ML20128N182

Nuclear Regulatory Commission Issuances for August 1992. Pages47-148

ML20128N182
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Issue date:	02/28/1993
From:	NRC OFFICE OF ADMINISTRATION (ADM)
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NUREG-0750, NUREG-0750-V36-N02, NUREG-750, NUREG-750-V36-N2, NUDOCS 9302230128
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l NUREG-0750 Vol. 36, No. 2 Pages47-148 NUCLEAR -REGULATORY-?

COMMISSION: ISSUANCES ,

A'ugust:1992-4  %

h v%w+ju U.S 'SUblEAR REGULATORY COMMISSION s

g22g18'3o22e i 0750 R PDR ,,c,

Available from Superintentendent of Documents U.S. Government Printing Offico Post Office Box 37082 Washington, D.C. 20013-7082 A year's subscription consists of 12 softbound issues, .

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

Singlo copios of this publication are available from National Technical information Sorvico, Springfield, VA 22161 Errors in this publication may be reported to the Division of Froodom of information and Publicatione Services Offico of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555 (301/492-8925)

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l NUREO-0750 Vol. 30. No. 2 Pagos47-148 NUCLEAR REGULATORY COMVilSSIO\1 ISSUANCES August 1992 I

This report includes the issuancos rocolved during the specified period from the Commission (CLI), the Atomic Safoty and Licensing Boards (LBP) the Administrativo Law Judges (ALJ), the Directors' Decisions (DD), and the Donials of Potitions for Rulomaking (DPRM).

The summarios and headnotes procoding the opinions reported heroin are not to bo doomed a part of those opinions or have any indopondent legal significanco,

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U.S. . NUCLEAR REGULATORY COMMISSION Prepared by the Division of Froodom of Information and Publications Services Office of Administration U.S. Nuctoar Regulatory Commission Washington, DC 20555 (301/492-8925)

COMMISSIONERS tvan Selin, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick -

E. Gall de Planque B. Paul Cotter, Chief Administrative Judge, Atomic Safety and Uconsing Daard Panet

CONTEN'I S Issuances of the Nuclear Regulatory Commission CLEVELAND ELECUllC ILLUMINATING COMPANY and TOLEDO EDISON COMPANY (Perry Nuclear Power Plant, Unit 1: Davis Ilesse Nuclear Power Station, Unit 1)

Dockets 50-44(1-A,50-346-A (Applications to Suspend Antitrust Conditions)

MEMORANDUM AND ORDER, CL192 II August 12,1992 ...... 47 01110 ED! SON COMPANY (Perry Nuclear Power Plant, Unit 1)

IMcLet 50-440-A (Applications to Susperxl Antitrust Conditions)

MEMORANDUM AND ORDER, CLI 92.ll, August 12,1992 ...... 47 SAlliTY 1.lGilT CORPORATION, et al.

(Illoomsburg Site Decontamination and License Renewal Denials)

Dockets 03(b05980 ML&ML 2,030-05982-ML&ML-2 MEMORANDUM AND ORDER, CL192-13, August 12,1992 ...... 79

'lliXAS UTILITIES ELECTRIC COMPANY, et al.

(Comanche Peak Steam Elcettic Station, Units 1 and 2)

Dockets 50-445 OL&CPA,50446 OL MEMORANDUM AND ORDER, CLl 9212, August 12,1992 ...... 62 Issuances of the Atomic Safety and Licensing floards ALAllAMA POWER COMPANY (Joseph M. Parley Nuclear Plant, Units 1 and 2)

Dockets 50-348 CivP,50-364-CivP (ASLIIP No. 91626-02-CivP)

MEMORANDUM AND ORDER, LilP 92 21, August 12, 1992 ...... I17 111

CLEVELIAND ELECTRIC ILLUMINATING COMPANY and TOLEIX) EDISON COMPANY (Perry Nuclear Power Plant, Unit 11 Davis-Besse Nuclear Power Station, Unit 1)

Dockets 50-440-A,50-346-A (ASLBP No. 91-644-01 A)

(Suspension of Antitrust Conditions) (Pacility Operating Licenses Nos. NPF-58, NPF-3)

MEMORANDUM AND ORDER, LBP-92-19, August 6,1992.... . 98 01110 EDISON COMPANY (Perry Nuclear Power Plant, Unit 1)

Docket 50-440-A (ASLBP No. 91-684-01-A)

(Suspension of Antitrust Conditions)(Pacility Operating License No. NPF 58)

MEMORANDUM AND ORDER, LBP-92-19, August 6,1992 . . . . . . . 98 RANDALL C. OREM, D.O.

Docket No. 030-31758-EA (ASLBP No. 92-656-01 EA) (EA 91-154)

(Byproduct Material License No. 34-26201-01)

MEMORANDUM AND ORDER, LDP-92-18, August 6,1992 . . . . . . . 93 SACRAMENTO MUNICIPAL UTILITY DISTRICT (Rancho Seco Nuclear Generating Station)

Docket 50-312-DCOM (ASLBP No. 92-663-02-DCOM)

(Decommissioning Plan) (Facility Operating License No. DPR 54)

PREllEARING CONFERENCE ORDER, LDP-92-23, August 20,1992............................ ... 120 UMETCO MINERALS CORPORATION Docket 40-08681-MLA (ASLBP No. 92 666-01-MLA)

(Source Materials License No. SUA-1358)

MEMORANDUM AND ORDER, LBP-92-20, August 5,1992...... 112 UMETCO MINERALS CORPORATION Docket 40-08681 MLA (ASLBP No. 92-666-01-MLA)

. (Source Materials License No. SUA-1358)

MEMORANDUM AND ORDER, LBP-92-22, August 12, 1992 ..... 119 l l

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Issuance of Director's Decision ARIZONA PUBLIC SERVICE COMPANY, et al.

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

Dockets 50 528, 50-529, 50-530 DIREC1DR'S DECISION UNDER 16 C.F.R. 9 2.206, DD-92-4, August 12.1992......................... ........ 143 Y

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Cde as 36 NRC 47 (1992) CLl 92-11 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

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

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

CLEVELAND ELECTRIC ILLUMINATING COMPANY and TOLEDO EDISON COMPANY (Perry Nuclear Power Plant, Unit 1; Davis-Besse Nuclear Power Station, Unit 1) August 12,1992 He Commission denics City of Cleveland's appeal of a Prehearing Confer-ence Order, LBP-91-38,34 NRC 229 (1992), which granted Applicants' hearing petitions. Rc Commission determines that its broad authority to amend licenses at the request of licensee extends to requests for amendments to antitrust condi-tions. %c Commission also denics City of Cleveland's motion for revocation of the Commission's referral of the hearing requests to the Licensing Board. De Commission determines that the Licensing Board's development of a detailed record and analysis of the complex issues raised in this pmceeding will aid the Commission in any review that may be undertaken, 47

ATON11C ENERGY ACT: AUTilORITY TO AMEND OPERATING LICENSES Amendments to operating licenses are contemplated under both the Atomic Energy Act (AEA) and the Commission's implementing regulations. See AEA il 161,182,183,187,189,42 U.S.C. (( 2201,2232,2233, 2237, 2239 (1988);

10 C.F.R. Il 50.90, 50.92 (1992).

ATON11C ENERGY ACT: RIGilT TO A IIEARING IIcaring rights provided in section 189 of the Atomic Energy Act may be invoked not only by interested members of the public but also by license applicants or licensees. 42 U.S.C. 9 2239(a)(1) (1988),

ATONilC ENERGY ACTt RIGitT TO A IIEARING Although a license applicant or licensec may have a right to a hearing under section 189 of the AEA if its interest is adversely affected (e.g., if a license or amendment appli,:ation is denied or a license is suspended or revoked), a hearing must stPI be tequested; otherwise Staff's decision is final. See 10 C.F.R.

Il 2.103(b), 2.105td), *. 28(b), 2.1205 (1992). a ATOMIC ENFRGY ACT: ANTITRUST JURISDICTION

'The Commissi<m has jmisdiction under sections 103,161, and 189 of the AEA to entertain Applicams' request to amend their licenses to suspend the effect of antitrust conditions. Neither the statutory language nor the legislative history of section 105 of the AEA suggests that Congress intended antitrust license conditions to be immutable, irrespective of whether the conditions have become unjust over time. Neither Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), CLI-77-13, 5 NRC 1303 (1977), nor Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Unit 1; 'thrkey Point Nuclear Generating Plant, Units 3 and 4), ALAB-428, 6 NRC 221 (1977), prohibit suspension of antitrust conditions at a licensee's reque :

ATON11C ENERGY ACT: RIGilY TO A IIEARING Staff's consideration of Applicants' amendment request was not a " hearing" that satisfies section 189 of the AEA; Staff's determination was administrative in nature and does 1.ot suffice as an adjudicatory review of the application request.

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MEMORANDUM AND ORDER I. INTRODUCTION ne Atomic Safety and Licensing Board (Liceraing Board) granted hearing petitions of Ohio Edison Company, Cleveland Electric illuminating Company, and Toledo Edison Company (Applicants) in a Prehearing Conference Order .

dated October 7,1991. LBP 91-38,34 NRC 229. The City of Cleveland (Cleve-land), an intervenor in the instant dockets, appealed this order on the grounds j that this proceeding lacks a legal basis. Cleveland also sought revocation of the Commission'* ferral of the hearing requests to the Licensing Board. For the reasons stated oclow, we deny Cleveland's appeal and deny the motion to revoke the referral.

Tbc effect of our order is simply to allow the Boar i and parties to proceed to resolve the question of whether Applicants were properly denied suspension of antitrust conditions anached to their licenses, llowever, as we ci,a. tin below, the basis for our decision involves intricate considerations relating to our regulatory authority.

11. IIACKGROUND nis matter began when Ohio Edison Company filed an application in September 1987 for an amendment to suspend the antitrust conditions in the operating license for the Perry Nuclear Power Piant. In May 1988, Toledo Edison Company and Cleveland Electric illuminating Company filed a joint application also requesting relief from the Perry antitrust conditions and additionally seeking suspension of the antitrust conditions in the Davis Besse nuclear plant licenses.

After considering public comments and advice from the Department of Justice's Antitrust Division, the Nuclear Regulatory Commission (NRC) Staff in April 1991 denied the Applicants' requests. 56 Fed. Reg. 20,057 (May 1,1991).

De Applicants petitioned for a hearing on the Staff's denial of the requested amendment. The Applicants' hearing petitions were filed with the Office of the Secretary (Secretary) of the Commission in accordance with Staff' aotice of denial of the Applicants' amendment requests. After receiving the requests for a hearing, petitions for intervention, and Cleveland's opposition to a hearing, the Secretary referred the requests and petitions to the Licensing Board for appropriate action.i I See Memorandum trom SJ Chak, secretary,in B Paul Cater, Jr.. Cher Admuustrauve judge, Atomic safety and Ihmama Beerd Panel Qune 7.1991).

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'lhe Licensing Board ruled on the requests for hearing and petitions for intervention and other threshold procedural matters in its Pr: hearing Conference Order, LDP-91-38, supra. Pursuant to 10 C.F.R. 5 2.714a, Cleveland filed its appeal of LDP-9138. Tbc Applicants and Staff opposed the appeal.

Additionally, on December 19,1991. Cleveland filed a motion, also opposed by Staff and Applicants, for Commission revocadon of the referral of the hearing petitions to the Licensing Board and also for Commission adoption of NRC Staff's April 24,1991 decision denying the Applicants' amendment requests.

Ill. TIIE LICENSING BOARD'S DECISION in determining whether to grant the Applicants' bearing requests, the Li-censmg Board addressed Cleveland's four main objections to entertalning such a hearing: (1) the Applicants were not " person [s] whose interest may be af-fected" by this proceeding such that they are entitled to a hearing under section 189a(l) of the Atomic Energy Act (AEA);8 (2) section 189a(l) does not enu-merate the subject matter of this proceeding as being subject to a hearing, i.e.,

the denial of a request for suspension of antitrust conditions; (3) Applicants have already had their hearing before Staff; and (4) the Commission lacks the authority to grant the relief requested.'

In LBP-91-38, the Licensing Board easily dismissed Cleveland's first three arguments. The Licensing Board concluded that Applicants are considered

" persons" within the meaning of the AEA and toat their " interests" are affected by the outcome of this proceeding because it is their amendment request that was denied." Although the Licensing Board conceded that a " suspension" is not typically considered an amendment, the Licensing Board nevertheless concluded that the word suspension is used in the instant applications to characterize Applicants' request to have the antitrust conditions nullified, and as such is "by any reasonable interpretation" a request for an " amendment" of the existing operating licenses.5 Furthermore, the Licensing Board found that Staff's review was not an adjudicatory determination regarding the merits of the application to which Applicants are entitled under section 189a. Although an administrative denial by Staff regarding an amendment application may be dispositive, the statute requires a hearing if the Applicants request one.

The Licchsing Board found more problematic Cleveland's fourth argument regarding whether the Commission has the authority to suspend antitrust con-ditions after the issuance of the operating license. Recogmzing the Commis-2 42 U.S C. I L'39(aX1) (1988).

3 tBP-9138. s,ywe,34 NRC at 237, 4

IJ. at 238.

5/J. at 238-39.

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sion's limited antitrust jurisdiction under section 105 of the AEA,' the Licensing Board nevertheless determined that the Commission has the statutory authority to amend antitrust conditions under the general provisions contained in section 189a of the AEA and implemented in 10 C.F.R. 6 50.90 providing for amend.

ments to licenses at the licensees' request.

IV. ARGUMENTS IIEFORE Tile COMMISSION On appeal, Cleveland afgues that the Licensing Board erred in relying on section 189a of the AEA for authority to conduct the antitrust review sought by Applicants.' Cleveland argues that section 189a is purely procedural in nature and does not grant a substantive right to amend the operating license.

In addition, according to Cleveland, section 189 confers hearing rights on the public only, not on the Applicants. Cleveland further maintains that the Licensing Board misinterpreted the statute and its implementing regulations (specifically,10 C.F.R. 6 50.90) regarding the authority of the Commission to conduct postlicensing antitrust seview. Cleveland interprets prior Commission decisions, namely, llouston Lighting and Power Co. (South Texas Project, Units I and 2), CL1-7713, 5 NRC 1303 (1977) (South Texas), and Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Unit 1; 'Ibrkey Point Nuclear Generating Plant, Units 3 and 4), ALAB-428. 6 NRC 221 (1977) (St. Lucle), to hold that any postlicensing antitrust review is prohibited. In addition, Cleveland argues that the Commission's authority to enforce antitrust license conditions does not include the authority to delete or modify those same conditions.

Finally, Cleveland maintains that section 105 of the AEA provides the only authority for the Commission to conduct antitrust review, and twause that section does not provide authority to conduct postlicensing review, a licensee cannot confer this jurisdiction simply because it volunteers to undergo the amendment process.'

The NRC Staff maintains that the Licensing Board was correct in determining that the Commission has authority to conduct a hearing regarding the amendment 6

42 U.s.C. (213s (1988).

7 See Unef of City of Cleveland, Ohio, m suppre of Neuce el Agyeal of Prchcanng Cortference Order Granung Request for lieanng at 3637 (ott 23,1991)(Osveland's linef).

8 Ceveland has mtwed for leave to (de a reply to the Appheanis' and statrs hnefs opposma Oeveland's aircal Ceveland*: veply was anadied to the mouen. NRC staff oppnaa thu motion and has requested that,if the rmmon is granted. staff shmid be pennttted m reaped to Ocveland's reply See NRC staff's Answer in os yositim to the Mmon of me City of develand, Ohio, for L. cave to File a Reply Brief at 2 (Dec. 26.1991). We rtnd that the reply adds nothing of substance to Oeveland's pns tion. It essenually pnwides addinanal commats regardmg the same arguments that were addressed in Geveland's origmal Snef. Ior these reasms, develand's mouun for leave tn fde a seply m its bnefin suppon ofits appeal of1.BP-9138 m den.ed.

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or modification cf license conditions, including antitrust conditions? According to Staff, section 105 of the AEA limits the Commission's authority to initiate antitrust review. llowever, Staff contends that sxtion 105 does not specifically address license amendments sought by licensees and thus cannot be interpreted as limiting the Commission's general authority to amend licenses that it issues.

Staff argues that South Texas and St. Lucie address only whether the NRC can impose new restrictions due to alleged anticompetitive behavior by a licensee, but do not specifically address license amendments sought by licensecs, Moreover, the Staff contends that the Commission's broad statutory power to-impose conditions in a license includes the power to relax such conditions if {

circumstances warrant.

He Applicants' arguments are essentially the same as those of NRC Staff,8 s llowever,in addition, Applicants emphasize that their requests here should not entail a traditional " antitrust review" under section 105. More specifically, the Applicants argue that the purpose of a traditional section 105 antitrust review is to determine whether licensees are or were acting an'.icompetitively in order to determine whether new antiuust conditions are warranted on a license, Applicants agree that this type of antitrust review is limited under section 105.

In this proceeding, Applicants argue that a traditional " antitrust review" is not required to resolve the questions raised, but rather that statutory interpretation of sectiori 105 of the AEA is necessary," In support of their argument, Applicants note that a threshold question now before the Licensing Board, as agreed to by all the parties, is whether the Commission has the general authority to retain antitrust license conditions under certain circumstances? Therefore, according to Applicants, the limitations on postlicensing " antitrust review" do not apply in this case.

'MtC staff's Snelin o position r to the City of Cleveland's Ameal of Prehearma Conference order orarains Request for licanna (Nov.21,1991).

10 Amlicants' Brief in oppuium to the Appeal of the Ch'y of Clewland, Ohio, d the Ilecruing Board's Preheanna Confermco order (Nov.21,1991).

U I,L at s S.

u The pertes informed the licassing Board that they all agreed upm the followmg as the "bedmtid legal issue in this picccedmg-is the Canmissim without authonty as a maner of law under secuon 105 of the Annic Fmgy Act to main antitrust license conditions contained in an operaung hcense if it Ends that the actual cost of electricuy femt the hcensed nuclear power plant is higher than the stut of the electricity fmn alternauve .

sources, au as appropiately measured and compared?

. And, the parties funher agm=1 to address the following issue:

Are the Appheants' requests for suspensim of the anutrust license cmditims barred by rea judicata, or collateral estoppel, er laches, or the law of the case?

See leuer fan R. ooldberg and C, simther, Jr., Counsel for the City of Cleveland, to Judges hLiter, Bechhoefer, and Hollurk (Nov. 7,1991).

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V. ANAINSIS l

A. The Commission's General Authority Over Licenses I lt is clear that the Commission can amend licenses. Amendments to licenses are contemplated under both the AEA and the Commission's implementing regulations." Although, as Cleveland points out, section 189 does not provide the substantive standard by which the proposed amendment should be judged, section 189a does provide a right to a hearing and prescribes procedural requirements attaching to certain specified NRC actions, including proceedings to amend licenses.

Contrary to Cleveland's assertions, the hearing rights provided in section 189 may be invoked not only by interested members of the public but also by license applicants or licensecs. Secdon 189a(1) provides in its pertinent part:

In any proceedmg under this Act, for the granting, suspending, revoking, or amendmg of any hcense or construction permit, or application to transfer control, and in any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees, and in any proceedmg for the payment of compensation, an award of royalties under sections 153,157,186c, or 188, the Comminion shall grant a hearing upon the request of any perscn whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.I' Apparently Cleveland concedes that Applicants are " persons" within the mean-ing of AEA 511,42 U.S.C. 6 2014 (1988), and have an interest affected by this proceeding. Ilowever, Cleveland maintains that the language contained in section 189a(1), which states that a person whose interest is affected by a pro-cceding shall be admitted as a party to the proceeding, cannot be referring to the Applicants here because only persons other than the Applicants are required to establish standing and must be admitted as parties." Cleveland's interptrtation misses the purpose behind section 189, which is to provide an opportunity for hearing upon the request of any person whose interest may be affected by a pro-ceeding enumerated in that section. Although a license applicant or licensec may have a right to a hearing under section 189 if its interest is adversely affected (e.g., if a license or amendment application is denied or a license is suspended or revoked), a hearing must still be requested. Cleveland seems to assume that the Commission will always automatically ho'd a hearing upoa a Staff denial u ,,

g gg A Il161,182,183,187,189,42 U.s.C 612201. 2212,22D,2237,2239 (1988); 10 CFA $150.90, 50 92 (1992).

H 42 U.s C 6 2239(aXI)(1988).

U Cleveland's nrier at 38 41.

18 s,4, e s.,10 CFA ll1105(d)(1). 2.202(a)(3) (1992).

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of an amendment application.8' This is incorrect, in general, and in particular regard to an amendment proceeding, a hearing must be requested; otherwise Staff's decision is fmal." Although we agree with Cleveland that Applicants in this case do not have to file intervention petitions under 10 C.FA R1,714 to establish standing, the Applicants nevertheless had to and did file a timely demand for a hearing. In this respect, it was necessary for the Licensing Board to review the Applicants' demand for hearing and it was not until their heafing petitions were granted that the Applicants were " admitted" as parties, Cleveland contends that the lack of Commission case law establishing appli-cants' and licensecs' rights under section 189, together with the cases that hold that section 189 confers hearing rights on the public," supports the argument that section 189 does not confer rights on the Applicants here, However, the cases cited by Cleveland do not state that section 189 cor.fers hearing rights on the public only. In fact, one case upon which Cleveland relics, Scllotti v. NRC, assumes in the context of defming the rights of other persons in enforcement proceedings that licensees have a right to a hearing,28 The dearth of case law regarding a licensee's or an applicant's right to a hearing under section 189a(1) is a reflection of long-standing, unchallenged Commission interpretation that the Commission must provide the opportunity for a hearing to a licensee or appli-cant in certain circumstances.28 Cleveland has not persuaded us that we should employ any other interpretation of section 189.

11 The Commission's Authority to Amend Antitrust License Conditions Although the Commission has the authority to amend conditions of licenses it issues, the more difficult question raised by Cleveland is whether this general authority is applicable when a license condition involves antitrust matters, 82 in funher support of iu argument that section 189a(1) only cmfers hearing nghts m parties other than appbcants, Oeveland poirna out that in a pmceeding involving a cmstruction pcmut an appbcant need not mprat a hearing; a heanng u autunaticauy pmnded f<= unde she ara Derefore, aewrding to Geveland, it would not make sense for sectum 189a(1) to apply to appheanta for constructmn permus, because they would be mpired to mpest a heanns that already must be coiufucted. Ocveland's Uncf at 4441. Ilowever, the mandatory heanns for cmstruction pennits ts the excertion, ma the rule, under secuen 189<

1: See 10 CF.R. 66 2.lm(b),1105(d),2.10$(b),2.1205 (1992).

" Oeveland cues several cases that e,Uress pubbc perucipetum in censin NRC proceedings under secuen 189a(1).

Geveland's llnet at 39 40, cinna Union of ConcernsJ Scenara.ru v. ARC,735 F.241437,1446 (D.C Gr.1984),

carr. demed,469 U.s.1132 (1985);Bellom e NRC,725 F.2d 1380,1383,1386 (D.C Cir.1983); SAoffy v. ATC, 651 F.2d 780,791 (D.C Gr.1980) (per cunam), wacesed ar maar amf renanted,459 U.s.1194 (1983).

20 g, g,gg,,,, the dissenting opmion criucizes the majanty for making third-party beanng righu dependent m the Lcensu requesung a heanng. His argument nexessanly assumes the nght of the hcensee to mpest a heanng, and the dispute was whether others' heanng rights should depend on whether ?icensee asserted this nght. 725 F.2d at 1386 (Wright, J , dissenung).

21 such interpretauon reaches back to the carbest days of the regulatery program estabbahed under the AEA of 19s4 and is reflectex! in the early pmcedural agulaums of the Atonne Energy Canmission, our predecessor agency. See 21 Fed. Reg 804 (1956).

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at whether any postlicer. sing amendment to an antitrust condition would be inconsistent with limitations in section 10$c of the AEA. This specific question is not addressed direcdy by Congress in the AEA or its legislative history, and it has not been squarely addressed in any other Commission decision. Cleveland argues that amendments to antitrust conditions are not permitted because they are not enumerated in section 105, which is the only section in the AEA that contains express language regarding antitrust authority.

As Cleveland points out, the South Texas and St. Lucie decisions address the limits of the NRC's authority to conduct antitrust review. We agree that thesc

. cases stand for the principle that, in accord with the underlying policy of section 105c, the NRC cannot initiate antitrust review to impose new antitrust conditions after the operating license has been issued, except under limited circumstances, not applicable here. Ilowever, as we will explain in more detail below, these cases do not squarely resolve the issue at hand, i.e, whether the Commission has the authority to suspend or modify the antitrust conditions already in a license, at the request of a licensee, pursuant to the Commission's general authority to amend conditions in licenses that it issues.

We specific question before the Commission in South Texas was at what point may an antitrust proceeding under section 105c be ordered subsequent to the issuance of the construction permit but prior to the issuance of the operating license. The proceeding was initiated after one of the joint holders of a construction permit petitioned for antitrust review because of alleged anticompetitive behavior by Houston Lighting and Power Company (HL&P), a co-holder of the construction permit. IIL&P moved the Commission to waive the requirement that initiation of operating license antitrust review procedures await submission of the fmal safety analysis report that accompanies the operating license application." The Commission's decision in that proceeding did not address just this narrow question, but also discussed the Commission's overall antitrust re*ponsibilities.

In South Texas, the Commission reviewed the legislative history regarding the 1970 amendments to section 105c." The 1970 amendments to section 105c subjected all applicants for a section 103 facility license to a mandatory initial antitrust review by the Attorney General and, in the case of any contested adverse antitrust aspects, an adjudicatory hearing before the Commission at the construction permit stage." In addition, if significant changes have occurred after the earlier antitrust review, an adjudicatory hearing would be conducted at the operating license stage to determine any adverse implications of these 3 5 nc a um.

U ld a D12-16.

M section 105e,4211s C,12135(e) 0988 k 55 l

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changes.2s in light of this significant hurdle placed in the licensing process, Congress constructed section 105c in such a way that it essentially prohibited postlicensing antitlust review undertaken to determine adverse antitrust aspects of a license. This prohibition was intended to climinate the uncertainty of further antitrust review after the licensec had already invested considerable resources.28 In light of these restrictions on postlicensing antitrust teview, the Commission concluded in South Texas that the NRC does not have broad antitrust policing powers independent of licensing which could be relied upon as authority for postlicensing antitrust review undertaken to place new conditions in a license.2' In general, "the Commission's antitrust authority is defined not by the broad powers contained in Section 186, but by the more limited scheme set forth in Section 105."28 This conclusion was based not only on the statutory language and its legislative history, but also was found to be consistent with the Commission's overall responsibilitics.2' As the Commission observed in South Texas, the Commission is in a unique position prior to the issuance of the initial operating license to identify and correct incipient anticompetitive influences that may flow from access to nuclear power. 'therefore, at the prelicensing stage, section 105c provides for Department of Justice and Commission involvement and public participation. Ilowever, at the postlicensing stage the Commission is not so uniquely situated; the Department of Justice's Antitrust Division, the Federal Trade Commission, and the federal courts provide antitrust enforcement alternatives.

Cleveland argues, in essence, that it would be inconsistent with our South Texas decision to find that the Commission's general authority to amcrxllicenses is not limited by section 105 cven though the policing power is so limited.

Cleveland construes the holding in South Texas too broadly. Although we held that the Commission does not have broad antitrust policing power to add new antitrust conditions to the license, the Commission indicated that the policing power under section 186 of the AEA remains to ensure compliance with antitrust conditions attached to the license pursuant to section 105c review?) Although the power to enforce the conditions may not necessarily contemplate the power to relieve licensecs of previously imposed conditions, the Commission's assertion of that power supports the view that provisions other than section 105c may be 23 secuan 105c(2). 42 U.s.C. I 2135(cK2) (1988).

26 See 1%beenntng Antiuust Review or Nuclear 1%cr Plantt llunngs berore the Joint Cammittee on Atans Energy 91st Cong,1st sess.37 38 (1969)(renarks or Rep llohfieht JCAE O2 airman).

27 5 NRC at 1317.

2* l.l 2'id at 131&l7.

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!nterpreting derm trcm CM4 > of Stateswlls v. AEC,441 F.2d 962 (D C. Cir.1969), the Cmunissaan noted that it dou have " continuing poles gwmer over the condiums pmperly placed on Lcenses, aber (section) 105(c) anutrust seview " 5 NRC at 1317.

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relied upon to address antitrust issues raised by conditions in NRC licenses?8 Moreover, congressional deliberation on the 1970 amendments to section 105c did not include any discussion regarding when or whether a licensee could request the NRC to suspend or modify antitrust license conditions. Therefore, the legislative history cannot be interpreted as prohibiting the suspension of antitrust conditions as requested in this case.

St. Lucie," the other decision upon which Cleveland relics, also offers little guidance regarding whether the NRC can consider suspension of antitrust conditions at the request of a licensee. That case involved the question of whether the Commission has authority to conduct antitrust review if significant changes occurred after a license had been issued. De petitioners sought both leave to intervene out of time and an antitrust hearing concerning three operating plants. The plants had been previously licensed without antitrust review as research and development facilitics under section IG4b In petitioners' view, the plants were really commercial generating facilities that should be subject to section 103 requirements, including antitrust review D Relying on section 186a of the AEA, the petitioners argued that under the Commission's broad p0wers to revoke a license the Commission has the authority to order antitrust review after the operating license has been issued?' The Atomic and Safety and Licensing Appeal Board rejected these arguments. The Appeal Board found that after South Texas it was clear that "the NRC's supervisory antitrust jurisdiction over a nuclear reactor licensee does not extend over the full 40-year term of the operating license but ends at its inception," except as necessary to enforce the terms of the license. to revoke one fraudulently obtained, or to issue a new license if a plant is sold or is significantly modified."

He Applicants' request here does not fall within one of the exceptions enumerated in St. Lucie which would provide for postlicensing antitrust review.

Ilowever, that decision again did not address the issue at hand, whether the Commission may act on a request to suspend the effect of existing antitrust conditions. Therefore, although St. Lucie does not provide authority to suspend antitrust conditions at a licensec's request, neither does it preclude it. The 33 As the tiwensing Board pointed out in tRP-91-34, "the Comnussmn's recogmunn or the 'pobemg* power was in the cmtext tiits authraity to esforce esistmg soneuans. a cunanstance that may not encompass these hcensaa' roguests to be rebeval of prevmusly imposed cm&tions" 34 NRC at 244 n.42 (anphasis in anginal),

llamever, it the Commissim has the power to enforce condiuona. it scans that it cou

• also suspend their effect The Crinmssamn cmW simply chmue not to enforte a con & tion and achieve the same resuh with less orpununity for the Nnericianes of the anuuust con &ums to be heard. See Un.on of Concerned $dentuar v. NRC,711 F.24 370,382 83 (D C. Cir.1984 M 6 NRC 221 (1977k The Comm;ssim decimed review or the Appeal Board's decmen. Florula Ner anJlaght Co. (st. Imie Nuclear Power Plant. Urut I; Turkey 1%nt Nuclear oeneraung 15 ant. Unu.i 3 and 4) Ct177-26, 6 NRC 538 (1977K M

6 NRC at 224.

M 14 at 221 M id at 22&

57

conclusion that St. Lucie was not entirely detefminative on the issue of the Commission's authority to review antitrust matters is further supported by the decision of the U.S. Court of Appeals for the District of Columbia Circuit on review." ne Court of Appeals indicated that the question of whether section 105 is the Commission's exclusive grant of antitrust authority was beyond the scope of that proceeding and, thus, the question was left open.

Our conclusion that neither S'. Lucie nor South Texas prohibits suspension of antitrust conditions at a licensce's request is further supported by dicta in Davis Besse, a later Appeal Board decision involving the same Applicants as in the present Droceeding." In Davis-Besse, the Appeal Board indicated that antitrust license conditions may be removed or modified after the issuance of de operating license. The Appeal Board suggested that if antitrust license conditions, which seemed fair at the time they were imposed, prove to be inequitable in the future, the Director of Nuclear Reactor Regulation has the authority to modify license conditions.38 in addition to its arguments that suspension of the antitrust conditions in this license would be inconsistent with section 105c and Commission precedent, Cleveland argues that the Licensing Board ignored the effect that removal of the antitrust conditions would have on the beneficiaries of the conditions. According to Cleveland, to adopt a rule that would limit its ability to seek relief from anticompetitive behavior through imposition of new license conditions, but allow the licensee to change existing conditions at any time, would adversely affect Cle' : land's ability to provide an affordable, reliable power supply to those served by its municipal system. Rus, Cleveland maintains, the beneficiary of an antitrust license condition would be placed in the difficult position of having to defend the appropriateness of existing conditions from attack by the licensee, but would not be afforded the corresponding opportunity of being able to seek imposition of new conditions in a license," Moreover, according to Cleveland,

" Fort Purre Unlanar AmsAonry v Unikd seaus,606 F.2d 986,1001 n.17 (D C. Cir.' t desind, 444 U.S.

842 (1979).

" Toledo F4 rom Co. (Dans Besse Nuclear Power stathn, Units 1,2, and 3), At.AB-st:0,10 NRC 265 (1979).

38

/4 at 294. 'the Appeal Board in&cated that the m{uests 57e mod & canon of license cmations wvld be handled by the Direciar or Nucicat Reactor Regulatim under 10 CIA (( 2 2042.204 and 2.2th W1ule those sections of Pan 2 sra typicany used in enforcement pmceedmgs and Apphcants' m{uested suspension in this case is move

toperly saicsonged as a heense amendment rather than a request for enforcanent acuan, the pnnciple that the Comnusuun has the authonty to mmhfy anutmst cmaums at a heensee's request remams intact

" Die questim whether panics may request that adenmal arsiuust cm&ums be placed in the hcense af a twmsee, in effect, restores NRC anutrust juns&c6cn by acciing suspension of anutrust cm&uona, was raised by Amencan Municipal Power-chio, Inc. (an intervenor), at the preheanns ennference held on september 19, 1991, hi this pnxecdmg. see Preheanng Confeemco Transcnpa at 18687 The Ucensma Boaat did not squarely address this quesuon m UIP-9138. Nor nent we decide it at Llus ume, llowever such an appn=ch may not be inconsistent wit h the underlymg phdmophy of accuan lose and could be sound pobey. Congresa placed a lumtation m postheensing anutmst review to pnsvide certamty to the hcensee that it would nos be drawn No cmtunung anutrust pmceedmgs before the Camussmn. When the hcmsee ininates a proceedmg to suspend or mmhfy the antitrust cemethms, the pnhey of insulaung the hcensee fun conunumg snuuust proceedmgs may not hold the same,if any, fone.

58 l

review of Applicants' request in this case and others in the future would threaten to involve the Commission unendingly in antitrust matters."

We recognize that under Applicants' and Staff's theory of antitrust jurisdic-tion a party such as Cleveland may not come to the Commission for relief from a licensec's anticompetitive behavior unless that behavior is proscribed by ex-is'Jng antitrust conditions, llowever, an aggrieved party is not left without a remedy. As indicated in South Texas, the Department of Justice's Antitrust Di-vision can provide assistance in obtaining relief from anticompetitive behavior, and the Federal Trade Commission as well as the federal courts provide antitrust enforcement forums."

We conclude that the Commission does have jurisdiction under sections 103, 161, and 189 of the AEA to entertain Applicants' request on its merits. As the agency empowered to issue nuclear plant licenses, only the Commission .

can grant the relief - if it is warranted - requested by the Applicants in this proceeding. If we were to determine that the NRC lacks the authority to suspend the antitrust license conditions (and if this determination were upheld),

then the conditions would remain frozen in place for the life of the license no matter how unsuitable. Ahhough Congress could have limited the NRC's authority in this marmer, neither the statutory language not the legislative history of section 105 suggests that Congress intended such a result. We do not accept -

the proposition that antitrust license conditions are immutable, irrespective of whether the conditions have become unjust over time,"

We should emphasize that our decision today goes no further than to determine that the Commission has authority to amend a license at the request of the licensec to suspend the effect of antitrust conditions. Any such suspension by its very nature may be rescinded, and the conditions would then, once again, have full force."

• Cleveland's Bnet at 32-33.

" s NRC at 1316, U furthermore, pdicial precchu suggests the same emclusion that the Cmunission has authonty to mo&fy bcense con &tims that pmve to be unput aher ume, due to danges in law or facts. A court can moddy terms of an injunctive decree involving anutrust watnctions if the reasons for impawng the restrictions are colonger present or tr the cmatims have become unfairly burdenamie. nie Coun cannot be required to disregard sigmftsant thanges in law or facts if 64 is ' satisfied that what it has been doing he been tumed through changing csrrumstances mio an instmmrnt of wnmg.'" sptem fadsratwa v. Wrigitt 364 Lls. 642,647 0961)(quoting Uasted swes v.

S=VI A Co. 286115.106,11415 0932D. Dis pnnciple opphes to the quasi-ju&cial role of the Commissian as wil. "An agency, hke a suurt can undo wbt is wnmgfully done by virtue ofits order." United Gas f=pmvemand Co. v. Calley Propernes,382 115, 22.3, 229 (1965)-, see also Can South, fae, v. Araf i , 877 F.2d 858, M63 (1Ith Cir 1989),

O Sns saa Ims Obirpo Moders for Peacs v. NRC,7sl F.2d 1287,1314 (D C Cir.1984) ("rhe hfung of a suspesinn does nothing to aher the enginal terms of a hcense; indeed, it removes a sigmficant unpc& ment to the enforcemera of those terms ") (emphasm in original), ag*4 <= &aac,789 F.2d 26 (D.C Cir.), cart. d<aind,479 tis 92)(19861 59

C, CleSeland's Motion for Revocation llaving decided that the NRC has authority to suspend the effect of antitrust conditions in a license at the licensce's request, we must address Cleveland's motion for revocation of the referral of the Applicants' hearing requests to the Licensing Board. We deny Cleveland's motion for two reasons. First, Staff's administrative review was not a substitute for the adjudicatory hearing to which Applicants are entitled in that the decision rendered by Staff was a denial of a request for a license amendment. Second, due to the complexity of the issues raised in this pmceeding, further development by the Licensing Board prior to any final Commission decision is appropriate.

Cleveland's arguments that Staff's denial is a final Commission decision pursuant to 10 C F.R. I 2.101 am unavailing." Section 2.101 is only applicable in this proceeding insofar as it sets out procedural requirements for information to be included in a license. The procedural requirements in section 2.101 regarding the disposition of antitrust maucts are not applicable. The review under section 2,101(e) is limited to whether significant changes have occurred and is conducted in proceedings involving applications for operating licenses, not in amendment proceedings such as this.*5 Moreover, contrary to Cleveland's suggestions," Staff's consideration of Applicants' amendment request was not a " hearing" that satisGes section 189.

Staff's decision is administrative in nature and does not suffice as an adjudicatory review of the application request. As the Licensing Board pointed out in LBP-9138, NRC process requires after Staff denial of an amendment application that an applicant be informed of the denial and its opportunity for a hearing, and if a hearing is requested it must be conducted by aa adjudicatory tribunal,

While the Commission could elect to consider the matter in the first instance,"

review by the Licensing Board at this time is more suitable. The Board's development of a detailed n' cord and analysis of the complex issues raised in "Jee Maion of City of Cleveland, Ohio, for Car.minaion Revocade of the Refemt to AstE and for Adopdon of the Apnl 24,1991 Decision aa the Commission Dotam at 2 3 (Dec,19.1991) (Cleveland's Monon).

'3 thmever, under 10 CF.R. 4 2.101(c), a significant changes review is undenam it an amendment request mvolves the transfer of cmtml of the operstmg inense from the origmal owner (s) et a facihty to anmher snuty.

Ahhmgh that cinumstance does not involve the issuance of a new heense, a review of any adverse anuuust imphrauons raised by the new ownership has never been undenaken. Sas, e 3., the Direct <r of Nuclear Reactor Regula6m's Rervalua6an and Affirm.dm d No significant Change Finding Pursuant to seabrook Nuclear stauon, lius i Annuust lbst. operating license Review (Apr. 9,1992).

" Cleveland's Motion at 34 47 1BP.9138.34 NRC at 239. See genarotly Dasryl. sad Pamer Coopensave (La Crosse Boihng Water React <,

ISP.8426,12 NRC 367,371 (1980) (detenrunanen of heanna request in show<ause procecding did not rest with stafr but wuh Commission or its delegated adjudicatory tnbuns!), see etw 10 CF.R. Il2.105(d) 2.1205 0 992).

as see Cirsanar for Ansgaa County. Jac. v. FPC,414 F.2d 1125,1129 (D C Cir.1969) . see she Kerr&Cae C44aucal Corp. (West Clucaso Rare Eanha licihty), Clj.82 2,15 NRC 232 0912), ofd sub moni. City of West Chicago v. MC. 701 F.2d 612 Oth Cir.1983).

60 1

i l

1

this proceeding will aid the Commission in any review that may be undcrtaken.

In addition, if the Applicants win on the " bedrock" issue, an evidentiary hearing may be required to determine the actual cost of Itrry/ Davis Besse power.

Such a hearing would be appropriately conducted by the Licensing Board."

Accordingly, we see no good reason to adopt Clevelant suggestion that we remove all further proceedings from the Licensing Board.S VL CONCLUSION

\

Nr the above reasons, Cleveland's appeal of LDP-91-38 is denied, and LBP-9138 is afirmed insofar as it granted Applicants' hearing petitions. In addition, for the aforementioned reasons, Cleveland's motion for revocation of the Secretary's referral to the Licensing Board of Applicants' heating requests and for sloption of Staff's April 24,1991 decision as a Commission' decision is also denied.

It is so ORDERED, Nr the Commission" S AMUEL J. ClifLK Secretary of the Commission Dated at Rockville, Maryland, this 12th day of August 1992.

" Sad apre note 12.

"In light of our deeman to deny Ocveland's mouan fa revocatim. Applicants' mohan for ad.htamal ume to fils a reply to Ceveland's motion is demat. See A;yheants' Ariswer to "Matam of City of Develand, Ohio, fa Commissim Revocauen of the Referral to AstJ1 and for Adoptim of the Apnl 24, 1991 Deciabm as the Communion's Ikuim" (Dec. 24.1991). In addiuon, Cleveland's motion for leave to file a reply to Appbcants' answer is also denied because the reply raises no new subiunuve issues tha quire a response.

81 Commissimen Rogers and Curtiss were not present for the affirmatim of this order. If they had teen present, they would have aftmned it.

61

Cito as 36 NRC 62 (1992) CLI-92-12 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Ivan Selin, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick E. Gail de Planque I

in the Matter of Docket Nos. 50-445-OL&CPA -

50-446-OL TEXAS UTILITIES ELECTRIC COMPANY, et al.

(Comanche Peak Steam Electric Station, Units 1 and 2) August 12,1992 De Commission denics Petitioners' requests for late ircrvention in the-Comanche Peak OL proceedings and the Unit 1 CPA proceeding, which wtre closed in 1988 pursuant to a settlement agreement. De Commission further denies Petitioner;' motions to intervene and to reopen the record in the Unit 2 proceeding, finding that Petitioners have failed to satisfy the criteria far late intervention and for reopening of the .tcord. De Commission further denies the requests for protective orders, for suspension of the Unit I operating license, and for oral argument on the motions before it.

RUI.ES OF PRACTICE: OPERATING 1.lCENSE (SUSPENSION)

(2.206 PETITION)

Once the Commission has issued an operating license for a unit, that action effectively closes out an opportunity for a hearing on that license or on any.

construction permit amendments. Any subsequent challenge to that unit's license must take the form of a petition under 10 C.F.R. 9 2.206 for an order under 10 C.F.R. I 2.202 62

RUI.ES OF PRACTICE: ORAL ARGUS 1ENT Ilecause oral argument is clearly discretionary under 10 C.F.R. 6 2.763, the Commission requires that a pany seeking oral argument must explain how oral argument would assist it in reaching a decision. The Commission may deny {J^

requests for oral argument when based on the party's written submissions that it fully understands the positions of the participants and has sufficient information upon which to base its decision.

RUI.ES OF PP ACTICE: ORAL ARGUN1ENT REGULATIONS: INTERPRETATION (10 C.F.R. I 2,763)

A petitioner is not barred from requesting oral argument on a petition for late intervention. De requirement in 10 C.F.R. 5 2363 that a request for xal argument be made in a "brief" only applies to pleadings that constitute an

" appeal." S RULES OF PRACTICE: NONTIN1E1X INTERVENTION Fur the Commission to gmnt a petition for late intervention, a petitioner must demonstrate a favorable balancing of the five factors set forth in 10 C.F.R.

{ 2.714(a)(1)(1)-(v). Those five factors are: (1) good cause, if any, for failure to file on time; (2) the availability of other means for protecting the petitioner's 5 interest; (3) the extent to which the petitioner's participation might reasonably assist in developing a sound record; (4) the extent to which the petitioner's interest will be represented by existing parties; and (5) the extent to which the petitioncr's participation will broaden the issues or delay the proceeding.

RULES OF PRACTICE: NONTIN1E1X SUllN11SSION OF CONTENTIONS (GOOD CAUSE FOR DELAY)

De test for " good cause" is not simply when a petitioner becomes aware of the material it seeks to introduce into evidence instead, the test is wlen the information became available and when a petitioner reasonably should have become aware of that information. In essence, not only must a petitioner have acted promptly after learning of the new information, but the information itself must be new information, not information already in the public domain.

63

RULES OF PRACTICE: UNTIMELY INTERVENTION PETITIONS When an intervention is extremely untimely and the Petitioner utterly fails to demonstrate any good cause for late intervendon, it must make a compelling case that the other four factors weigh in its favor in order to satisfy the late-filing standard.

RULES OF PRACTICE: NONTIh1ELY SUllN11SSION OF.

CONTENTIONS (OTilER 51EANS TO PROTECT INTERVENOR'S INTEREST) k A petitioner has satisfied the second prong of the five-factor " late inter.

vention test" where there is currently no ongoing proceeding and therefore no other means by which that petitioner's interest can be protected. 10 C.F.R. 6 2,714(a)(1)(ii),

RULES OF PRACTICE: NONTIMELY SUBMISSION OF CONTENTluNS (OTIIER PARTIES TO PROTECT INTERVENOR'S INTEREST)

A petitioner has satisfied the fourth prong of the five-factor " late intenention test" where there is currently no ongoing proceeding and therefore no other party able to represent that petitioner's interest.10 C.F.R. 5 2,714(a)(1)(iv).

RULES OF PRACTICE: NONTIMELY SUllMISSION OF CONTENTIONS (OTilER MEANS AND OTilER PARTIES TO PROTECT INTERVENOR'S INTEREST)

In evaluating the five factors to be met by a petitioner seeking a grant of late intervention, the second and fourth factors are the least important of the five.

RULES OF PRACTICE: NONTIMELY SUllMISSION OF CONTENTIONS (ASSISTANCE IN DEVELOPMENT OF SOUND RECORD) __

When a petitioner addresses the third criterion, "the extent to which [its]

participation might reasonably assist in developing a sound record," it should set out with as much particularity as possible the precise issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony, 64

RULES OF PRACTICE: NONTIMElX SullMISSION OF CONTENTIONS (DELAY OF PROCEEDING)

Barring the most compelling countervailing considerations, an inexcusably tardy intervention petition stands little chance of success if its grant wuld likely occasion an alteration in hearing schedaies or the establishment of an entirely new hearing.

RULES OF PRACTICE: REOPF.NING OF RECORD Section 2.734(b) of 10 C.F.R. requires that a motion to reopen the record must be accompanied by one or more affidavits which set forth the factual -

and/or technical basis for the movant's claim. If a petitioner fails to comply with this requirement, the Commission may deny a request to reopen the record because of this dvect alone.

F '"S OF PRACTICE: INTERVENTION (INTEREST)

Once the Commission has determined that a petitioner cannot become a party to a proceeding based on the record before it, a petitioner cannot scck to reopen the record of that proceeding.

RULliS OF PRACTICE: REOPENING OF RECORD (TIMELINESS)

'Ihe " timeliness" requirement of 10 C.F.R. 5 2,734 is not whether a motion to reopen is filed within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> of a petition for late intervention; instead, the test is whether the information upon which the movant relies could have been presented to the NRC at an earlier date.

RULES OF PRACTICE: CONFIDENTIAL INFORM ATION (PROTECTION FROM DISCLOSURE)

The purpose underlying a grant of confidentiality is to preserve the alleger's identity from public disclosure where such disclosure could cause harm to the alleger, llowever, even a known alleger can be granted confidentiality by the-NRC Staff if that person can demonstrate that some harm might otherwise befall them or their sources.

65

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

RULES OF PRACTICE: CONFIDENTI Al, INFORM ATION (PROTECTION FROM DISCLOSURE)

A grant of confidentiality is not dependent on an individual's success in seeking a grant of intervention or reopening of the record.

RULES OF PRACTICE: OPERATING LICENSE (SUSPENSION)

(2.206 PETITION)

A petitioner may not request suspension of an operating license as part of a petition for late intervention. Rose matters are more praperly placed before the NRC under the procedures specified in 10 C.F.R I2.206.

MEMORANDUM AND ORDER

1. INTRODUCTION his matter is before the Commission on a motica for late intervention and a motion to reopen the record by Sandra Long Dow, representing the " Disposable

. Workers of Comanche Peak Steam Electric Station" (" Disposable Workers"),

and R. Micky Dow (collectively " Petitioners"). Petitioners seek to reopen the Comanche Peak aperating license and construction permit amendment proceedings whie : .:re closed pursuant to a settlement agreement in 1988.

Petitioners have also filed a motion seeking oral argument on their motions before the Commission. De Texas Utilitics Electric Company ("TU Electric")

and the NRC Staff oppose all three requests.

Ihr the reasons stated below, we find that oral argument is unnecessary in this situation. We also find that Petitioners luye failed to satisfy the requirements for late intervention. Even assuming arguendo that those requirements were satisfied, Petitioners have failed to satisfy the requirements to reopen the record.

II. IIACKGROUND On November 20,1991, these same Petitioners filed a motion to reopen the l record in the underlying Comanche Peak proceedings. We denied their request, l pointing out that only a " party" could scck to reopen the record but that even if l

Petitioners had been " parties" ta the underlying proceedings, their submissions were not sufficient to meet the reopening criteria. Texas Utilities Electric Co.

(Comanche Peak Steam Electric Station, Units 1 and 2), CL192-1,35 NRC 1 (1992) ("CLI-92-1"). Ilowever, we also pointed out that "(b]ecause the NRC has not yet issued the license for Unit 2, there remains in existence an operating l-66

license ' proceeding' that was initiated for Comanche Peak " See CLI 1,35 NRC at 6 n.5.

On February 20,1992, Petitioners filed a petition for late intervention not only in the Unit 2 operating license ("OL") proceeding but also in both the Unit 1 OL proceeding and the Unit I construction permit amendment ("CPA") proceeding.

Neither of the latter proceedings now exists. On February 21,1991, Petitioners filed a motion to reopen the record in all three proceedings, assuming arguendo that they had satisfied the criteria for late intervention. We directed that both the Staff and TU Electric file consolidated responses to the two motions and established a response time that took into account an anticipated supplement to the Petitioners' motions. Petitioners filed their supplement on March 13,1991.

Iloth TU Electric and the Staff responded in opposition to the two pleadings as supplemented.

On April 4,1992, Petitioners filed a motion requesting an oral argument on the other two motions, alleging " material false statements" and " perjury" by the Staff and TU Electric in their responses to Petitioners' motions. TU Electric and the Staff have responded in opposition to the request for oral argument.

III. ANALYSIS A. The Unit 1 Proceedings initially, Petitioners have disregarded our statement in CLI-92-1 that only the proceeding for the issuance of the operating license for Unit 2 was available for late intervention and potential reopening. Instead, Petitioners seek late intervention in both the Unit 1 OL and CPA proceedings. However, these proceedings are no longer available to them. The NRC has issued the operating license for Unit 1. Dat action has closed out the Notice of Opponunity for a licaring for both the Unit 1 operating license, 44 Fed. Reg. 6995 (Feb. 5, 1979), and the Unit I construction permit amendment. 51 Fed. Reg.10,480 (Mar. 26,1986). Any challenge to the Unit I license must take the form of a petition under 10 C.F.R. % 2.206 for an order under 10 C.F.R. 6 2.202. In fact, Petitioners have already filed such a petition which is now under consideration by the Staff. Rus, we summarily reject Petitioners' request insofar as it requests late intervention in the Unit 1 OL and CPA proceedings.

11 The Unit 2 Proceeding

1. The Motion for Oral Argument We are unclear as to what Petitioners actually seek in their request for oral argument. Petitioners use the terms " oral argument" and " hearings" 67

interchangeably in their motion. Under our regulations, the terms clearly imply different' concepts, ' Oral argument" as contemplated by our regulations is an appellate-style argument, without witnesses. liowever, under NRC regulations the word " hearings" generally refers to an evidentiary procedure, which is what Petitioners' original motion seeks. Accordingly, we have treated Ittitioners' request as a request for oral argument on the motion for late intervention and the motion to reopen the record.

Our regulations provide that "[i]n its discretion, the Commission may allow oral argument upon the request of a party made in the notice of appeal or brief, or upon its own initiative." 10 C.F.R. 5 2.763. Because oral argument is clearly

" discretionary," we have previously held that a party seeking oral argument must explain "how [ oral argument] would assist us in reaching a decision."

In re Joseph J. Macksal, CLI 89-12, 30 NRC 19, 23 n.1 (1989). We have denied requests for oral argument when " based on (written) submissions [the Commission] fully understands the positions of the participants and has sufficient information upon which to base its decision." Admnced Nuclear fuels Corp.

(Import of South African Enriched Uranium licxafluoride), CLI-87-9,26 NRC 109, 112 (1987).

Petitioners make two arguments in support of their request.3 First, they allege that responses filed by the Staff and the Licensee to their motions are

" wrought with inaccuracies." Request at 2.2 in addition, Petitioners allege that the responses are " rift (sic] with material false statements . . . that border if not completely encompass perjury." 1d.5 llowever, Petitioners do not provide any examples of these alleged statements. We will not accept bare allegations of such statements -- without more - as support for a motion for agency action.

Moreover, as the Petitioners concede - Request at 6 - they could scck permission to repir e *hese pleadings in writing. Contrary to Petitioners' view, we do not believc t.u. such a reply would " inundate" the record or " confuse" us. Id. 'Thus, Petitioners have failed to demonstrate that they could not counter any alleged misstatements by the Staff and Licensee by seeking leave to file a reply and responding to the alleged misstatements in writing.

Second, Petitioners arguc that"it would be in the best interest of the public to hold oral argument . . . ." Request at 2. See also Request at 5. Ilowever, we do not see how the public interest would be better served in this instance with t 1%uttmen include sher arguments, but in at judgment thens argumets go to thetr requesu for late intervemaxi and to rare the record. Acronhngly, we will deal wnh thcae wher argumenu when we address the nwrus or INtiumers' maims tww pending 2

1%titimers (ded two pleadmgs berore us entided "M. aim for . " In onier to develop a conv-niet shonhand to distingutah between these two pleadmas when atmg to them, we wdl refer to the Maum ror oral Argument as the " Request" and the Moum to Reopen the Rewrd as the " Maim" 3

Because retnamers' pleadmg contains this allegation, n has bcen forwarded to the office or inspector General rar apprnpnats actim 68

an oral argument as opposed to a decision based solely upon the written public record. In sum, we believe that we " understand the positions of the participants and [have] sufficient information upon which to base [our] decision." Admnced NucIcar Fuels Corp., supra. Accordingly, we exercise our discretion to deny the request for oral argument.'

2. The Motion for late Intervention Petitioners can scck late intervention in the U.4'. 2 OL proceeding. That (

proceeding is still open for late intervention because that license has not been \

issued. Ilowever, in addition to the criteria that must he addressed in their petition tmdct 10 C.F.R. 5 2.714(a)(2), Petitioners must also demonstrate that a balancing of the five criteria set forth in 10 C.F.R. 6 2.714(a)(1)(i)-(v) weighs in favor of their intervention. See, e.g., Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CL1-83-25,18 NRC 327,331 n.3 (1983); Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units I and 2),

CL18812, 28 NRC 605,608-09 (1988) ("CL1-88-12"), ag'd, Citizensfor Fair Utility Regulation v. NRC, 898 F.2d 51 (5th Cir,1990), cert. denied,111 S.

Ct. 246 (1990). Those five factors are: (1) good cause, if any, for failure to file on time; (2) the availability of other means for protecting Petitioners' interest; (3) the extent to which Petitioners' participation might reasonably assist in developing a sound record; (4) the extent to which Petitioners' interest will be represented by existing parties; and (5) the extent to which Petitioners' participation will broaden the issues or delay the proceeding. 10 C.F.R. 52.714(a)(1)(i)-(v). Reviewing Petitioners' Motion for Late Intervention, we find that Petitioners have failed to satisfy these five criteria.

a. Good Cause for Late Interwntion Petitioners allege that they have good cause for the lateness of their filing because

[pletitioners were not involved in this issue when it first came to light. and/or when the original licensing hearings were in session. 'they ady became involved in this matter in January,1991. [ Subsequently] they received more and more information , and. then, based on ust portions of their evidena, became convinced that the hearings needed to be retyered in order to get this material on the record, as they believed that it would have prevented the licensing lof Ctunanche Pedl, had it been brought to the attention of the original Atanic Safety [andl ticensing Board.

• Wa ryct the stafr's argument that Peuuoners cannot mjucat wal argumers on a peuuan for late intervenuen.

Because the pleadmgs before us do n n const,tute an appeal," the requirement that a mjucat ror oral argurnent be rnade in a "bner" does rw amly ses gaaerally 10 C.FA 5 2363 69

Petition at 1-2. In essence, Ittitioners allege that they have demonstrated " good cause" because they themselves have just come into possession of information which they believe would have had an impact on the Comanche Peak licensing proceeding. Ilowever, our jurispmdence has specifically held that such an allegation standing alone does not satisfy the " good cause" requirement.

The test for "geod cause" is not simply when the Petitioners tx came aware of the material they seck to introduce into evidence. Instead, the test is when the information became available and when Petitioners reasonably should have become aware of that information. In essence, not only must the petitioner have acted promptly after learning of the new information, but the information itself must te new information, not information already in the public domain.

For example,- the discovery of information that was publicly available 6 months prior to the date of the petition has been held instifficient to establish

" good cause" for late intervention. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707,16 NRC 1760,1764-65 (1982). In that case, the Appeal Board rejected the concept that the " discovery" of information already publicly available would constitute " good cause" for late intervention.

Quite simply, la] subjective test of this kind provides an incentive for remaining uninformed and creates the prospect of collateral factual contests aimed at ascertaining the state of mind of the prospective intervenor. We would not allow a party to the proceeding to press a newly recognind contention . . . unless the party could satisfy an objective test of good cause.

Among other things, . . . the party seeking to reopen must show that the issue it now seeks to raise could not have been raised earlieri , . We ace no reason to employ a diffennt and more lenient good cause standard for the late petnioner for intervention than for a party who is already in the prucceding and seeks to raise new issues.

ALAB 707,16 NRC at 1765 (cmphasis in original) (citation omitted) (footnote omitted),

in this case, Ittitioners may have only recently become aware of certain information, but they do not demonstrate that this information is only now available for the first time, i.e., could not have been raised earlier. Instead, the information that Petitioners seek to introduce is extremely dated information.

Ibr example, all information relied on by Ittitioners in their previous motion to reopen (filed on November 20,1991) was over a year old at the time and all but two documents had been in the public domain for a much longer period of time. See CL1-92-1, 35 NRC at 7 9. Thus, that information cannot constitute

" good cause" for late intervention.

In their request for late intervention, Ittitioners name two individuals, Ron Jones and Dobic Hatley, who would be prospective witnesses if Petitioners 70

were allowed to intervene. See Petition at 3.8 Petitioners claim that "[tlhese two individuals who . . . have held their silence, out of fear of reprisal, are now willing to come forward and testify, for the first time in four years." Id.

Ilowever, as the Staff points out, both persons clz% that they were willing to testify in the original proceeding. See Jones Statement attached to Petition; llatley Statement attached to Motion to Reopen. Staff Response at 9, in fact, as the Staff also points out, Ms. llatley's testimony was actually filed before the 1.icensing Board in 1984 by the intervenor in that proceeding, the Citizens Association for Sound Energy (" CASE"). Id. Thus, the mere availability of these individuals does not constitute " good cause" for Petitioners' late intervention.

Furthermore, neither of these individuals states what new information they have to provide that is not already in the public domain.

In an effort to provide Petitioners with a complete evaluation of the in-formation they allege supports their late intervention, we have also reviewed the allegations contained in their Motion to Reopen the Record, the Supplement, and the Motion for Oral Argument. Ilowever, the information in those docu-ments does not constitute " newly discovered" information that would support a finding of " good cause" for late intervention.

In the Motion to Reopen the Record, Petitioners allege that TU Electric attempted to cover up fire watch violations. Motion at 4, llowever, TU Electric itself reported those violations to the NRC in October of 1990. See NRC Response at 241 see also Affidavit of Amarjit Singh, Exhibit B to NRC Staff Response, ne Staff issued a Notice of Violation on the issue. See Exhibit C to NRC Staff Response. Rus, not only was the NRC aware of the issue, but the NRC has reviewed TU Electric's resolution of the issue and has approved it.

See Singh Affidavit, supra, Petitioners do not offer any additional information on this issue that could constitute " good cause" for late inicrvention.

Petitioners also allege that they have discovered evidence about "on-site and off site waste dumps for both toxic and radiation contaminated materials . . . ."

Motion at 4. Ilowever, Petitioners concede that various organizations have had access to this information since August 1990, including CASE and the Texas Water Commission ("TWC"), an agency of the State of Texas. Moreover, another organization, the Citizens for Pair Utility Regulation ("CFUR") has s already presented this issue to the NRC in the form of a request for enforcement action under 10 C.F.R. 5 2.206. See DD-91-4, 34 NRC 201 (1991), in its decision on that petition, the NRC Staff n: viewed this information and determined that (1) the information did not raise a " substantial concern . . .

regarding the safe operation of [ Comanche Peak)," (2) that no violations of NRC regulations had been identified, and (3) that the NRC Staff would monitor 8

As ow surr n,=n.on. is om miy suh.unun mrormauon in on peuuan iueirio support reuumen ryuen Meer, as the stafr also notes, Mr. Woey's sutemeni is nenher nounred nor made under oath.

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i proceedings tefore the 'lWC to determine if any other action mis necessary after conclusion of those proceedings. 34 NRC at 207. Petitioners do not explain how their information could supplement the information already in the public domain or why it could not have been presented sooner.'

Next, Ittitioners subenit nine Nonconformance Reports ("NCRs") which dicy allege "show significant ernes in the scismic restraint compression litung crimps . . . ." hiotion at 3. Ilowever, these NCRs were filed and resolved in 1984. Itdtioners do not explain why this issue could not have been raised sooner. Petitioriers also allege that other NCRs "were never placed in the record or addressed." M. llowever, Ittitioners do not provide these NCRs that were allegedly " withheld" or offer any othen specifics atout them. Absent such an explanation, these vague allegadons cannot constitute " good cause" for late intervention.

In their Supplement, ittidoriers allege that Ms. Ilatley altered the records in TU Electric's files regarding the NCRs and that the NRC cannot rely on those written records for an analysis of the NCRs. Supplement alt 4. Ilowever, the NCRs were resolved after Ms. llalley left Comanche peak. See NRC Staff Restvm et 26 27, 22 33; see also Affidavit of Robert hi. Latta, attachc4 as Exhibit F to the Staff Response. Hus, h appears that his. IIntley could not have affected the resolution of these NCRs and, accordingly, this informadon does not consutute " good cause" for late intervention.'

Next Petidoners submit an annnymous handwritten nate dated January 30, 1992, regarding an incident at Comanche Peak in which a worker was injured, llowever, the note itself documents that the incident was reported to the NRC.

hioreover, that incident, which occurred on October 6,1991, has long been public knowledge and has been resolved by the NRC. See Affidavit of Williatn D. Johnson, attached as Exhibit E to the NRC Staff Response. Again, this does not consutute "new" information that would constitute " good cause" for late intervention.

Finally, Ittitioners submit a group of documents that appear to be related to claims by Joseph J. hixktal regarding a disputed settlement agreement.

Ilowever, there is no showing that diese documents are "new." in fact, many

'Prutsmers also allege that they have taken samples from thoic dumps and that these samples have been tested as radioacuva blaam at s. In addiuan, Peuyaners allege ihai they offend to pmide this maienat io the Regmn IV staff but that the staff terused to acces the informanm ur enn to open an silesanm file an the issue,14 Uha suff has n<s respmded to this aDegat.on aber than to punt out - curret1Jy - that INuunners have nce pet 6ded any documemauen of these tests. Staft Response at 25-26 llowever, the staff should ctatact ibuuones to see if Arumenuunn esists and take appurriste followup actum.

I his. Iladey allegas that she *was asked to falsify recards and dmuments and drowing nurnbers isc in order in pass audits of the NRC[,)* listley statanent et 1. implying that she did sa she also sutes that aho "wald like to tesufy and have my concerns in the record .

• 1.t we direct the staff na commumcate wuh his. llatley m an erfort to obtain whatever ad&dunal informatum ahe wishes to present. hit llatley can " place her concerns on the remd" by providmg documeras to or m.eung mth the NRC stafr. he staff should follow up on any allegatmns provided by his llatley in this regard.

72 l

i of diese same docurnents were also submitted to the NRC as attachments to l'etitioners' November 20,1991 Mouan to Reopen the Record. As we noted l

then, this "information is simply not timely in any sense of tie word." CLI.

921, 35 NRC at 8. For example, in this group of documents only the legal memorandum is less than 2% years old.

l Moreover, there is no showing that any of this information is not already well known. In fact, Mr. Macktal's claims have been well documented before the NRC, as reflected by the fact that many of the documents cited by Petitioners are NRC documents. In addition, the Commission reviewed Mr. Macktal's claims as they related to Comanche Peak. See, e.g., CLI.89 6. 29 NRC 348 (1989),

pg'd sub nom, Cittrenspr Fair Utillry Regulation v. NRC,898 F.2d $1 (5th Cir.1990); AfacAtal, CLI 8912, supra;In ir Joseph /. AfacAtal CLI.8914,30 NRC 85 (1989); in te Joseph 1. AfacAtal, CLI.3918. 30 NRC 167 (1989).

Furthermore, both the iX)L and the NRC have acted on Mr. Macktal's allegations. For example, the DOL has volded the settlement agreement that Mr.

Matktal claimed illegally prevented him from testifying before the NRC. S!c AfacAtal v. Brown & Root, Docket No. 86.2332 (Nov.14,1989). Furthermore, the NRC has adopted a regulation specifically preventing die type of agreement that Mr. Macktal alleges that he was " coerced" into signing. See 10 C.F.R. 5 50.7(f) Firlally, Mr. Macktal has explained all his concerns to the NRC Staff during a transcribed interview. Thus, the responsibic federal agenclu have reviewed Mr. Macktal's concerns and these materials do not constitute " good cause" for late intervention, in conclusion, we find that Peutioners have failed to demonstra:e " good cause" for their attempt to intervene in the OL proceeding for Unit 2,13 years after TU Elect;ic's request for an operating licccse was published in the Federal Register.*

b. The Remaining Four Factors

"[W)here no good excuse is tendered for the tardiness, the petitioner's demonstration on the other factors must be particularly strong." Dde Power Co. (Perkins Nuclear Station, Units 1,2, and 3), ALAB-431,6 NRC 460,462 (1977). "When the intervention is extremely untimely , , , and the petith ner utterly fails to demonstrate any ' good cause' for late intervention, it must make a ' compelling' case that the other four factors weigh in its favor." Comanche

/* cat, CLI.8812, supra. 28 NRC at 610 (citing cases). As we will demonstrate 8

1%tsaners attemgt to resurwn thrar clauns frann thets cather attempt to roepen the rouwd which we denied in Clj 92-1 by wwpastmg thme clatma int , this peuunst Ibweest as og potnied oW then, wuh anly two enceptmns, those records had long been in the ts.bbe deaut in fad, rnany of thern desh with htr. Maatal's clairns and - as we have seen aNwe - thnee have t.cen resolved. Thus, even facionr those docurnents imo the arguments and allegatuvis presented here,8%unners have failed to demonstrats *gnod caune" for late intervention 73

below, we do not find that lYddoners love made a compelling case here on the remaining four factors.

~!he NRC Staff concedes that Ittidoners satisfy the second and fourth prongs of the test. Assuming arguendo that Itudoners have an " interest" in the proceeding, i.e., that they have standing to participate in the proceeding. there is no oder means by which that interest can be protected. Likewise, because dere is currently no proceeding, dere is no other party able to represent t!wir interest. Ilowever, these two factors are the least imp (stant of the five factors.

South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Stadon, Unit 1), ALAB 642,13 NRC 881,894-95 (1981), aff'd sub nom. Falt/scid United Action v. NRC,679 P.2d 261 (D.C. Cir.1982); Mississippi Poner & Ught Co.

(Grand Gulf Nuclear Station, Units I and 2), ALAll 7N,16 NRC 172$ (1982);

Fermi, ALAB 707, supra,16 NRC at 1767.

hiore importantly in our view, Petidoners have fa9ed to sadsfy the third prong of the test: timt they have the ability to contribute to the development of a sound record. As we noted in a similar situation,"the Appeal Ikard has repeatedly stressed the importance of providing specific and detailed information in suppcst of ractor (111)." Comanche Peak CL18812, supra. 28 NRC at 611.

"'When a pethioner addresses this [ third] criterion it should set out with as much particularity as possible the precise issues it plans to cover, identify its prospecuve witntsses, and summarire their proposed testimony.'" /d., quoting Grand Gulf, ALAll 7M, supra.16 NRC at 1730. See also lxng Island Ughting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB 743,18 NRC 387,397 (1983).

In this case, Ittitioners alleged that they would introduce "a massive amotint of evidentiary material . . . [and) witnesses who had extensive testimony" Ittition at 3. Ilowever, as we noted above, Petidoners have identified only two prospective witnesses, Mr. Ron Jones and Ms. Dobic liadey, Ibrthermore, they have failed to summarize their testimony, except to state that Mr. Jones had discovered " massive wiring violadons" and evidence of drug use in the control room. Id.

Addidonally, as we have also noted above, the documentary evidence specifi-cally identified by lYddoners or submitted as attachments to their pleadings and the information contained therein is already in the public domain and is gen-erally extremely out of date. Moreover, Petitioners have failed to demonstrate any disagreement with the NRC's resolution of the matters they have raised.

'!hus, Petitioners have failed to demonstrate how this evidence would create a record that would assist us in determining whether we should issue an operadng license to Unit 2. Moreover, Petitioners have co npletely failed to address how their concerns - many of which date from the 1984 time frame - would have been affected by the extensive corrective programs undertaken at the plant since that time. Sec. c.g., Comanche Peak, CLI 8812, supra. 28 NRC at 611. In 74

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sum, we find that the thlid factor weighs heavily against granting ittitioners' request for late intervention.

h1oreover, the hfth factor - the possibility of delay aid expansion of the hearings - also weighs heavily against granting Petitioners' request. "[l]ndeed

- barring the most compelling countervailing considerations - an inexcusably tardy petition would (as it should) stand little chance of success if its grant would likely occasion an alteration in hearing schedules." teng /sIand Lighting Co. (Jamesport Nuclear l'ower Station, Units I and 2), ALAll 292,2 NRC 631, 650-51 (1975) (opinion of hir. Rosenthal speaking for the entire Board on this point).

In this case, there is currently no foimal proceeding at all. 'Thus, ,, ranting the petition will result in the establishment of an endrely new formal proceeding, not just the " alteration" of an already established hearing schedule, htorcover, as we noted in an earlier Comanche frak opinion, "there will be an inevitable delay while [pedlioner] acquaints itself with the proceedings." CLl 8812, supra,28 NRC at 611 As we noted there, "[t]he petition indicates that [the petitioner) apparently has no knowledge of the extensive proceedings that have occurred . . . ." Id. In that case, we found that because a former intervenor had been absent from the proceedings for six years, there would be an inevitable delay while the petitioner reacquainted itself with the proceedings.

In this case, Ittitioners have newr been involved in the formal proceedings involving Comanche Itak and they have only been involved in matters related to Conunche Peak since last spring. At no Omc have Petitioners demonstrated that they are familiar with the factual background of the extensive proceedings that occurred from 1979 through 1988. Nor have they demonstrated any familiarity with NRC rules and procedures. Thus, we find that there will inevitably be a long delay while lYtitioners prepare for Oc hearing process, in sum, we fmd Otat Petitioners have not established " good cause" for dicit request for late intervention. hiorcover, we find diat they have failed to make a

" compelling" case on the remaining four factors. While they arguably satisfy the Iwo minor factors, those factors are clearly insufficient, standing alone, to satisfy the balancing test required for late intervention. Sec, e.g., fermi, ALA11707, supra,16 NRC at 1767; Grand Gulf. ALAll 7(M, supra,16 NRC at 1730 31.

hioreover, Petitioners clearly fail to satisfy the two remaining major factors, the ability to contribute to the development of a record and delay and/or expansion of the proceedings. Thus, we find that Ittitioners have failed to demonstrate a favorable balancing of the five factors required for granting a petition for late intervention and we hereby deny their request.'

'In view or uns fmdmg. we need not reach the questim or 1%tmners'standmg However, we have stres dmic that I% timers emld sat 6sfy mr standmg requirunema. First, the Dows owsnielves hve in Nnsylvama (Conusmud) 75 l

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.t. The blotion to Reopen the Record As the Commission pointed out in CLl 921, a person cannot seek to scopen Oc record unless that person first becomes a party to the proceeding. CL192-1,35 NRC at 6. Because we have determined above that Itutioners cannot become parties to tic Unit 2 OL proceeding based on the record now before us, we find that they cannot seck to reopen the record of tic proceeding.

Additiorolly, as the Stalf correctly points out, Petitioners have failed to satisfy the requirements of our regulations which provide that a motion to reopen the record "must te accompanied by one or more affidavits which set forth the factual and/or technical tusis for the movant's claim that the [rcopening) criteria have been satisfied." 10 C.F.R. 6 2.734(h). We have denied requests to reopen Oc record tecause of this defect. Long /sland Ligluing Co. (Shoreham Nuclear ibwer Station, Unit 1), CL1891, 29 NRC 89,93 94 (1989). Neither of the attachments to the Motion to Reopen Oc Record meets this requirement, Moreover, Petitioners have again misinterpreted the " timeliness" requirement.

The issue is not whether the motion to reopen is filed "within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> of the peution for late intervendon." Motion at 2. Instead, the test is whether tha information upon which the movant relics could have been presented to the NRC at an earlier date. Aferropolitan Ed/ son Co. (Three Mile Island Nuclear Statlan, Unit 1), ALAB 815,22 NRC 198,202 (1985); l'ermont l'antec Nuclear l'ower Corp. (Vermont Yankee Nuclear Ibwer Station), ALAB 138,6 AEC 520, 523 n.12 (1973).

liere, as we noted above - and in CL1921 - the material relied upon by Petitioners has teen in the public domain for some time and has - generally -

teen acted upon cilher by Oc DOL or the NRC. In those cases where either the DOL or the NRC has acted on the material, Ittitioners have failed to allege some reason for taking additional action, i.e., they have failed to allege where either agency acted incon ectly. Ihr example, as we noted above, both the NRC ary! the DOL have acted on the concerns raised by Mr. Joseph J. Macktal. As another example, TU Electric trported - on its own - the fire-watch violations raised by Petitioacts, and the NRC has already acted on that issue by issuing a Notice of Violation in both cases, Petitioners have failed to allege any inadequacy in the resolution of these issues, whue Cananche l%ak is in Tesas Thus,it is unbksly the thrws themac]ves have sunding 'Morimer, the starr rains several g=ssMy vahd smerns agarding the standmg or the Disprnable Workers agantisuon Ses start Respone at 17 20. Sas also Paget Somad Pme sad bg4 Co. (skagMlanford f6dcar Ibwer 15cject. Uruts 1 and 2). ALAB 7m).16 NRC 1329.1333 34 (1982); Duquesas ragM Co. Olcaver Valley 1%wr stauort, Unit 2),

IJIP-k4 6.19 NRC 391,4tl 0984).

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C. Requ'st for Protecthe Orders l'eutioners request protective orders for seven (7) named persons -including toth Mr. and his. Dow - and six (6) unnamed persons under 10 C.F.R. 5 2.734(c). Modon at 6. Assuming arguenda that this request constitutes a request for " confidentiality" status under NRC Manual Chapter 0517, we deny that request at this time. Quite simply, such requests should not te granted on a blanket basis; instead, they are fact specific and should be granted only on a fact specific showing that the requesting party meets the requirements of Manual ,

Clupter 0517. l i

"lbrning to the specific requests, we are unclear why Ittilioners request a protecuv: order for known individuals. In a similar situation, we questioned how a person u ho was a known critic of Comancho Itak could demonstrate how he could te harmed if his name treame associated with additional allegations.

"The purpose underlying a grant of confidentiality is to preserve the alleger's identity from public disclosure where such disclosure could cause harm to the alleger." MacAtal. CL189-12, supra,30 NRC at 24. Nevertheless, in that case we pointed out that if the petiuoner could demonstrate that some harm might befall him - or his sources, for exampic - the Staff would te empowered to grant that request. Ilowever, the burden was on de petitioner to demonstrate that harm to the Staff. Id. The same is true of the individuals who are named by Ittitioneri in this case.

hrning to the u'mamed individuals, they also can seck " confidentiality" status from the NRC Staff even though we have denied both intervention and reopet. sg of the record. De NRC's guidelines for confidentiality are set forth in NRC Manual Chapter 0517. They - like the seven named individuals -

should address their individual requests to the Allegauons Coordinator of Region IV or the Allegations Coordinator in die Office of Nuclear Reactor Regulation at NRC lleadquarters.

D. Request for Suspension of License (s)

Ittilioners also request that we suspend the operating licenses for bodi Unit I and Unit 2 - presumably during the pendency of the hearing sought by Petitioners - for alleged deficiencies in the 1.ecling of pressure valves and limit switches." Motion at 6-7. Ilowever, as the Staff notes, again, this matter has already been reviewed and resobed by the Staff. See Affidavit of Wdliam D. Johnson. Moreover, this is a matter more properly pixed before the Staff under 10 C.F.R. 62.206. Petitioners currently have a section 2.206 petition pending before the Staff; accordingly, we deny this request and refer this issue W We presume that 8%umers mean the Ona 2 catructni permit Unit 2 &cs not have an opetems twoue.

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J to the Staff for their consideration as an additional issue in conjunction with the current petition under section 2.2(Mi.

W. CONCI USION for the reasons stated above, we (1) deny Petitioners' request for oral argumenti (2) summarily deny Petitioners' requests for late intervention in the Comancte Itak. Unit 1 proceedings; and (3) find that Petitioners have failed to satisfy a balancing of the five factors necessary for late intervention in the Comanche Peak Unit 2 OL proceedings. hiorcover, assuming arguendo that Ittitioners were eligible to participate in the Unit 2 OL proceeding, they have failed to meet the standards necessary to reopen the record of that proceeding.

Finally, we deny the requests for protective orders and for a suspension of the .

Unit 1 operating license, it is so ORDERED.

fbt the Commission" SAMUEL J. CillLK Secretary of the Commission Dated at Rockville, Maryland, this 12th day of August 1992.

H C<mnisskmers Rogas and Curtiss were not present rar sie affmnatum or dus order, d they had been peacnt, they muild have afrirrned it.

78 l 1

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Cite as 36 NRC 79 (1992) CLl 9213 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMIGSION COMMISSIONERS:

Ivan Selin, Chairman Kenneth C. Rogers James R. Curtiss Fortest J. Remick E. Gall de Planque in the Matter of Docket Nos. 030 05980 ML&ML 2 030-05982 ML&ML 2 S AFETY LIGHT CORPORATION, et al.

(Bloomsburg Site Decontamination and License Renewal Dentals) August 12,1992 Gn review of an order, LBP 92-13A,35 NRC 205 (1992), w hich consolidated an informal proceeding under Subpart L of 10 C.F.R. Part 2 with a formal proceeding under Subpart O, the Commission determines that the Licensing Board and the Presiding Officer execeded their authority by not seeking prior Commission authorization for consolidation in view of the requirement in 10 C.F.R. I 2.1209(k)(1992) that the Commission approve application of alternative hearing isocedures for Sutvart L proceedings. The Commission autlorir.cs, however, the consolidation of the proceedings.

RULES OF PRACTICE: COMMISSION SUPERVISORY AUTilORITY OVER ADJUDICATIONS Even in the absence of a petition for review, the Commission retains its supervisory power over adjudications to step in at any stage of a proceeding and decide a matter itself.

79

ROLES OF PRACTICE: COMMISSION GRANTING OF PETITION

FOR REVIEW In the interest of reaching an expeditious resolution of a novel issue raised in a proceeding, the Commission may grant a peution for review without awaiting a reply from any responding party. Ilecause the grant of a petition only indicates dut an issue is worthy of Commission consideration, respondents are not prejudiced if they are provided a subsequent opportunity to present their views on de merits of the issue accepted for review.

RUI.ES OF PRACTICE: INTERLOCUTORY REVIEW Although the Commission conducts review of interlocutory orders of presid.

Ing officers sparingly, the Commission may take review of an interlocutory order to remove doubt as to the proper resolution of an unusual or novel quesdon or to cure an error, particularly when the matter bears on the underlying authority of the presiding officer to take certain action in a proceeding.

RULES OF PRACTICE: INTERLOCUTORY REVIEW Although the Commission's supervisory power extends to circumstances that do not meet the standards for review specified in 10 C.F.R. 6 2.786(b) and (g),

de Commission adheres as a general rule to the standards codified in those regulations.

RULES OF PRACTICE: DISCRETIONARY INTERLOCUTORY REVIEW

'Ihe unprecedented consolidation of a Subpart O and a Subpart L proceed-ing raised a substandal and important jurisdictional question and affected the Subpart L proceeding in a pervasive and unusual manner such that discretionary interlocutory review by the Commission of the consolidadon order was war-ranted.

RULES OF PRACTICE: INFORMAL llEARINGS A hearing on the denial of a materials license is ordinarily governed by the informal hearing procedures in Subpart L of 10 C.F.R. Part 2: Commission approval is required for the application of ahernative procedures in such pro-ceedings.

80

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-______m _.

RULES OF PRACTICE: RULES OF GENERAL APPLICAlllLITY Although procedures in Subpart O of 10 C.F.R Part 2 may have general application to all types of Commission proceedings other than rulemaking, application of Sulpart O must be determined in the context of the special rules i I

that are applied to other proceedings. In any conflict between a general rule in i

Subpart O and a special rule in another subpart, the special rule governs. See 10 C.F.R. 6i 2.2, 2.3 (1992).

RULES OF PR ACTICE: CONSOLIDATION OF PROCEEDINGS Although the concept of consolidation of proceedings embodied in 10 C.F.R. 6 2.716 (1992) is not in itself inconsistent with Subpart L procedures, conversion of a Subpart L proceeding into a Subi rrt O proceeding through consolidation of proceedings requires Commission autho&ation in order to give proper effect to  ;

litnitation specified in 10 C.F.R. 6 2.1209(k) (1992) with respect to the adoption of alternative hearing procedures in Subpart L proceedings.

RULFS OF PRACTICE: CONSOLIDATION OF PROCEEDINGS As a general practice, tM Commission defers to the Licensing Board's judg-ment on the consolidation of proceedings, absent the most unusual circum-stances.

. RULFS OF PRACTICE: CONSOI.lDATION OF PROCEEDINGS

'Ihe common litigants, the potential commonality of issues, and the avoidance of unnecessary litigation over procedural matters weighs in this case in favor of consolidation of a Subpart L proceeding with a Subpart O proceeding.

MEMORANDUM AND ORDER I. INTRODUCTION in out order of July 2,1992 (unpublished), we granted the Nuc! car Regulatory Commission (NRC) Staff's petition for interlocutory review of an order dated June 11,1992, LDP-9213A,35 NRC 205, which consolidated two proceedings before an Atomic Safety and Licensing Board. One proceeding concerns the Staff's denial of applications for rencveal of materials licenses. The other 81

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proceeding concerns a decommissioning order, the effectiveness of which is contingent on the sustaining of Staff's license denial.

De controversy centers initially on the authority of the Presiding Officer and the Licensing Board to consolidate the proceedings and the consequent application of formal, as opposed to informal, hearing procedures to the license denial proceeding. Staff contends that the informal hearing pocedures in Subpart L of 10 C.F.R. Part 2, rather than the formal hearing procedures under i

Subpart O applicabic to the contingent order proceeding, should apply to the license denial poceeding.8 Subpart L normally contemplates that the presiding i officer will render a decision based on the review of an identified hearing l file and other written submissions of the parties. See 10 C.F.R. 602.1231, 2.1233 (1992). By consolidating the denial proceeding with the contingent order proceeding, the June 11 consolidation order converted the license denial proceeding from a Subpart L to a Subpart O goceeding. Subpart O of 10 C.F.R.

P.'.rt 2 provides more formal trial-type hearing procedures, including discovery and cross <xaminadon that are not routinely available under Subpart L.8 We asked the parties, the Licensing Board, and the Presiding Officer to provide us their views on several quesdons related to the consolidation of die proceedings and the applicability of pardcular hearing procedures. Although we have determined that the Licensing Board and the Presiding Officer did not have the authority to :onsolidate the two proceedings without Commission approval, we now authorire consolidation.

II. IIACKGROUND

• The unusual cirrumstances that led to our decision to review the June 11 ordct began with Staff's denial on February 7,1992, of pending applications for renewal of byFoduct material licenses and its concurrent issuance of a contingent decommissioning order to Safety Light Corporation and other corporations (hereinafter **Licensecs").5 The Staff relied on the Licensecs' alleged failure to comply with the financial assurance requirements of 10 C.F.R. 6 30.35 (1992) as the primary basis for license denial. The Staff's order was issued under 10 C.F.R. 62.202 (1992) and established decommissioning criteria 3

10 CJ ll il11201 112610902).

2 10 Cf.lt il 2.M2.790 099.4 314 Ler imm Rohen M. Bernem. Duector, office or Nucicer Maurial safcay and safeguards, to Jad hidler.

President, safmy light Corp. and Ralph T. Mcuvenny. Chairman. UsR ladustries. Inc. (la 7.1992). staff dmied venews! of two licenses: license No, 37-00030-02. which authorned possessh of byproduct maienal in the form or contaminated facihties and equipmers at the Ensburg finnsylvsma s4te for purpraes of decantaminatson and disposal; and ticmse No. 37 000mts. which pnnci,ully authorued possession and ime or unium for researth, devekyvnent, and manufacture of products far funher distn'nutmt. N Commssaian recognizes that t?SR Industnes and its subsidianes dispute the staff's asserben or junai ctant over them. Just as they denied NRC's junsda tson with tespect to carber Staff orders. Set AIAR-931. 31 NRC 350 0990).

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and standards for the Licensees' site in Hk3omsbuig, lYnnsylvania, contingent on the effectiveness of the Staff's license denial.4 At the time Staff issued its license denial and contingent order, a proceeding (the "OM" proceeding) was pending on two Staff orders issued in 1989 to compel the same Licensecs to undertake site characterization and decontamination and to establish a S1 million escrow fund to te used for such purposes.8 On February 27, 1992, the Licensecs requested a hearing on the license denial and the contingent order. The Secretary of the Commission referred i the Licensecs' request to the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel for appropriate action in accordance with 10 C.F.R.

Il2.772(J),2.1261 ($992).' Relying on the procedures in Subpart O of part 2, 10 C.F.R. 99 2.700-2.790, the Chief Administrative judge established a Otree-member Atomic Safety and Licensing Board to peside over proceedings on the license denial and contingent order,'

llowever,on April 13,1992, the Staff moved the Licensing Board to refer the case back to the Chief Admmistrative Judge to correct the allegedly erroneous establistunent of the three-member Board and to reassign the proceedings to a j single presiding officer under Subpart L of 10 C.F.R. Part 2, the procedures i that normally apply to hearings involving materials licensing matters. He  ;

Staff argued in its motion that both the license denial and the contingent order should be governed by Subpart L rather than Subpart O. In the Staff's view, tic contingent order, though it was issued under section 2.202 and referenced certain Subpart O procedures," flowed" from the license denial and should be considered under Subpart L.

In a June 1 order (unpublished), the Licensing Board granted the St:,ff's motion in part by referring the license denial back to the Chief Administrative Judge for consideration of whether it should be severed from the proceeding and a single presiding officer appointed under Subpart L to conduct the license denial proceeding. Although the Board expressed concern over Oc potential inefficiency that creation of a separate proceeding on the denial could engender, the Board agreed with Staff that section 2.1201(a) appeared to direct that the hearing on the license denial te conducted under Subpart L.%c Board rejected Staff's argument that its contingent order could be heard under Subpart L in view of the order's explicit reliance on section 2.202 and the direction in sections 2.700 and 2.1201(b) that hearings on section 2.202 orders be conducted in 4

Order Lstabluhms Cnterm and seedule for thumussioning the Bloorraburg Site, s7 Fed Reg. 61% (tw 20.1992).

8 54 Fed Reg 12.n35 (Mar. 23.1989); 54 Fed. Reg M,078 (Aug 31.1989).

• Memwandum ror B Paul Cater. Jr.. Chier Administratwe Judge, imm Samuel J. Chdh. Secretary (Mar.17, 1992) 7s? Fed. Reg 10.932 (Mar. st.19921 The LJee.uina floard members were the same si oese assigned to the

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accordance with Subpart G. Acting on the Licensing floard', referral, the Chief Administrative Judge accepted the Board's analysis and severed the license denial from the contingent order and oppointed Judge Moore, the chair of the Licensing Board in the contingent order proceeding, as the Presiding Officer in the lleense denial proceeding in accordance with Subpart L. Unpublished Memorandum (Designating Presiding Officer) (June 9,1992).

On June 11, however, the Licensing Board in the contingent order proceeding and Judge Moore as the Presiding Officer for the license denial proceeding decided that "the consolidation of these two proceedings for all purposes will be in the best interests of justice and be most conducive to the effective and :fficient resolution of the issues and the proceedings." LDP 92-13A, .tupra,35 NitC at 205. Hey relied on 10 C.FA $ 2J16 (1992) as a basis for consolidation of the two procecdings as a Subpart G proceeding. They also indicated that the Staff had conceded that they could take such action. /d. at 206 n,*, c!Iing Prehearing -

Conference 'nanscript (Tr.) 61 (May 8,1992). They did not consolidate the proceedings with (A preexisting "OM" proceedings under Subpart G, but held out the possibility that such action might be taken in the future.

De Staff sought reconsideration of the Board's June 11 order in a prehearing conference called at Staff's request on June 18, 1992. He Staff denied that it had conceded the linard's power to consolidate the two proceedings and suggested that Staff counsel's comments had been misinterpreted. The Board rejected Staff's request for reconsideration and fof a stay of the proceedings while the Staff sought Commission review. Tr. 161,167.

De Staff sought Commission review of the Board's consolidation order in a petition for review filed on June 26,1992. We decided to take review in our July 2 order and invited the parties, the Presiding Officer, and the Licensing Board to offer us their views on the following questions related to the determination to consolidate the proceedings:

1. Should the promedmg umcerning the denials of the arplicatims for renewal of the licenses be cmducted in accordance with the informal procedures set forth in Subpan L? If not what special circumstances or issues warrant the apphcatim of uher procedures?

2. If the proceedmg concerning denial of the applications for renewal of the licenses is c<salucted under Subpart 1, sh mild the proceeding under Suipart G on the decuenmissioning order, aral/or the prmcedmgs urer Saiyart G on the Mardi and August 1989 orders, be held in abeyance per.dmg decision m the Subpart t, proceedmg7

3. If the proceeding cmcerning denial of the arphcations for renewal of the hcenses is cmdocted under Subpart G, shmid that proceedmg be conschdated with the proceedmg on the ender of February 7.1992. for deconunissiming, and/or the mgoing proceedmgs concerning the March and August 1989 orders? In particular, to what extent are the same intercus affeded and the same questims raised in these proceedings?

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111. ANAINSIS A. The Propriety of Commlulon Reslew At the outset we note Licensecs' suggestion that we should have awaited their response to the Staff's pethion for review before we decided to step into this matter. Although the Licensecs do not claim that they were in any way prejudiced by our action, they suggest that w would have had a greater appreciation of the " painstaking effort" undertaken by the Licensing Board to unravel the knotted strands of the Safety Light proceedings,' Moreover, Licensecs suggest that Staff omitted any discussion from its petition of die

" careful and methodical process" that the Licensing Board undertook to arrive at its decision and for that reason alone Staff's petition should be denied.'

Although we could have waited to consider a response from Licensees to Staff's petition before acting, we were not required to do so. Even in the ,

absence of a petition for review, the Commission retains its supervisory power over adjudications to step in at any stage of a proceeding and decide a matter itself.8' In view of the novel question presented by the Licensing Board's and Presiding Officer's assertion of authority to consolidate the two proceedings and in the interest of reaching an expeditious resolution of the issue, we granted review. Because our July 2 order merely decided that the issue was wordiy of our consideration, Licensecs have been afforded a full opportunity to have their views heard on the substantive issues, We are mindful of Licensecs' caution that we exercise our interlocutory review authority sparingly, lest we discourage responsible actions by presiding officers or licensing boards in managing our proceedings, We certainly do not leap forward to scrutinize every interlocutory directive or procedural order of the presiding officers or boards, but adhere as a general rule to the stringent standards for interlocutory review which are codified in 10 C.F.R. 92.786(g)

(1992)." Nonetheless, no matter how otherwise sensible or thoughtful the actions of a licensing board or presiding officer may be, we do no harm to  !

8 Response or USR laduatnes, lac and safosy light Corpurnum to the Nuclear Regulatory Cinnmmsion*e A'.y 2,1992 order at s s Ouly 13,1992) (hemnafter 1xemnecs' Respmae). stafr asks that we grara leave under 10 C l .R. I 2.786(b)(3) (1992) to ans4dar suff's views kled in respnnse to licensees' epostuen to its peution for review. NRC stafr's Reply to Respism or UsR Industnes, we., at 3 a 4. our leave is not required, because our kly 2 order itsett pernuumd a reply to licesees' r.hng.

'llcansees' Respmse et 5. We see no ment to luensecs'suggesuun that start omiued sigmricant irArmanon frorn ha pet 4 dan ur that stafr otherwise escceded the bounds of advocacy in its petinan. starr's pchuan mues fair reference to the events that ulumstely precipitated its peunan. In any evert, we have mme to the dacist er thte pnranding and are well eme e or the rihngs and orders that preceded our actitat.

l'10 CJJL. Il2.71s0) 1786(a),2.1209(d) 0992% see 06, fd. son Ce, (Parry Nuclear Power Plant Unit I),

Clj 91-15, s4 NRC 269 0991). reconsideranos demisd, Clj 92 6,35 NRC 86 0992x rabl4c Servue Co. of New flanyubre (%4hmuk statum. Units 1 and 2). ClJW3, si NRC 219,229 (1990).

"See $4ery figu Corp. Olloivnshurg saa rhmiammaum), CLJ 92 9, 35 NRC 156, I$8 0992), terrht Cenatal Decine Co, (Pchble spnngs Nuclear 1%nt, Uiuta 1 and 2), C1.1%26,4 NRC ml (1976).

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the orderly conduct of adjudicatory proceedings by intervening to remove doubt as to the proper resolution of an unusual or novel question or to cure an error, particularly when the issue tears on the underlying audiority of the presiding of 6cer or licensing teard to take action in a proceeding.

Although our supervisory power extends to circumstances that do not meet the standards for review under 10 C.F.R. 5 2.786(b)(4) and (g), our decision to take review in this case fully satisfies those standards, in view of the unprecedented nature of the consolidadon which arguably exceeded the bounds of the Licensing Board's and Presiding Officer's delegated authority, we believe that a substantial and important jurisdictional question has been raised.n As has been repeated many Umes in NRC proceedings, licensing teards and presiding officers possess only the powers granted to them by regulation or Commission order." 7he consolidation order certainly affected the license denial proceeding in a pervasive and unusual manner by converting it from a Subpart L proceeding into a Subpart O proceeding."

11 Authority to Consolidate Subpart G and Subpart L Proceedings For the reasons dut follow, we believe that the Licensing floard and the Presiding Officer exceeded their powers in the June 11 order. Under the Commission's regulations, a hearing on the denial of a materials lleense is ordinarily governed by the informal hearing procedures in Subpart L of 10 C.F.R. Part 2; hearings on section 2.202 orders are governed by the trial type procedures set forth in Subpart d.10 C.F.R. 65 2.700,2.1201 (1992). "Ihe Licensecs did not indicate in their hearing requests the procedures that they expected to be applied in any hearing nor did they express a preference for procedures." The Licensing Board in its June 1 order and the Chief Administrative Judge in his June 9 order correcdy construed sections 2.700 and 2.1201 in determining that the hearing on the license denial is governed by Subpart L and that the hearing on the Staff's -

condngent decontamination order is governed by Subpart O The terms of those regulations leave litdc doubt as to their applicability to the proceedings on those respective actions."

it see 10 CJ A l1786(bX4Xu). Cui) 0992).

U 5ee, e g . PuNec Sovice Ce, cfInlana (Marbic 11.11 Nac!rar oenersung stauun. Ututa 1 and 2). AIAD-316 3 NRC 167.17(k710977).

H 5ee 10 CfA 6 2.786(3)(2) (1992)

UUs. der sulpen L.a twensce may an4 the a;pbcaum er pwedures other than subpen lahan a Nanna request is made.10 C.ER. 611205(b) 09921 l'stafr does non raise on sevww hs eather argument that the cmungant order, becease it har' rnen the hcanse denial, could be handled under suben L Ahhaugh the estabhahmcnt at the decmunssakwung cntena rnight have been handled by some other Foredural means. stafr clume la imgume the sequuements thnsgh an enforcemeit crder under 10 C.F R- $ 2 202 0992) and rebed spenrwauy m sutvart o procedures m inicrvenuan in its enist.

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llowever, the subsequent consolidation of the license denial and the decon-tamination order proceedings (kies not appear to be consistent v ith the governing procedural regulations. The Licensing Board and Presiding Officer rely on 10 C.F.R.12.716 (1992) as a rule of general applicability in Sub;urt O which authoriped them to consolidate the two proceedings." Although Subpart O pro- l' cedures niay be generally applicable to types of proceedings other than rulemak-ing, application of Subpart O aust be determined in the context of the special rules that are apphed to other proceedings." Moreover,in any conflict between a gercral rule in Subjurt O and a special rule in another subpart, the special rule governs."

We agree with the Licensing Board and Presiding Officer (and Licensees who make a similar argument) that the concept of consolidation of proceedings ,

embodied in section 2.716 is not in itself inconsistent with Subpart L proce- l dures. The critical inquiry is, however, whether corisolidation of a Subpart L i proceeding with a Subpart O proceeding can be effected without the Commis-sion's audoritation. In Subpart L proceedings, presiding officers are limited to -

using the procedures in diat subpart unless dicy recommend and receive Com-mission approval for the application of other procedures.10 C.P.R. 5 2.1209(L)

(1992)." In this case, the consolidation order converts the Subpart L proceeding into one governed by the procedures of Subpart G. Thus, absent Commission authoritation, the Licensing Board's and the Presiding Officer's consolklation of Oc proceedings evades the provisions of the specific rule in section 2.1209(k).

Although consolidation may be an appropriate step, Commission authoritation for consolidation is required to ensure that the proper effect is given to the limitation on the application of other hearing procedures specified in section 2.1209(k).

C. Whether Consolidation Should lle Authorlied in its July 17 memorandum issued in response to our order taking review, the Licensing Board and the Presiding Officer elaborated upon their reasons for con-solidating the license denial proceeding with the proceeding on the contingent "ISP-92-16A,36 NRC 1 s,20 a 6 (1992)

" 10 CJ R. l 2 2 (1992)-

"10 CTA I2.3 (1992)r

1. We tenerstad in a 1990 rulemaking the naessay d duauung Cavrsn namn aivan el ror use or <aher pmedwen inrnrmallleanos Procedures for Nuclear Reedte o r=rauw themams Adjudwauuns. Ss l'ed Reg 36,s01,36,804 (Segt,7.19W) subpan 1. pnmdes an sacerton in setu<m 21207 shwh penruta consdioanm d paceedess cuswernmg receipt and poseennon d unirredmed fuel wuh related pmceedegs unds subpan o on Pan 50 ractiny knensms upon certhcauon by the twerums board that the inauen in the pneedman are substannally identical.

In our new, this sacephan undersc<sts the general rule in secuan 11209(k) otherwise mpurms C<sumanion appnnel d alwrutwo procedures.

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6 order.8* In their view, the proceedings share a common factual setting and involve common, unresolved, and no.cl issues concerning personal jurisdiction over USR Industries and its subsidiaries. Consolidation will avoid, they believe, duplicative hearings that wuld squander the Licemees' limited resources that would otherwise be available for site remediation.

De Licensing floard and the Presiding Officer are also concerned that the doctrine of collateral estoppel may be inapplicable between the two proceedings if the license denial proceeds under Subpart L because of the potential absence of a " mutuality of quality and extensiveness of procedures" between infortnal proceedings under Subpart L and formal proceedings under Subpart 0." 11y consolidating the proceedings under Subpart 0, they believe they can avoid this potentbl problem and the concomitant risk and expense of having to try some issues twice withl ossibly lacon istent results. Tte lloard and Presiding Officer also suggest that their action avoids the litigative risk over the propriety of applying Subpart L procedures to the Staff's denial action when that action could also be characterized as a license revocation or other enforcement action subject to Sutpart O. Lilp 9210A, supra. 36 NRC at 21 n.10.

De Licensecs give a number of reasons why they believe the proceedings should be consolidated and conducted in necordance with Subpart O procedures.

Response to July 2.1992 Order at 812. Sevent of these are premised on a perceived common factual basis for the license denial and the contingent order as well as asserted overlap or interrelationship of issues in the denial and contingent order proceedings and the "OM" proceeding on the 1989 orders.

De Licensees emphasize in particular the potential interrelationship between the funding requirements for decommissioning under one of the 1989 orders and their alleged failure to meet the funding obligations under 10 C.F.R. { 30.35 (1992) which led to Staff's der.lal of Ilcense renewal %e Licensecs also see potentially common issues related to the decommissioning requirements and standards imposed by the 1989 order and the 1992 contingent order."

De Licensecs also suggest that Subpart O procedures should apply to the license dental proceeding to permit them to explore the possibility of arbitrary and dilatory action by the Staff in handhng the license renewal applications as well as the application of rules in agreement states compatible with 10 C.F.R. 21

!JiP 9216A, s.cre 36 NRC at 2G 21. De liased and Presadmg orfuer stats that $cy did nos esplam in delad in their ruly 11 order their acasans for cmsuhdatmg the pro 6eedings laaune they betwved that start sewnsel had simceded their authority to do so, thereby obviateg the need to give a deta. led capaniini or their r 6mals. ld at 19 n1 22f g ,, gg ,9, gu,,, p,,y,, g,,,, c,, ,,3%,c. 439 U.s 322,3sI n.1s (1979).

Unus, in response to the Cumnussim's quesum. the lucnices bcheve that all pedmg trtwecemgi invidving sarcty IJght's opersnans should be smsoluisied, a swp that the Ikcrtamg Board and the Prmdmg otraer dad to taks.

88

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6 30.35 (1992)** "Ihe Licensees do little to explain why these issues, to die extent they may te litigable, require application of Subpart O procedures.

Stalf insists that the license denial should not be consolidated with any of the other proceedings but should te handled under Subpart L procedures, in Staff's view de license denial involves the discrete issue, pimarily legal in nature, of the Licensecs' compliance with section 3035, which can be judged on the basis of the documents submitted by the Licenstas and any other documents relevant to Staff's review and determination to deny the applications. Subpart L i is pirticularly well suited, Staff maintains, to the resolution of matters that can rest on review of a w ritten record. With the excepdon of jurisdicthmal questions, Staff disputes that the dental proceeding concerns substantially the same issues as the conungent order poceeding or the "OM" proceeding. Staff asserts that the .

substandve issues involved in the contingent order do not involve any quesdon as to Licensecs' compliance with secdon 30.35. Moreover. Staff maintains that the funding requirements under the 1989 order are not substantially related to cornpliance with secdon 30.35. In Staff's view, the Licensecs' contentions concerning dilatory and arbitrary conduct on the put of the Staff and unlair I application of section 30.35, even if they present litigable matters, do not inherendy require application of Subpart O procedures As to the collateral estoppel cf fcct of a decision reached uruler Subpart L to a Subpart O proceeding, Staff suggests that the Board and Presiding Officer can avoid the question by proceeding with the resolution of the jurisdictional matters in the "OM" proceeding under Subpart O and then applying that decision to the Subpart L denial proceeding.

Itaving considered the views of the Licensing Board and the presiding Of-ficer and the positions of the parties, the Commission has decided to adhere to our general practice of deferring to the Licensing Board's judgment on consol.

Idation cf proceedings, absent "the most unusual circums:ances "" Although consolidation may not be the only way of dealing with some of the thorny prob-lems posed by these proceedings, the Licensing Board and Presiding Officer base their decision on factors that are well within the traditional grotmds for consohdating proceedings: i.e., the similarity of issues in the proceedings, the commonality of lidgants, and the convenience and saving of time or expense,

Accordingly, we consent to the consolidadon of the license denial proceeding and the proceeding on the contingent decommissioning order, 24 tA n.ees' Response si 1(k12. .

U febble spriags, ClJ 76 26, swes. 4 NRC si &#, an abo Alabama Pme Co. (Alan R. Danan Nudcar Mant.

Units I,2,3, and 4. Jasiph M.1:arley Nudear Mant, Uruts I and 2), CtJ 7512,2 NRC 373 (1975).

26 thladr&4a Elecinc Co. (IVach Bostorn Atanue Power statwn, Unna 2 and s). Al.AH 540,9 NRC 428,434 0979).

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In reaching our decision, we do not mean to imply that we believe Sub[urt L procedures are inadequate to resolve the issues bearing on the license denial.

Even if Liernsecs' charges of dilatory conduct by the Staff or discriminatory application of section 30.35 are litigable, nothing in the Licensecs' submittal convinces us that die issues in the denial poceeding inherently demand the ap-plication of hearing procedures beyond that afforded in Subpart L. Moreover, j the possibility that the Staff, rather dian denying renewed licenses, could have l issued an enforcement action under Subpart 11 of 10 C.F.R. Part 2 on the basis of Licensecs' alleged violation of section 30.35 does not require application of Subpart G procedures in the denial proceeding.rs if that were so, virtually no license renewal proceeding could be heard under Subpart L, because the fundamental quesdon in any licensing case is whether the applicant meets die requirements of the governing statute and reguladons. Subpart L is not inhet.

ently inadequate to satisfy the hearing requirements of the Atomic Energy Act or due process in determining such issues. See City of Wc.tr Chicago v. NRC, ,

I 701 F.2d 632 Oth Cir.1983).

Our decision is based instead on the potential commonality of issues in the ~

various Safety Light proceedings as well as the addidonal complications that may arise if we insist that the issues be resolved on two different procedural

~

tracks. Although it is difficult to pinpoint at this early stage precise areas of overlap between the license denial and contingent order poceedings, the Licensing floard's and Presiding Officer's perception that such overlap is likely is difficult to dismiss without committing ourselves to a far closer examination of the issues dian we are prepared to undertake at this time.2' We are not prepared to hold that a lack of mutuality of procedure exists between Sulpart L and Subpart G which would preclude the Commission from giving collateral estoppel effect in Sutpart O poceedings to prior decisions in Subpart L proceedings, llowever, we recognize that consolidation of proceed-ings here and the consequent conversion of the license denial proceeding into a a Subpart O proceeding would certainly cvoid the need to litigate the applica-tion of the collateral estoppel doctrine. In this sense, consolidation will avoid needless litigation in the interest of reaching a decision on the more important issues in these proceedings.

On tulance, if we were to insist under these extraordinary circumstances on the application of Sulpart L procedures to the license denial proceeding, we I7 thensees made htde murs than bald asserunns that subpart o praedures wen nesessary la addnas the issues.

Ikensees' Respmse to July 2,1992 order at 1012.

2s g,e LEP 92-16A. seirra. 36 NRC at 21 n.10

1. fhe panies. the Bosid. and the Presidmg ofEccr suggest that cenatn junndicuanal issues are cunman la all pendmg prweektmgs. Wah respect 50 the beense denial and the 'Ml" proceeding, we assa that there is sharp daagreeman beinen stafr and thensees over the relevance or the tunneca' fundmg assurances pursuara to one ur the 1989 arders to the stafr*s basis ror daual el the renemal hcensra 90 l

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might well undermine the principles of simplicity end efficiency that led us to the adoption of Subpart L in the first instance. A decision to sever the pro-ceedings would not end the haggling over the proper application of procedures to particular issues in these proceedings or the desirability of addidonal proce.

dures. In these unusual circumstances, the avoidance of additional procedural complications outweighs any added burden that application of Subpart O might impose. We are concerned that the resources available for site ternediation not be consumed by unnecessary litigation costs.

We note Staff's concern that consolidation of the proceedings may postpone a decision on some issues that could be decided in advance of others. Our impression is that the Licensing Lloard is working hard to sort out the issues in the various Sqfety Ught proceedings to ensure their timely and rational resolution. We encourage the Licensing floard to use the kmls at its disposal, e.g., reastmable limits on discovery and use of summary disposition, to expedite the resolution of these proceedings with due regard to the rights of the parties.

We leave to the Licensing Iloard's sound discretion whether formal consolidation of the "OM" proceeding with these proceedings is appropriate to ensure a prompt and just resolution of the issues.

IV. CONCLUSION rur the reasons stated in this order, we reverse the Licensing ikiard's and Presiding Officer's order of June i1,1992, insofar as it consolidated the license denial and the contingent decommissioning order proceedings without prior Commission authoritation. Ilowever, we now authorire consolidation of these proceedings for the reasons stated in this onlet.

IT IS SO ORDERED.

For the Commission" SAMUEL 1. ClllLK Secretary of the Commission Dated at Rockville, M.ryland, this 12th day of August 1992.

"Civnmisskmers Rogers and Cums wee nd pesent for the affmnatnm cd this order. If they bd been pesent.

they would have arrirmed a 91

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I l Atomic Sa"ety l

anc Licensing j

Boards issuances l,

1 ATOMIC SAFETY AND UCENSING BOARD PANEL g

. B. Paul Cottor,* Chief Administrativo Judge .O

Robott M. Lazo,* Deputy Chief Administrative Judge (Executive)

Frederick J. Shon,* Deputy Chief Administrativo Judge (Technical)

Y O

Members

] g  :

Dr. George C Arderson James P Gleason Dr Kerveth A. McCollom Charles Bechhoefer* Dr. David L. Hatrick Marshan E. Msiler Peter B Bloch*

G. Paul Bollwerk lit

• Emest E. Hs Dr Fins R Hooper Thornas S. Moore

• Dr Peter A. Moms

{

j l Glenn O Bnght Ekzateth B, Johnson Thomas D. Murphy  ;

l Dr A. Otxon Callihan Dr Watter H Jordan Dr. Richard R. Partrek j

]

Dr James H. Carpenter

• Dr Charlos N. Kolber*

Dr Rchard F. Cole

• Dr. Jerry R Khne*

Dr. Harry Rein Lester S Rubenstein

[

Dr Thomas E. Elleman Dr Peter S. Lam

• Dr. Davd R. Schink Dr George A Ferguson Dt Hany Foreman Dr James C. Lamb lit Dr Emmeth A. Luebke Ivan W SnenM Dr George E Tidey h

r Dr Rchard F. Foster Morton B Margules* Sheldon J Wolfe d .

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• Permanew,t panel memt>ers P

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Cite as 36 NRC 93 (1992) LBP 9718 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Ivan W. Smith, Chairman Dr. Narry Foreman Thomas D. Murphy in the Matter of Docket No. 030-31758-EA (ASLBP No. 92 656 01.EA)

(EA 91154)

(Byproduct Material License l No. 34 2620101)

RANDALL C. OREM, D.O. August 6,1992 MEMORANDUM AND ORDER -

(Approving Settlement Agreement and Terminating Proceeding)

On July 28,1992, the parties to this enforcement proceeding, the NRC Staff and Randall C. Orem D.O -filed with the Atomic Safety and Licensing Board (1) a Settlement Agreement that has been accepted and signed by both parties and (2) a joint motion requesting the Doard's approval of the Agreement and entry of an order terminating this proceeding, together with a proposed Order.

'the lloard has reviewed the Settlement Agreement under 10 C.F.R. 6 2.203 ,.

to determine whether approval of the Settlement Agreement and consequent termination of this proceeding is in the public interest. Based upon its review, the Board is satisfied that approval of the Settlement Agreement and termination of this proceeding based thereon are in the public interest.

Accordingly, the lloard approves the Settlement Agreement attached hereto and, pursuant to sections 81 and 161 of the Atomic Energy Act of 1954, as i l-

. . I. .. . _ . _ - _ - . _ _ - _ . . , . . _ . _ . _ . . _ . . - . _ , _ , ,

amended (42 U.S.C. 62111 and 2201), incoriorates the Settlement Agreement by reference into this Order. Purmant to 10 C.F.R. 6 2.203, the lloard hereby terininates this prtweeding on the tosis of the Settlement Agreement, Tile ATOMIC SAFETY AND LICENSING BOARD llatry fireman (by 1.W.S.)

ADMINISTRATIVE JUDGE Thomas D. Murphy ADMINISTR ATIVE JUDGE Ivan W. Smith, Chairman ADMINISTRATIVE JUDGE liethesda, Maryland August 6.1992 94

ATTACHMENT UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND UCENSING BOARD in the Matter of Docket No. 030 31758-EA (ASLBP Ho. 92 G56-01.EA)

(EA 91 154)

RANDALL C. OREM, D.O.

(Byproduct Material License No. 34 2620101)

SE1TLEMENT AGREEMENT Randall C. Orem, D.O., was the holder of 11yproduct Material License No. 34-26201-01 (license) issued pursuant to Parts 30 and 35 of the Commission's reg-ulations. 'Ihe license authorized the possession and use of radiopharmaceuticals in nuclear rnedical activities. On Novemtxr 29, 1991, the NRC Staff (Staff) issued an Order Revoking License (Effecuve immediately) to Dr. Orem. 56 Fed. Reg. 63,986 (Dec. 6,1991). Dr. Orem requested a hearing on that order on December 3,1991.

An Atomic Safety and Licensing floard (Board) was designated cn January 6, 1992 (57 Fed. Reg.1285 (Jan.13,1992)), and a prehearing conference was held, telephonically, on January 29, 1992. At that conference, the pending Office of Investigation's (01) investigadon was discussed, it was explained to Dr. Orem's attorney that additional enforcement sanctions could be imposed or a referral to the Department of Justice could be made based on the outcome of the investigation. 'IY,814. As a result of that discussion, Dr. Orem filed, on February 27,1992, " Motion for Adjournment of licating.*' 'Ihe Staff did not oppo e Dr. Orem's Motion.

On March 19,1992, the Board issued " Memorandum and Order (Ruling upon Dr. Orem's Motion to Adjourn llearing)." In that Order, the Ilmrd granted the motion, in part. "Ihe Bmrd stated that "[t]his proceeding is hereby continued until the completion of the 01 investigation or until July 1,1992, whichever is earlier," Order at 2. 'the Board also requested the Staff to file a status 95 l

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report on the 01 investigation by June 15, 1992. Id. On June 15,1992, the Staff filed " Status Report," indicating that the best estimate for the compleuon of the 01 investigation would te the end of August or early Septernber 1992.

Subsequently, tie Staff filed " Supplemental Status Report" on July 1,1992. In that report, the Staff stated that 01 had completed all the necessary field work for the O! investigation, although the actual report was not yet completed. The NRC decided not to take any further petion against Dr. Orem.

After discussions between the Staff aad Dr. Orem, the parties agree that it is in the public interest to terminate this proceeding without further litigation and agree to the following terms and conditions:

1. Upon Licensing Board approval of the Settlement Agreement, Dr.

Orcrn's request for a hearing dated December 3,1991, is withdrawn. ,

2. Upon Licensing Board approval of the Settlement Agreement, the Order Revokmg License, dated November 29,1991, is withdrawn.

3. Upon Licensing Beard approval of the Settlernent Agreement, Dr.

Orem's license is terminated. In agrecing to the termination of his license, Dr. Orem does not admit to any wrongdoing or violation of federal statutes and regulations.

4. The NRC Staff agrecs that none of the facts associated with this proceeding will te held against him in the event Dr. Orem submits another application for a specific license on his own behalf or a license amendment application is sutunitted to name Dr. Orem as an authorized user, if such application is in compliance with the Atomic Energy Act and the Comtvission's regulations, such application shall be granted.

5. *ne Staff and Dr. Orem shall jointly move the Atomic Safety and Licensing Board for an Order approving this Settlement Agreement and terminating this proceeding.

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6. 'Ihis agreement $liall beccane effective upon approval by the Licensing 4 I

lhiard.

FOR Titti NUCLEAR REGULATORY COMhilSSION ,

i Marian L. Zobier Counsel for NRC Staff FOR RANDALL C. OREM, D.O.

Ocorgette J. Siegel Counsel for Randall C, Orem, D.O.

Dated July 28,1992 97 i

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Cite as 36 NRC 98 (1992) LBP 9219 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 3

I Before Administrat've Judges:

l Marshall E. Miller, Chairman j i

Charles Bechhoefer G. Paul Bollwerk, til )

in the Matter of Docket Nos. 50 440 A

, 50-346 A (ASL3P No. 9164441.A)

(Suspension of Antitrust Cor *tions)

(Facility Operating Licenses Nos. NPF 58, NPF 3)

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

CLEVELAND ELECTRIC ILLUMINATING COMPANY and TOLEDO EDISON COMPANY (Perry Nuclear Power Plant, Unit 1; Davis Besse Nuclear Power Station, Unit 1) August 6,1992 l

In this Memorandum and Order, the Licensing Board grants a late intervention petition. ' Die Board concludes that (1) recent developments have cured a previously identified deficiency in the Petitioner's standing to intervene in the proceeding, and (2) a balancing of the five factors set forth in 10 C.F.R. 6 2.714(a)(1)(i)-(v) govuning late intervention favors granting the Petitioner party status.

98

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i ATOMIC ENERGY ACT STANDING TO INTI:RVENE (INJURY IN FACT)  ;

RULES OF PRACTICE: STANDING TO INTERVENE (INJURY IN FACT)

A municipal ordinance that makes provisions for all the elements essential to canying out the construction, operation, and maintenance of a rnunicit ut electrical system demonstrates that the enacting municipality's interest in the proceeding as a customer and competitor of a utility applying for suspension of its facility's operating license antitrust conditions is tangible enough to afford the municipality standing. ,

ATOMIC ENERGY ACT: STANDING TO INTERVENE (ZONE OF INTEREST (S))

RULFS OF PRACTICE: STANDING TO INTERVENE (ZONE OF INTEREST (S))

Although a inunicipality's electrical system is in its incipient stage, the municipality's indication that it ultimately may wish to invoke the protection utforded by operating license antiuust conditions imposed pursuant to section .

105 of the Atomic Energy Art (AEA),42 U.S.C.12135, makes its expressed interest in preserving those antitrust provitions one that falls within the " zone of interests" created by AEA section 105.

RULFS OF PRACTICE: INTERVENTION PFTITION(S) (GOOD -

CAUSE FOR LATE FILING) in the 10 C.F.R. 5 2.714(a)(1) five-factor balancing test governing late inter-vention, the first factor of "[glood cause, if any, for failure to file on time" is important because, in the ribsence of " good cause," there generally must be a compelling showing regarding the other four factors. Sec LDP 9138,34 NRC 229,249 & n.60 (1991).

RULES OF PRACTICE: INTERVENTION PETITION (S) (GOOD CAUSE FOR LATE FILING)

Bearing in mind the Appeal Boant's observation that " newly acquired" standMg is generally unsuitable as a basis for " good cause," Carolina Power and Light Co. (Shearon llartis Nuclear Power Plant, Units 1-4), ALAB 526, -

9 NRC 122,124 (1979), the act of an independent utility occurring after the filing deadline that, only consequently, has the effect of affording standing is not 99 l >

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j so unmentarious as to permit intervention only upon a substantially enhanced showing on the other late intervention factors, i

rut.ES OF PRACTICE: INTERVENTION PETITION (S) (GOOD l

e CAUSE FOR LATE FILING) i

In determin5g whether " good cause" exists for a late.ftled intervention

! petition, the significance to be placed on the amount of deliy "will generally hinge upon the posture of the proceeding at the time the retition surfaces."

l i Washington Public Power Supply System (WPPSS Nuclest Project No. 3),

ALAB-747,18 NRC 1167,1173 (1983)..-

f RULES OF PRACTICE: UNTIMELY INTERVENTION PETITION (S)

{ (AVAILABILITY OF OTilER MEANS TO PROTECT PETITIONER'S j INTEREST (S))

"[Tlhe distinctive nature of the Commission's authority to consider and f ~

j address the validity of the antitmst conditions it imposed leads us to agree with (the Petitioner) that no other forum or means no.w available can provide l

equivalent protection for its interest in seeing that the existing license conditions -

l are maintained." LBP-91-38,34 NRC at 247, RULES OF PRACTICE: UNTIMELY INTERVENTION PETITION (S)

}. (ADEQUACY OF EXISTING REPRESENTATION) 1 I Challenge to a late intervention petition that seeks to equate the duplication of l issues with a similarity of the existing participants inteststs is misdirected. See

! Duke Power Co. (Amendment to Materials License SNM-1773 - Transportation

! of Spent thel from Oconee Nucicar Station for Storage at McGuire Nuclear l Station), ALAB-528,9 NRC 146,150 (1979). RMher, the question is, given the

! matters at issue, will the existing parties effecuely represent the Petitioner's interests relative to those matters.

I i RULES OF PRACTICE: UNTIMELY INTERVENTION PETITION (S)

[ (ADEQUACY OF EXISTING REPRESENTATION):

Argument that a Petitioner's interests can be adequately represented by the f' existing parties because its witnesses would be available to those parties fails

to afford prcper n

cognition to the value of participational rights enjoyed by a party, including conducting cross examination. See Duke Power Co., ALAB-528, supra,9 NRC at 150 & n.7.

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RULFS OF PRACTICE: UNTIMELY INTERVENTION PETITION (S) .

(IIROADENING OF ISSUES OR DELAY)

Late-comers to the agency's adjudicatory process generally must take tie pro-ceeding as they find it. See, e.g., Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB 743,18 NRC 387,402 (1983). Nonetheless, the addition of a late-comer brings the possibility that its participation will broaden the issues or otherwise slow the proceeding. This prospect is assessed in the fifth late-filed factor, which quite properly has been denominated as "of im-mense importance in the overall balancing process." Id.

MEMORANDUM AND ORDER (Granting City of Brook Park Motion for Late Intervention)

Ibr the second time in this proceeding involving the requested suspension of the anutrust conditions in the operating licenses for the Perry Nuclear Power Plant, Unit 1, and the Davis-Besse Nuclear Power Station, Unit 1, we have before us a petition from the City of Brook Park, Ohio (Brook Park), asking permission to intervene out of time. We denied Brook Park's previous request principally for its failure to demonstrate an " injury in fact" sufficient to establish its standing to intervene. See LBP 91-38,34 NRC 229,25152 (1991). Brook Park now claims it has cured the standing deficiency identified by the Board and, based on a balancing of the five factors governing late intervention set forth in 10 C.F.R. 52.714(a)(1)(i)-(v), should be afforded party status. We agree on both counts and, accordingly, grant Brook Park's petition.

I.

in a May 1,1991 Federal Register notice, the NRC Staff declared that any interested person desiring a hearing on its denial of the requcsts of Applicants Ohio Edison Company (OE), Cleveland Electric illuminating Company (CEI),

and Toledo Edison Company (TE) for suspension of the antitrust conditions in the Perry and Davis-Besse licenses must file a petition by May 31,1991. See 56 Fed. Reg. 20,057 (1991). On August 8,1991, Brook Park filed a petition to intervene out of time. Both the Applicants and the Staff opposed Brook Park's

. petition as insufficient to establish _its standing and as failing to meet the section 2.714(a) standards governing late intervention.

In our October 7,1991 prehearing conference order, we recognized Brook Park's assertion that it wished to participate in this proceeding to protect its 101

interest in interconnection access, wholesale power sale, and wheeling services now available under the antitrust condition > in the Perry license. We also noted Brook Park's admission that, despite various feasibility studies, it had not yet reached a decision to institute a municipal electrical system. Referring to counscl's statement during the prehearing conference that the citizens of Brook Park would vote in the near future on amending the city charter to establish a municipal electrical system, we dxlared:

If they do so,Ilrook Pa k's stake in this poceeding then will cease to be povisimal and it will becane subject to the sarne emcrete injury in faa that could accrue to itntervenors City d) Ocveland or iArnerican MunicipalIbwer-Ohio,Inc.) as a result of a detennination in this pacce&ng in favor of licensees. At present, however, the abstract, hypothetical nature of the injury to Ilrouk Park is insuf6cient to citablish its standing to intervene in this proceeding.

LBP 9138, 34 NRC at 252 (footnote omitted), This, we concluded, was dispositive of its intervention request.8 Thereafter, the parties to this proceeding submitted summary disposition motions addressing what has been identified as the " bedrock legal" issue,2 a process that culminated in a June 10, 1992 oral argument on the pending motions. At the conclusion of that argument, counsel for Brook Park came forward and advised the Board that the city had recently enactcJ an ordinance establishing a municipal electrical system; as a consequence, Brook Park again intended to seek late intervention, See 'IY,446-47, Subsequently, on June 15, 1992, Brook Park filed an " amended" late intervention petition in which it seeks either "of right" or discretionary intervention See Amended Petition of [Bmok Park] for Leave to Intervene Out of Time (June 15,1992) [ hereinafter Brook Park Amended Petition], in their joint response, the Applicants oppose any grant of party status to Brook Park, See Applicants' Answer in Opposition to the Amended Petition of [ Brook Park] for Leave to Intervene Out of Time (June 3

1n additim, we obsernt that Dmok Park's request was lackmg under a balancmg of the rive late intmmnnon factors speciried in section 2.714(a)O). We made particular acts o(its failure no make a showing about the legal or technical expenence it might bring to the proceedmg, thereby demonstranng its comphance wuh late intervention fador three - the catent to whidt its partici(rtion will assist in developtag a sound record. see 1ED.9138, s4 NRC at 252. Moreover, citmg the reases already espressed for denying us requat for intervention as of nght, we cmcluded St discreuenary uucrvention was not approrcate for Brook Park see hr at 252 n.73.

2 As framed by the perdes in a November 7,1991 leuer to the Board, the"bedmck* legal issue is as folkrws:

la the Commission without authoiity as a matter of Law under sec6on 105 of the Atanic Energy Act to actain the anuuurt hcense conditions contamed in an operating beense if it fmds ht the actual com of c!ccincity from the bcensed nuclear power plant is lugher than the cost of electacity fran alternative source, all as appropnately measured and cornpaved.

Det issue, ahms with the question of whether the ductrme,s or res pdicata, collatual estoppel,laehes, or law of the case bar the Aghesws' antitrust hcenne cmdinon suspcnsion requests, is currently under considerati m by the Board. If we deade, as the Aplicarns' asrart, that the Commission has no authority in such an instance, een the Board would pmceed in a second @ase of the pmceedirg to emsider, among other thmgs, the question of exactly wbst are the actual costs of elecuicity for the Apphcams' facihties and akernadve sourtes.

102

30,1992) [ hereinafter Applicants' Answer). In contrast, the Staff has declared that it does not contest the grant of Brook Park's mo>t recent petition? Sec NRC Staff's Answer to Amended Petition of [ Brook Park) for Leave to Intervene Out of Time (July 6,1992) [ hereinafter Staff's Answer].

II.

A. We begin our review of Brook Park's renewed intervention request with the issue that played a cardinal role in derailing its initial attempt to become a party -its standing to intervene in this proceeding in accordance with 10 C.F.R. 5 2.714(d). In its rnost recent intervention petition, Brook Park states that, in accordance witti section XVlli of the Ohio Constitution, it has now decided to establish and operate a municipal electrical system, which will be in the service area of applicant CEl. See Brook Park Amended Petition at 8 9. According to Brook Park, on November 7,1991, local citiz:ns by a more than three-to-one margin approved a ballot referendum permitting the city to establish a municipal electrical system. Thereafter, following additional review and analysis of the means necessary to establish such a system, on April 21,1992, Brook Park's City Council unanimously passed Ordinance No. 7711 1992 establishing a municipal utility in accordance with requirements of the Ohio Constitution, Art. XVIII, 954 5. Brook Park also states that, in accordance with section 5 of Article XVIll, this ordinance did not become effective until May 22,1992.

In our prehearing order, we suggested that action by Brook Park authorizing establishment of a municipal power system would make its interest sufficiently tangible to fulfill the requisite " injury in fact" elemen', of the well-recognized judicial test for standing that governs NRC adjudicatory proceedings. See LBP-91-38, M NRC at 249 & n.60. He Staff agrees with this assessment. See Staff's Answer at 5. De Applicants, however, intimate that our observation was premature. Hey maintain that the favorable citizen action on the referendum, followed by the passage of the ordinance, does not make Brook Park's interest sufficiently concrete for standing purposes because Brook Park has not shown that it has taken any steps, such as arranging financing, that will result in the actual development of a municipal electrical system. See Applicants' Answer at 4 n.8.

De terms of the ordinance passed by the Brook Park City Council to implement the citizen referendum belie this objectian, hat enactment, entitled "An Ordinance Declaring It Necessary to Establish, Acquire, and Operate a Municipal Electric System," states in its preamble that based upon the prior feasibility studies, the city council determined that "it is in the public interest to 3

None of the other intervems porties has taket any position regarding the propnety of Brook Park's request 103

<..._:m a a en mi .. -u.. .A__ 6 ar . Ar .A Am u a ,, _%n .mh4 _ . - - d .h M establish a municipal electric utility owned and operated by" Brook Park. Brook Park Amended Petition, Exh. A at 1 (Brook Park, Ohio, Ordmance No. 7711 1992, preamble (Apr. 21,1992)). Dereafter, in section I the legislation ordains that Brook Park "shall proceed to acquire, construct, own, lease, and operate , , ,

a public electric utility . . . ." /d. (Brook Park, Ohio, Ordinance No. 7711 1992, i 1). Further, under the ordinance the Mayor of Brook Park is " authorized and directed" to perform the " activities necessary" to implement section 1, including developing plans for the establishment, operation, and maintenance of a municipal power system. Id. at 1-2 (Brook Park, Ohio, Ordinance No, 7711-1992, { 3). In addition, the ordinance states that " funding for acquisition, construction and improvement" of the power system "shall be obtained" by issuing, to the maximum extent possible, "self supporting obligations" of the city and that, prior to issuance of such obligations, city " moneys in its general fund or other available funds" may be used to " pay any costs of acquiring, constructing, equipping and operating" the municipal power system. Id. at 2 (Brook Park, Ohio, Ordinance No. 7711-1992, il 4-5).

Here undoubtedly is much to be done before Brook Park has a ft,lly operational municipal electrical system. Nonedieless, in light of the ordinance, n is reasonable to conclude that Brook Park has made a firm commitment to develop a municipal electrical system. He Applicants' suggestions to the contrary notwithstanding, the ordinance makes provisions for all elements essential to carrying out the construction, operation, and maintenance of that system. We thus have no difficulty concluding that Brook Park's interest in this proceeding as a customer and competitor of applicant CEI now is sufficiently tangible to afford it standing. Additionally, while the electrical system presently is in an incipient stage, Brook Park has indicated that it ultimately may wish to invoke the protections afforded by the existing antitrust conditions in the Perry and Davis-Besse licenses imposed pursuant to section 105 of the Atomic Energy Act (AEA),42 U.S.C. 92135. His makes its expressed interest in preserving those provisions one that falls within the " zone of interests" created by AEA section 105. Accordingly, with its municipal electrical system program now tirmly in place, Brook Park is able to fulfill both prongs of the recognized judicial standard and establish its standing to intervene in this proceeding.

B. Of course, at this point in the proceeding, having standing is not enough ,

to gain party status for Brook Park. As Brook Park recognizes, because its request comes after the deadline for filing intervention petitions, it must establish its right to intervene under a balancing of the additional factors set forth in section 2.714(a)(1) to govern late-filed intervention. We review those factors seriatim.

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1, Good Cause for Iste Filing To establish its case for late intervention under the first factor - whether good causc exists for the Peti,ioner's failure to file on time - Brook Park argues that good cause for its failure to file within the time specified in the May 1992 notice of opportunity for hearing lies in its lack of standing to attain party status, a deliciency that was only recently rectified. See Brook Park Amended Petidon at 1314. The Staff disagrees. Referencing the Appeal Board's observation in Carolina Power and Light Co. (Shearon liarris Nuclear Power Plant, Units 1-4), ALAB-526,9 NRC 122,124 (1979), ht "[i]f newly acquired standing (or organizational existence) were sufficient of itself to justify permitting belated intervention, the necessary consequence wnuld be that parties to the proceeding would never be determined with certainty until the final curtain fell," the Staff declares that the recent creation of Brook Pwk's electrical system may not be " good cause" for its failure to file on time. See Staff's Answer at 5-6. (Ultimately, however, the Staff finds this not critical by concluding that a balancing of the other four factors supports intervention) ne Applicants likewise assert that Brook Park lacks " good cause" for filing late, although for a different reason. Rey contend that Brook Park relinquished any " good cause" argument by waiting 2 months after the adoption of Ordinance No. 7711-1992 before filing its intervention petition. See Applicants' Answer at 4-6.

As we observed in our prehearing conference order, this first factor is important because, in the absence of " good cause" there generally must be a compelling showing regarding the other four factors. See LBP-91-38,34 NRC at 246 & n.53. Nonetheless, in the circumstances here, any lack of " good cause" for the late filing adds only marginally to the showing that must be made under the other four factors.

Bearing in mind the Appeal Board's observation about the general unsuit-ability of " newly acquired" standing as a basis for " good cause," we nonetheless find that admonition is tempered here by the fact that the occurrence that created Brook Park's standing, i.e., the citizen referendum and the passage of the ordi-nance, had no direct relationship to the prosecution of this proceeding by Brook Park. His is not, for instance, a case in which the Petitioner. seeks to justify its untimchness based on its inability to finish chartering the organization created solely to serve as the vehicle for intervention. See Boston Edison Co. (Pilgrim Nuclear Power Station, Unit 2), LBP-74-63,8 AEC 330,331-32,335-36, aff*d, ALAB-238,8 AEC 656 (1974). Rather, the city's legislative authorization of a municipal electrical system is an act of independent utility that, only conse-quentially, has the effect of affording it standing in this proceeding. Thus, even if Staff is correct that Brook Park's justification for its delay is insufficient to establish " good cause," its excuse is not so unmeritorious as to permit interven-105 l

tion only upon a substantially enhanced showing on the other late intervention

factors,

%c same is true regarding the Applicants' complaint about the length of the delay tetween the April 21,1992 passage of the Brook Park ordinance and the June 15,1992 liling of its petition. Assuming arguendo that this is actually the period of delay,' as tka Appeal Board has previously observed, the significance to be placed on the amount of a delay "will generally hinge upon the posture of the proceeding at the time the petition surfaces." See Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747,18 NRC 1167,1173 (1983). liere, as the Applicants themselves point out, see Applicants' Answer at 5-6, if Brook Park had sought to intervene in April shortly after passage of the ordinance, it would have been too late to participate in the existing parties' briefing of the " bedrock" legal issue without impeding the established schedule.

Further, as we describe in more detail in section ll.B.5, ir/ra, in acknowledging that it must take this proceeding as it finds it at the time it files its petition - with the " bedrock" legal issue fully briefed, argued, and submitted for determination

- Brook Park eviscerates any negative impact that otherwise might arise from the claimed 2-month delay about which the Applicants object. Rus, this delay also is insufficient (either alone or in conjunction with the standing justification discussed supra) to warrant any enhancement in the showing Brook Park must make on the other four late intervention factors.

2, Asnilability of Other Afrans to Protect Petitioner's Interests he Staff notes that the second late intervention factor - the availability of other means to protect Petitioner's interests -is not addressed in Brook Park's petition. Nonetheless, citing the burdensome nature of undertaking a civil action under the antitrust laws, the Staff concludes that the second factor supports Brook. Park's intervention. See Staff's Answer at 7. Although asserting that Brook Park fails to fulfill this late intervention factor, see Applicants' Answer at 7 & n.14, the Applicants make no specific argument as to why factor two does not support intervention, see id, at 710.

Analyzing the impact of this factor on the late intervention request of Amer-ican Municipal Power-Ohio, Inc. (AMP-Ohio), in our prehearing conference order we found that "the distinctive nature of the Commission's authority to consider and address the validity of the antitrust conditions it imposed leads

'ne omo Consutuuon, An. XVID,15. pnwides a 34 day pened willun which local cittrens em seci a refermdum on an ordinance crea.ing a municipal pubhc utility, thereby staying its erfectiveness. su Bnx4 Park Amended Peution, Exh. A at 3 (Brook Phrk, Ohio, ordinance Na 77111992. 6 9). Isnx4 Park indtcates that with thu prr,visine, it feh its uuerest was not sufftetemly concrete to warrant moving ahead with intervenion unul May '22.1992, the date ordmance Na7711 1992actually became eHecuve. su kt at 13-14. His position is not unreammable and, if accepied would reduce the penod or d: lay to a httle more than 3 weeks.

106

us to agree with AMP-Ohio that no other forum or means now available can provide equivalent protection for its interest in seeing that the existing license ronditions are maintained." LBP-9138,34 NRC at 247. The Applicants pro-vide no justification for a contrary result here. Consequently, we conclude that factor two supports Brook Park's late intervention.

3. Petitioner's Assistance in Developing a Sound Record in addressing the third factor - the extent to which Petitioner's participation in tir proceeding will assist in developing a sound record -- Brook Park provides an extensive exposition of its counsels' expertise and experience in the creation r,nd development of municipal electrical systems, in the Staff's administrative review process on the Applicants' license condition suspension requests while representing the City of Clyde, Ohio, and in the application of antitrust principles to the utility industry through representation of various intervenors in Federal Energy Regulatory Commission proceedings. See Brook Park Amended Petition at 18-20. This, it asserts, establishes that Brook Park is in a sound position to make a contribution to the record of this proceeding.

For their part, the Applicants contend that Brook Park's ability to contribute to the record of this proceeding is negligible. According to the Applicants, the type of knowledge and expertise attributed to Brook Park's counsel is irrelevant because neither Brook Park nor its counsel purport to have any knowledge about the antitrust provisions of the Atomic Energy Act, the focal point of the first portion of this proceeding, nor do they demonstrate any knowledge about the relative cost of nuclear power generation at the Applicants' facilities, the central subject of the proceeding's econd phase. See supra note 2. The Applicants also declare irrelevant Brook Park's professed interest in maintaining the existing antitrust conditions because this likewise has nothing to do with the issues in this proceeding. See Applicants' Answer at 10-13.

The Staff also maintains that Brook Park's showing on this factor is wanting, asserting that its discussion of counsel's legal ability - as opposed to Brook Park's ability to contribute sound evidence -is irrelevant. See Staff's Answer at 6 & n.6 (citing Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-671,15 NRC 508,513 n.14 (1982)). The Staff nevertheless concludes that this element supports intervention because of Brook Park's apparent ability, as an entirely new market entrant, to provide firsthand evidence concerning the difficulties in overcoming barriers to entry and the advantages that will be lost by suspension of tM license conditions.

Accepting arguendo the Applicants' assertion that the focus of the second portion of this proceeding will be the relative costs of nuclear power as

ompared to other alternative sources, at this juncture we have litde difficulty in concluding that Brook Park can assist in developing a sound record. As 107

Brook Park declares, it "is an ernerging municipal system, engaged in the process of exploring and acquiring power supply . . . ." Brook Park Amended Petition at 17. Further, as its petition makes clear, Brook Park already has done studies intended to demonstrate the feasibility and prudence of establishing a municipal ciectrical system, which undoubtedly included consideration of the relative costs of different electrical supply sources. Aforcover, as it rnoves forward to obtain a power supply for the electrical distribution system it has decided to create, the relative costs of different sources no doubt are important to Brook Park, thereby mandating that it will have on hand, and can provide, useful comparative information. And, to the. degree that any second phase to this proceeding invc!ves the issue of barriers to market entry, and whether there has been attenuation of those barriers sufficient to suspend the Perry and Davis-Besse antitrust conditions, the Staff is correct that as a new market entrant Brook Park is in a unique position to provide evidence relative to that question.

We conclude, therefore, that factor three weighs in favor of permitting the late intervention of Brook Park.

4. Representation of Petitioner's interests by Existing Parties Brook Park contends with respect to the fourth factor - the extent to which Petitioner's interests will be represented by existing parties - that no other party now represents its interests. Its status as a nascent municipal electrical system is, according to Brook Park, a pivotal factor differentiating its interests from those now represented by the other intervening utilities.

'lliis is especially so, Brook Park asserts, for the City of Cleveland, Ohio (Cleveland), tccause, as a large and well-established utility, it Joes not face the same competitive challenges as Brook Park. Brook Park also maintains that Cleveland is at least a potential competitor for the supply of a portion of Brook Park's power and energy requirements. See Brook Park Amended Petition at 17.

Concerning intervenor Ah1P-Ohio, which represents numerous Ohio munic-ipal electric companies in acting as a wholesale power supplier, Brook Park notes that it is not an Ah1P-Ohio member. In addition, Brook Park contends that its interests are not represented by Ah1P-Ohio because, as a wholesale power supplier, AMP-Ohio does not compete in the retail electric market with any applicant, as will Brook Park. See id. at 16-17.

Brook Park also declares inapposite the interests of Alabama Electric Co-operative (AEC), which we admitted to this proceeding as a discretionary in-tervenor. See LBP-91-38,34 NRC at 248-51. According to Brook Park, AEC is not a competitor in the relevant product and geographic markets previously established in the Commission's antitrust proceeding relative to the Perry and Davis-Besse facilities. See Brook Park Amended Petition at 17-18.

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Finally, Brook Park declares that its interests as a particular beneficiary of the existing antitrust provisions clearly are different from those represented by die Staff and the Department of Justice in carrying out their broad, public. interest responsibilities. See id. at 18. Compare LBP-9138,34 NRC at 253.

The Applicants vigorously challenge Brook Park's analysis of its interests vis-a vis those of the other parties to this proceeding. See Applicants' Answer at 710. They contend that the status of Cleveland as a " potential competitor" is irrelevant because it does nothing to differentiate Cleveland from Brook Park relative to the prosecution, in either phase one or phase two of this proceeding, of their identical, central position that the existing Perry and Davis Besse antitrust conditions should be retained. Indeed, the Applicants assert 5 hat the Staff and the other intervening' parties to the proceeding all champion this same central position and Brook Park has failed to show how its legal or factuai jnitions diverge from theirs. The Staff, on the other hand, maintains that Brook Park has shown that it will not occupy the same distribution level as Ah1P-Ohio, and may be a customer of AhiP-Ohio and Cleveland, thereby establishing a basis for concluding that its interests may not be adequ1tely represented by the existing parties. See Staff's Answer at 6-7.

As it seeks to equate the duplication of substantive issues with a similarity of participants' interests, the Applicants' challenge is misdirected. See Duke Power Co. (Amendment to hiaterials License SNht-1773 - Transportation of Spent Fuel from Oconce Nuclear Station for Storage at hicGuire Nuclear Station),

ALAB-528,9 NRC 146,150 (1979). Rather, the question is, given the matters at issue, will the existing parties effectively represent Brook Park's interests relative to those matters.

In this instance, even when addressing the same matters as existing inter-venors, Brook Park's singular status as an emerging municipal power system, in conjunction with its position as a possible customer or competitor of AhiP-Ohio and Cleveland, translates into a difference in perspective, and approach, relative to those matters.5 hioreover, because Brook Park must take this proceeding as it fmds it, see section II.B.5, infra, the problem suggested by the Applicants, i.e., numerous intervenors addressing the same matters, really exists only for phase two of this proceeding and may invite the cure of party consolidation, a remedy we can take up if and when we reach that point. At present, how-ever, that concern does not merit assigning factor four a negative weight in the late-intervention balance.

3Although the Applicants imply that Brook Patk's imeresu can be adequatrJy represented by esisting parties because the city's witnesses would be avadable to thme parues. see Applicants' Answer at 7 n.16. it ha previmasly been recosmzed that such an argumcm fads to afrord proper recrigniuan to the value or the parucipauonal rights enjoyed by parties, including cmducung cross-examinau<st. Su OuAs cower Co.. AIAB-s28. myra. 9 SRC at 150 & n.7.

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5. Petitioner's Participation as Broadening or Delaying the Proceeding As has often been noted, late-comers to this agency's adjudicatory process generally must take the proceeding as they find it. See, e.g., Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743,18 NRC 387,402 (1983). Nonetheless, the addition of a late-comer brings the possibility that its participation will broaden the issues or otherwise slow the proceeding. His prospect is assessed in the fifth late-filing factor, which quite properly has been denominated as "of immense importance in the overall balancing process." Id.

Brook Park contends that its participation will have no appreciable impact on this proceeding's completion. Declaring that it accepts the proceeding as it finds it, with regard to the first phase on the " bedrock" legal issue Brook Park asks only that, to preserve any appellate rights, it be permitted to file a fo. mal statement specifying those portions of the arguments already advanced by the existing parties that it wishes to adopt. Brook Park further declares that if it becomes necessary to advance to phase two, its evidentiary presentation will not involve more than two or three witnesses. See Brook Park Amended Petition at 21-22. De Applicants counter by asserting that Brook Park's proposed phase-one submittal is either worthless, as a mere repetition of the other parties' positions, or will involve the formulation of new arguments that, by requiring time for responses, will delay the resolution of the pending summary disposition motion and, therefore, the proceeding. Further, given Brook Park's expressed intent to demonstrate how the removal of the existing antitrust conditions would harm its competitive position, the Applicants characterize Brook Park's participation in phase two as either irrelevant to the appropriate subject matter or as broadening the scope of phase two extraordinanly. See Applicants' Answer at 13-14. The Staff concludes that Brook Park's willingness to accept the existing briefing schedules means that this factor weighs in favor of late intervention.

See Staff's Answer at 7.

To accept the Applicants' argument regarding delay arising from Brook Park's participation in phase one would, as a practical matter, stand this factor on its head. We perceive no basis for penalizing Brook Park for structuring its participation in such a way as essentially to climinate any delay in the resolution of the pending motions. As for the Applicants' concerns about phase two, we are unable to accept its characterization of the burden imposed by Brook Park's participation because, pending the resolution of the " bedrock" legal issue, the final parameters of the issues to be litigated during that hearing have not yet been specified. This significant factor, therefore, supports late intervention by Brook Park.

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6. Conclusion As we have outlined above, even assuming that Brook Park did not have

" good cause" for its late-liled petition, in this instance there is no reason for that factor to take on any particular weight relative to the other four factors.

As to the other four, each one, including the important " delay" factor, supports permitting late intervention by Petitioner, As a consequence, we conclude that the balance of the section 2.714(a)(1) late intervention factors (iri conjunction with its showing regstding its standing to intervene) now supports Brook Park's admission as a party.

Ibr the foregoing reasons, it is, this sixth day of August 1992, ORDERED that:

1. The June 15,1992 amended late-filed intervention petition of Brook Park is grarued and it is admitted as a party to this proceeding.

2. Cn or before Monday, August 17,1992, Brook Park may file a pleading indicating, by reference to the partictilar pages, the specific portions of the summary disposition filings of the existing parties it agrees with and wishes to adopt. This pleading is not to include any additional analysis or argument by Brook Park. No responses to this pleading will be entertained.

3. In accordance with the provisions of 10 C.F.R. 6 2.714a(a), as it rules upon an intervention petition, this order may be appealed to the Commission within 10 days after it is served.

THE ATOMIC SAFETY AND LICENSING LOARD Marshall E. Miller, Chairman ADMINISTRATIVE JUDGE Charles Bechhoefer ADMINISTRATIVE JUDGE O. Paul Bollwerk, Ill ADMINISTRATIVE JUDGE Bethesda, Maryland August 6,190 111

Cite as 36 NRC 112 (1992) LBP-92 20 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING DOARD Before Administrative Judgt:

James P. Gleason, Presiding Officer in the Matter of Docket No. 40-08681-MLA (ASLBP No. 92-666-01 MLA)

(Source Materials License No. SUA-1358)

UMETCO MINERALS CORPORATION August 5,1992 MEMORANDUM AND ORDER (Request for llearing and Stay of License Amendment)

1. REQUEST FOR llEARING On July 2,1992, the State of Utah filed a request for hearing on the issuance by the Nuclear Regulatory Commission of Amendment 30 to License No. SUA-1358. The State also requests a stay of the amendment pending completion of the proposed adjudication.1 Licensee, the Umetco Minerals Corporation (UMC),

opposes the hearing request 2 and the Staff also filed a response in opposidon to both the hearing request and the request for a stay' The Staff indicates that it intends to participate as a party if a hearing is granted.

The UMC application for Amendment 30, filed on January 18,1989, is to perform plant processing tests on 600 wet tons of feed containing source 3

Request for IIcaring and stay, Utah Departmmt of Enytronmental Quahty and Assistara Attorney oeneral, July 2,1992.

2 Later frorn R.A. Van llorn, Dunctor of operations, UMC, to NRC Execuuve Dutctor or operations James -

Taykw, July 16,1992.

3 NRC staft's Respmse to Request for IIcarma by state of LAah, My 30,1992.

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material received from the Teledyne Wah Chang Company in Albany, Oregon.

The material for the processing test is not natural ore mined for its uranium content but rather comes from the processing of ore to recover z.irconium, it contains greater than 0.05% recoverable uranium, and UMC intends to process the material for its uranium content at its White Mesa Mill, a licensed facility in Blanding, Utah. After processing, UMC inteads to dispese of the resulting tailings at the . nill's impoundment. 'The State assens that the NRC is taking licensing action without first adequately determining whether UMC is actually engaged in waste disposal of material from the Wah Chang Company instead of uranium reprocessing as alleged. As an Agreement State, Utah asserts that it, rather than the NRC, may have jurisdiction over the materials if they are either low-level waste or source material. Flirther, the State asserts that the NRC's amendment action may hinder the Department of Energy's (DOE) responsibility to assume long-term custodial care of the processed materials. Finally, the State also expresses a concern over the lack of NRC oversight of UMC's tests and the characteristics of the materials to be processed. The State contends, inter alia, that a hearing is necessary in order to resolve the nature of the materials being processed, the Licensce's intention in processing the material, and questions concerning title to the material, in opposing th: hearmg, UMC cites NRC's regulations, 10 C.F.R. 5 2.1205(c)(2)(i) and (ii), requiring that a hearing request must be filed within thirty (30) days after the requestor receives actual notice of a pending applica-tion or agency action granting the application, or 180 days after agency action granting the application, whichever is earlier. The Licensee contends that here the State had much more than 30 days' knowledge of the license amendment application prior to filing its hearing request. In support of its posit 5n, UMC references specific meetings it had with State environmental officials to discuss the application.' In its response, the Staff alleges that the State had actual notice of the pending application as early as April 1989.s Because the Presiding Officer is required under the Commission's regulations to determine that requests for hearings are timely filed, w address that issue first.

The applicable regulation,10 C.F.R. 6 2.1205(c)(2), states in its pertinent part that (c) A person other than an applicant shall file a request for a heanng .

(2) If a Federal Register notice is not published in accordance with paragraph (c)(1), the I

earlier of -

(i) Thiny (30) days after the requestor receives actual notice of a pendtng amlication or an agency actim granting an application; or

• Urneteo Mnerais Corporsum. July 16,1991 a: 1 5 staff Response at 6-7.

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(ii) One hundred and eighty (180) days aber agency actim granting an apphcatite.

Both UMC and the Staff argue that since the State had actual notice of the then-pending license application months before the NRC approved and issued the amendment, a request for hearing was required to be filed within 30 days of such notice. The State rejoins that it was entitled to file, as it did, within 30 days of -

the agency action granting the license amendment. As the State does not appear to be seriously objecting to the assertion that it had prior notice of the pending application, the question here is whether 10 C.F.R. 6 2.1205(c)(2)(i) provides for two windows of opportunity rather than one for filing a request for hearing.'

Nothing in either the plain language of the regulation or the underlying Statement of Consideration militates against an interpretation providing two such windows of opportunity. There is nothing in the plain language of the regulation to support an opposite conclusion. Indeed, to subscribe to the posidon advanced by UMC and the Staff, one must conclude, without more, that the word " earlier" modifies both a notice of a pending application and notice of an agency action granting the application as well as the 180-day period set forth in 10 C.F.R. { 2.1205(2)(ii).

Neither party has suggested any basis for such an interpretation, nor can it be supplied here. As physically structured and grammatically written, the words

" earlier of " refer to and modify the whole of subsection (i) and the whole of subsection (ii). The modifier " earlier" can neither structurally nor grammatically properly modify both components of subsection (i) as well as subsection (ii). To obtain that result, the regulation would have to be written with three subsections so that the current f;rst subsection would be split into two separately numbered subsections and the current second subsection would become a third subsection.

Accordingly, the plain language of section 2.1205(c)(2)(1) provides two windows of opportunity for filing a hearing request. As the U.S. Court of Appeals has suggested, an agency's interpretation of its own rules cannot fly in the face of the language of the rules themselves. See Union of Concerned Scientists v. NRC, 711 F.2d 370,381 (1983).

In support of this conclusion, the commentary in the Commission's Statement of Consideration refers to the fact that the proposed rule, in section 2.1205(c),

provides that a hearing petition will be considered timely if filed within 30 days after the petitioner receives actual notice of a licensing action.7 No rationale is apparent as to why the Commission would wish to require a person to file a hearing request at a time, such as is evident here, when ongoing communications may prevent the necessity for a hearing at all. That expectation would be extinguished only when the NRC approved the action being opposed by the State. It is a more reasonable procedure and, in any event, what the plain 6 stats of Utah's supplemental Request ror Heanns at 1 (Aug 31.1992).

7 $<a 54 Fed Reg 8271 (ftb. 28,1989).

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language of the regulation requires, that when an effort toward resolution fails, a 30-day period would then ensue for requesting a hearing. licre, the State acted within this time frame. Thus the State's request for a hearing was timely fi'ed, Alternatively, even if the State's petition is found untimely, its lateness is excusable under the provisions of 10 C.F.R.12.1205(k), in the circumstances, the fact that the State was engaged in discussions with the Staff, as well as the Licensee, on the requested hcense amendment makes the delay in filing an earlier request for hearing excusabic. Also, the current request by the Staff, agreed to by Licensee, to delay processing of the material tends to buttress a finding that a grant of the hearing petition would not result in undue prejudice or injury to the other participants in the proceeding.' The fact that the proposed license amendment request was filed over 3-W years ago, and no action has ensued to the present time, also supports a finding that no undue prejudice wou result from the grant of the hearing petition alone.

The applicable regulations also require that the Preriding Officer determine that the specified areas of concern are germane to the subject matter of the proceeding and that the requestor meets the judicial standards for standing.'

Neither the Licensec nor the Staff addresses the standing or areas of concern submitted in the State's petition.88 No serious question can be raised on the State's standing in this proceeding. Its petition cites issues of jurisdiction over the materials involved, the proper characteristics of such material, the purpose for which the materials have been received, the failure to pixe proper conditions on the license amendment, and questions concerning governmental responsibility for the ultimate custody of the materials. These matters setting forth possible injuries in fact are within the zone of interests protected by statute and meet the standards for standing in Commission proceedings " I find that the State has standing to participate and has set forth areas of concern germane to this proceeding.

II. REQUEST FOR STAY In its petition, the State also requests a stay of the license amendment pending the completion c,f a hearing. In the Subpart L proceedings, an application for a Presiding officer Telephme Cmference at M (July 30,1992).

'10 C.F.R I2.1205(g).

"The staff does allege, with supperuns attachments. that substainially identical Utah state concerns have been addressed and naolved with notice and consent of the Comnussion pnar to the issuance of the license amendment.

NRC stafr Respmse at 8 n.14.

UPonland G<=,ral Etscrric Ca. (Ithbie spnngs Nuclear Plant, t!mts I and 21 Ct.1-76 71,4 NRC 610. 61213 (1976).

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i stay is governed by the provisions of 10 C.F.R 6 2.1263 which incorporates the traditional four-stay criteria of 10 C.F.R. 5 2.78S:

1. Whether the movant has made a strong showing that it is likely to prevail on the merits;

2. Whether the movant has shown that it will be irreparably injured unless a stay is granted;

3. Whether a stay would harm other parties; and

4. Where the public interest lies.

Under the Commission's regulations,10 C.F.R. 5 2.1237(h), the State has the burden of persuasion on these fxtors. licre, however, the State's petition fails even to address the criteria for a stay set forth in the regulation. .\lthough arguably the third- and fourth stay criteria might be satisfied by the S ate's recital of its concerns, the failure to address the first two criteria is fatal to its request. Obviously, the public interest would be served in having the question of jurisdiction finally established. Similarly, the Liecusec would not be harmed by a stay because it has agreed to the Staff's request to delay any materials processing amtil an effort is made to resoin the State's concerns, supra. But since the State has made no showing that it is hkely to prevail on the merits or 2 that it will be irreparably injured, a stay cannot be granted. The request for a stay is therefore denied.

Order Rx the reasons stated, it is, this 5th day of August 1992, ORDERED:

1. The request for hearing by the State of Utah is granted and the request for a stay of Amendment 30 to License No. SUA-1358 is denied.

2. A hearing on the License Amendment will be held and the time and other details concerning the hearing wi'll be published at a future date.

3. Petitions to intervene in this proceeding must be filed within thirty (30) days of this Order appearing in the Federall'egister. The Licensee and Staff will have ten (10) days to respond after service of any petidon.

4. An appeal from this Order, by parties other than the petitioner, may be filed with the Commission within ten (10) days of the service of the Order.10 C.F.R. Q 2.1205(n).

James P. Gleason, Presiding Officer ADMINISTRATIVE JUDGE Bethesda, Maryland August 5,1992 116 l l I. l l

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Cite as 36 HRC 117 (1992) LDP-92 21 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

G. Paul Bollwerk, lit, Chairman Dr. James H. Carpenter Dr. Peter A. Morris in the Matter of Docket Nos. 50-348-CivP 50-364-CivP (ASLBP No. 91-626-02 CivP)

ALABAMA POWER COMPANY (Joseph M. Farley Nuclear Plant, Units 1 and 2) August 12,1992 MEMORANDUM AND ORDER (Approving Settlement Agreement and Terminating Proceeding)

In this proceeding, Licensec Alabama Power Company (APCo) has chal-lenged the NRC Staff's imposition of a $450,000 civil penalty for alleged vi-olations of the Commission's requirements in 10 C.F.R. 5 50A9 regarding en.

vironmental qualification of electrical equipment important to safety. See 55 Fed. Reg. 35,203 (1990). During 12 days of hearings in Febmarv and May of this year, APCo and the NRC Staff presented numerous witnesses in support of their positions regarding the civil penalty. See Tr.1-230(A Hereafter, the Board established a filing schedule for the parties' proposed findings of fact and conclusions of law. See Memorandum and Order (June 1,1992) (unpublished).

Now, by joint motion dated August 6,1992, the parties request that we approve a settlement stipulation they have provided and terminate this proceeding prior to a merits determination relative to any of the kgal or factual matters at issue.

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Pursuant to section 234 of the Atomic Energy Act of 1954 (AEA), as  !

l amended, 42 U.S.C, 6 2282, and 10 C.F.R. 6 2.203, we have revicwed the settlement agreement to determine whether approval of the agreement and term,ination of this proceeding is in the public interest.' On the basis of that review, and according due weight to the position of the Staff, we have concluded that the parties' agreement cnd the termination of this proceeding are consistent with the public interest.*

Accordingly, the joint motion of the parties is granted and we approw the

" Settlement Agreement," which is attached to (not published) and incorporated by reference in this Memorandum and Order. Ibrther, pursuant to AEA sections 103,161(b),161(o), and 191,42 U.S.C. 95 2133,2201(b),2201(o),2241, and 10 C.F.R. 5 2.203, the Board terminales this proceeding, it is so ORDERED.

TIIE ATOMIC SAFETY AND LICENSING BOARD G. Paul Bollwerk, Ill, Chairman ADMINISTRATIVE JUDGE James II. Carpenter ADMINISTRATIVE JUDGE Peter A. Morris ADMINISTRATIVE JUDGE Bethesda, Maryland August 12,1992

• Proviously, w have recog;nized that counul fir both parues have displayed a laudable spmt of ccxycsanon m liusaung this matter, ne Tr. 1315 19. 2101, an observation that bears repeateg in ligt of their sett]cmers of this otherwise vigorously contested proceedmg.

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Cite as 36 NRC 119 (1992) LBP-92 22 3

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

James P. Gleason, Presiding Officer

n the Matter of Docket No. 40-08681-MLA (ASLDP No. 92 66641 MLA) {

(Source Materials License No. SUA 1358)

OMETCO MINERALS CORPORATION August 12,1992 MEMORANDUM AND ORDER (Amendment)

The Order issued on August 5,1992, should have provided for an appeal of the denial of the State of Utah's (State) reqcst for a stay of the Nuclear Regulatory Commission's grant of a license amendment m the Umetco Minerals Corporation, I now amend that Order to provide an opportunky to the State for an appeal of my decision on the stay request. An appeal may be Sled within ten (10) days of the service of this Amendment, or such other times a the Commission may direct.

James P. Gleason, Presiding Officer ADMINISTRATIVE JUDGE Bethesda, Maryttnd 119

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Cite as 36 NRC 120 (1992) LBP 92 23 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

C.harles Bechhoefer, Chairman Dr. Richard F. Cole -

Thomas D. Murphy in the Matter of Docket No. 50 312 DCOM (ASLBP No.92-66342 DCOM)

(Decommissioning Plan)

(Facility Operating License No. DPR 54) 1 SACRAMENTO MUNICIPAL UTluTY -

DISTRICT (Rancho Seco Nuclear Generating Station) August 20,1992 In a proceeding concerning a proposed decommissioning plan for a fxility, the Licensing Board rules that, because the single petitioner for intervention lxks standing to participate, has submitted no proposed contentions adequate for adjudication and, for that reason, also does not warrant discretionary intervention, the petition should be denied and the proceeding terminated.

RULES OF PRACTICE: INTERVENTION To participate as a party in an NRC adjudicatory proceeding, a petitioner must initially demonstrate both that it has standing and has proffered at least one viable contention.10 C.F.R. QQ 2.714(a)(2) and (d)(1)(iii).

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I RULES OF PRACTICE: STANDING

'Ihe Commission applies contemporaneous judicial concepts of standing, whlch require a petitioner to demonstrate that (1) it has suffered or will likely suffer " injury in fact" from the action under review, an injury that would be redressable by a favorable decision in the proceeding; and (2) the injury falls within the " zone of interests" at least arguably sought to be protected by the statute being enforced.

RULES OF PRACTICE: STANDING (PLEADING REQUIREMENTS)

In determining whether injury in fact has been adequately set forth, a Licensing Board is limited to assertions actually pleaded by the petitioner; it may not assume or presume facts not actually pleaded.

RULES OF PRACTICE: SERVICE OF DOCUMENTS A licensee must serve relevant documents on other parties, not upon petition-ers for intervention.10 C.F.R. ll2.701,2.712, Adjudicatory documents filed by parties responsive to or bearing upon interventian petitions must be served on the petitioners.

RULES OF PRACTICE: INTERVENTION PETITION (GROUP)

An organization may gain standing in two ways: (1) in its own right, assuming one of its own interests has been or may be adversely affected, or (2) as a representative of one or more of its members, assuming that such members otherwise have standing, the interests it seeks to protect are germane to the organization's purposes, and neither the claim asserted nor the relief requested require the individual member's participation in the lawsuit.

RULES OF PRACTICE: STANDING (PLEADING REQUIREMENTS)

In seeking representational standing, an organization normally must provide affidavits of members who authorize the organization to represent their interests.

RULES OF PRACTICE: STANDING (INJURY IN FACT)

An organization pleading injury to informational interests, such as the failure to receive information appearing in an environmental impact statement, must allege explicit environmental harm with a direct impact upon the petitioner. A generalized claim is not enough.

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HULES OF PRACTICE: - STANDING (INJURY IN FACT)

The presumption of standing for those living or working within 50 miles of a facility applies only in proceedings involving reactor construction permits, operating licenses, or significant amendments thereto, w here there is clear impli-cations for the offsite environment or a clear potential for offsite consequences.

In other situations, a petitioner must allege some specific injury.

RULES OF PRACTICE: STANDING (ZONE OF INTERESTS)

Protection of financial interests such as excessive electric rates or higher fuel costs is not within the zone of interests protected by the Atomic Energy Act or the National Environmental Policy Act.

RULES OF PRACTICE: STANDING (DISCRETIONARY) 7hc most important criterion for evaluating whether discretionary standing should be granted is the extent to which the participant's participation may reasonably be expected to assist in developing a sound record.

RULES OF PRACTICE: COLLATERAL ESTOPPEL -

De NRC may apply collateral estoppel principles, where appropriate, Col-lateral estoppel requires an identity of issues. It is an equitable doctrine, not required as a matter of law, that should be applied only with a sensitive regard for any changed circumstances or the possible existence of some public interest factors. Alabama Power Co. (Joseph M. Parley Nuclear Plant, Units 1 and 2),

CL17412,7 AEC 203; ALAB-182,7 AEC 210 (1974).

RULES OF PRACTICE: CONTENTIONS Incorporating by reference Staff questions to a licensee, without explaining their significance, fails to conform to the pleading requirements for contentions.

RULFS OF PRACTICE: CONTENTIONS l

l- As amended in 1989, the Rules of Practice require, with respect to con-

! tentions, a specific statement of law or fxt to be raised or controverted, a brief explanation of the bases, a concise statement of supporting " facts _or expert l Opinion," together with references to specific sources and documents of which j the petitioner is aware and upon which the petitioner intends to rely, and suffic

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cient information to show a genuine dispute with the applicant (or licensec) on -

a material issue. If proved, the contention must entitle the petitioner to relief.

NEPA ENVIRONMENTAL REPORT ne decommissioning environmental review supplements the operating 11-cense review and thus need og reflect new infmmetion or significant environ.

mental Gange ascociated with decommissioning or storage of spent fuel.10 C.F.R. 6 51.53(b).

NEPA: GENERIC ISSUES The environmental impact of decommissioning can normally be delineated in generic terms.thragh reference to the Generic Envienmental Impxt Statement on Decommissioning of Nuclear Facilities (NUREG-0586). To the extent that impacts from decommissioning a particular plant are significantly different from the generic impe. cts, they may be coscred in a supplemental impact statement.

NEPA: SCOPE OF REVIEW ne scope of a decommissioning action must be contrasted with the scope of an action to discontinue facility operation (for which no license is required).

Need for power and the environmental effects of replacement power relate to ceasing operations, not to decommissioning.

NEPA: CONSIDERATION OF A1.TERNATIVES An agency need consider only alternatives that lead to the objective of a proposal. Ibr decommissioning, the NRC need consider only alternate forms of decommissionbg. together with the "no action" alternative, Resumed operation 1

is an alternative only to the cessation of operations, not to decommissiocing.

PREIIEARING CONFERENCE ORDER (Terminating Proceeding)

This proceeding involves censideration of a proposed order approving a i decommissioning plan for, and authorizing decommissioning of, the Rancho H Seco Nuclear Generating Station (hereinafter, Rancho Seco), located near l Sacramento, California. For reasons set fonh below, the single petition for leave tointervene and request for a hearing that has been filed is deficient in failing to 123

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establish the standing of the Petitioner to participate (either as a matter of right or of discretion) or the adequacy of any proposed contention. Accordingly, we are denying the intervention petition and terminating the proceeding.

1. IIACKGROUND A public referendum on June 6,1989, required the Sacramento hiunicipal Utility District (hereinafter Sh1UD or Licensee) to discontinue operation of Rancho Secn. As a result, ShiUD decided to shirt down the facility, and it has taken a multistage approach to reach this resull On J une 7,198)(the day following the public vote), Sh1UD discontinued pro-ducing power from the facility.1 Reactor defueling was completed on December 8,1989.2 On April 26,1990, the Licensee continued its scale-down activities by applying to convert the operating license into a possession-only license (POL) that would authorize only the "use and possession" of the facility, not its op-eration. Following an adjudicatory proceeding during which the Petitioner now .

before us sought unsuccessfully to intervene, that application was approved by the Commission on h1 arch 17,1992.5 The final stage involves a p'oposed decommissioning plan, leading eventually to termination of the operating license and release of the site for unrestricted use. See 10 C.F.R. i 50.82. On hiay 20,1991, the Licensee filed its application for termination of its license, including a proposed decommissioning plan.4 In general, the plan provides for 10 to 20 years of onsite storage (SAFSTOR) followed by the removal of residual radioactivity.S On October 21,1991, Sh1UD filed a supplement to its environmental report, concerning the impacts of the method of decommissioning it had selected. The NRC Staff began reviewing the application and, on h1 arch 12,1992, requested additional information from the Licensee on both the decommissioning plan and the environmental report.

(The Licensee lesponded on April 15, 1992.)

On hiarch 19,1992, the NRC published a Notice of Opportunity for IIcaring with respect to both the decommissioning plan and the environmental report' One timely request for a hearing and petition for leave to intervene was filed, I sacramento Maucipt Uuhty District. Rancho seco Nuclear Generanng station, Propmed Decommissiadng Plan (DP). p.127; ses alao 57 Fed. Reg. 9577 (Mar.19.1992),

3 Id.

3 Amendment 117 to Facility Operedng license Na DPR-s4. 57 Fed Reg.10,193 (Mar. 24,1992), 'the effecnve date or dus amendment was made subjcet to two stays or 10 worbng days each, leading to an April 24. 1992 erfecuve date rm the Pol. See g<nerally Cll 92 2,35 NRC 47 (19921

• sECY.92-150. "Quanerly Repan on the status d Prema:urely shut Down Plants." at 4 (rutnished to 1.icensing Board and heanns perucipants by Memmandum rrom Chier. Dockedng and services 11 ranch, orfice or the secretary. NRC. dated Apnl28, 1992).

3 57 Fed. Reg. 9577 (Mar.19.1992). See also DP at 1 1.

0 57 Fed Reg 9577.

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by the Environmental and Resources Conservation Organization (hereinafter, ECO), on April 20, 1992, As noted earlier, ECO had sought unsuccessfully to participate in the POL proceeding. On hiay 13, 1992, the Commission established this Licensing Board to consider the petition and preside over a hearing if one were ordered?

ShiUD and the NRC Staff each opposed ECO's hearing request and inter-vention petition.' Because a petitioner for intervention is permitted by 10 C.F.R. 62.714(a)(3) to amend its petition without leave of the Board until 15 days prior to the first prehearing conference, the Board, by hiemorandum and Order dated hiay 15,1992, set schedules for the filing of an amended petition, including contentions, receipt of responses, and a prehearing conference.

ECO filed a timely amendmenthupplement to its petition on June 29,1992.

On July 8 and 10,1992, the Licensee and Staff, respectively, filed responses in opposition to the amended petition, The Board conducted a prehearing conference in Bethesda, hiaryland, on July 14, 1992, at which representatives of ECO,'ShiUD, and the Staff appeared?

Ibliowing the prehearing conference, on July 17, 1992, ECO filed two motions: (1) a biotion for an Order to Compel Service, and (2) a Contingent hiotion to Withhold Any Order Wholly Denying the Petition for Leave to Intervene and/or the Request for a Hearing. The Licensec opposed both of these motions and filed cmss-motions to strike certain portions of each motion; the Staff opposed the second motion but took no position on the first.58 (he Staff supported the Licensee's motions to strike." ) Thereafter, on August 14, 1992, ECO filed two more motions: (1) ECO's hiotion to Strike, and (2) its Anticipatory hiotion for Leave to File ECO Fleading (seeking leave to file the foregoing biotion to Strike). We trest these motions later in this Opinion.

II. STANDING To participate as a party in an NRC adjudicatory proceeding, a petitioner must initially demonstrate both that it has standing and that it has proffered 757 Fed. Reg 21,433 (May 20,1992A

' t.icmsce's Answer, deted May s.1992; NRC staff Response, dated May 11,1992.

'See Tr.1 11a The conference had been announced by a Notice or Prehearma Conference, dated June 23,1992, p*ubhshed at 57 Fed. Reg. 29,339 (July 1,19921 ticensee's Answer in opposaion to Peudoner's Mode for an order to Capel service and ticensee's hon to Stnke Ibstions hereof. dated July 27,1992; ticensee's Arewerin opposioon to Ittiumer's Centingent Mouan to Withhold Any order Wholly Denying the 3%utim for tave ta lmervene and/or the Request for a llearms and licensce's hon to stnke ltrums 'thereof, dated July 27,1992; NRC saft Respese in opposition to Eco's Contmgent Motion to Withhold Any order % holly Denying las Petinen for tuvo to Intervene, dated August 6, 1992.

" NRC staft Response in support or lleensee's Motims to sinks impnyer Argument in Envinmrneraal and Resnucces Conservation Orgamration's Fdings, dated August 17,1992.

125

at least one viable contention.10 C.F.R. 9 2.714(a) and (b). Arning first to standing, the petitioner must demonstrate its interest in the proceeding (10 C.F.R.

I 2.714(a)(2)) and the "possible effect of any order that may be entered . . . on

[its] interest" (10 C.F.R. 5 2.714(d)(1)(iii)).

To determine whether a petitioner has adequately demonstrated its stand-ing, the Commission applies contemporaneous judicial concepts of standing.

Afelropolitan Edison Co. (nree Mile Island Nuclear Station, Unit 1), CL1 25,18 NRC 327,332 (1983). Those standards involve a two-pronged te.,t: (1) the petitioner must demonstrate that it has suffered or will likely suffer " injury in fact" from the action under review, an injury that would be redmssable by a favorable decision in the proceeding; and (2) the injury must fall within the

" zone of interests" at least arguably sought to be protected by the statute being enforced - here, either the Atomic Energy Act or the National Environmental Policy Act (NEPA). Afetropolitan Edison Co. (nree Mile Island Nuclear Sta-tion, Unit 1), CLI-85 2, 21 NRC 282, 316 (1985); Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CL1-76-27,4 NRC 610,613-14 (1976); see Air Courier Conference of America v. American Postal Workers Union, AFl-CIO,498 U.S. - 112 L Ed. 2d 1125,1134 (1991); Dellums

v. NRC,863 F.2d %8,971 (D.C. Cir.1988).

An organization such as ECO may gain standing in two ways. First, it may demonstmte standing in its ow's right, assuming one of its own interests has been or may be adversely affected, llowever, if such interest is informational, such as the failure to receive information appc.ang in an environmental impact statement, explicit environmental harm with a direct impact upon the petitioner must also be alleged. A generalized claim of informational injury is not enough.

CLl 92 2, supra,35 NRC at 57-60; Foundation on Economic Trends v. Lyng, 943 F.2d 79,84 (D.C. Cir.1991); see also Lujan v. National Wildhfe Federation, 497 U.S. 871, 111 L. Ed. 2d 695,71213 (1990).

Second, an organization may gain standing as a representative of one or more of its members, assuming that such members otherwise have standing, the inter-ests it seeks to protect are germane to the organization's purposes, and neither the claim assened nor the relief requested require the individual member's par-ticipation in the lawsuit. Ilunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333,343 (1977). He members must normally provide affidavits au-thorizing the organization to represent their interests. llouston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB 535,9 NRC 377,393-97 (1979).

At the outset, we note that both the Licensee and the Staff assert that ECO should be estopped from asserting its standing claims in this proceeding because of their similarity or, indcul, identity with claims unsuccessfully asserted as a basis for standing in the POL proceeding. The NRC may, of course, apply collateral estoppel principles where appropriate. See. e.g., Alabama Power Co.

126 i

1 r

1 I

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l (Joseph M. Ibtley Nuclear Plant, Units 1 and 2), ALAB 182, 7 AEC 210, remanded on other grounds, CL1-7412,7 AEC 203 (1974).

Collateral estoppel is an equitable doctrine, not required as a matter of law, that should be applied only "with a sensitive regard for any supported assertion of changed circumstances or the possible existence of some public interest factor in the particular case . . . ." Farley, CLI-7412, supra, 7 AEC at 203 N; ALAB-182, supra,7 AEC at 216. Ibr collateral estoppel to apply, there must be an identity of issues - here, the issue of ECO's standing. Farley, ALAB-182, supra,7 AEC at 213.

Despite the similarity of ECO's standing assertions in the POL proceeding and this proceeding, the scope of this decommissioning proceeding appears to be sufficiently different from the POL proceeding to at least raise questions as to whether changed circumstances may be present. Among other matters, the health and safety and environmental effects of the two proceedings do not appear identical, ne Licensee and Staff have not addressed these apparent differences or shown that they would not affect ECO's standing status in this proceeding. In addition, we perceive some public-interest considerations in affording ECO a full opportunity of convincing this Board of its standing. (We, of course, do recognize various prior rulings of the Commission for their precedential value.)

We conclude that the Licensee and Staff have not rnade a sufficient showing on the identity of the standing issues in the two proceedings for collateral estoppel to apply, and we decline to bar ECO's standing claims on that basis.

A. Injury in l'act in determining whether injury in fact has been adequately set forth, we are limited to assertions actually pleaded by the petitioner. See Clewland Electric illuminating Co. (Perry Nuclear Power Plant, Unit 1), LBP-92-4, 35 NRC 114 (1992), ne petition itself must " set forth with particularity" the elements of standing. 10 C.F.R, 52.714(a)(2). We are thus not permitted to assume or presume the existence of facts not actually pleaded. See Arizona Public Service Co. (Palo Verde Nuc! car Generating Station, Units 1,2, and 3), CLI 91 12,34 NRC 149,155-56 (1991).

ECO's claims for having standing are set forth in both its April 20, 1992 petition and its June 29,1992 supplement. The latter document additionally sets forth contentions, to which we will refer to the extent relevant to the standing claims. .

Although not a model of clarity, ECO has put forward several discrete bases for its standing. Specifically, it sets forth (1) claimed injuries to itself as an 127 l

_ . . _ __ _ _ _ _ -.. _ _ _ _ _ _ _ _ _ . _ . _ . .__ _ __ _.m . _ ._ . _ _ _

i organization, and (2) claimed injuries of certain specified mernbers whorn it

. represents," We turn to each of these claims; j 1. ECO first asserts that it (as well as its memlets) will be adversely affected i if an environmental impact statement (EIS) for the proposed decommissioning

- is not prepared. With respect to its organizational interests ECO inillall) stated j that f 100 stransly sugsxvis the use d nudear plares to provide the safe end dsenestically secure electricity needed in this courtry. *lhis enissirm neauardy indades intervening in the present matter where the destructi<st of a sta'e+f.the-art nudrat reactor is stuight in twder to inform decisitomakers and the public of the unsummate folly of deccenmissioning Rancho Seco."

2 ECO goes on to state that the NRC Staff's failure to indicate that it will prepare an EIS on the decommissioning deprives ECO of its ability to comment directly on the environmental report prepared by SMUD and on a draft EIS prepared by the Staff, to advise its tacrobers of Ac envirosimerttal risks involved with each j alternative and to report the findins rM r.wnmendations of the environmental l

evaluadons to the pubt;e."

l ECO's supplemental pedidon adds htde with re.pect ta off.anizational stand- ,

ing, except to indicate that the contentions cen'ained thereir are examples of the l 1 '

. injery suffered by ECO. (An affidavit by th Aesident of ECO is also provided, formalizing in essence ECO's general claims and providing ECO's articles of 1

incorporation, setting forth the organitation's purposes.) Looking at the con-i tentions, the only one bearing on ECO's organizational standing claims is the i

purported lack of an EIS (including alleged inadequacies in the Licensec's En-vironmental Report).

It is clear frorg the precedents cited atmvc that ECO has failed to present an adequate basis for org'-izational standing. 'Ihe lack of an E13 would at most

affect ECO's info.mational interests, but nowhere is there asserted any envi-ronmental harm that would affect the organization, other than informationally,

'that being so, ECO has not sausfied the informational harm criteria sanctioned by recern court decisions and set forth by the Commission - with respect to l ECO itself - in the POL proceeding. CLI.92-2, supra. 35 NRC at 57-61. It thus has act established standing on that basis.

2. ECO also seeks standing as the representative of certain of its memters.

In its it itial petition, ECO listed the names of two members who purportedly

. live wi'.hin 50 miles of the facility. No affidavits authorizing representation by ECO were included.

U Apn120,1992 I%tum at 4. kne 29.1992 supplemern at 210.

" Apnl 20.1992Palmim at 19.

"M at 19 7tk i

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, .-- . - - - - - - . - _ - - - - - - - - . - - - , _, ev e- - n --, -m,-.- .-r, n. mr...-,e w w ar---r -- x --wwe ,e ,w-,r ,, ,-

%e only description of how these individuals might te affected by de proposed decommissioning action was that they "ha6e an interest in whether tie proposed order provides irasonable assurance of their radiological lealth and safety . . . and whether de decision . . . is made in accordance with and is consistent with the goals of NEPA."l$ ECO goes on to clairn that certain of its members (not exlecitly de two lis d) depend on SMUD to meet their clectric energy needs and that ECO has a vital interest in ensming that an adequate and tellable supply of electricity will be available. Nowhere does ECO provide any factual basis for its thesis that radiological health and safety of the two listed members would be compromised or that their future supply of electricity would lecome unreliable, Nor does it show how, as it claims, the absence of Rancho Seco would lead to the substitution of fossil fuel plants that would contribute not only to acid rain, the greenhouse effect, and other effects adverse to die environment but also to the endangerment of national energy security."

In its Supplement, ECO refers only to one of the aforementioned mernters, identifying him as living 43 miles from the facility and providing an affid?.vit authorizing ECO to represent his interests. It telles on Oc so-called "presumpdon of standing which attaches to residency within a 50 mile radius of the plant?"

It also cites portions of the decommissioning plan and the environmental report which analyze certain effects of the plan extending as much as 50 miles from tic lacility.88 -

As the Commission has explicitly held, the 50 mile presumption of standing applies only in proceedings involving reactor construction permits, operating licenses, or significant amendments thereto - cases "with clear implications for the offsite environment, or . . . a clear potential for offsite consequences." i Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Unf% 1 and 2),

CLI 89 21,30 NRC 325,329 (1989). In other situations, a petitioner mu,t allege "some specific ' injury in fact' that will result from the action taken . . -, ." Id at 330.

As we have seen, ECO has relied primarily upon the so-called presumption.

It asserts that decommissioning involves at least as much radioactivity as a construction permit and, thus, that the same presumption should apply. This reasoning. however, ignores the foundation for the 50-mile presumption - the fact that significant offsite consequences can result L :. the operation of a facility for which a constnction permit is sought. ECO does not even allege U Arvil 20,1992 Ptsitkm at is.

16f c0 rnakes other clauns -liewise unspecir6c - concernmg the nanbers' interest in electncity at sammable rates, the leely nse in thnee mes as a sesult er decommiaakning. and the contnbutare or dectrnmissianing to the natumal trade dericit. As set rath laitt in this opinian, at (p.13431 Wra. emme d the claims or that omt rea within the annes or interest arguably sought to be pmtected by the Atamas twgy Act a N1.PA, U suglemens at s. see sire oral Argument.Tr. 6 8 "sugimmt at 10.

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that similar offsite rediological or environmental consequences eventuate from decommissioning. As for its second claim, LCO has made no attempt to show how any of the effects cited in the decornmissioning plan or environmental report as extending as much as 50 miles from the facility affect the particular individual.

At the prehearing conference, ECO asserted that tic individual whom it represents would also te affected by the radiolog.ical effects of transportation '

attendant to the decommissioning proposal "the transportation of spent fuel '

. . , and high level transuranic and low level waste off site and through the area aurrounding the plant where [the individual represented by ECO) lives,""

ECO had not mentioned transportation either in its pleadings or in the affidavit of the affected individual. And it has not spelled out what the radiological impact, if any, would be on the affected individual. Ilecause of this lack of particularity, as well as ECO's failure to mention transportation prior to the prehearing conference, we are not accegxing any of ECO's transportation assertions in our consideration of its standing?'

In sum, ECO's unsupported general rF ences to radiological consequences are insufficient to establish a basis for u9 y. Similarly, as the Commission has made clear in an earlier ruling in another case, the social type environmental consequences that ECO alleges will come not from decommissioning but from ,

the prior, unreviewable action of SMUD to discontinue operation of the facility.

See long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI.

90-8,32 NRC 201,207-08 (1990), reconsideration denied CLI 91-2,33 NRC -

61 (1991), 'that being so, ECO has not adequately alleged " injury in fact

• to its member to support its claim of representational standing,

11. Z(me of Interests Not only must a petitioner allege " injury in fact," but the injury alleged must be within the zone of interests allegedly sought to te protected by the Atomic Energy Act or NEPA (the ordy two statutes that i;overn in the current situation). We need not devote extended discussion to this raatter, given our determination that no valid " injury in fact" has been pleaded. Ilowever, because of our authority in certain circumstances to permit discretioniary standmg, we will at least touch brictly on the zone-of-interests question.

It has long been held that protection of financial interests such as excessive electric rates or higher fuel costs is not within the zone of interests sought "Tr. s.

Din addiuon, transporutirm impacra are not at Usue in this prawding. We capress na view. however, on ohether transparuue innpada armng trian a donannunnorung pnysal could serva es a tosia ror standeg, armardve or their hugatsby in dus proceedeg.

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- - - _ _ ...__._.___ ___ _ _ _ . _ _ _ _ - _ _ _ _ _ . _ _ _ _ - _ . _ _ _ _ . . - - _ _ ~

to be protected either by the Atomic Energy Act or NEPA. Portland Gencral EIretric Co. (Pebble Springs Nuclear Plant, Uruts I and 2), ALAll 333, 3 NRC 8(M. 8A6, q/J'd, CLI-76-27, 4 NRC 610, 614 (1976); Tranesscc Palley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413,5 NRC 1418, 1420-21 (1977). Just recently, the Commission reiterated the same point in its ruling on Ef'O's attempt to enter the POL proceeding. CL192 2, supra,35 NRC at 56. Specifically with respect to NEPA, the Commission observed that, ahhough NEPA does protect some economic interests, it only protects against those injuries resulung frorn environmental damage. We reiterate again that no snch injury is here alleged.

ECO's very general claims with respect to radiological health and safety may not run afoul of the zone-of interests test. Ilut, as set forth earlict, they are so generallied, so lacking in specific detail as to injury in fact, that they cannot serve as a basis for standing.

C. Conclusions as to Standing of Hight Ihr the reasons set forth above, ECO has failed to present a valid claim of " injury in fact." cither organliadonally or as a representative of its listed member, Most of its claims also fall to fall within tw zone of interests arguably protected by the Atomic Energy Act or NEPA.That being so, we hold that ECO 1as failed to establish standing of right.

L. Discretionary Standing ECO next claims that, should we determine that it lacks standing of right, we nevertheless grant it discretionary standing, as authorized by the Commission in Pebble Springs, CLI.76-27 supra,4 NRC at 61417. *Ihese, the Commission set forth criteria to evaluate whether discretionary intervention s%uld be granted

- the most import .at of which is "[t]he extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record."

Id. at 616.

'Ihe Licensee and Staff each claim that discretionary intervention is not permissible in a situation where, as here, no other petitioner has sought a hearing. In M'atts Bar, ALAB-413, supra,5 NRC at 1422, the Appeal Board suggested otherwise, commenting that intervention as a matter of discretion could trigger a hearing when there was "cause to believe that some discerniNe public interest will be served by the hearing " A licensing board recently adopted that viewpoint, although not permitting intervention in the particular situation.

Envirocare of Utah,Inc., LDP-92 8,35 NRC 167,182-83 (1992).

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i llcre, ahhough we tend to favor the ll'ans liar and Envirocarc ap[voxh, we need not reach the question. l'or, in view of the contentions sought to be litigated by ECO, none of which are acceptabic (see discussion Iq/ra), we have determined that ECO would not reasonably be expected to assist in building a sound record on which the Commission may base its decision in this proceeding.

We thus are declining to grant discretionary standing.

111, COSTENTIONS To le admitted as a party. FCO must not only establish its standing but also proffer at least one valid cr<ntente. Although we would not routinely consider LM validity of contentions where sis.1 ding has not been found, we are doing so here in light of ECO's trqmt for rs to grant discretionary standing.

ECO's proposed contentions av not clearly labelled as such. At the prehear.

ing conference. ECO attempted to include as contentions material from its initial peution (not there designated as contentions) as well as material from its June 29,1992 supplement.28 Because of our direction that contentions te filed in the supplement, we ruled that only information appearing in the supplement would be considered as contentions.22 We therefore turn to Parts til and IV of ECO's supplement, which contain, respectively. ECO's environmental and safety insed contentions.

A. General Criteria for Contentions Before dealing with specific contentions, we here review the standards for admissibility of contentions. *lhe applicable rules,10 C.F.R. 5 2.714(b) and (d), ,

were amended in 1989 "to raise the threshold for the admission et contentions."

54 Fed. Reg. 33,168 (1989).

In short, they now require, inter alla, that there be a specific statement of law or fact to be raised or controverted, a brief explanation of the bases of the contention, a concise statement of the " facts or expert opinion" that support the conten' ion, together with references to specific sources and documents of which the petidoner is aware and upon which the petidoner intends to rely, and sufficient informadon to show that a genuine dispute wxists with the applicant (or licensec) on a material issue. On NEPA issues, the contentions are to be based on the applicant's or licensec's environmental report. Itrther, the contendon must be of consequence in the proceeding and, if proved, entitic the petitioner to relief of some sort.

21 Tr.109.

1. r.112.

T 132

II, 1:mironmental Contention .

In hrt 111 of its Supplement. ECO presents w hat it describes as a single envi-ronmental contendon, w hich is divided into several subparts." Its general thrust is that "SMUD's environmental report is inadequate."" At least two reasons are assigned - first, that die NRC's Generic Environmental iminct Statement .

on thxommissioning of Nuclear Fxilities (NUREO 0586) (hereinafter, OEIS) provides itudequate consideration of decommissioning of Rancho Seco under NEPAL and second, that SMUD's Octolet 21,1991 Supplement to its Environ.

mental Report is " totally inadequate."

As background to this contention, ECO lists what it characterizes as the various " mandatory" requirements for environmental reports, as set forth in 10 C.F.R. 6 51.45, it then goes on to pardcularire what it describes as additional requirements for an environtnental re for decommissioning. ECO then assetts that NEPA requires the conside. don of " cumulative impacts," which it goes on to define as including "past" actions, regardless of what person undertakes such action. It next sets forth what it deems NEPA to require by way of derming " Major Federal action" and "significantly affecting the quality of the human environment." Finally, it describes requirements for the consideradon of alternadves, including the "no action" alternative, As its first specific claim, ECO asserts that NUREG-0586 provides "inade-quate consideradon" of the decommissioning of Rancho Seco, it lists sesenal reasons: i.e., that its purpose was to assist NRC in developing policies and amended regulations dealing with decommissioninS, that it was never intended to deal with decommissioning of a facility that had not reached the end of its useful hfe by age or accident, and that it provides inadequate treatment of radi-ological impacts and virtually no treatment of nonradiological impacts.

ECO then goes on specifically to describe several alleged omissions from the 1

Envimnmental Report. Most specifically, ECO scores the report for omitting any meaningful discussion of alternatives, either the "no action" alternative or die alternrdve of resumed operation, and for failing to include a cost benefit balaace. ECO explicitly states that the availablity of the wtion of selling SMt!D l tic; should te Rancho Secv] to a respumible entity for operation uther than demnmissioning is a significant distincuen bestrcen this cue and the Shorchun situaikn where dere was an agreanent to demn.nistiutt" Finally, ECO fauhs the environmental report on the basis of the Staff's March 12, 1992 questions. It attempts to incorporate those questions by reference, U sumim ni ai tus. tr 19 M sumiment et 16.

D I.r at 27.

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contending without further explanation that "each one" repesents a deficiency in Oc repert.

%c Licensec and Staff assert that this environmental contendon involves matters previously designated by the Commission as unnecessary for the envi-ronmental review of decommissioning, such as need for pwer or the environ-mental cflects of replacement power. Moreover, they declare that the numerous vague and unsupported allegations in the environmental contention fail to meet the rather stringent pleading requirements that the Commission adopted in 1989, tecause they include no fxts that would establish a material issue of fact or law.

With respect to issues of law, the Licensee and Staff assert that 05 major thrust of ECO's envirotunental claims - that the cf fects of ceasing operations are cumulative effects that must be analyzed in an EIS - has been rejected by the Commission with respect to decommissioning. Further, they contend that ECO's challenge to Oc use made by the Licensee of the OEIS fails to acknowledge the Commission's directions with respect to the CElS.28 In reviewing ECO's environmental assertions, it is clear that ECO misper-ceives the character of the environmental review established by the Commission for a decommissioning case such as this. De Commission views the environ-mental review as a supplement to that which already occurred during the oper-ating license phase of the proceeding. Rus, a licensec's environmental report for decommissioning need only " reflect any new information or significant en, vironmental change associated with the (licensec's] proposed decommissioning activities or wit's the [licensec's] proposed activitics with respect to the plamied storage of spent fuel." 10 C.F.R. 9 51.53(b).

Beyond that, the Commission has concluded that, m the usut! case, the environmental impat of decommissioning can be delineated in generic terms through reference to the GEIS. To the extent that the impacts from decommis-sioning a particular plant etc significantly different from the generic impacts, those impacts may be covered in a supplemental EIS, Rus, in promulgating decommissioning regulations in 1988, the Commission stated wi0i respect to the GEIS:

1he Oxumission's primary reann for elimina6ng a mandAny I:15 for denenmisakning is that the impads have been cmsidered genetially in a CUS. The Gunmissim determined that examinatim of these impacts and their cumulative effect on the environment and their ir.tegration into the waste disposal proass could best be esamined genericaley. A final, updated GEtS has been issued . . . 1he 005 shows that the differerwe in impacts anweg the basic shcrnatives for decxenmisskeing is small, whatevet ehernative is chosert, in comparison with the impact acceped frtru 40 years d ticensed operation.1he relative impasts are expected to be similar from plant to plant no that a site specific lits would result 26 3, y 3 3ns, g,_

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in the same auxtuskins as the 01:15 mith regard toincthods of detanmisikwiing Ahhough .

unne aanmeraers correcdy poird wt that an IM is mu.h los actailed in its ancisment of impacts than an F.tS,if the impacts for a particular plant are tigrHricandy differcrd frten Qum.c studied grrierically inause of sitcarecir:c considerations, the envirtmunental assessmera mudd diswver those and tay the fmndatkwi for the preparatim d an Is!S. If the irnpacts f(v a 3.ankitar ierd are tut significantly different, a lindmg tif No 3 gniricant Impset miuld be preared.p7 With this in mind, it is not difficult to perceive why a separate EIS for decommissioning a particular facility is rarely, if ever, recessnry. See Shoreham, CL1912, supra, 33 NRC at 74; id., CLl 90-8, supra, 32 NRC at 209, j To repeat, no NRC approval is required for a licensee to cease operation.

Shoreham, CL190-8, supra,32 NRC at 207 That decision is SMUD's to make l i

and (kxs not represent federal action of any kind. 'Iherefore, no EIS need be prepared for that aedon. Moreover, the impacts that ECO now secks to have discussed relate only to the cessation of operatiorn - they are not impacts of decommissioning. Shoreham, Cl.1912, supra,33 NRC at 71. That being so, they are not pertinent to the environmental effects of decommissioning - with which ECO has not taken issue or raised any environmental question.

Resumed operadon would be aa alternadve only to the cessation of operation, j not to decommissioning (as to which the Commission has stated that only alternative forms of decommissioning, together with "no action," are all that need be discussed.) Storcham, CLI 90-8, supra,32 NRC at 208. As pointed out by the Licensec,28 this is consistent with cases holding that, under NEPA, an agency ced consider only alternatives that lead to the objecdve of a proposal.

See City of Angoon v. llodel, 803 F.2d 1016,1020-22 (9th Cir,1986) (per curiam), cert. denied,484 U.S. 870 (1987); Culiens Against Burlington, Inc. v.

Busey,938 F.2d 190,195 (D.C. Cir,), cert, denied, ,_. U.S. 116 L Ed. 2d .

638,112 S. Ct. 616 (1991). Resumed operations thus need not be considered in conjunction with the proposed decommissioning acdon that is before us.

Failure to prer.are an EIS may be an issue raised in certain proceedings. Ilut where, as here, the action is allegedly deficient for failing to include matters that the Commission has already ruled are outside the scope of considesation of a proceeding such as this, we decline to consider a contention to that effect.

Further, where the Licensee has filed an Environmental Report that on its fxe

- attempts to supplement the GEIS with site specific information sufficient to provide the Commission with information to determine whether a supplemental EIS may be necessary, we will not entertain an unsupported generalized claim that the Commission is placing undue reliance on the OEIS in its assessment of the impacts of decommissioning the particular facility,

• 53 Fcd. Reg 24.01s. 24,039 (1988).

~'

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Finally, ECO's ettempt to incorporate by reference the questions asked by the Staff concerning the environmental report f ails to comply with the Comrnission's f pleading requirements. leulslana Encrgy Services, L.P. (Claiborne Enrichnent Center), LDP 9141,34 NRC 332,346,357 58 (1991). ECO does not describe the significance of the matters to which the questions are addressed or why, indeed, they might constitute a defect in the environmental report. Even und r the Commission's earlier rides, they would not have been pleaded sufficiet,0y.

Tennessee Valley Authority (lirowns Ferry Nuclear Plant Units 1 and 2), LBP.

7610,3 NRC 209,216 (1976); see also Gulf States Utilitics Co. (River Bend ,

Station, Units 1 and 2), ALAll-444,6 NRC 760,768 756 (1977).

ECO's environmental contention is accordingly rejected.

C, Nafety Contentions ECO includes six safety related contentions in part IV of its Supplement (designated Contentions IV.A-IV.F). The Licensec and Staff deem each of them to be legally or factually incorrect and to be inadequately pleaded under the Commission's contention requirements.

Contention IVA asserts that the decommissioning plan is premised upon, inter alla, the availability of liardened-SAFSTOR to be implemented after the fuct has been moved to dry storage in an Independent Spent Fuel Storage Installation (ISFSI). ECO claims, however, that "ShiUD has terminated its application for the ISFSI thereby invahdating a large part of the decommissioning plan."

ECO provided no basis for this claim, thereby invalidating the contention on pleading grounds. But when asked for its source at oral argument, ECO identified a letter from ShiUD to the Staff, dated hlarch 20,1992, which requests the Staff to " terminate" certain aspects of its review pending selection by SMUD of an appropriate storage cask. (he Licensec previously provided thc Board and ECO with a copy of that letter, appended to its July 8,1992 filing.)

At oral argument, the Licensec conceded that the wording of the letter might have been more felicitous, using " suspend

• rather than " terminate," but it claimed that the " application" had not been abandoned. Only the safety review had been suspended, pending selection of a cask; the environmental review is continuing. De Staff agreed that this was the case and the ISFSI application remains active," nat being so, Contention IV.A must be rejected.

Contention IV.B claims that Sh1UD lacks an adequate funding plan for the decommissioning. Such a plan is required by 10 C.FR. I50.75. De reason alleged by ECO for the deficiency is the Stafi's twocation of an exernption "Tr %97.

136

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it had previously granted SMUD, permitting fundmg over the course of the original operating license (i.e., until 2008) rather than at time of shutdown.

nc Staff granted the exemption without receiving public comments. Because de Staff had earlier promised ECO that it would be permitted to comment, the Staff then revoked the exemption and has received comments from ECO (which it has not yet finished evaluating).

Even though ECO may be technically correct about the current funding plan, w: fail to see how this establishes a material factual or legal dispute. - If die Staff should grunt the exemption, it will remedy the defect. (De granting of such an exctnption would be consistent with a newly revised version of 10 C.F.R. 6 50.75.) If the Staff should deny the exemption, it will have to take steps to ensure that SMUD provides adequate funding for the decommissioning.

Indeed, the crux of ECO's concern, that its views on the exemption be taken into account, has been fulfilled." We thus decline to entertain ECO's contention on this subject.

Contention IP.C challenges the adequacy cf the Federal Register notice for this proceeding, claiming that it failed to identify any relevant documents other than the decommissioning plan and the environmental report. ECO contends that adequato notice demands identification of all supplements and amendments to that application.

%cre is no such requirement. Potential intervenors reasonably are expected to research these documents in the Commission's Public Document Roo ns, where supplements and amendments would be available. In any event, at the time of the Notice, there were no supplements or amendments. His contention is thus rejected.

Contention IV.D asserts that the decommissioning order may not be issued prior to the completion of an adjudicatory hearing. ECO cites the introductory phrase of section 191a of the Atomic Energy Act 42 U.S.C. 9 2241(a). Dal phrase, however, only authorizes the Commission to use a threc member licens.

ing board, such as this one, to conduct a formal on the-record adjudication, in lieu of a single Administrative law Judge as required by the Administrtitive Procedure Act.

ECO has, in fact, been a, forded the opportunity for a public adjudicatory proceeding. As the Licensee observes, whether a hearing on a licensing action will be a pre-effectiveness hearing is not within the province of this' Board but, rather, the Commission itself, 10 C.F.R. Il 50.58(b)(6), 50.91, 50.92.

Moreover, there does not appear to be any requirement in the Atomic Energy Act that would mandate a pre-effectiveness hearing for decommissioning. See Ms7 red. Reg. 20.718 (May 14.1992h it.13943,161 137

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i long Island ughting Co. (Shoreham Nuclear power Station. Unit 1), CLI 92-4, 35 NRC 69,77 (1992).

Ibr these reasons, Contention IV.D is rejected.

Contention IV.E is a procedural claim that, since filing its intervention petition, ECO was entitled to bc served with all documents filed by SMUD and la attorneys. ECO cites 10 C.F.R. p 2.712.

That section deals only with the technical aspects of service of adjudicatory documents and, in any event, requires service only on " parties," which ECO is not.21 The scope of document service is covered by 10 C.F.R. 9 2.701(b),

which also only applies to "larties." Adjudicatory documents filed by parties responsive to or bearing upon intervention petitions must, of course, be served upon the petitioner - as was the situation here.

At oral argument, ECO supplemented its request by referencing the Board's general authority as a basis for requiring serviec upon ECO. If ECO were to become a party, that remedy would not be necessary. Where, as here, ECO is not being admitted as a party, that remedy would be inappropriate, if not beyond our authoiity, in any event, ECO was unable to identify any document with which it had not been served. It mentioned the Licensec's response ;o Staff questions, a nonadjudicatory document dated April 15,1992, but that document was filed prior to ECO's submission of its April 20,1992 petition for intervention.22 We are thus denying this contention.

Somewhat related is ECO's recently filed Motion for an Order to Compel Service, together with portions of its even more recent Motion to Strike. We have examined those motions and, for similar reasons, are denying them.

Contention IV.F is an attempt to incorporate by reference questions raised ,

by the Staff in its March 12,1992 series of questions to the Licensee. No ex-planation is provided concerning the significance of any question. ECO merely ponrays the questions as a per se reflection of defects in the decommission-ing plen. ECO does not bother to reference the Licensec's extensive April 15, 1992 responses to the questions asked. ('those responses were available be-fore ECO filed its intervention petition and over 2 months before ECO filed its incorporation-by-reference contentions.)

Ibr the same reasons that we rejected a similarly worded environmental contention, we also reject this attempt to rely on incorporation by reference as a foundation for a contention.

One isolated sentence in the affidavit of the individual whom ECO represents might also be deemed a safety contention. That sentence reads:

3' ECo,in its 14sion to strike rusd on August 14,1992. stl. anconectJy c..cs 10 Cf.R. I 2 714e as dmanunau.is peutioners as ;arase, pesumaNy ror all gurpues All that ponuon ikws is puvide a :)sht er spreal to poetiones who are daraed intervenuun or requested hearings. LCo hers is given that right.

32That documest is a nonadjudwatory documera that, unless it relaml duen3y to a revinusly acceped contenuon.

would not have been reqmred to be served upm a party.

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lhvmever, if the plant cannct le preserved for its intemkd purpose then it is my spnism that the DITO's method of deurnmissuming is the preferic4 shesnauve ludi te(ause it would best protect the pubhc heahh and safety by removmg Die radiological haurd nest promply and it would offer teuct assurarne that the enwxwriic costs d deurnmissming wuuld be minimited ard btrne by those persons who icceived the tenefas of Rancho Seca" No data or witnesses (expert or otherwise) are identified to support this claim.

Although the subject matter could be considered in a proceeding of this type, the claim satisfies none of the pleading requirements necessary to support a contention. Ibr that reason, we decline to consider it.

1 D. Conclusion on Contentions Based on the foregoing, there are no contentions that are admissible. Some concern Sebject matter that is outside the scope, as properly defined, of the decommissioning matter before us. The Commission itself has previously ruled di.ectly on a number of these itena. Nor are any of :he contennions in conformity with the Commission's pleading requirements. That being so, we are rejecting all the contentions both as contcations and as potential support for discretionary l standing, lad on ECO's ability to assist in developing a sound record.

IV. OTilER MA1TERS As we pointed out earlier ECO filed four motions following the prehearing conference. We considered and denied the first, deaiing with service of documents, in conjunction with our consideration of Contention IV.E. See p.

138. supra.

Because of this action, the Licensec's cross motion for us to strike certain portions of ECO's motion (snpported by the Staf0 becomes moot, and we are dismissing it for that reason. (This dismissal also makes moot the portion of ECO's August 14, 1992 Motion to Strike directed to this cross motion of the Licensec, which we also dismiss.)

The second motion is denominated as a " Contingent Motion to Withhold Any Order Wholly Denying the Petition for Leave to Intervene and/or the Request for a llearing." Anticipating that we might reach the very conclusions we have described in this Order, ECO asks us to forta and instead issue an order permitting it to amend its contentions or file new contentions within a reasonable time after SMUD files revisions to its environmental report and the Staff issues an environmental assessment.

" Jane 29,1992 Supplement, crespo Af%vit at 4 1

139

ECO provides several reasons for the relief it seeks, most notably the prospect (not disputed by anyone) that in the future SMUD will sulplement its environmental rcport. ECO also cites its " vested right" to amerd its contentions

- a right that ECO already exercised in filing its June 29,1992 supplement.

%c so<alled " vested right" to amend, to the exteni it may properly be so described, extends only until 15 days prior to the first prehearing conference.

10 C.F.R. 9 2.714(a)(3). Beyond that, it may be exercised only with leave of the Licensing Board, based on prescribed factors. In this case, granting this motion would run counter to the Commission's long standing requirement that contentions te submitted prior to the first prelcaring conference and that contentions or amended contentions submitted thereafter be considered " late-filed" and judged under the criteria applicable to such contentions. Dul.c Power Co. (Catawba Nuclear Station, Units 1 and 2), CL1-83 19,17 NRC IN1 (1983).

We are accordingly denying ECO's motion. In view of the position we have

'aken on ECO's various contentions, we consider the Licensee's cross-motion to strike certain portions of ECO's modon (supported by the Staff) as moot and, accordingly, nre dismissing it on that basis. Simila,1y, in view of this dismissal, we also consider the portions of ECO's Motion to Strike relating to tN Licensce's and Staff's responses to ECO's Contingent Madon to Withhold Decision to be moot and are dismissing it on that trasis.

ECO's third motion, denominated as a Motion to Strike, dated August 14, 1992, seeks to have us strike certain portions of the Sta!I's and Licensce's responses to ECO's previous motions. (its fourth modon secks leave to file the foregoing Motioq to Strike.) We are permitting ECO to file the Motion to Strike, even though it consists mainly of a reply to certain of the points raised by the Licemec and Staff in response to ECO's earlier modons. As noted earlier, we have denied or dismissed as moot several aspects of this Motion to Strike. Although we have dechned to strike the materials specified, we have taken ECO's reply into account in ruling on those earlict motions.

V. ORDER Based on the fmegoing, and the entire record of thi:; proceeding, it is, this 20th day of August 1992, ORDERED:

1. The Petition for Leave to intervene and Request for Prior llearing of the Environmental and Resources Conservation Organization (ECO), dated April 20,1992, is hereby denied.

2. ECO's July 17, 1992 Motion for an Order to Compel Service and its '

July 17,1992 Contingent Motion to Withhold any Order Wholiy Denying the Petition for Leave to Intervene and/or the Request for a licating are each 1.t0

i hereby denied. The Licensec's cross-motions to strike certain material from tic foregoing motions are each dismissed as mool

3. ECO's Anticipatory Motion for Leave to File ECO pleading, dated August 14, 1992, is hereby granted. ECO's Motion to Strike, dated August 14, 1992, is hereby denicd or dismissed as moot, as set forth earlier in this Opinion.

4 This proceeding is hereby terminated.

i

5. This Order is subject to appeal to the Commission pursitant to Llc terms '

of 10 C.F.R. 6 2.714a. Any such appeal must be filed withiri ten (10) days after service of this Order and must include a notice of appeal and accompanying surpating brief. Any other party may file a brief in support of or in opposition to the appeal within ten (80) days after service of the appeal.

TilB ATOMIC SAFETY AND LICENSINO "OARD Charles Bechhoefer, Chairman ADMINISTRATIVE JUDGE Dr. Richard F. Cole ADMINISTRATIVE JUDOE Thomas D. Murphy ADMINISTRATIVE JUDGE Bethesda, Maryland August 20,1992 141

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I Directors' Decisions Under

, 10 CFR 2.206 1

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! Cite as 36 NRC 143,1992) DD-92 4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR HEGULATION Thomas E. Murley, Director in the Matter of Docket Nos. 50-528 50 529 50 530 ARIZONA PUBLIC SERVICE COMPANY, et af.

(Palo Verde Nuclear Generating Station, Units 1,2, and 3) August 12,1992 The Director of the Office of Nuclear Reactor Regulation denies the ternain.

der of a Ittition submined by Mrs. Linda E. Mitchell (Ittitioner) requesting action vcith regard to the Palo Verde Nuclear Generating Station of Arizona Public Service Company, et al. (Licensec).

In her Itution, Petitioner alleged that serious violations existed ut the Palo Verde facility in the systems for emergency lighung and fire protection. In a l'artial Director's Decision issued on October 31,1990 (DD-90 7, 32 NRC 273),

this aspect of Ittitioner's request for action pursuant to 10 C.F.R. 9 2.206 was denied.

Ittitioner had also alleged improprietics by Licensec personnel regarding NRC inspection activities, specifically that Licensec personnel acted improperly to " water down" inspection findings, suppress serious violations, and discredit an NRC inspector, Based on an invesugation by the NRC's Office of the inspector Getieral, these allegations were found to be without merit. Accordingly, the Director denied this aspect of the Petitioner's request for action pursuant to section 2.206.

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FINAL DIRECTOM'S DECISION UNDER 10 C F,lt 6 2.206

1. INTRODUCTION On May 22,1990 David K. Colapinto Esq , submitted a Petition on behalf of Mrs. Linda E. Mitchell (itutioner) requesting that the U.S. Nuclear Regulatory Commission (NRC) take aedons pursuant to 10 C.F.it $ 2.206 regarding die Palo Verde Nuclear Generating Station (blo Verde) of the Arimna Public Service Company, et al. (APS or Licensec). 'Ihe Itutioner stated that she is employed by the Licensee as an associate electrical engineer at blo Verde. She alleges that serious violations exist at hio Verde in the systems for emergency lighung and fir $ protection which were uncovered by the NRC during routine inspections, and that Licensee personnel acted improperly to " water down" die inspection findings, suppress other serious violations, and discredit an NRC inspector, ittitioner also alleges that NRC Region V management ret:diated against the NRC inspector in quesdon and agreed to " water down" inspec; ion report fmdings as a result of the efforts 'nade by the Licensec.

Ittitioner clairns that these actions will chill efforts by NRC inspectors and employees of NRC licensed facihdes to raise safety concerns.-

Itulloner sought a variety of relief, including (1) instituting a proceeding pursuant to 10 C.F.R. 6 2.202 to modify, suspend, or revoke the licenses issued by the NRC fo. Palo Verde: (2) issuing citations to the Licensec for violations improperly and illegally deleted from an NRC inspection report; (3) issuing fines to certain employees of the Licensec for allegedly tampering, obstructing, and impeding an ongoing NRC inspection; (4) taking disciplinary actions against any and all NRC employees allegedly involved in retaliating again t an NRC inspector; and (5) granting such other and further relief as the NRC may deem appropriate.

In a letter to Mr. Colapinto of June 'll,1990, I acknowledged receiving the Ittidon and informed him that the Petition would be treated under 10 C.F.R. 9 2.206 of the Commission's reguladons. I also informed Mr. Colapinto dial allegations in the Ittilion concerning improprietics by NRC personnel had been referred to the Office of the Inspector General and that any inquiries regarding those allegations should be directed to that office. I will not further address die relief sought for these matters because these matters are outside die sco[n of section 2.206.

The allegations in the Peution fall into three categories. First, Peutioner alleges improprieties by NRC personnel regarding NRC inspection acuvities.

As noted above, this matter was referred to the Office of the inspector General.

Second, the Ittitioner alleges that, during routine NRC inspection activities, an 144

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I imgw; tor uncovered serious safety violations at l'alo Verde in the systems for l emergency lighting and fire protection. l I addressed this aspect of the Petition in a l'artial Director's Decision issued on October 31,1990 (DD 90 7,32 NRC 273), in which I found no jushfication for instituting a proceeding pursuant to section 2.202 to mahfy, suspend, or revoke the NRC licenses held by APS. I made this decision after reviewing the corrective actions that APS took to resolve the concerns found by the NRC Staff while inspectirig emstgency lighting and fire protection at Palo Verde. I found reasonable assurance that Palo Verde can te operated with adequate protecilon of the public health and safety until the Licensee completed its ongoing corrective actiorts. %crefore, I denied this aspect of de lYlitioner's request for action pursuant to section 2.206.

De third category of allegations set forth by the Petitioner allege impropri-eties by APS personnel regarding NRC inspection activities. As was noted in de Partial Director's Decision of Octoter 31,1990, these allegations of wrong-doing were referred for invesdgadon. I further noted in that l'artial Decision that I would issue a Final Dirxtor's Decision dealing with these allegations upon receipt of the .nvestigative findings. These matters were investigated by i

the NRC'* Office of the inspector General (010) which has completed its work on these matters. My decision with regard to these allegations of wrongdoing follows.

II. DISCUSSION Ittitioner alleges that Licensee personnel acted improperly to " water down" emergency lighting and fire protection inspection f ndings, suppress other serious violations, and discredit an NRC inspector. Petitioner also claims that these actions will severely chill the rights of employees at NRC licensed facilities to speak freaty and raise conectns with NRC inspectors and the rights of employees to raise safety concerns without fear of retaliation in general.

On April 24,1990, tle NRC Staffissued inspection Ry) ort (IR) 90-02. In the letter transmitting IR 90-02, the NRC Staff stated that it found several concerns regarding the status of the 10 C.F.R. Part 50, Appendix R, emergency lighting at l'alo Verde, in IR 90 02, the NRC Staff listed as unresolved items numerous apparent deficiencies in the emergency lighting system which were described in detail in the report. Unresolved items are items for which de NRC Staff needs additional information to decide whether the matter is a violation of NRC requirements. Petitioner alleges that APS officials improperly influenced the NRC Staff to " water down" IR 90-02 to cover up additional concerns raised by Petidoner and verified by an NRC inspector identified by Petitioner as " John Doe." Petitioner further alleges that, upon learning of these potential violations, 145 t

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APS management began a concerted effort to harass and discredit " John Doc" through his superiors at NRC Region V, and tlut APd miended to cover up aml

, suppress additional serious violations, many of which Petitioner's supervisors at APS recognited were legitimate concerns. Petitioner further alleges that APS employees stated that they were going to contact NRC management to get" John Doc" to revise his fmdings and have him transferred to another NRC region because he was causing too much trouble. Finally, Petitioner alleges that senior APS officials contacted NRC Region V of ficials by telephone and accused" John Doc" of misconduct to impede and interfere with an ongoing inspection.

As stated above, 010 has completed its investigation of the wrongdoing aspects of the Petition. 010 issued its report on September 30, 1991 (010 investigative Report, Case No. 904511). De following is a synopsis of this report.

De Petitioner told 010 that she had no first hand knowledge of the alleged teleptame calls by Palo Verde managers to NRC Region V officials. De Petitioner learned of the telephone calls from inspector " John Doc." "Jo_hn Doc" told OIO that it was his understanding tused on discussions with Region V officials that Palo Verde officials had called the Region and expressed concern with the manner in which he presented his inspection findings on emergency lighting at an exit meeting on March 23,1990. Specifically, Palo Verde officials were surprised at ae exit meeting with new findings that " John Doc" had not previously discussed during the inspection. %erefore, they were not prepared to respond, All of the Palo Verde and NRC officials allegedly involved in the commu-nications regarding " John Doc" and the NRC inspection findings denied or had no recollection of ever discursing " John Doc's" performance during the March

'3,1990 exit meetingillowever, Palo Verde and NRC Region V managers had discussed emergency li;,hting during telephone discussions following a February 9,1990 exit meeting. According to the NRC Region V officials," John Doc"  ;

was not mentioned during these telephone discussions, and Palo Verde did not contest the emergency lighting findings. NRC Region V held these telephone conversations with representatives of Palo Verde to inform them of the gravity  ;

of the emergency lighting issues. '

With regard to IR 90-02, " John Doc" told 010 that he did not agree with the manner in which his inspection findings were presented. lie believed his  ;

findings should have been reported as violations rather than as unresolved items.

In Inspection Report 90-0? the NRC Staff included as unresolved items cll of the emergerwy lighting findings listed by "Jotm Doe" in his draft inspection report. In other words, none of " John Doc's" findings were deleted flom the f

report. He NRC Staff both at headquarters and Region V continued to research these issues for several months. Ibliowing additional inspections. Region V  !

issued Inspection Reports 90-25 and 90-35 and assessed Palo Verde a civil t

146' i

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penalty of $125,000 for emergency lighting violations. The 010 invesugators

did not substantiate the existence of a conspiracy twtween l'alo Verde and NRC Region V officials to water down inspection findings, as alleged. This concludes the synopsis of the 010 Report.

%c Ittilioner also claimed that the Licensec actions alleged in the Petition would chill efforts by NRC inspectors and Licensee employees to raisc safety concerns. As discussed above, the specific allegations of Licensec rnisconduct, )

which were the bases for the chilling cfrects claims, were not substantiated.1  ;

i III, CONCLUSION The 010 conducted an investigation and could not substantiate the existence of a conspiracy between Palo Verde mana3cment and NRC Region V officials to delete items or alter inspection findings, and other related aspects of alleged wrongdoing as detailed above. Therefore, I have decided to deny the Petitioner's requests for action: (1) that NRC institute a proceeding against APS pursuant to section 2.202; (2) that ApS be cited for violations deleted from NRC Inspection

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Report 90-02; (3) that NRC issue lines to APS and certain named employees for tampering, obstructing, and impeding an NRC inspection; and (4) that NRC employees involved in retaliation against the NRC inspector be disciplined.

Finally, Ittitioner requests that NRC grant such other and further relief as the NRC may deem appropriate.11ased on the foregoing, there is no further action deemed appropiiate with respect to this Petition. Ilowever, the NRC will continue to review DOL cases of discrimination and any 01 investigations involving retaliation as they are completed for appra priate action, as is normal ,

NRC practice.

3 on Mardi 16.1992.I assued a threcuw's Decman regardmg Palo Verde (DD921.3s NRC 133)in respaw to a Peutirm tiled by Messes Devid K. Colspinto and Stephen M. Kda la roun<me 1 d eat Doctsion. I indeed that the issues or widespread harassment intbrudeuon. and retahaute rused by Messrs Cdapuuo and K4An would be the siAJact or a separate thrector's Decmen hese iuuca have na been rmally resolved and are sull under conmderpasm by the NRC. The NRC will keep Messes Colapinto and Ktan advined or se resoluuan or these tssues.

147 l

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l As provided in 10 C.F.R. 5 2.206(c), a copy of this Decision will be filed with the Secretary of the Commission for its review.

FOR Tile NUCLEAR REGULATORY COMMISSION Thomas E. Murley, Director Office of Nuclear Reactor '

Regulation Dated at Rockville, Maryland, this 12th day of August 1991.

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