ML20128K448

Order.* Grants Petition for Review in Part & Deny in Part & Direct Emergency Plan,Sar & SER Be Amended IAW Opinion.W/ Certificate of Svc.Served on 961002

ML20128K448
Person / Time
Site:	Claiborne
Issue date:	10/02/1996
From:	Hoyle J NRC OFFICE OF THE SECRETARY (SECY)
To:	CITIZENS AGAINST NUCLEAR TRASH
References
CON-#496-17953 CLI-96-08, CLI-96-8, ML, NUDOCS 9610110073
Download: ML20128K448 (8)

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i;. /7953 DOCKETED UNITED STATES USNRC l NUCLEAR REGULATORY COMMISSION l CONNISSIONERS:

W OCT -2 An :37

! Shirley Ann Jackson, Chairman Kenneth C. Rogers OfflCE OF SECyr 7ARY Greta J. Dicus 5 Nils J. Diaz 00CKE gq3 TINGy'CN

• . ' c d./ C' Edward McGaffigan, Jr.

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In the Matter of )

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Louisiana Energy Services ) Docket No. 70-3070-ML

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(Claiborne Enrichment Center) )

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CLI 8 BERVED OCT - 21996 ORDER The Commission has before it a petition for review of the Atomic Safety and Licensing Board's Partial Initial Decision, LBP-96-7, 43 NRC 142 (1996), filed by the intervenor, citizens Against Nuclear Trash (CANT). CANT seeks Commission review of the portion of the Board's decision resolving all contentions on emergency planning in favor of the applicant. The NRC staff and the applicant, Louisiana Energy Services (LES), oppose CANT's petition for review.

We deny the petition except for a single issue: did the Licensing Board err when, after raising a question whether the applicant's emergency plan clearly describes the intended role and training of the applicant's on-site fire brigade,-it left the question for post-hearing resolution by the NRC staff? 1 We hold 2 CANT raises several other issuas in its petition, largely related to compliance with Regulatory Guides (as opposed to compliance with regulations themselves). None of these issues meets the standards for review set out in 10 C.F.R. S 2.786(b).

9610110073 961002 PDR ADOCK 07003070 C PDR DSO2_

2 that the Board should not have left the fire brigade question undecided, but find that any ambiguity about the intended role and training of the on-site brigade now has been resolved by the applicant in its answer to CANT's petition for review. We direct the applicant to amend its emergency plan accordingly. No further review or relief is necessary.

With respect to emergency planning it is " established NRC practice that, where appropriate, the Licensing Board may refer minor safety matters not pertinent to its basic findings to the 1

NRC staff for post-hearing resolution, and may make predictive findings regarding emergency planning that are subject to post-hearing verification." Commonwealth of Mass. v. NRC, 924 F.2d 311, 331 (D.C.Cir. 1991), cert. denied, 502 U.S. 899 (internal quotation and citation omitted). But only matters not material to the basic findings necessary for issuance of a license may be referred to the NRC staff for post-hearing resolution -- g2g.,

minor procedural or verification questions. sgg Consolidated Edison Co. of New York (Indian Point Station, Unit 2), CLI-74-23, 7 AEC 947, 951-52 (1974). Accord, Philadelphia Electric Co.

(Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 44 (1986). "[T)he ' post-hearing' approach should be employed sparingly and only in clear cases." Indian Point, 7 AEC at 952.

Here, the Board found (apparently sua sponte) that testimony by the applicant's expert, Peter G. LeRoy, " appears to contradict" the written description of the role of the on-site

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l- fire brigade contained in two dochaents, the Safety Analysis l Report (SAR) and Safety Evaluation Report (SER). Egg 43 NRC at i

161. The SAR and SER describe the on-site brigade as a 3

" supplement" to the local fire department, while the expert

viewed the on-site brigade as principally responsible for some i

types of fires, with the local fire department a mere "back-up."

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Id. The Board referred this " ambiguity" to the NRC staff and 1

l directed that, if necessary, the emergency plan, SAR and SER be h

j amended to reflect the actual intended role of the on-site

! brigade. The Board also directed the staff to " ensure that the i

t size and training of the brigade are sufficient to meet such a 4

f' differing role." Id. j By referring the role of the on-site fire brigade to the NRC staff the Board implicitly treated it as a minor matter. On the i

j other hand, the Board characterized the fire brigade's role as "important" and stated that it was " troubled" by the ambiguity j introduced by the expert's testimony. 43 NRC at 161. The issue 1

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is "important," according to the Board, "because the intended role.of the on-site fire brigade may affect the number of fire brigade members needed and the kind of training the brigade should receive." Idz (emphasis added).

i l The fire brigade's role also appears material to the Board's l\

basic emergency planning findings. The Board stated that LES i

i must demonstrate that its emergency plan meets the requirements i

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! of NRC regulations. 43 NRC at 145. The Board went on to find I that the applicant's emergency plan complies with the regulatory i

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4 requirements to provide a "brief description of the responsibilities of licensee personnel should an accident occur" i and "a brief description of ... the training that the licensee will provide workers on how to respond to an emergency." San 43 NRC at 156-158 (citina 10 C.F.R. SS 40.31(j) (vii) and (x),

70. 22 (i) (3) (vii) and (x)). This finding provided, in part, the underpinning for the Board's ultimate conclusion that "the CEC (Claiborne Enrichment Center) emergency plan complies with the Commission's emergency plan regulations." 43 NRC at 165.

In these circumstances, the Board.itself ought to have resolved any question about the fire brigade's role as part of its review of the CEC emergency plan. Under our case law, which as we explained above reserves the post-hearing remedial device for " minor" matters, the Board should not have referred an "important" issue material to licensing to the NRC staff for later resolution outside the adjudicatory process.

With the case in its current posture, however, we need not f remand the fire brigade issue to the Board. The applicant's i answer to CANT's petition for review now has clarified any I ambiguity in the intended role and training of the on-site i

brigade:

The SAR for the CEC accurately describes the respective roles of the onsite fire brigade and the As local fire department in the event of a fire at the CEC.

stated in the SAR, "[t]he intent of the facility fire brigade is to be a first response effort designed to supplement the local fire department for fires at the plant and not to replace the local fire fighters." App. Ex. 1(a) 5 11.3.1.1.2. Similarly, SAR Section 4.4.4 provides that the fire brigade will be trained to respond to fires and

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contain fire damage and that the local fire department is j available."if assistance is needed."

These statements are entirely consistent with Mr.

LeRoy's testimony that in the event of a particular i

scenario involving a storace vard fire, for which there is little likelihood that off-site fire fighting capability will be required, "the off-site fire fighting capability j will be relied upon as a backup to on-site fire fighting ,

capabilities." Leroy at 19 fol. Tr.40. The onsite l brigade, being present at the site, would provide the  !

"first response effort" but would not replace local fire ,

fighters who would fight a fire (if not already l extinguished) upon their arrival. As the SER plainly states, "[t]he (onsite fire fighting) brigade members are trained and equipped to respond to fire emergencies and contain fire damage until offsite help from a neighboring fire department arrives." SER at 4-33.

Egg Answer of Applicant LES in Opposition to Intervenor's Petition for Review (May 31, 1996), at 6.

We hold the applicant bound by this description of the on-site brigade's role -- which we understand to describe a "first response" but ultimately secondary role for the brigade except in instances where (as in some storage yard fires) it is able to extinguish the fire prior to arrival of the local fire department. We direct the applicant to amend its emergency plan and its SAR to unambiguously reflect this understanding.

Similarly, we direct the NRC staff to revise its SER to include an accurate description of the on-site fire brigade's clarified role.

That leaves only the question whether the emergency plan, incorporating the clarified role of the on-site fire brigade, satisfies NRC requirements. We find it does. Our rules require but a "brief description" of the " responsibilities" of the licensee's emergency personnel and of its " training" program.

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Eg.g 10 C.F.R. S 70.22 (i) (3) (vii) and (x). In this decision we already have ordered revisions in emergency planning documents to clarify the on-site brigade's responsibilities. And an expert

> witness, Mr. LeRoy, has provided testimony affirming the capability and training of the on-site brigade in its clarified role. Egg, 34., Tr. 173 and pp. 28-29 fol. Tr. 40. In

! addition, the Licensing Board has approved the emergency planning

! documents' description of training as a general matter. Egg 43 NRC at 158. Our inspection of those documents confirms the adequacy of the existing "brief description" of training, even as applied to the on-site brigade's clarified role.2 We accordingly grant the petition for review in part and deny it in part and direct that the emergency plan, the SAR and the SER be amended in accordance with this opinion. I IT IS SO ORDERED.

o k For the Commission o

i}e>

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, L g/ John C'. Hoyle

• • • Sedretary of the Commission Dated gt ockville, Maryland, this # day of October, 1996.

2 0f course, if we have overlooked any record evidence in resolving this petition for review, CANT is free to call it to our attention in a petition for reconsideration. Eeg 10 C.F.R.

S 2.771. It was the Licensing Board on its own, rather than CANT, that first identified the apparent ambiguity in the record on the on-site brigade's role. See 43 NRC at 161.

l UNITED STATES OF AMERICA  !

NUCLEAR REGULATORY COMMISSION In the Matter of LOUISIANA ENERGY SERVICES, L.P. Docket No.(s) 70-3070-ML (Claiborne Enrichment Center SNM License)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMM ORDER (CLI-96-08)--10/2 have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.

Administrative Judge Office of Commission Appellate Thomas S. Moore, Chairman j Adjudication Atomic Safety and Licensing Board  !'

U.S. Nuclear Regulatory Commission Mail Stop T-3 F 23 Washington, DC 20555 U.S. Nuclear Regulatory Commission i Washington, DC 20555 l l Administrative Judge Administrative Judge Richard F. Cole Frederick J. Shon Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop T-3 F 23 Mail Stop T-3 F 23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission i

Washington, DC 20555 Washington, DC 20555

( l Eugene Holler, Esq.

Janice E. Moore, Esq. Diane Curran, Esquire

Office of the General Counsel Harmon, Curran & Spielberg i Mail Stop 0-15 B 18 2001 S Street, N.W., Suite 430 U.S. Nuclear Regulatory Commission Washington, DC 20009 Washington, DC 20555 Robert G. Morgan Roland J. Jensen Licensing Manager President LES - c/o Duke Engineering and Lousiana Energy Services, L.P. Services, Inc.

2600 Virginia Avenue, N.W., Suite 608 PO Box 1004 Washington, DC 20037 Charlotte, NC 28201

Docket No.(s)70-3070-ML COMM ORDER (CLI-96-98)--IL.

J. Michael McGarry, III, Esq. Nathalie M. Walker, Esq.

Counsel for LES Robert B. Wiygul, Esq.

Winston & Strawn Sierra Club Legal Defense Fund, Inc.

1400 L Street, N.W. 400 Magazine Street, Suite 401 Washington, DC 20005 t!ew Orleans, LA 70130 Ronald Wascom Deputy Assistant Secretary Office of Air Quality & Rad. Protection Dept. of Environmental Quality P.O. Box 82135 Baton Rouge, LA 70884 Dated at Rockville, Md. this ',

2 day of October 1996 )

bilttkic {2 'O b Office of the Secretary of the Commission l

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