's Decision follows.

II. DISCUSSION A.

r'orrection of Cracks in the Core Shroud and Assertion of Possible Cf eks in Other Parts of the Reactor Vessel (Request 2)

Nucw power reactor licensees, including PECO, are required by 10 C.F.R.

5 50.55a to innplement inservice inspection programs that meet the requirements set forth in the American Society of Mechanical Engineers Boiler and Pressure Vessel Code (ASME Code). The scope of the inservice inspection programs for reactor pressure vessels and their internal components is prescribed by ASME Code lXI, Division I, subsections IWA and IWB. Licensees are also required by ASME Code i XI, art. IWA-6000, to submit the results of these inspections to the NRC within 90 days of completion. The NRC Staff performs periodic audits of licensee-implemented inservice inspection programs to determine complir.nce with applicable codes and regulations. These audits are documented in NRC inspection repons, which are publicly available at the NRC Public Document Room, the Gelman Building,2120 L Street, NW, Washington, DC. Inspection reports related to PBAPS are also available at the local public document room for PB APS located at the State Library of Pennsylvania (Regional Depository),

i Government Publications Section, Education Building, Walnut Street and Com-monwealth Avenue, Box 1601, Harrisburg, PA 17105.

The Licensee's inservice inspection program contains provisions for the periodic inspection of the PBAPS reactor vessel internal components, including such components as the top guides, core shroud welds, shroud support plate access hole covers, incore instrument tubes, steam dryer drain channels, core i

spray piping, and jet pump assemblies. By letter dated April 8,1986, the NRC found the Inservice Inspection Program for the Second Ten-Year Interval at PBAPS Units 2 and 3 to be satisfactory (September 1986-November 1997 and December 1985-August 1997, for Units 2 and 3, respectively).

in addition to the ASME Code design and inservice inspection program j

requirements, the NRC provides information to the nuclear power industry on i

various emerging phenomena that may potentially affect the safe operation of nuclear power plants. Wr example, intergranular stress corrosion cracking (IGSCC) of BWR internal components has been identified as a technical issue of concern by both the NRC Staff and the nuclear industry. 'the core shroud is among the internal reactor components susceptible to IGSCC. Identification of cracking at the circumferential beltline region welds in several plants during 1993 led to the publication of NRC Information Notice (IN) 93-79, " Core Shroud Cracking at Beltline Region Welds in Boiling-Water Reactors," issued 325 1

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on September 30,1993. Several licensees inspected their core shrouds during planned outages in the spring of 1994 and found cracking at the circumferential welds. To disseminate this information to nuclear power plant licensees, the NRC issued IN 94-42, " Cracking in the Lower Region of the Core Shroud in Boiling-Water Reactors," on June 7,1994, and Supplement I to IN 94-42, on July 19, 1994, concerning cracking found in the core shrouds at Dresden Unit 3 and Quad Cities Unit 1. On July 25, 1994, the NRC issued GL 94-03, "Intergrannular Stress Corrosion Cracking of Core Shrouds in Boiling Water Reactors." requesting that BWR licensees inspect their core shrouas by the next refueling outage and justify continued operation until inspections could be completed. The NRC has been closely monitoring these inspection activities.

Additional examples of NRC action regarding reactor vessel internal component reliability issues are the issuance of Bulletin 80-13, " Cracking in Core Spray Spargers," on May 12,1980, after the detection of cracks in core spray system sparger piping at several operating BWRs and the issuance of IN 95-17. " Reactor Vessel Top Guide and Core Plate Cracking," issued on March 10,1995, that concerned reactor vessel top guide and core plate cracking.

Core Shnmd Cracks The Licensee submitted letters dated. March 14, 1994, November 7,1994, and November 3,1995. egantMg t e results of its inspections of the PBAPS h

Unit 2 and 3 core shrouds. The inspectitus revealed a moderate amount of crack indications in the Utit 2 arJ Unit 3 core shrouds, totaling 5% of the weld length examined in Unit 2 and 12% of the weld length examined in Unit 3. Along with the inspection results, ti e Licen cc presented an analysis of the impact of 3

the crack indications on the scrual strength of the core shrouds for Unit 2 and Unit 3. Ihr both the Unit 2 and Unit 3 core shroud, the Staff reviewed the Licensec >

-8vsis of structural loading of the as-found shroud weld which showed that the Ic.,mgs were less than ASME Code-allowable values. In a letter dated February 6,1995, the NRC Staffissued a safety evaluation of the 1994 Unit 2 core shroud inspection concluding that sufficient structural margin remained in the Unit 2 shroud to justify operation of PB APS 2 for another operating cycle (current operating cycle !I that ends in September 1996) without modification to the shroud. In a letter dated January 29,1996, the NRC Staff issued a safety evaluation of the 1995 Unit 3 core shroud inspection concluding that suflicient structural margin remained in the Unit 3 shroud to justify operation of PBAPS 3 for another operating cycle (current operating cycle Ii that ends in September 1997) without modification to the shroud.

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Reactor VesselInternals Cracking In addition to the inspection of core shrouds, PECO performs inspections of the PB APS Unit 2 and 3 reactor vessel internals and other internal safety-related components in accordance with the PBAPS inservice inspection program, as set forth in section 50.55a and ASME Code iXI. By letter dated January 17, 1995, PECO submitted, in accordance with 10 C.F.R. 6 50.55a(g)(3), a report on its inservice inspection activities conducted during the September 1994 Unit-2 refueling outage. In the report, PECO listed the inspections performed and discussed the disposition of indications in certain components. In addition to the core shroud flaws described above, the Licensee discovered some minor defects, such as a crack in a jet pump assembly restrainer adjustment screw tack weld, and performed an engineering evaluation to determine if a repair was needed. In the case of the jet pump restrainer adjustment screw tack weld crack, a second existing weld was found intact and no repair was necessary.

The NRC Staff conducted an inspection of the Licensee's inservice inspection activities during the PBAPS Unit 2 refueling outage. The results of that inspection are documented in Inspection Report 50-277/94-28 and 50-278/94-28 (IR 94-28). 'Ihe Staff concluded that PBAPS inservice inspection programs and nondestructive examination programs were well planned, controlled, and executed for both PBAPS 2 and PBAPS 3. Therefore, the requirements of section 50.55a and the ASME Code have been met in this area, and the results confirm that satisfactory material conditions exist for the safe operation of both units.

'Ihe NRC Staff has reviewed the content and results of other Licensee inspection activities, as discussed below.

NRC Bulletin 80-13, issued on May 12,1980, requested that BWR licensees visually inspect core spray piping inside the reactor vessel at each subsequent refueling outage. During inspections conducted as requested by the Staff in Bulletin 80-13, PECO detected cracks in core spray piping inside the reactor vessel in Unit 2 and Unit 3 in 1982 and 1985, respectively. In both instances, the Licensee installed clamps on the affected piping to mitigate the consequences of the cracks. In letters dated June 10,1982, and November 21,1985, the NRC Staff reviewed the Licensee's analysis of the crack consequences and repair plans

• and found them acceptable for PBAPS Units 2 and 3, respectively.

In November 1993, during subsequent inspections, PECO identified cracking in the downcomer portion of the Unit 3 core spray piping. By letters dated November 5 and November 10, 1993, the Licensee provided an analysis that demonstrated that this downcomer piping had sufficient structural integrity d Corwmdence re:;arding these crats. including letters from PECo to the NRC, dmed April 29.1982, May 11.1982. June 4.1982. and November 8.1985, are avalable in the local pubhc docunwnt room.

327

to justify operation without repair for the subsequent operating cycle. In a letter dated November 16, 1993, the NRC found PECO's proposal to operate for one operating cycle without repairing the core spray downcomer cracks acceptable. During the September 1995 refuehng outage for PBAPS Unit 3, PECO performed additional inspections of the core spray piping within the reactor vessel. As documented in its letter dated October 9,1995 PECO stated j

that this inspection revealed additional cracking. In its letter of October 9,1995, as supplemented by a letter dated October 12,1995, PECO proposed to repair the core spray piping by installing mechanical clamps over the affected cracked welds. The NRC Staff reviewed the design of the proposed clamps and found that the clamps provided the required structural integrity for the piping. The NRC Staff also approved restart of the Peach Bottom Unit 3 based on PECO's installation of the clamps.'

Although cracking of the top guide has not been detected at PBAPS, the Licensee has implemented a program to inspect the tcp guide and has included the top guide inspection into the PBAPS inservice inspection program.

Analysis Regarding Synergistic Effects of Cracking of Stuttiple Camponents The Petitioner raises a concern about the lack of an analysis of the synergistic effects of cracks in multiple reactor vessel components.

Most reactor internals are fabricated from high toughness materials such as stainless steel and were designed with significant margins on allowable stresses.

J Cracking must be severe to adversely impact plant safety. It is unlikely that Licensee inspections would not find such severe degradation. In fact, the PECO

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inspections, using qualified inspectors and prosedures, have been effective in

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identifying and siting of the cracks in the Peach Bottom Unit 2 and Unit 3 core shrouds. In addition, after evaluating the results from internals inspections performed to date at PBAPS, the NRC Staff has concluded that ASME Code j

structural margins have been maintained to meet ASME design requirements.

Thus, these components will perform their function in the safe operation of the plants.

Implementation of an effective inservice inspection program serves to detect cracking. Upon detection of cracking, proper actions by the Licensee to maintain component integrity will prevent cracks large enough to affect operability from existing in multiple components at the sarne time. Nevertheless, the NRC has asked the BWR Vessel Internals Project (BWRVIP), an industry group, to develop an assessment to address this unlikely situation. A report from the 3 The NRC Stalf's tenew of the clamp deugn n mkkewd in Impecuon Repmt 30 277N518, SG278MS-18 and in a letter dared ocuter 13.1995 j

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I BWRVIP on this issue, " Reactor Pressure Vessel and Internals Examination Guidelines (BWRVIP-03, EPRI Report TR-1056%," dated November 10,1995,-

i is currently under NRC Staff review. In addition, the NRC has undertaken a 6 longer-term evaluation of the effects of cracking in multiple internal components.

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L7his evaluation will involve appropriate probabilistic treatment of the key l

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. variables (such as material susceptibility, loading, and environment).

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.Moreover, the Licensee is not required by section 50.55a or the ASME Code to perform an analysis that addresses th.: synergistic effects of cracking j

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in multiple safety-class components. Since the NRC Staff has found during reviews of the initial plant design and reviews of the Licensee's response to j

l subsequently identified cracks, as described above, that each affected component has been shown to meet the ASME design margins, the NRC Staff is satisfied -

'j that these compocents will perform their intended function in the safe operation j

of the facilities. Because of this and the inspection requirements that pertain to j

i reactor internals and the results of the inspections performed to date, the NRC Staff does not consider the lack of an analys(s of the synergistic effects of cracks in multiple reactor components for PBAPS to be a substantial safety concern.

In summary, on the basis of the NRC inspections and the evaluations of the Licensee inspectiona required by section 50.55a and the ASME Cule, the NRC Staff has concluded that the Licensee has taken appropriate actions to ensure j

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the structural integrity of the PBAPS reactor vessel internal cornponents. The l

NRC Staff, however, continues to overview PECO's inspections, evaluations, and repairs as necessary to meet these requirements. At this time, the NRC Staff q

has not found any reason to question the safe operation of PBAPS. Therefore, i

the NRC Staff has concluded that the Petitioner has not presated a substantial j

health or safety issue to warrant taking the actions requested in the petition.

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H.

Correction of Equipment Problems identified in Recent NRC I

Inspection Reports (Requests 3 and 4)

Emergency Core Cooling The petition referred to a situation on August 3,1994, wherein the PBAPS -

emergency service water (ESW) system was placed in a degraded condition.

The Petitioner asserted that both reactors at PBAPS had no emergency cooling water for about I hour. 'Ihe NRC resident inspectors at the Peach Bottom site conducted an inspection of this event and documented their fmdings in Inspection Report 50-277/94-24 and 50-278/94-24, dated September 29,1994 (IR 94-24).

In the report the NRC inspectors concluded that the discharge valve from the j

ESW system back to the Susquehanna River was shut and left unattended for approximately 50 minutes after maintenance and testing on the valve. In the report, the NRC Staff concluded that, if an accident requiring the use of safety l

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equipment (including emergency diesel generators and emergency core cooling equipment) had occurred during that 50-minute period, the operation of that safety equipment could have been jeopardized.

fly letter dated November 21,1994, the NRC issued a Notice of Violation and Proposed Imposition of Civil Penalty (EA 94-197) to PECO Energy Company regarding the circumstances surrounding the August 3,1994 event. The NRC Staff cited the Licensee for failure to implement maintenance and testing procedures that were adequate to ensure that the ESW system could perform its intended function while maintenance activities were being performed. The Staff noted that since the August 3,1994 event, the Licensee had restored the ESW to its intended configuration and had initiated steps to ensure that future maintenance activities would not lead to a degraded ESW system.

Notwithstanding the specific corrective actions implemented by the Licensee, the Staff imposed a civil penalty in the amount of $87,500. On December 21, 1994, PECO Energy paid the civil penalty.

Ilecause appropriate NRC action has been taken and the Licensee has restored the ESW system to its intended configuration and has implemented corrective actions to prevent recurrence of the deficiencies that occurred on August 3, 1994, no specific concern about the ability of the ESW system to perform its intended function currently exists.

Chrtmic Equipment Problems The petition also referenced a list of chronic equipment problems at PB APS.*

The petition referenced an NRC report dated August 16,1994 (NRC Inspection

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Report 50-277/94-17, 50-278/9417 (IR 94-17)), as the source of the chronic problems.

In this inspection report the NRC assessed the performance of the Licensee's engineering and technical support organization at Peach Bottom. The NRC inspector reviewed various facets of PECO's engineering department's perfor-mance in order to identify potential organizational weaknesses and deficiencies.

The NRC uses the inspection findings to maintain a close understanding of the Licensee's performance in areas that can affect safe plant operation. As such, the NRC reviews the Licensee's program for identifying, addressing, and re-solving recurring or " chronic" equipment problems. At the time that IR 94-17 was issued, the basis document for the Licensee's program was the " Chronic Equipment / System Problems" list. This was a list of recurring problems for which the Licensee had either identified the need for engineering department enman

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review and action or had determined a method for resolving the problem but had not yet implemented the solution.

The " Chronic Equipment / System Problems list included equipment problems with potential safety impact as well as obvious non-safety-related problems.

In assessing the management of recurring problems, the NRC evaluates the Licensee's ability to address and resolve problems in a timely manner and the Licensee's ability to evaluate the safety significance of each problem.

The existence of a list of issues does not in itself indicate poor engineering department performance. As noted in IR 94-17, the Licensee had developed solutions for a number of the problems on the list and had developed plans to implement these solutions. Further, the NRC Staff assessed the PBAPS Chronic Equipment / System Problem list as a positive management feature and a commitment on the part of the Licensee to improve overall plant performance.

The NRC Staff, including the resident inspectors and the Region I inspection staff, periodically reevaluate the performance of the Licensee's engineering de-partment In addition, NRC inspectors continue to review the Licensee's action on many of the individual problems on the PBAPS Chronic Equipment / System Problem list. Accordingly, the NRC performed a followup inspection to IR 94-17, In the followup inspection, documented in Inspection Report 50-277/94-21, 50-278/94-21 (IR 94-21), dated November 4,1994, the NRC Staff examined the safety significance of those items that were on the Chronic Equipment / System Problem List as of September 13, 1994. The Staff concluded that none of the items on the list was a significant current safety concern. 'Ihe inspectors con-cluded that the Licensee had initiated appropriate action to evaluate and correct those items detailed in IR 94-21. The Staff concluded that the Licensee used the Chronic Equipment / System Problem list to appropriately focus long-term engineering and management attention to known reliability problems.

In summary, the Staff considers proper management of recurring equipment problems important to the continued safe operation of a nuclear power plant.

Accordingly, the NRC Staff views positively the Licensee's activities such as the formulation of the Chronic Equipment / Systems Problem list, which was cited in the petition. On the basis of the review efforts by the NRC Staff, I conclude that no substantial health or safety issues have been raised by the Petitioner.

IIL CONCLUSION The institution of proceedings in response to a request pursuant to section 2.206 is appropriate only when subs.antial health or safety issues have been raised. See Consolidated Edison Co. of New }'ork (Indian Point, Units 1, 2, 1

and 3), CL1-75-8, 2 NRC 173,176 (1975), and Washington Public Power Supply System (WPPSS Nuclear Project No. 2), DD-84-7,19 NRC 899, 923 j

i 331 l

I (1984). This standard has been applied to the concerns raised by the Petitioner j

to determine whether the action requested by the Petitioner is warranted. With j

regard to the specific requests made by the Petitioner discussed herein, the NRC Staff finds no basis for taking any additional actions. Rather, as explained above the NRC Staff considers that no substantial health or safety issues have been raised by the Petitioner. Accordingly, the Petitioner's requests for additional action pursuant to section 2.206, specifically requests 2, 3, and 4, are denied.

Acco dingly, no action pursuant to section 2.206 is being taken in this matter.

A copy of this Final Director's Decision will be filed with the Secretary of the I

Commission for review in accordance with 10 C.F.R. 2.206(c). This Decision will become the final action of the Commission 25 days after issuance unless the Commission, on its own motion, institutes review of the Decision within that time.

FOR TIIE NUCLEAR REGULATORY COMMISSION William T. Russell, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 10th day of June 1996.

Attachment:

DD-96-3

[*Ihe attachment, DD-96-3, has been omitted from this publication but can be found at 43 NRC 183 (1996) or in the NRC Public Document Room,2120 L Street, NW, Washington, DC.]

i i

332

Cite as 43 NRC 333 (1996)

DD-96-6 l

UNITED STATES C,F AMERICA NUCLEAR REGULATORY COMMIS$10N i

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

i l

In the Metter of Docket Nos. 50-247 50-786 l

(License Nos. DPR-26 DPR-64)

CONSOLIDATED EDISON COMPANY OF NEW YORK (Indian Point, Units 2 and 3)

June 10,1996 He Director of the Office of Nuclear Reactor Regulation denies a petition filed on May 18, 1995, requesting that the operating license for Indian Point Units 2 and 3 be suspended until the Licensees have completed the actions re-quested by Generic Letter 95-03,"Circumferential Cracking of Steam Generator Tubes." The Petitioner also requested that the NRC hold a public meeting to i

explain its response to this request.

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

INTRODUCTION On May 18,1995, Ms. Connie Hogarth (Petitioner) filed a petition with the U.S. Nuclear Regulatory Commission (NRC) pursuant to 10 C.F.R. Q 2.206.

The Petitioner requested that the operating licenses for Indian Point Units 2 and 3 be suspended until the Licensees have completed the actions requested by Generic Letter (GL) 95-03, "Circumferential Cracking of Steam Generator l

Tubes." The Petitioner also requested that the NRC hold a public meeting to explain its response to the suspension request.

333 i

k i

f The Petitioner stated that the impetus for GL 95-03 was the discovery at the Maine Yankee plant of steam generator tube cracks that had previously gone undetected due to inadequate inspection procedures. The Petitioner also stated that while GL 95-03 calls for comprehensive examination of steam generator tubes, it appears to allow licensees to postpone their evaluations until the next scheduled inspection.

On June 16,1995, I informed the Petitioner that the petition had been referred to my office for preparation of a Director's Decision. Iinformed the Petitioner that her request for immediate suspension of the operating licenses of Indian Point Units 2 and 3 was denied because the continued operation of these units posed no undue risk to public health and safety. I further informed the Petitioner that her request for a public meeting to explain the denial of her request for license suspension was denied, primarily because the NRC assessment of risk associated with steam generator tube rupture events has already been articulated in public documents.

II. DISCUSSION The Petitioner requested that the operating licenses for Indian Point Units 2 and 3 be suspended until the Licensees have completed the actions required by GL 95-03. The Petitioner's request appears to be based on her belief that without the immediate completion of the requested actions of GL 95-03, the steam generators in Indian Point Units 2 and 3 could be susceptible to one or more steam generator tube ruptures brought about by existing circumferential cracks.

Generic Letter 95-03 was issued on April 28, 1995, after Maine Yankee shut down due to primary-to-secondary leakage through theretofore undetected circumferential steam generator tube cracks. The generic letter was intended to alert licensees to the importance of performing steam generator inspections with j

equipment capable of detecting degeneration to which the steam generator tubes are susceptible. GL 95-03 requested three actions of licensees of pressurized water reactors. It requested (1) that they evaluate their operating experience to determine whether or not they could have a circumferential cracking problem, j

(2) that based on this evaluation they develop a safety assessment justifying i

continued operation until the next scheduled steam generator tube inspection, and (3) that they develop a plan for inspecting for circumferential cracking during the next steam generator tube inspection.

Stress corrosion cracking of the Indian Point Unit 2 steam generator tubes was first detected during the 1993 refueling outage. During the 1995 refueling outage, Unit 2 conducted a steam generator inspection as required by their techmcal specifications; this inspection included a complete examination of all 1

}

334

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i

areas deemed most susceptible to circumferential cracking. This inspection, which used enhanced techniques and eddy-current probes sensitive to indications of circumferential cracking, identified 114 tubes with potential circumferential crack indications; however, these may actually have been closely spaced axial indications. Since the Licensee could not conclusively determine that these 114 tubes did not contain indications of circumferential cracks, the worst case was assumed, that is, that the indications were in fact circumferential. The indications were logged as circumferential and all of these tubes were removed from service before the unit was restarted. All of the logged circumferential indications were deep within the tubesheet. The fact that the indications were all within the tubesheet is significant since, if a circumferential failure were to occur i

at this location, the structural strength lent to the tubes by the tubesheet would reduce the amount of primary-to-secondary leakage. The Licensee for Indian Point Unit 2 will continue to us.e inspection techniques capable of detecting circumferentially oriented tube degradation.

Because pitting corrosion had caused deterioration of the Indian Point Unit 3 steam generators, they were replaced in 1989 with steam generators designed and fabricated to reduce the possibility of corrosion-related problems; specifically, the new generators have tubes made of thermally treated Alloy 690. Four other nuclear plants in the United States have thermally treated Alloy 690 tubes and to date neither Indian Point Unit 3 nor any of the other four units has experienced tube cracks.

Circumferential cracking of steam generator tubes is accompanied by other forms of tube degradation that are readily detected by bobbin coil inspections.

Since the bobbin coil inspections at Indian Point Unit 3 have detected no service-induced tube degradation, the Staff has concluded that Indian Point Unit 3 does not have a circumferential tube cracking problem. Indian Point Unit 3 j

has not yet experienced steam generator tube degradation; nevertheless, the Licensee has committed to performing an augmented inspection for indications of circumferential cracking during the next scheduled steam generator inspection.

Unit 3 is currently operating and this inspection is required by May 1997.

The requirements pitced on licensees to ensure steam generator tube integrity go beyond the requested actions of GL 95-03. Steam generator tube degradation is dealt with through a combination of inservice inspection, tube plugging and repair criteria, primary-to-secondary leak rate monitoring, and water chemistry j

analysis. in addition to the steam generator inspections required by their l

technical specifications. both Indian Point Units 2 and 3 are required to monitor primary-to-secondary leakage to ensure that, in the event that steam generator tubes begin to leak, operators will be able to bring the plant to a depressurized condition before a tube ruptures. In addition, both units are required to implement secondary water chemistry management programs that are designed to minimize steam generator tube corrosion.

i 335 i

j l

l

The layers of protection that licensees are required to implement make multiple stearn generator tube ruptures unlikely events. The NRC issued the results of its study of the risk and potential consequences of a range of steam generator tube rupture 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" dated September 1988. The Staff estimated the risk contribution due to the potential for multiple steam generator tube ruptures. A combination of circumstances is required to produce such failures, specifically:

(I) a main steam line break or other loss of secondary system integrity, (2) the existence of a large number of tubes susceptible to rupture in a particular steam generator, (3) the failure of operators to take action to avoid high differential pressure, and (4) the actual simultaneous rupture of a large number of tubes.

In the NUREG-0844 assessment, the Staff concluded that the probability of simultaneous multiple tube failure was small (approximately 10 5), and the risk resulting from releases during steam generator tube ruptures with loss of secondary system integrity was also small.

IIL CONCLUSION

)

Hased on the facts that (1) adequate steam generator tube inspections have been performed at both Indian Point Units 2 and 3, (2) Unit 2 steam generator tubes that showed signs of circumferential cracking have been removed from service, (3) Unit 3 steam generator tubes show no sign of service-induced corrosion. (4) Items (1), (2), and (3), above, collectively constitute an acceptable response to the requested actions of GL 95-03 for both units. (5) operational limits are placed on primary-to-secondary leakage, (6) the risk of multiple steam generator tube rupture events is small, and (7) the NRC assessment of risk associated with steam generator tube rupture events has already been articulated in public documents (NUREG-0844 and GL 95-03), I have concluded that neither the suspension of the licenses of Indian Point Units 2 and 3 nor the holding of a public meeting to explain this Decision is warranted.

The Petitioner's request for action pursuant to 10 C.F.R. 6 2.206 is denied.

As provided in 10 C.F.R. t 2.206(c), a copy of the Decision will be fikd with the Secretary of the Commission for the Commission's review. This Decision will constitute the final action of the Commission 25 days after issuance unless 336

the Commission, on its own motion, institutes a review of the Decision within that time.

FOR TIIE NUCLEAR REGULATORY COMMISSION William T. Russell, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 10th day of June 1996.

P 337 i

Cite as 43 NRC 338 (1996)

DD-96-7 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Frank J. Miraglia, Acting Director in the Matter of YANKEE ATOMIC ELECTRIC Docket No.50-029 COMPANY (License No. DPR-3)

(Yankee Nuclear Power Station)

SACRAMENTO MUNICIPAL UTILITY Docket No. 50-312 DISTRICT (License No. DPR-54)

(Rancho Seco Nuclear Generating Station)

PORTLAND GENERAL ELECTRIC Docket No. 50-344 COMPANY (License No. NPF-1) j (Trojan Nuclear Plant)

SOUTHERN CALIFORNIA EDISON Docket No. 50-206 COMPANY (License No. DPR-13)

(San Onofre Nuclear Generating Station, Unit 1)

June 14,1996

'the Director of the Office of Nuclear Reactor Regulation denies a petition dated April 1,1996, submitted to the Nuclear Regulatory Commission by Citirens Awareness Network, Nuclear Information and Resource Service, and nine other organizations. The petition requests that the NRC: (1) suspend the current plan by Yankee Atomic Electric Company to remove, transport, and bury the Yankee Nuclear Power Station (or Yankee Rowe) reactor pressure vessel (RPV);(2) require licensees of Yankee Rowe, Rancho Seco Nuclear Generating Station. Trojan Nuclear Plant, and San Onofre Nuclear Generating Station, Unit 1, who are now developing plans to remove, transport, and bury their respective 338

F RPVs., to, suspend such ' operations; and (3) require the owners of the' four nuclear power plants to present substantial metal and weld specimens from their i

respective RPVs to the NRC for analysis in order to study and materially archive

~

the radiation embrittlement phenomenon.

The Director denies the petition because the Petitioners did not provide sufficient bases to warrant the suspension of decommissioning plans or activities at the four nuc! car power plants, and because sufficient information is available j

to the Staff to address such radiation embrittlement phenomenon in a manner i

that protects public health and safety without the issuance of an order.

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

INTRODUCTION

-I

. Citizens' Awareness Network, Nuclear Information and Resource Service, and nine other organizations' (Petitioners) submitted a petition dated April 1, 1996, pursuant to section 2.206 of Title 10 of the Code of Federal Regulations (10 C.F.R.), requesting that the U.S. Nuclear Regulatory Commission (NRC) take action with regard to the Yankee Nuclear Power Station (or Yankee Rowe, licensed to the Yankee Atomic Electric Company), Rancho Seco Nuclear I

Generating Station (licensed to the Sacramento Municipal Utility District),

Trojan Nuclear Plant (licensed to the Portland General Electric Company),

and San Onofre Nuclear Generating Station, Unit 1 (licensed to the Southern California Edison Company). These four power reactors have permanently ceased operation and are in various stages of decommissioning.

Petitioners request that the NRC take emergency action to require a col-laborative effort by the Licensees of the four power reactors to document and research radiation embrittlement of RPVs (RPVs) as an age-related deteriora-tion phenomenon because an archive is essential in understanding the issues surrounding embrittlement of reactor vessels. Specifically, the Petitioners re-quest that the NRC (1) suspend the current plan by Yankee Atomic Electric Corporation (YAEC) for the removal, transport, and burial of the Yankee Rowe RPV; (2) require Licensees of the four permanently closed reactors, who are now developing plans to remove, transport, and bury their respective RPVs, to suspend such operations; and (3) require the owners of the four nuclear power plants to present substantial metal and weld rpecimens from their respective I Don't Waste oregon Council. Greenpeace. Environnental Coahuan on Nuclear Power. itiends or the Coast oppoung Nucle.r lbiluuon, New England Coahuon Against Nuclear Ibiluuon. ohio Ciuzens for Responsible bergy. Physicians for Social Responsibility. the Redwood Athance, and the Westchester Peopic's Action Coalition 4

339 i

i RPVs to the NRC for analysis in order to study and materially archive the radi-ation embrittlement phenomenon.

As bases for their requests, Petitioners state that (1) the four permanently closed reactors constitute a valuable asset for evaluating RPV embrittlement, (2) " boat" or scoop samples from the RPV could be retrieved with minimal occupational radiation exposure, (3) data from boat samples could be used to verify the veracity of simulated embrittlement in research reactors, and (4) boat samples could be subjected to annealing or reheating processes to analyze the results for restoring ductility of the material and for determining the durability -

of an annealing process, ihr the reasons explained below, Petitioners' request is denied.

IL Irradiation of the RPV materials adjacent to the reactor core (the beltline materials) by neutrons escaping from the reactor core leads to embrittlement of those materials. This embrittlement phenomenon causes the RPV to be more susceptible to fracture when subjected to operational or accident transients that cause overcooling (thermal shock) concurrent with or followed by significant pressure in the reactor vessel, Concern over this phenomenon has resulted in the NRC developing regulations to closely monitor embrittlement of reactor vessels.

Additionally, to better understand and qualify the embrittlement process, the NRC Office of Research has an RPV safety research program that addresses the embrittlement phenomenon on a broad basis.

Ill.

The NRC Staff has concluded that sufficient information already is and will be available to the Staff in order to address the radiation embrittlement phenomenon in a manner that protects public health and safety, without ordering any of the four Licensees to suspend decommissioning plans or decommissioning activities to supply metal and weld RPV samples for study. In addition to studying monitoring data which all licensees are required to supply, the Staff has tested and will continue to test material from several sources as part of its confirmatory 4

research program. Samples obtained from decommissioned RPVs already do and will continue to supplement other embrittlement data.

Licensees are required by 10 C.F.R. 6 50.61 and Part 50, Appendix H,

" Reactor Vessel Material Surveillance Program Requirements," to monitor RPV embrittlement. Appendix 11 specifies requirements for material surveillance programs to monitor changes in the fracture toughness of ferritic materials in the 340

RPV beltline region from exposure of these materials to neutron radiation. His regulation requires each licensee to monitor neutron irradiation embrittlement by placing weld and/or base materials (either plate or forging) that are representative of its beltline materials in capsules that are placed inside the RPV. Most plants have plant-specific surveillance programs under which the capsules are irradiated in the licensee's RPV. Some licensees are participating in integrated surveillance programs under which the capsules are irradiated in a vessel that has an irradiation and thermal environment equivalent to that of the Licensee's RPV. %e capsules are periodically withdrawn from the RPV and the materials tested to monitor the effect of neutron radiation on the fracture toughness of the vessel beltline materials. These programs have been reviewed by the Staff and are sufficient for monitoring the effect of neutron radiation at all operating

(

light water reactors.

+

In addition to licensee programs, the NRC is sponsoring a number of other programs. NRC confirmatory research programs in which materials are irradi-ated in test reactors, and the effect of neutron radiation on the fracture toughness of beltline materials is analyzed, are the IIcavy Section Steel Irradiation Pro-gram, the Radiation Embrittlement and Prediction Program, the Improved Radi-ation Embrittlement Correlation Program, and the Embrittlement Database and 4

Dosimetry Evaluation Program. In the Improved Radiation Embrittlement Cor-relation and the Embrittlement Database and Dosimetry Evaluation Programs, the Staff accumulates and evaluates data from power reactor licensee and test reactor programs and determines the effect of neutron radiation on the fracture toughness of beltline welds, forgings, and plates. In connection with these is-sues, the Staff has documented in Regulatory Guide 1.99, Revision 2," Radiation Embrittlement of Reactor Vessel Materials," a methodology for determining the effect of neutron radiation on reactor vessel welds, forgings, and plates. The methodology in Regulatory Guide 1.99 includes a margin term to account for the uncertainties in the material properties and the radiation environment. As the NRC Staff accumulates more surveillance data from licensees, it periodica!!y evaluates the data to determine whether the Regulatory Guide 1.99 methodology needs revision. The licensee surveillance database consists of data from several hundred licensee capsules.

He ficavy Section Steel Irradiation Program provides experimental evalu-ation of the effects of chemistry and radiation environment on the irradiation embrittlement of RPV steels, including the effects of thermal aging, recovery of fracture toughness by thermal annealing, and reembrittlement trends on an-neated reactor vessel materials. This program, in conjunction with the Radiation Embrittlement and Prediction Program, is developing improved methods for pre-dicting irradiation embrittlement. Both programs are evaluating, experimentally and analytically, the mechanisms that control irradiation embrittlement to justify extrapolation of the empirical model to predict plant-specific irradiation em-341

-N

1 l

brittlement. These programs are validating the analytical and empirical models through the testing of service-degraded reactor vessel materials.

'Ihe NRC Staff's recommended methodology for deterrnining the effect of thermal annealing on RPV embrittlement is documented in Regulatory Guide 1.162, " Format and Content of Report for Thermal Annealing of Reactor Pressure Vessels." NUREG/CR-6327, "Models for Embrittlement Recovery Due to Annealing of Reactor Pressure Vessel Steels," contains the data and evaluation that form the bases for the percent recovery of radiation embrittlement from thermal annealing that is documented in Regulatory Guide 1.162. The thermal annealing rule,10 C.F.R. 6 50.66, requires that each licensee performing a thermal anneal must monitor the post-anneal reembrittlement trend using a surveillance program that conforms with the intent of Appendix H. The effect of thermal annealing on RPV embrittlement is adequately addressed by requiring licensees to monitor the post-anneal reembrittlement trend through a surveillance program and by use of the Regulatory Guide 1.162 methodology.

Based on analyses performed by licensees and the NRC, the Staff has concluded that the overall integrity analyses, including the various margins, are conservative and that they provide reasonable assurance that the vessels can withstand normal operation and accident conditions. Furthermore, each licensee must bear the burden of demonstrating the adequacy of its pressure vessel to withstand the effects of a transient causing overcooling concurrent with or followed by significant pressure when the methodology of Regulatory Guide 1.99, Revision 2, does not predict an acceptable result. Should a licensee not be able to demonstrate, or be unwilling to expend the resources to demonstrate, the adequacy of its pressure vessel (which may include actual samples of base l

material), the plant rnust be shut down as was the case for Yankee Rowe.

Test material from the Yankee Rowe pressure vessel would not be of value in estimating the level of embrittlement, thermal annealing recovery, and reembrittlement after annealing at currently operating U.S. facilities. The Yankee Rowe reactor operated at a lower temperature than typical of operating plants, making any data on embrittlement from Yankee Rowe difficult to correlate with other light water reactor designs in the U.S.

j Samples from the Rancho Seco vessel would not provide useful information since equivalent weld material and vessel wall samples are available from the liabcock and Wilcox Owners Group and from the canceled Midland Nuclear Plant. These samples are currently being evaluated in a program that irradiates the samples in test reactors. These components and samples, taken from power reactors and irradiated in test reactors, will provide data that could be correlated to other sample research programs that utilize research reactors.

The Licensee for the San Onofre Unit I reactor has submitted a decommis-sioning plan to the NRC that proposes SAFSTOR, or long-term storage of the facility, until the licenses for San Onofre Units 2 and 3 expire, sometime after 342 1

)

i l

)

lj

2013. Therefore, the Unit i vessel will remain on site and in a condition that would allow samples of test material to be obtained for a substantial period of time, should it.be determined that such samples would be useful for study.

The Trojan Nuclear Plant is currently undergoing active dismantlement.

Portland General Electric, the Licensee, is planning to remove the reactor vessel and dispose ofit at the llanford, Washington low-level burial site no earlier than '

1998. The Staff currently is pursuing the possibility of obtaining samples from the reactor vessel once the reactor vessel reaches the burial site.

Ihr the above reasons, the Staff concludes that sufficient information is already and will be available to appropriately and timely address the radiation

. embrittlement phenomenon.

IV. CONCLUSION i

i' The Petitioners have not provided sufficient bases to warrant the suspension

)

' of decommissioning plans or activities at the four nuclear power plants in order to take specimens of reactor vessels for the purpose of studying the nuclear i

. power RPV radiation embrittlement phenomenon. Moreover, as explained above, sufficient information is available to the Staff to address such radiation embrittlement phenomenon in a manner that protects public health and safety l

without the issaance of an order, Accordingly, for the reasons discussed above, the petition, including the request to take emergency action, is denied.

2 A copy of th3s Director's Decision will be filed with the Office of the i.

Secretary for the Commission to review in accordance with 10 C.F.R. 6 2.2%(c).

l As provided by section '2.206(c), this Decision will constitute the final action of the Commission 25 days after issuance, unless the Commission, on its own j

motion, institutes a review of the decision within that time.

FOR TiiE NUCLEAR 4

REGULATORY COMMISSION Frank J. Miraglia, Acting

{

Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 14th day of. lune 1996.

f 343

Cite as 43 NRC 344 (1996)

- DD-96-8 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION William T. Russell, Director in the Matter of Docket Nos. 50-528 50-529 50-530

- ARIZONA PUBLIC SERVICE COMPANY

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

June 25,1996 The Director of the Office of Nuclear Reactor Regulation partially denies a petition dated May 27,1994, as supplemented on July 8,1994, filed by Thomas

. J, Saporito, Jr., for himself and on behalf of Florida Energy Consuhants, Inc.

(Petitioners). Specifically, Petitioners' requests I,2,3,5, and 6, submitted in the July 8,1994 Supplernent, were addressed and denied on the basis that the concerns raised have been satisfactorily addressed and do not raise substantial health and safety concerns warranting the requested action. The Ittitioners requested that the Nuclear Regulatory Commission (1) institute a proceeding pursuant to 10 C.F.R. 9 2.206 for the modification, suspension, or revocation of the Palo Verde operating licenses for Units 1,2, and 3;(2) modify the Palo Verde operating licenses to require operation at 86% power or less; (3) require the Licensee to submit a no significant hazards safety analysis to justify operation above 86% power; (5) require the Licensee to analyte a design-basis steam

]

generator tube rupture event to show that the offsite radiological consequences j

do not exceed the limits of 10 C.F.R. Part 100; and (6) require the Licensee to j

demonstrate that its emergency operating procedures for steam generator tube rupture events are adequate and that the plant operators are sufficiently trained in the procedures. The remaining issues were addressed in the Director's letter dated July 26,1994, acknowledging receipt of the petition and in a Director's i

l 344 i

Decision (DD-96-4,43 NRC 309), issued on June 3,1996. The reasons for the partial denial are fully set forth in the Director's Decision.

DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206 L INTRODUCTION On May 27,1994, Florida Energy Consultants, Inc. (FEC), by and through Thomas J. Saporito, Jr. (Petitioners), submitted a petition pursuant to 10 C.F.R. 6 2.206 to the U.S. Nuclear Regulatory Commission (NRC). The petition requested that the NRC (1) institute a show-cause proceeding pursuant to 10 C.F.R.12.202 to modify, suspend, or revoke the operating licenses of Arizona Public Service Company (Licensee or APS) for Palo Verde Nuclear Generating Station (PVNGS or Palo Verde); (2) issue a notice of violation against the Licensee for continuing to employ The Atlantic Group (TAG) as a labor contractor at Palo Verde; (3) investigate alleged material false statements made by William F. Conway, Executive Vice President at Palo Verde, during his testimony at a Department of Labor hearing (ERA Case No. 92-ERA-030) and, in the interim, require that he be relieved of any authority over operations at Palo Verde; (4) investigate the Licensee's statements in a letter dated August 10, 1993, from Mr. Conway to the former NRC regional administrator, Mr.

Ilobby 11. Paulkenberry, that Mr. Saporito gave materially false, inaccurate, and incomplete information on his application for unescorted access to Palo Verde and that, as a result, Mr. Saporito lacks trustworthiness and reliability for access to Palo Verde; (5) investigate the circumstances surrounding the February 1994 termination of Licensee employee Joseph Straub, a former radiation protection technician at Palo Verde, to determine if his employment was illegally terminated by the Licensee because he engaged in " protected activity" during the course of his employment; (6) require the Licensee to respond to a " chilling-effect" letter regarding the circumstances surrounding Mr. Straub's termination from Palo Verde and specify whether any measures were taken to ensure that his termination did not have a chilling effect at Palo Verde; and (7) initiate appropriate actions to require the Licensee to immediately conduct eddy-current testing (ECT) on all steam generators (SGs) at Palo Verde because the SG tubes were recently fouud to be subject to cracking.

As the bases for these requests, the Petitioners allege that (1) a show-cause proceeding is necessary (a) because the public health and safety concerns alleged are significant and (b) to permit public participation to provide NRC with new and relevant information; (2) past practices of TAG demonstrate that employees of TAG were retaliated against for having raised safety concerns 345

while employed at Palo Verde; (3) citations to testimony from transcripts and newspaper articles (appended as exhibits to the petition) demonstrate that Mr.

Conway's testimony is not credible; (4) statements in the letter of August 10, 1993, are inaccurate and materially false and characterize Mr. Saporito as an individual lacking trustworthiness and reliability for access to Palo Verde, and that such negative characterizations have caused the nuclear industry to blacklist him from continued employment, all in retaliation for his raising safety concerns about operations at Palo Verde; thus, the Petitioners ask that these statements be rescinded; (5) an investigation into the termination of Mr. Straub is warranted in view of the fact that the Licensee has engaged in similar illegal conduct in the past for which the NRC has required the Licensee to pay fines; (6) Mr.

Straub is entitled to reinstatement with pay and benefits pending the NRC's investigation into his termination to offset the chilling effect his termination had on the Palo Verde workforce; and (7) in addition to cooling tower problems, the stress-corrosion and cracking in the SGs is a recurring problem of which the Licensee is aware and has failed to properly correct, so that the NRC should be concerned about proper maintenance of safety systems and equipment at Palo Verde.

On July 8,1994, the Petitioners filed a supplemental petition (Petition Supplement) raising six additional issues. The Petitioners requested that the NRC (1) institute a show-cause proceeding pursuant to section 2.202 for the modification, suspension, or revocation of the Palo Verde operating licenses for Units I,2, and 3; (2) modify the Palo Verde operating licenses to require

)

operation at 86% power or less; (3) require the Licensee to submit a No

)

Significant Hazards safety analysis' to justify operation of those units above 86% power; (4) take immediate action (e.g., by confirmatory order) to require the Licensee to reduce operation to 86% power or less; (5) require the Licensee to analyze a design-basis steam generator tube rupture (SGTR) event to show that the offsite radiological consequences do not exceed a small fraction of the limits of 10 C.F.R. Part 100; and (6) require the Licensee to demonstrate that its emergency operating procedures (EOPs) for SGTR events are adequate and the plant operators are sufficiently trained in EOPs.

As bases for these requests, the Petitioners allege that (1) the Licensee experienced an SGTR in the free-span area on Unit 2 on March 14, 1993; (2) during a January 1994 inspection on Unit 2,85 axial indications were identified, the longest indication being 7.5 inches; (3) as of May 1994,28 axial indications were found at Unit 2, and 9 axial indications were found at Unit I (more extensive testing will confirm the existence of circumferential crack indications I Secuon 5091 of itw Conuninion's regulations provides that al the tine a heenwe requests an anendnrnt it nut provide the NRC its analysis of dw mue of no msgnihcant hazards consideration, using the standards of acetion 5091 346

i in the expansion and transition areas);(4) in May 1994 SG sludge from Units I and 2 indicated a lead content of 4000 to 6000 ppm, which is unusually high, accelerates the crevice corrosion process, and is believed to be caused by a feedwater source deficiency; (5) in eight instances, the Licensee failed to properly implement operational procedures during the SGTR event on March 14,1993; (6) the Licensee's failure to comply with approved procedures in the above-mentioned event is indicative of a problem plant that warrants further NRC action; (7) in four instances, the NRC is aware of additional Licensee weaknesses regarding the SGTR event; (8) the Licensee cannot ensure that the radiation dose limits are satisfied for applicable postulated accidents; (9) the Licensee is not maintaining an adequate level of public protection in that the offsite dose limits will be exceeded during an SGTR; (10) the Licensee cannot demonstrate that a Palo Verde unit can safely be shut down and depressurized to stop SG tube leakage before a loss of reactor water storage tank inventory; (11) SG tubes are an integral part of the reactor coolant boundary and tube failures could lead to containment bypass and the escape of radioactive fission products directly into the environment and, therefore, must be carefully considered by NRC and the Licensee; (12) the Licensee cannot demonstrate compliance with 10 C.F.R. Part 50, Appendix A, which establishes the fundamental requirements for SG tube integrity; (13) the Licensee has failed to comply with NRC recommenaations under NUREG-0800 to show that in the case of an SGTR event, "the offsite conditions and single failure do not exceed a small fraction of the limits of 10 CFR Part 100"; and (14) the Licensee has posed an unacceptable risk to public health and safety by raising power on all three Palo Verde units above 86%,

considering the severe degradation of the SG tubes.

In a letter dated July 26, 1994, I acknowledged receipt of the Petition of j

May 27,1994, and the Petition Supplement of July 8,1994, and denied the Petitioners' two requests for immediate action. The Petitioners requested the initiation of actions to require the Licensee to immediately conduct ECT on all SGs at Palo Verde (Request 7 of the May 27,1994 Petition) and immediate action to cause the Licensee to reduce operation to 86% power or less (Request 4 of the July 8,1994 Petition Supplement). Although these two requests for immediate action were denied, the concerns raised by the Petitioners regarding their requests for ECT and reduced-power operation are addressed in this Decision.

He Staff informed the Petitioners that the remaining requests were being evaluated under 10 C.F.R. 5 2.206 of the Commission's regulations and that a response would be forthcoming. This Decision addresses the Petitioners' con-cerns about ECT (Request 7 of the May 27,1994 Petition), SG tube integrity, and emergency operating procedures for SGTR events and the remaining re-quests (Requests I,2,3,5, and 6) of the July 8,1994 Supplement. He Staff has completed its review of the remaining issues in your supplemental petition.

A Director's Decision (DD-96-4,43 NRC 309) regarding Requests I through 6 347

in the Petition of hiay 27,1994, was issued under separate cover letter on June 3,1996. A discussion of the Director's Decision follows.

II. IIACKGROUND ne Petitioners

• concerns addressed in this Decision appear to be based largely on the hiarch 1993 SGTR event and the NRC Staff findings concerning that event set forth in the NRC Augmented Inspection Team (AIT): report. Palo Verde Unit 2 experienced an SGTR event in SG No. 2 on hiarch 14,1993. At the time, the unit was at about 98% power. He plant operators manually tripped the reactor, declared an Unusual Event,) which was subsequently upgraded to an Alert d and entered the PVNGS Functional Recovery Procedure to mitigate S

the event. %e plant was cooled down and depressurized, and the event was terminated when hiode 5' was achieved on hiarch 15,1993.

During the period hiarch 17-25, 1993, an NRC AIT conducted an inspec-tion at PVNGS Unit 2. Overall, the AIT concluded that the response to the SGTR succeeded in bringing the unit safely to a cold-shutdown condition and limiting the release of radioactivity so that there was no threat to public health and safety. Ilowever, the AIT identified weaknesses in the Licensee's imple-mentation of emergency plan actions, including event classification, activation of the emergency response facilities, and prompt assignment of tasks to on-site personnel. Weaknesses were also found in the procedures, equipment, and training associated with responding to an SGTR event. The AIT inspection was documented in NRC Inspection Report No. 50-529/93-14, issued on April 16, 1993.

Enforcement action resulted from the AIT inspection in several areas (e.g.,

emergency preparedness, chemistry and radiation monitoring, and emergency operating procedures). All violations were issued as Severity Level IV.'

l 2 An AIT in an NRC mapectmn se.un componed of esperts from the responwbie NRC Regional ofhee augmented by personnel Innn NRC Headquarters and others repons with special techmeal quahhcatmns The purpose of an AIT is to descrnune the causes. condamm. and circunutances relevant to an event and to commumcate its hndmgs, safety concerns, and recommendauons to NRC management 3 1he lowest level of energetry clanutication an dehneated in 10 CI R Part 50. Appendia E d The second lowest level of en argency clasubcanon as deturated an 10 C F R Part 50. Appendia E S PVNGS Procedures pnmdang operators' achons for senponding to deugh baus events 6 The operahonal mode dehned as cold shutdown in plant techmcal specahcations i

75cc 1.A 90119 Onued July 1.1993) and EA 93-039 Ouued Apnl 27. 1993). At the unr. vmlations were I

caregonred m lerna of hve levels of sevenry Snenry level 1 and il vmlauons were of very sigmhcant regulamry concern Seventy isvel til violanons were cause for sigmhcant regulatory concern. Sewnty level IV vmlatwns were less menoun but were of nmre than nums concern Severny level V were of numw safety or envimnnental concern. General Statenrnt of Pohey and Procedure for NRC f.nforcenrnt Acunns 10 C F R Part 2. Appendix C. IIV.1.ffecuw June 30,1995, the NRC's I:nforcenent Pohey. as pubbshed in the federaf Repster ud) ltd j

Reg 34.381), as net forth an NURl;G-Ita) 348 i

l

%c NRC issued a confirmatory action letter" (CAL) to the Licensee on June '

4,1993, for Unit 2. The NRC issued a safety evaluation by letter dated August 19,1993, concluding that Unit 2 could safely resume operation for 6 months, the

- interval between SG tube inspections. His safety evaluation closed the CAL l Re NRC issued a second CAL' on October 4,1993, for Unit 3 (amended on November 8 and 23,1993), confirming the commitments made by the Licensee in its September 29,1993 letter. By letter dated December 3,1993, the Licensee l

reported that it had completed the actions discussed in the CAL. Satisfied that the Licensee had completed the conditions of the CAL, the Staff closed the CAL by letter dated April 1,1994.

The Licensee voluntarily reduced power to approximately 86% power in the fall of 1993 to minimir.e SG degradation. The Licensee evaluated and l

implemented several improvements to the operation of its SGs, one of which was a reduction in the reactor coolant system hot. leg temperature. The units were all returned to 100% power by the fall of 1994.

Following a midcycle outage on Unit 2 and midcycle and refueling outages on Unit 3, the NRC issued a safety evaluation on June 22,1994, which concluded that both Units 2 and 3 could safely operate for 6 months between

~ SG tube inspections. Since that time, there have been additional midcycle outages on Units 2 and 3 and a refueling outage on all three units. Eddy-current inspection results and outage planning for the units currently support the following operating intervals between inspections: Unit 1,16 months; Unit 2, i

12 months; and Unit 3,11 months.

IIL DISCUSSION A.

Eddy Current Testing on All Steam Generators at Palo Verde item 7 of the Petitioners

• letter of May 27,1994, requested the NRC to require the Licensee to conduct immediate ECT on all SGs at Palo Verde to ascertain the integrity and life expectancy of the SG tubes. Although, as indicated above, this request for immediate action has been denied, the Petitioners' concerns regarding ECT are addressed below.

8 this CAL net hirth comnutnrnts nuale by the 1.icennee to the NRC Staff on June 2.1993. regarding tir SGTR event on Umt 2. In the CAL the Staff conhrned the t.icensee's comnutnrnt (l) to mmfy the NRC prior to compleuon of ECT on the Umt 2 SGs- (2) to include the proposed operaung interval to the next SG tube inspectum in its safety analysis, and (3) not to rest.irt Unit 2 untd the NRC concurs with the restart of the facihty "In this CAL the Staff conhrnrd the t.icensee's computurnt to (!) shut down Unit 3 for ECT inspeconn of both sGs. (2) continue the revrw of Umt 31.Cr data to idenufy indications that were mit idenuhed in refuchng outage 3R3 by tmbbin coil ECT and to provide a written summary of the review;(3) continue to implenent the Umt I s0 inspecuan plan (sGIP). (4) miplenent changes to energency operaung procedures (EoPs). operator traimng, arai leakage nmmionng; und (5) continue to operate Unit 3 to take tidvantage of some of the prevenuve

]

rneasures that can be taken to reduce outside dianrter stress enrrosion crackmg (oDSCC) rates.

I j

349 i

I l

Re Petitioners assert es a basis (Petition Basis 7) for their request concerning ECT that the Licensee's SGs have recently developed cracks in the free-span portion of their internal structure, that tube stress corrosion and cracking is a recurring problem in SGs, and that there is a risk the emergency cooling system will be unable to prevent the melting of the fuel because of tube ruptures.

The Licensee has completed at least two eddy-current inspections on each of the Palo Verde units since the SGTR event in March 1993. The Staff issued safety evaluations (SEs) that addressed Unit 2 and 3 operating intervals by letters dated August 19, 1993, and June 22, 1994." Dese SEs were based on the results of the Licensee's eddy-current inspections of Unit 1 in October 1993, of Unit 2 in May 1993 and January 1994, and of Unit 3 in December 1993 and May 1994. In summary, the Staff concluded that Units 2 and 3 could be safely operated for up to 6 months between SG eddy-current inspections.

The Licensee conducted five of these "minicycles"" (three on Unit 2 and two on Unit 3), thereby obtaining extensive SG eddy-current data, which it used to validate models used for analysis, in May 1995, the Licensee submitted a report supporting a cycle length of up to 11 months on Unit 3. Unit I completed a 16-month operating cycle in June 1995. After meeting with the Licensee, the Staff approved a Unit 3 cycle length of 11 months in a meeting summary dated August 22, 1995. During a September 20, 1995 meeting with the Staff, the Licensee presented its submittal and arguments to support a 12-month cycle for Unit 2. The Staff incorporated data from the most recent Unit 3 SG inspection in its evaluation of the Licensee's conclusion regarding a 12-month operating cycle on Unit 2. The Staff approved the 12-month operating cycle by letter dated March 5,1996.

In summary, the Licensee performed the necessary eddy-current inspections, and the Staff extensively reviewed and approved Palo Verde SG eddy-current inspectica results and continues to review additional information regarding the j

integrity of the SG tubes. On the basis of its review of ECT, the Staff has concluded that the Petitioners' concerns regarding the need for ECT have been satisfactorily addressed by the Licensee and that no further action by the NRC Staff is warranted.

• Tiw Peuuoner also menuoned cochng tower problems in this taus staung that the NRC should be concerned about proper nuunten.mce of safety systems and equipnent there " The cochng towers at Palo Verde are ru>t ufety related systems if the coohng towers of a umt were incapacitated. the umt nught operate less efhciently, but that would be an econonus penahy. rather than a ufety problem. The Peuuoners did not provide any specinc esamples of problems with the couhng towers though the Starf is aware of the general nuuntenance problems the Licenwe has had with the cochng towers. 'Dus inue was the subject of a previous Director's Decision. DDL921.

35 NRC 133,137 (1992). which found on substanual nuclear safety concern with the condmon of the coohng towers.

H Umi i was not ducelly addrewed in the $0a became no free-span anal indicahons were idenuned on Umt I at the time 12 The Palo Verde operaung cycle is normally 1618 months.

350 1

4 i

~ -. _ _

i j~

H.

Operation Above 86% Power Requests 1,2,3, and 4 of the Petition Supplement, in essence, request actions requiring the Palo Verde licenses to be modified to require operation at 86%

power or less."

As bases for these requests, the Petitioners assert that on March 14, 1993,.

Palo Verde Unit 2 had an SGTR in the free-span section between the tube

' supports and that in January 1994, an inspection of Palo Verde's Unit 2 SGs 4

found 85 axial indications (longest indication,7.5 inches)(Petition Supplement, j

Basis 2); and that as of May 1994, 28 axial indications were found at Unit 2, and 9 axial indications found at Unit 1. The Petitioners believe that more extensive testing will confirm the existence of circumferential crack indications in the expansion-transition area (Petition Supplement, Basis 3). 'Ihe Petitioners also assert that in May 1994, Units I and 2 SG sludge indicated a lead content of 4000-6000 ppm, which would accelerate the crevice corrosion cracking process (Petition Supplement, Basis 4). The Petitioners also stated that the operation of Palo Verde units at above 86% power is unacceptable due to severe degradation of the SG tubes (Petition Supplement, Basis 14).

1 Axial and Circumferential Steam Generator Tube Indications With regard to the Petitioners' concern about identifiable axial indications (Petition Supplement, Basis 2), it is correct that 85 axial indications in the free-span area (longest indication,7.5 inches) were discovered on SG tubes at Palo 4

Verde Unit 2 during the January 1994 inspection. However, this number was apparently based on preliminary information from the Licensee's eddy-current inspection during the January 1994 eddy-current inspection. The Licensee's

' report of March 8,1994, stated that actually 330 free span axial indications were discovered during the Unit 2 first mideycle outage: 22 in SG 1 of Unit 2 (SG 21) and 308 in SG 2 of Unit 2 (SG 22). Although a number of axial indications were detected by the Licensee, it is not the number of indications 4

l that is of a safety concern but rather the severity of the indications (i.e., severity i :

in terms of whether the tube indication had adequate structural and leakage integrity). As noted in the petition supplement, the longest indication was 7.5 1

inches long. The safety significance of this indication, as with any eddy-current

+

'O The npecthe request for anonediate action to rnake the licenace reduce operation to 86% power or less (Request

4) was denied by kiter of July 26.1994 With regard to the request (Request 3) to require the L.icenwe to auhmit a no signshcant hazards adfety an.dyus to jusufy operauon of the unstn above 86% power, the licennee is not

- required t y the NRC regulations so nuhrrut a no sigmhcant haards analysis. aince a Ts change was not required to renunw operanon above 86% power. The Staff did. however. review a no significant hazards analysin retaied to operauon of the umta at 100% power with a reduced hot-leg temperature, Theme TS changes were subnutted by the tjeensee on rebruary 18,1994, int Units I and 3. and on July I 1994. for Umt 1 The NRC Staff review of these Ts changes and support for operanon at a power level of 100% is ducuued at pp 354-55, infru, 351 1

e

~. _ _

indication, depends not only on the length of the indication but also on the depth of the indication. To assess the safety significance and/or severity of an indication, licensees size the indications in terms of length, depth, and/or voltage. Ilowever, eddy-current testing methods have not been qualified for determining the depth of stress corrosion cracks. Where qualified eddy-current methods do not exist, licensees may pursue alternative methods such as in-situ pressure testing'8 to further confirm or assess the condition of the tube (i.e., to confirm that the tube indication could withstand the required pressure loadings; thereby demonstrating that the tube had adequate structural integrity).

The Licensee did select nine tubes for in-situ pressure testing during the outage.

The 7.5-inch-long indication did not meet the Licensee's screening criteria for selecting the more severe indications. The screening criteria, discussed in the NRC Staff's SE of June 22,1994, considered the length, depth, and/or voltage of the indication. All nine tubes satisfactorily passed the in-situ pressure test, thereby providing reasonable assurance that the tube indications had adequate structural integrity. Furthermore, all tubes with axial free-span indications were plugged before Unit 2 was returned to operation.

The Petitioners also assert that, as of May 1994,28 axial indications were found on Unit 2, and 9 axial indications found at Unit 1, and that more extensive testing would confirm the existence of circumferential crack indications in the expansion-transition areas (Petition Supplement, Basis 3). Dese numbers are incorrect. Neither Unit I nor Unit 2 was in an outage conducting eddy-current examinations in May 1994. Unit I had no axial indications identified as of this date. %e Unit 2 data are described above. Unit 3 was in an outage at this time and identified a total of 20 axial indications. Regarding the performance of more extensive testing to confirm the existence of circumferential crack indications at the expansion-transition area, the Licensee has performed inspections in this region. In general, the Licensee's SG tube inspection program 1

consists of an initial inspection sample which is expanded, if necessary, based on the initial inspection sample results. The Licensee has been examining the expansion-transition locations with a motorized rotating pancake coil (MRPC) probe since at least 1993. These examinations permit the Licensee to detect circumferential crack indications. In its SEs and meeting summaries, the NRC Staff has reviewed the Licensee's results from its MRPC inspections and found them acceptab;e. To date, Palo Verde Units 2 and 3 have each exhibited a small number of circumferential crack indications per unit. Unit I has 34 Voltage is elecincal force or potennal difference Voltage nrasurernents can be used to enumate ate seventy of an indicanon 18 1n situ pressure tents were conducied to deternune wtether the tubes could withstand the pressure loading specihed in NRC Regulatory Guide 1121 (i e. wtrther the SG tuben have adequate structuralintegrity).

'*Ttw Staff's reviews are docunrnted in SEs dated August 19.1993, and June 22,1994 und also in rnecting numnanea dated August 22.1995. March 22.1994. October 19.1994. August 22,1995,and Septenher 20.1995.

352

)

i i

exhibited the most extensive circumferential cracking both in terms of number of indications and the severity of the indications when compared to Units 2 and i

3. Nonetheless, the Staff concluded in a meeting summary dated October 19, 1994, that opef ating Unit I to the end of the operating cycle (April 1995) did not pose an undue risk to public health and safety in view of (1) the absence of detectable axial free-span cracks during the previous refueling outage inspection; (2) the improved secondary water chemistry performance at Palo Verde; (3) the reduced hot leg temperature, which is expected to reduce crack growth rates; and (4) the implementation of enhanced MRPC inspection techniques at the expansion-transition locations. The Licensee will continue to perform extensive SG inspections at the end of each operating cycle to ensure continued safe operation of SGs.

Lead Content in Steam Generator Tube Sludge He Petitioners assert without providing any supporting basis that the SG sludge of Units I and 2 has a lead content of 4(XX)-6000 ppm (Petition Supplement Basis 4). The Licensee performed sludge analyses during two consecutive Unit I outages. The data, which were reported in a letter from the Licensee dated November 2,1993, indicate a lead content of 78 ppm (from Unit 1, Refueling 3) and 98 ppm (Unit 1, Refueling 4)." Sludge samples were obtained from both Unit 2 SGs after the March 1993 SGTR event. The data were documented in the Licensee's report," Equipment Root Cause of Failure."

Both the Licensee and outside contractors analyzed the samples; all analyses indicated a lead content of 100 ppm or less.

The NRC Staff conducted two Pa'o Verde chemistry inspections (Inspection Reports 94-15 and 94-27 on Units 50-528/50-529/50-530). The Staff reviewed films and sludge for their lead content, and the data were consistent with the Licensee's reports. Inspection Ryort 50-528/50-529/50-530/94-15 specifically referred to the inspector's determin. don to note "whether lead was detected, because of recent work which indicated a may have a deleterious effect." In referring to examinations of the burst region" of pulled tubes, the report stated that insignificant levels of lead were found in the sludge and in the films examined.

l U Durmg the Urut 2 iniJcycle outage m early itM4. the SGs were chenucally cle.nrd before aludge lancing.

therefore. de compouuon of the aludge was not tested

'"Iturit regma refers to the acthon of the crack m a pulled tube that in espmed as the result of a burst or rupture due hs un upphed preuure either durmg plant operation or latwratory tesung 353 i

1

Inspection Report 50-528/50-529/50-530/94-15 also reviewed the Licensee's secondary water chemistry control program. The NRC inspection team found that the program requirements had fully conformed to the EPRI guidelines throughout Palo Verde's operating history with respect to chemical parameters, analytical frequency, limits for critical parameters, and required actions when critical parameters were exceeded. In summary, the Petitioners' assertions regarding lead content have not been substantiated and do not agree with available data. The Licensee has verified 20 that lead content in both Units 1 and 2 SGs is 100 ppm or less, not 4000-6000 ppm as asserted by the Petitioners.

Additionally, NRC Inspection Reports 94-15 and 94-27 on Units 50-528/50-529/50 530 have not revealed any information about elevated lead content.

Steam Generator Tube Degradation and Operation at a Reduced Power Level ne Petitioners also assert that the operation of Palo Verde units at above 86% power is unacceptable due to severe degradation of SG tubes (Petition Supplement, Basis 14). In December 1993, the Licensee volunteered to reduce power in all three units to approximately 86% as an interim measure to curtail SG degradation. De primary purpose of this administrative power limit was to operate with a lower reactor coolant system hot-leg temperature in order to reduce tube degradation. This specific power level had been selected because it provided for a T,,,,, that approximated the value that would be implemented if the Licensee's proposed TS changes for operating at 100% power with a reduced T,,,,, were approved by the NRC. Additionally, the Licensee's thermal-hydraulic analysis indicated that, at this reduced power level, the potential for free-span tube degradation from corrosion is reduced. The Licensee took this action voluntarily to minimize further degradation of the SGs until corrective, mitigative, and preventive actions could be implemented to reduce SG tube degradation.

On.fune 7,1994, the NRC issued a TS change for Units I and 3 that permitted the Licensee to operate at full power with a lower T, temperature.2' The Unit 2 TS change was reviewed separately because the Licensee was continuing to perform analyses arising from the SG tube plugging in Unit 2. He Staff issued W The NRC enspechun team compared I lectne Power Rewarch Insutute (i.PRI) NP4239. "PWR secondary Water Clwnustry Guidchnen." Rewmona i through 2. sind LPRI TR 101230. "intenm PWR Seconday Water Chenustry Recomnendatmna for IGAllGSCC Control." wnh the Licenwe's secondary water chenustry control program fur PVNGS 2"PVNGS perfurned as own mapectmm and also unhzed contractors, AHH-Combuhuan t.ngmeenng (ABB CE) and Hahcock and Wilma Nuclear lechnologici(HWNT) to perform metallurgical examinauona. The inspecuans sevealed nunor quanuues of lead in surface depmns and hims. See NRC Inspecuan Report 50 528/54 529/54 5 MW415. dated June 23.1994 21 Nouced in the f ederal Regwer on June 22.1994 (59 led Reg 32.240) 354

this TS change on August 12, 1994.22 These TS changes permitted operation at a power level of 100% as did the Staff's post-March 1993 SGTR SEs dated August 19, 1993, and June 22, 1994, regarding the length of operating cycles of the Palo Verde units. Furthermore, as stated above, the Staff did not impose any power restrictions or limits on the Licensee.

In summary, the Petitioners' concerns regarding operation of the Palo Verde units above 86% power (including bases relating to the March 1993 SGTR event, identification of axial and circumferential SG tube indications, alleged elevated lead contents in SG sludge) have been satisfactorily addressed, and do not warrant any further action by the NRC Staff.

C.

Need to Reanalyze the Design Hasis SGTR Event Request 5 (of the Petition Supplement) is that the NRC require the Licensee to analyze a design-basis SGTR event to show that the offsite radiological consequences do not exceed a small fraction of the limits of 10 C.F.R. Part 100.

The Staff requires an analysis such as this to be completed for all pressurized-water reactors (PWRs) and documented in a final safety analysis report (FSAR) before plant operation. The Licensee complied with this requirement.23 1he Petitioners assert in the basis (Petition Supplement, Bases 8,9,10,11, and 13) that the Licensee cannot ensure that the dose limits are satisfied for applicable postulated SGTR events; the offsite dose limits would be exceeded during an SGTR event and adequate protection to the public would not be maintained; the Licensee cannot demonstrate that the plant can be safely shut down and depressurized to stop SG tube lealunge before reactor water storage tank inventory is lost; the NRC and the Licensee must carefully consider SGTR; and "the licensee has failed to comply with NRC requirements under NUREG-0800 insofar as the licensee is required to analyze the consequences of a design basis SGTR event to show that the offsite conditions and single failure do not exceed a small fraction of limits of 10 C.F.R. Part 100."

The AIT report documents findings regarding the Unit 2 SGTR event of March 1993. The report stated that the plant was safely brought to cold shutdown and no radioactivity was released off site. Additionally, the Staff's SE, dated August 19, 1993, assessed a single SGTR event and single and multiple tube ruptures induced by a major secondary-side rapid depressurization and concluded I

l l

22 Nouced in the Federal Ren,ter on August 31. lW4 (59 led Reg 45.018) 23 Upd.aed I:inal Safety Arialyus Report (UIsAR) (15 6 31.3 2 dewribes the radmingical con.wquences of an

)

S(rlR. and the results are snan in UISAR Table 15 6 3-5 The Staff iniually reviewed PVNGS's UlSAR in Nosember 1981.

355

t that the radiological consequences were within applicable limits.24 Finally, in a memorandum dated.fanuary 26, 1996, the Staff performed a confirmatory

- review of the Licensee's updated SGTR event analysis, submitted with Revision

' 6 to the FSAR (March 10,1994), and concluded that the results are acceptable.

The Petitioners also assert in the basis (Petition Supplement, Basis 12) that the

. Licensee cannot demonstrate compliance with certain criteria of Appendix A I

, to 10 C.F.R. Part 50,25 which establishes the fundamental requirements for SG tube integrity. Ilowever, the Petitioners have failed to provide any details or support for this assertion.

In summary, on the basis of the NRC Staff's review of the Licensee's design.

basis SGTR event and more recent confirmatory review, the Staff has concluded that the Petitioners have not presented a basis for further NRC action.

D.

Adequacy of Training and Procedures for an SGTR Event

_ _ Regarding Request 6 of the Petition Supplement, that the NRC require the Licensee to demonstrate that its emergency operating procedures (EOPs) for SGTR events are adequate and the plant operators are sufficiently trained in

. EOPs, the Staff has already taken sufficient action. He Petitioners allege (Pe-i

. tition Supplement, Bases 5,6, and 7, respectively) that the Licensee failed to properly implement operational procedures regarding the SGTR event of March 14, 1993, citing eight instances in Basis 5;2' that the Licensce's failure to comply with approved procedures in this event is indicative of a problem plant that warrants further NRC attention (Basis 6); and that the NRC is aware of additional Licensee weaknesses regarding the SGTR event, citing four instances 24 la 10 C.F R. Part 100, acceptance enteria are specified for the dew analyzed during insual plant beensing at the e

esclunion area tmundary (EAD) and low populauon zone (LPZ) for design-basis accidents. The dose in 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> at the EAR is not to exceed 25 rem to the whole body or 300 rem to the thyroid De done in 30 days at the imundary of the lfZ is not to exceed 25 rem to the whole body or 300 rem to the thymid. Tiw Staff reviewed the tJcennee's Unit 2 sGTR analpes, subnutted by letter dated July 18, 1993, and concluded that the methods used by the tjeennee were acceptable. See the NRC Staff's sidety evaluauon dated August 19,1993.

Tiw TVutioners annert that the t.icensee has failed to comply with NUREG-ONN) requirenwnts regarding connequences of a design-banis SGTR event However. NURLG-0*10 does not act forth requirenwnts, rather, it sets forth acceptable approaches to nausfying NRC requirenwnts-25 The Pehtioners reference pivuons of General Design Criteria (GDC) 14.15,30, and 31 of Appendia A to 10 C F.R. R /* 50.

26 Tim Petiooners ansert (Pennon Supplement. Danis 5) that the Licennee (a) failed to classify the event in accordance with tlw EoPs,(b) fmled to actuate the Enwrgency operauons Facihty for the 1-hour ume,(c) failed

. to acevate the Enwrgency Renponne Data System. (d) violated 10 C.F R 150 72 requirenwnts, acuvut on of the i nwrgency Respoeine Data system. (e) failed to take prompt corrective accons to repar the condenner varuum t

pump cahaust radiation monitor,(f) f uled to obtain reqmred approvals for alarm setpoint change on waste-gas-area e

combined ventilanon exhaunt trumator; (g) f.uled to fully implement an alarm response procedure and. (h) failed to check tlw owner controlled area.

356 r

i

in Basis 7 2' These bases largely concern areas the Staff reviewed after the SGTR event on March 14, 1993. Specifically, the Petitioners repeated several of the procedural and operator weaknesses that were described and evaluated in the Staff's AIT report (Inspection Report 50-529/93 14, dated April 16, 1993).2" Specifically, the AIT report stated that the use of a diagnostic logic tree caused the operators to misdiagnose the SGTR event twice and subsequently enter a Functional Recovery Procedure, contributing substantially to the delay i

in isolating the faulted SG The Staff concluded in its safety evaluation of August 19, 1993, that the Licensee's modifications to the EOPs and the subsequent operator training provide sufficient enhancement for both diagnosis and mitigation of various SGTR scenarios.

Additior. ally, the Licensee recently revised its EOPs to make them consistent with Combustion Engineering Owners Group (CEOG) guidance (CEN 0152, Rev. 32' ). NRC Inspection Report 50-528/50-529/50-530/95-12, dated July 27, 1995, dc.cuments the Staff's observations on ne "high-intensity team" training conducted for each crew in preparation for implementing the EOPs. In the inspection report, the Staff stated that the EOPs enhanced crew performance and allowed for greater flexibility in responding to events. As an example, during the simulator-based SGTR scenario, the crew was able to isolate the faulted SG within 14 minutes of the start of the event. In contrast, during the Much 1993 Unit 2 SGTR event, operators took about 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br /> to isolate the faulted SG, partly because of restrictions in the EOPs in use at the time. The Staff will further evaluate the effectiveness of EOPs during future licensed-operator examinations.

On the basis of its review of the Petitioners

• request that the Licensee demonstrate that its EOPs for SGTR events are adequate and that plant operators are sufficiently trained in EOPs, the Staff has concluded that the Petitioners have not presented a basis for further NRC action.

27 The Penuoners ancrt (Peutr'n Supplenent. Basis 7) that the tjeenwe's (a) alert and alarm netpoints for condenser vacuum pump exhaust and main steam hne radiauori nuiruttw larruta appear to be beed on offuse done hmsts rather than on an $GTR event; (b) simulator alarms occur within 2-3 nunutes of an sGTR event. contrary to control rown indicauons;(c) plant staff failed to fully respond to auembly councanon,id) plant staff f.uled to p"riorm a formal evaluauon of the safety sagruhcance of an ubnum.d crack growth an tre Unit 2 sG.

- The Eitenwe addrened the inues rmwd m the aft report by empicnwnung de necenary procedural changes and providmg traimng. hw example, wrth regard to the AIT hnding (summanted by the Peuuoners) regarding differences between alarm suponse on the simulator and in the control room, the staff's safety evaluauon of August 19.1993, slated that *tte amiutator ha been modshed to nxwe reahstically model the plant. parucularly the responw of tir radsauon numitormg system to an SGTR

1. A letter from the NRC to Combusuon Engineermg. dated August 2.1988. stated that. "pending NRC hnal review and approval. CE facihues truy base their plantapecihc energency operaung pmcedurts on Revnion 3 of CEN 152. Should future NRC review reveal mmhhcanons to Revison 3 to be neceuary. CE facihues would be espected to update their procedures to reflect the idenuhed changes schedules for such changes should he based on perceived safety sigruhcance of the thangen " The objecove of the CEN-152 report is to describe the CEoG cmergenty procedure guidehnes sysem The report cont.uns the nrthodology used to develop and vahdate the tjcensee's energency procedure guidehnea and mfornwuon on the implenentauon of guidelines.

357 i

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h Ill. CONCLUSION i

He institution of proceedings in response to a request pursuant to Section f

2.206 is appropriate only when substantial health or safety issues have been

[

l-raised See Consolidated Edison Co. of New York (Indian Point Units 1,2. and j

_ 3), CLI-75-8, 2 NRC 173,176 (1975), and Washington Public Power Supply j

System (WPPSS Nuclear Project No. 2), DD 84-7,19 NRC 899,923 (1984).

This standard has been applied to the concerns raised by the Petitioners to 2

determine whether the actions requested by the Petitioners are warranted. With i

regard to the specific requests made by une Petitioners discussed herein, the NRC Staff finds no basis for taking addidonal actions beyond those described j

. above. Accordingly, the Petitioners' requests for additional actions pursuant to 1

section 2.206, specifically Requests 1,2,3,5, and 6 submitted in the Petitioners' Supplement dated July 8,1994, are denied. Accordingly, no action pursuant to section 2.206 is being taken in this matter.

A copy of this Decision will be filed with the Secretary of the Commission for Commission review in accordance with 10 C.F.R. 9 2.206(c) of the Commis-sion's regulations. As provided by this regulation, the Decision will constitute j

the final action of the Commission 25 days after issuance, unless the Commis-l 7

sion, on its own motion, institutes a review of the Decision within that time.

l i

i FOR Ti1E NUCLEAR j

REGULATORY COMMISSION I

I J

}

i William T. Russell, Director Office of Nuclear Reactor i

Regulation f

Dated at Rockville, Maryland, l

l-this 25th day of June 1996.

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