ML20128N269

Nuclear Regulatory Commission Issuances for July 1992.Pages 1-45

ML20128N269
Person / Time
Issue date:	01/31/1993
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V36-N01, NUREG-750, NUREG-750-V36-N1, NUDOCS 9302230178
Download: ML20128N269 (45)

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I NUREG-0750 l Vol. 36, No.1 i Pages 1-45 I I i

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NUCLEAR REGULATORY!

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l Available from Superin*>ntendent of Documents i

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

4 indexes, and 24 hardbound editions for this publication.

Single copios of this publication are available from National Toctinical information Service, Springfield, VA 22161 t

Errors in this publication may be reported to the Division of Froodom of information and Publica' ions Services Office of Administration U.S Nuclear Regulatory Commission Washington, DC 20555 (301/492-8925) u l

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l NUREG-075.0 Vol. 36,14o.1 Pages 1-45 i

NUCLEAR REGULATO9Y CONMISSIO\ ISSUA\CES i

July 1992 This report includes the issuances rocoived during the specified period from the Commission (CLI), the Atomic Safety and Licensing Boards (LBP), the Administrativo Law Judges (ALJ), the Directors' Decisions

! (DD), and the Donials of Potitions for Rulomaking (DPRM).

Thn summarios and headnotes proceding the opinions reported heroin i are not to bo doomed a part of those opinions or have any indopondent legal significanco.

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! U.S. NUCLEAR-REGULATORY COMMIS$10N. .

Prepared by the Division of Freedom of Information and Pubhcations Services Offico of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555 (301/492-8925) i i

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1 COMMISSIONERS Ivan Selin, Chairman Kem.9th C, Rogers n ...ws R. Curtiss Forrest J. Remick E. Gail de Planque 9

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

CONTI'NTS Issuance of the Nuclear Regulatory Commlulon llOUSTON LIOllTING & POWER COMPANY, rt al.

(South Texas Project, Units 1 and 2)

Dockets 50-498, 50-499 MEMORANDUM AND ORDER, CL19210, July 2,1992 . . . . . . . . . . 1 Issuances of the Atomic Safety and 1.icensing floards LOUISIANA ENERGY SERVICES, L.P.

(Claitorne Enrichment Center)

. Docket 70-3WO ML (ASLIIP No. 91-641-02 ML) (Special Nuclear Materials License)

MEMORANDUM AND ORDER. LDP-9215A, July 8.1992 . . . . . . . . . 5 NORTilEAST NUCLEAR ENERGY COMPANY (Millstone Nuc1 car Ibwer Station, Unit 2)

Docket 50-336 OLA (ASLBP No. 92-665-02 OLA) (FOL No. DPR-65)

(Spent Fuel Pool Design) 4EMORANDUM AND ORDER, LDP-9217 July 29,1992 . . . . . . . . 23 PlhNG SPECIA LIST'S, INC., and TORREST L. ROUDEllUSit d.b.a. PSI INSPECrlON, and d.h.a. PIPING SPECI ALISTS, INC.

(Kansas City, Missouri)

Docket 030-29626-OM&OM 2 (ASLBP Nos. 92-653-02 OM, 92-662-06-OM 2)

(Byproduct Material License No. 24 24826-01) (EA 91 136, ?2-054)

(License Revocation, License Suspension)

MEMORANDUM AND ORDER, LDP-9216, July 10,1992 . . . . . . 15 SAFETY LIGilT CORPOR A~llON, et al.

(Bloomsburg Site Decommissioning and License Renewal Denials)

Dockets 030-05980-ML&ML-2. 03CLO5982-ML&ML-2 (ASLBP Nos. 92-659-01.ML, 92-6M 02 ML-2) .

MEMORANDUM, LBP-92 16A, July 17,1992 . . . . . . . . . . . . . . , . . 18 lii i

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luuances of Dentals of Petititms for Hulemakings DANIEL llORSON on Behalf of PUllLIC CITIZEN Docket PHM $0-54 DENI AL OF PETITION TOR RULEh1 AKING.

DPR M.92 1, J uly 27. 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 GENERAL ELECTRIC STOCKilOLDERS' ALLIANCE et al.

DocLet PRM 2019 DENIAL OF PETITION TOR RULEMAKING.

DPRM 92 2. July 27,1092 ............... ................ 37 It

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Commission ,

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r Cite as 36 tJRC 1 (1992) CLl 9210 UfJITED STATES OF AMERICA tJUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Ivan Selin, Chairman Kenneth C. Rogers James R. C9ttiss Forrest J. Remick E. Gall de Planque I

in the Matter of Docket Hos. 50 498 50-499 ,

HOUSTON LIGHTING & POWER COMPANY, et al.

(South Texas Project, Units 1 and 2) July 2,1992 The Commission denics the motion of Ilouston Lighting & Power Company to modify or quash ten (10) Office of Investigations' (01) sut t oenas issued to ccitain South Texas Project employees and management officials in an i investigation concerning Thomas J. Saporito, Jr. 01 issued the subpoenas after those individuals attempted to cordition their voluntary testimony. 'lho Commission finds that Ol's refusal to guarantec as a precondition to a compelled interview that a witness will unequivocally receive a copy of his transcript does not violate the Administrative Procedure Act.

ADMINISTRATIVE PROCEDURE ACT: 5 U.S.C. I554(c)

(INVESTIG ATIDN TRANSCRIPTS)

Transcript rights granted under section 555(c) of the Administrative liocedure Act do not extend to testimony voluntarily given. United States v. Afurray,297 F.2d 812, 821 (2d Cir.1962); Att'y Generals blamsal on the Administrative l'rocedure Act 67 (l947). I l

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ADMINISTRATIVE PROCEDURE ACT: 5 (LS.C. 5 555(e) (" GOOD CAUSE" EXCEL'I'lON)

Section $55(c) of the Administrative Procedure Act requires that when testimony is compclied from a party or a witaess, that person is entitled, upon payment of costs, to obtain a copy of his transcribed testimony. Ilowever, a

" compelled" witness' right to c%in a transcript of his testimony may be limited in nonpublic investigatory proceedings to inspecdon of the transcript, upon a showing of " good cause" by the agency.

AllMINISTRATIVE PROCEDURE ACT: 5 U.S.C. I 555(c) (" GOOD CAUSE" EXCEPTION)

'lhe irwocadon of the goal-cause excepdon contained in section 555(c) of the Administradve Procedure Act is within the agency's discretion and applies to situations where evidence is talen in a case in which proswutions may be brought later and it would be detrimental to the due execution of the laws to permit copies of the transcript to be circulated. Commercial Capital Corp. v.

SEC,360 F.2d 856,858 (7th Cic 1966).

ADMINISTRATIVE PROCEDURE ACT: 5 U.S.C. I 555(c) (" GOOD CAUSE" EXCEL'IION)

An agency is not required to make a good-cause determination prior to receiving testimony from a witness. SEC v. Sprnher, 594 P.2d 317, 319 (2d Cir.1979).

MEMORANDUM AND ORDER

'lhis matter is before the Commission on a motion by liouston IJghting &

Power Company, et al. (South Texas Project, Units 1 and 2) to modify or quash ten (10) subpoenas issued by the Dirator of the Office of Investigations ("Ol").

Ibr the reasons explained below, we deny this motion.

I. IIACKGROUND On March 3,1992, Robert D. Martin, Regional Administrator RIV, requested the Office of Investigations to conduct an investigation to determine the facts surrounding the denial of access of Thomas J. Saporito, Jr., a contract instrument and Control Technician, to South Texas Project ("STP"). Mr. Saporito contends 2

that his unescorted access was denied solely on he basis of his having identified to the NRC potential regulatory violanons by S1P S1P contends that Mr.

Saporito's access was denied for having provided false information on his employrnent application.

As [urt of this investigation, the 01 investigator assigned to the case de-termined that testimony from STP crnployees and management officials was required. *!he investigator attempted to conduct these interviews on a noncorn-pelled basis, transcribing management interviews as is Ol's regular practice. As communicated through counsel, these witnesses indicated that they would agree to noncompelled interviews only if 01 would either guarantee that transcripts of these interviews be given to the witnesses no later than 2 weeks after the date of each interview or comply with one of several other alternatives outlined in counsel's April 24,1992 letter to the 01 investigator. (Attachment 2 to Motion to huhfy or Quash Subpoenas). Each of these demands was rejected by 01 as being contrary to its policy not to release voluntary interview transcripts until the end of the investigaticti.81his impasse necessitated the issuance of the 01 sutroenas at issue in the present motion.

II. Tile MOTION TO MODilT OR QUASil We note at the outset that this challenge is to compelled interviews and is therefore governed by the Administrative Procedure Act,5 U.S.C,6 551 et seq.

("APA"). Section 555(c) of the APA affoids certain " procedural protections to a person subject to agency investigation , an assurance of lawfulness in the investigation, and the right to retain, procure, or at least inspect the data or evidence (the witness] has been compelled to submit." Gudian Federal Savings and Loan Ass'n v. FSLIC, $89 F.2d 658, 663 (D.C. Cir.

1978). Specincally, section $55(c) of the APA requires that when tcstimony  ;

is compelled from a party or a witness, ilut person is entitled, upon payment of costs, to obtain a copy of his transcrited testimony. This right, however, may be limited in nonpublic investigatory proceedings, upon a showing of" good cause,"

to inspection of the transcript. The invocation of the good-ca'se u exception contained in section $55(c) is within the agency's discretion and applies to situations where evidence is taken in a case in which prosecutions may be brought later and it would be detrimental to the due execution of the laws to permit copies of the transcript to be circulated Commercial Caplial Corp. v.

SEC,360 F.2d 856,858 (7th Cir.1966). Moreover, the agency is not required to 3

This pobey is connaient wnh the Adrrunutrauve Procedure Act. TransmN rights granted under secoun 555(c) or the Act do not entend to wiimony voluntardy given. Umtsd su<s v. Marray 297 FJd sik 821 (2J Cir.

1962), Att*y Generals Mem el on d.o Adnum.stratM Procadwa Act 61(l447).

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make a good cause determination prior to receiving testimony from the witness, SEC v. Sprecher,594 F.2d 317,319 (2d Cir.1979). To require otherwise would force 01 to determine the impact on its investigations of releasing transcripts that do not yet exist. The APA does not require such an impractical procedure.

See Id.

With this understanding of the APA, we find premature Petitioners' argument that 01 has violated the APA by refusing to guarantec, as a precondition to compelled interviews, that the willnesses will receive a copy of their transcribed testimony. 'there can be no procedural violation of section $55(c) of the APA until 01 conducts interviews, produces transcripts, and takes some action pertaining to the transcripts At the appropriate time,01, of course, must allow the witnesses to obtain a copy of their interview transcripts unless, for good cause, the witnesses are limited to inspection of the transcripts.2 lit. CONCI.USION ibr the foregoing reasons, we deny the motion to modify or quash the -

subpoenas in th!s casc.

It is so ORDERED.

Ibr the Commission $

SAMUEL J. ClllLK Secretary of the Commission Dated at Rockville, Maryland, this 2d day of July 1992.

I Pcutumers also argue that they "have .n unquabried nght to okam sucrwew transcnpts because they =dl alm <st certamly involve infarmayon germane to an adminstrouve proceedmg curnetly bems ciw ducted by the tkrsrtment of tabor" INutmner's Mouan at 8. huuoners cmstrue langnge taken inwn Imah the llouse and smaw cannunee reports m seamn 555(c) staung that "{t] hey (witnessal should also have sudi copies whenevet needed in legal or admmistradve pmceedmas" as estahhnhms dus estt S. Rep. No. 752,79th Cmg ,

1st seas 206 (1945), ll.R. Rep No. 1980, 79th Cong , 2d seas. 261 (1946). We daagree. liven assunung INainoners' interpreist'un or the legislative history to be correct, legalauvs hatory docs not create substanuve rights not cmtamed in the statute itselr. 2A N smger, SuAerl. sad Sarwory Cowuncrea i 4106 (4th ed 1964) si 308. Sectum 555(c) does tus prmide that witnesses should have such copies whenever needed in legal or administrative proceedmgs Rather, sectim 555(c) empt.citly provides that witnesses sie enutled to okain c< ries of omr transenbed tasumony enwp that, upon a showtr.g of got.J cease by the agency, w2utesses may be Lnited to inspectum er the transcnps. We therefore dec!me to er.large rights granted under tim APA heyund what Cmgress enacted.

hirman selm was unavailable to parncipate m th6s matter.

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ATOMIC SAFETY AND UCENSING BOARD PANEL y  :

B. Paul Cotter,* Chief AdministratNo Judge 0 ~

0 Robert M. Lazo,* Deputy Chief AdministratNe Judge (bacutke) . T ,

j Frederick J. Shon,* Deputy Chief AdministratNe Judge (Technical) g l O. l Members g ]

Dr. George C. Anderson James P Gleason Dr. Kenneth A. McCoHom l Charles Cechhoeter* Dr Davd L Hetnck Marshall E. Miller Potor B Bloch*

G. Paul Boltwerk Ill*

Ernest E. Hill Dr. Frank F. Hooper Thomas S. Moore

• Dr. Peter A. Morns . _

2 Tiomas D. Murphy l

Glenn O. Bnght Ehzateth B Johnson 1 Dr A. Dixon Callihan Dr. Walter H Jordan Dr. Richard R. Panzek

[

Dr. James H Carpenter

• Dr Charies N Kolber*

Dr Rchard F. Cole

• Dr Jerry R. Kline*

, Dr. Harry Rein Lester S. Rubenstein 2

i Dr Tiomas E. Eueman Dr Peter S. Lam

• Dr Davxt R. Schnk i Dr George A. Ferguson Dr James C Lamb 111 Ivan W Struth* -

• h' l Dr Harry Foreman Dr Emmeth A Luebke Dr. George F. Tdey j Dr Rchard F. Foster Morton B. Margutes* Sheldon J. Wotte M .

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Cde as 36 f4RC 5 (1992) LDP 9215A UtJITED STATES OF AMERICA t4UCLEAR REGULATORY COMMISSIOfJ ATOMIC SAFETY Ai4D LICENSif4G BOARD Before Administrative Judges:

Morton B. Margulles, Chairman Richard F. Cole Frederick J. Shon

'.1 the Matter of Docket No. 70-3070-ML (ASLBP No. 9164102 ML)

(Special Nuclear Materials License)

LOUISIANA ENERGY SERVICES, LP.

(Claiborne Enrichment Center) July 8,1992 RULES OF PRACTICE: DISCOVERY Security plans are to be withheld from public disclosure, irrespective of whether discovery of the documents is sought from the Nuclear Regulatory Commission or the applicant.

RULES OF PRACTICE: PROPRIETARY DETERMINATIONS An applicant has no obligation to establish that the security plan is privileged or confidential. Section 2.790(d) of 10 C.F.R. deems it to be.

RUI.ES OF PRACTICE: PROPRIETARY DETERMINATIONS An alp' tat has no ot, ligation under 10 C.F.R. 6 2.790(b)(1) to submit an affidavit for having the security pian withheid from public disclosure.

Section 2/'90(b)(1) requires such an affidavit when a person " proposes" that the

, document be withheld treause it contains confidential commercial or financial 5

informr, tion. In the case of a security plan, it has already been deemed to be such information under section 2.790(d).

1 RULES OF PRACTICE: PROPRIETARY DETERMINATIONS Where an applicult has made a primafacle case that the security plan should be withheld from public disclosure and that an in camera proceeding is required in order to fashion an appropriate protective order under which portions of  !

the security plan could be made available to the intervenor, the refusal of the i I

intervenor to gurticipate in the in camera proceeding is an effective waiver of its right to further consideration of its discovery request of the matter, lhe applicant should not respond to the discovery request, and the rnotion to compel shall be denied.

MEMORANDUM AND ORDER (Ruling on Dhcovery Dkputes Pertaining to Contantions L and M) l l

l 1hc matters for decision before the Board are discovery disputes between Applicant, Louisiana Energy Services, L.P. (LES), and Intervenor, Citizens Against Nuclear Trash (CANT), pertaining to Contentions L and M. 'Ihe contentions involve the adequacy of Applicant's safeguards for protecting against the unauthorized praluction or diversion of highly enriched uranium.

On April 28, 1992, CANT filed interrogatories and a request for the pro-duction of documer.ts from LES. Applicant responded on May 18,1992. It claimed that, in many cases, to answer would disck>se proprietary or classified information and therefore only referenced relevant portions of the documents, the Physical Security Plan (PSP) and the Fundamental Nuclear Material Control Plan (FNMC), where such information is contained. LES objected to produc-ing the documents without appropriate controls. Applicant also objected to the manner in which LES was defmed in the discovery request, which it believed would result in all of the partners having to answer each irkjuiry.'

Attached a the response to the discovery request was Ar.plicant's motion for a protective orde potecting Applicant's partners from uiscovery and Applicant from disclosing portions of the PSP and FNMC without appropriate safeguards.

In turn, CANT on June 2,1992, filed a motion to compel LES to respond to discovery and objected to Applicant's motion for a protective order, it argued that Applicant's objections and protective motion were without merit and tint Intervenor was entitled to complete answers to its interrogatories and to inspect and copy the requested documents. Applicant filed a response on June 16,1992, objecting to CANT's motion to compel.

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in this Memorandum and Order, the Ikurd rules on the cross motions.

A, Dispute as to Who is to Respond to Disemery Applicant was concerned that under the definition CANT used to describe LES in the discovery request it was meant to require exh partner to answer each interrogatory, to which Applicant objects. The same issue has previously been disposed of by the 11oard in this proceeding in Memorandum and Order (Ruling on Discovery Disputes Pertaining to Content ons, D,11, I, J, and K) (June 18, 1992), at 2-4 (unpublished).

The Doard found that the issue had been rendered moot by disputants

• understanding that LES has the responsibility for responding to discovery, and where it does not have the information directly it will obtain it from the partners if they possess it. We reach the same decision here. The Ikiard similarly denics that part of each motion dealing with the dispute as to who the proper parties are in respondmg to discovery.

II. Dispute as to the Production of Requested Documents I, Applicant's l'osition Applicant, in response to Interrogatories 4, 5,17,18,19, 20, and 22-26, referenced its answers to the PSP and the IHMC It then refused to produce  ;

the documents in response to Intervenor's two requests for the production of documents on the ground that both documents are proprietary in their entirely and additional parts are classified as Confidential National Security Information (CNS!) 'the IHMC describes Applicant's material control and accounting (MC& A) information.

LES was willing to disclose those portions of the PSP or IWMC that were not CNSI, under the terms of an appropriate protective order. It would not permit the disclosure of CNSI to Intervenor because it is not aware that CANT has appropriate authorization to obtain the information. ,

Under the NRC regulations governing the Availability of Official Records (10 C.F.R. 9 2.790), an applicant's physical protection and MC& A program for special nuclear material, not otherwise designated as Safeguards Information or classified as National Security Information or Restricted Data, are deemed to be commercial or financial information within the meaning of 10 C.F.R. 6 9.17(a)(4).10 C.F.R. I 2.790(d)(1).

Section 9.17(a)(4)cxempts agency records from public disclosure that contain trade secrets and commercial or financial information obtained from a person and privileged or confidential. Section 2.744 provides procedures for obtaining NRC documents that are not available pmsuant to section 2,790. One avenue is 7

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through the Executive Director for Operations, the other through the Presiding Ollicer, LES argues that like the NRC, which is exempt under 10 C.F.R 62.741(c) i from the general discovery provisions governing the production of NRC records 4

and documents, it too can limit access to the security plan documents Intervenor seeks, when the documents held by the Applicant are the same as possessed by the NRC.

2 LES relles on Pacife Gas and Elecirl:: Co. (Diablo Canyon Nuclear Power Plant. Units 1 and 2), ALAll.410, 5 NRC 1398,1402 (1977), in which the Appeal floard stated:

'the security plan fw the Diablo Canytm nuclear peer facihty is (or will te) in the pasession of huth the apphcard and the Commission." %hether dismvey of the documents cunpising that plan be from me source or the other, nmitially the same sumdards apply.13 _

11 see 10 Cl R ll $0 M(c),3039 and 2 79ti te).

"Jee 10 CIR 61740(bXI)("lp) artes enay obtain discmery #cganhng any maner rue prmleged . . ,'*) srd (t) (permacuve ordrss). lir a general dacissi<m on' these pnmsione see Kawas Gar seid 13rmse Co. (%olf Cseck oanarsung statum, timt Na 1). Al.AD.327,3 NRC 40s,413415 (197Q

'lhe Appeal Iloard, as to security plans, further stated:

linder 10 CIR 62.*190, they arc clearly r>4 to te made available to the public at large.

And while they enust be released to interested parties under a;prtpriate cundithms, t.,at does tus mean in all cases they reed te released in thHr mtirety or to anyone selected by the intervenors or without protective safeguards.

/d. at 14(M.

Applicant asserted in its response to Intervenor's motion to compel that Diabla Canyon is consistent with the regulations governing the disclosure of Safeguards Information.

Safeguards Information is defined in 10 C.F.R. 673.2 as:

[I]nformation nts otherwise clasiiried as National Security Information or Restricted Data which specifically identihen a 1 censee's or appheard's detailed (1) secuiity m6asures for the physical prutecthm of special nuclear material, or (2) security rnessures for the phyrical pttection and location of certain plant equignent vital to the safety of prtducske or i - utihration facihties, Applicant asserts that PSP and FNMC information is covered by the Safe.

guards Information prohibitions against disclosures. FNMC informathm is in-cluded because it contains MC&A information. LES cites the Commission's discussion of proposed 10 C.F.R. 0 74.33, where it stated:

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MCA A is sedy one part of the safeguards program required iut uranium enrkhmeru argdu ants and igensces, Isilure to pnperty carry tant ter.am sahgwds actinties at enndenent facihtees could aJversely afled the natkmal unuoan defense and munty. Safeguards cmsists of phpkal pruedLn, MCA A, and informatkm mvrity.

55 Fed. F~t. 5126 (1990).

LES notes that the following regulations do not differentiate as to whether the NRC or a private party possesses the information.

Section 73,21 which governs the disclosure of Safeguards Informatiott pro.

vides: l i

1 (a) (cladi brensee who . acquires Safeguards Infonnathm shall ensure that Safe. )

guards Informathm is pruccted agamet unauth wired disclosure. _j a ...

(e)(1) Eteep as the Ornmission may otherwise authorize, no person may have access to Safeguards Inftematkn unless the pers<m has ari estabhshed "need to know" for the inicemathm arid is:

(vi) kn mdividual to whom disclosure is ordered gursuant to $ 2.744(e) of this diapter.

(2) Encept as the Curnminske may otherwise authotiee, no persm may disdose Safe.

guards Informatkm to any wher perum etcept as set forth in paragraph (c)(1) of this scahm.

!! also cited section 147 of the Atomic Energy Act (42 U.S.C. 2167) which prohibits the unauthorized disclosure, by whomever possessed, of safeguards 2

information including security measures arx1 material accounting pmcedures and control, As to the portions of the documents that are CNSI. Applicant points out that  ;

10 C.F.R. 9 95.35 prohibits their disclosure to any individual that does not have the appropriate security clearance. Applicant is unaware that Intervenor has the required security clearance. !! states that during the course of the proceeding-Intervenor has maintained that it will not seek a security clearance.

2. Interrenor's l'osition interrenor premises its motion to compel on the general discovery rule which allows the discovery of "any matter, not privileged, which is relevant to the ,

subject matter involved in the pmceeding" 10 C.F.R. 92.740(b)(1). It notes '

that the law of evidence contains no exception for privileged or confidential commercial information.

CANT argues the inapplicability of sections 2,74 )(c) and 2.790 because they i

only apply to the production of NRC. held records and documents and not to those privately possessed,

CANT disagrees with Applicant's position that Diablo Canyn authorites

, LES to treat its security plan in the same manner that the NRC can. CANT l

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d auerts that the footnotes to the Appeal lioard's statement dut "tle same standards apply" w hether the security plan is m die hands of de app!kant or the NRC, only relate to discovery in general and not to NRC records, and therefore, only the general rules of discovery are applicable.

Intervena claims that even if section 2.790 were applicable, it is Appli.

cant's burden to establish that the "[t]rade secrets and commercial or financial information" are " privileged or confidential" which it has not done. It asserts that section 2.790(d) does not convey an automatic exemption for the PSP or INMC.

CANT also raises as an allegation that LES has not complied with 10 C.F.R.

$ 2.790(b)(1). It requires that:

(1) A gerson who pripmes that a datanad or a part le widihcid in whole or part frorn pub'ic disclosure a the gnamd thu si tontains . , , unfidential .ummmial or fmancial inf(rmau<m shall tulen.t an anilicatim for withholdmg amenpanied by an affidavit . .

(ii) . *lhe an.hcation and sifidavsi < hall te sutenined at the hme d rding the informathm sought to be mthheld Intervenor states that Apphcant's faihue to comply with the regulation results in its not being able to claim dmt the (k>curnents are privileged or confidential commercial or financial informatloa.

. Applicant acknowledges that it has not complied with tic requirements of section 2.790(b)(1). It states that its reason for not doing so is that under section 2.790(d) the documents are deemed to be commercial or financial information and are "e tempt fro.a public disclosure" subject to the provisions of section 9.19.

• ! hat provision instructs tie NRC on the segregation of exempt information and the deletion of the identifying detailt Intervenor contends that Applicant has not shown that any of tic requested infortnation is CNSt. it asserts that LES offers no proof dat the documents have been classified, or where, when, or by whom, and that no description is given of which sections of the documents are classified.

Furthermore, CANT asserts that Applicant has essentially admitted that its documents are not CNSI. Applicant has claimed that its PSP and IWMC fall under section 2.790(d)(1) which describes "information or records conectning a licensec's or applicant's physical protection or material control and accounting program . . not otherwise designated as Safeguards Information or classified as National Security information . . . ." CANT states that the Applicant, by claiming that this information fits into section 2,790(d)(1), admits that the PSP and FNMC are "not . . classified as National Security Inicemation."

Applicant, as part of its June 16,1992 response to CANT *s motion to compel, submitted an affidavit from the Licensing Manager of the Claiborne Enrichment Center, in it, he states that he is a derivative classifier authorized by the NRC to classify Restricted Data and National Security Information in the hands of LES, 10 t

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that PSP and INhiC contain informatioa required by Executive Order 12356 to be protected as CNSI, and that various sections of the PSP and Chapter 9 of the FNhiC are classified as CNSI.

l LES, in its responso, satisfied Interveror's criticistn that Applicant rnay not have fulfilled the request for production by not stating whether any other documents other than the PSP and IWhiC were consulted in preparing the answer. It advised that it listed the documents it (onsulted, i,c., PSP and FNhtC.

3. Iloord Histussion The lloard finds that Applicant was correct in its rclusal to pmduce the PSP and TNhiC in response to CANT's discovery request in the absence of an appropriate protective order.

Diablo Canyon made clear that under 10 C.F.R. 5 2.790 sceurity plans are not to be made available to the public at large because of their s.?nsitive nature. He Appeal lloard further declared that security plans, if and to the extent released, should in most circumstances be subject to a pmtective onler comistent with section 2.740(c). 5 NRC at 1403,1404 Intervenor's argument that, where identical security plans are in the hands of ,

an applicant and the NRC, the NRC plans are protected from public disclosure j and those in the hands of the private party are not, is not merito ious. i Diablo Canyon unequivocally states that "the same standards apply" irre. l spective of the source of the document. De fact that the footnoted material to the statement may only relate to general discovery rules does not establish that it was solely the general discovery rules that the Appeal floard was speaking about. >

De Appeal floard's continuing discussion of the law applicable to security plan disclosure, in which the general discovery rules and those pertaining to de Availability of Official Records (section 2.790) were considered, makes it apparent that the security plar is to be withheld from public disclosure, whomever the source of the documents. Id. at 140241.

The very purpose of limiting disclosure is to keep security information out of the wrong hands in order to protect the puNic health and safety or the common defense or security. It would be illogical to have a regulatory scheme that would limit the plan's availability when the NRC held it, but not when it was held by a private party. To do otherwise would be comparable to barring the windows and leaving the front door unlocked in attempting to guard security plans.

Applicant had no independent obligation to establish that the security plans .

are privileged et confidential. Section 2.790(d) deems them to be. Neither l did LES have an obligation under section 2.790(b)(1) to submit an affidavit for having the security plan withheld from public disclosure. Section 2.790(b)(1) requires such an affidavit when a person " proposes" that the document bc ,

11

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withhekt because it contains confidential commercial or financial information, in the case of a security plan, it has already been deemed to be such informauon uruler section 2.790(d). There was no need to propose that it te done.

From the information furnished by the Applicant, die security plan appears to meet the definition of Safeguards Information contained in 10 C.F.R. 6 73.2. If treated as Safeguards Infortnation, it too would be subject to limited disclosure, ,

I irrespective of whoever holds it.

Section 147 of the Atomic Energy Act prohibits its d 5 closure by "whomever possessed." Under the implementing regulation, section 73.21(c)(1) and (2), no person may have access other than on a "need to know basis" and disclosure to l an individual must be ordered pursuant to section 2.744(c).

Section 2.744(e) provides:

When Safeguards Informatkm protected fran distlosure under secthn 147 of the Atomic thergy Act, as arnended, is acceived sad possessed by a party other than die Cornmisskm staff,it shall also be pn4eued acmeding to the requirernerus of 173.21 of this chapter. %e prnidirig of ficer snay alm prescribe such addithmal procedures as will erfectively Safeguard and preverd disclosure of Safeguards Informathm to unauthoviicd perums with minimum j impairmcnt d the procedural rights which wvuld be available af Safeguards informatam  ;

were not involved.

1 Additional protection must bc efford&l to the PSP and IWMC wherc they ,

contain CNSI. In re.ponse to Intervenor's claim that LES has not shown that l any of the requested information contains CNSI, Applicant has done so with I the affidavit of its derivative classifier. He affidavit states that Chapter 9 of the FNMC is CNSI. It does not identify any specific portion of the PSP as containing CNSI but states that it is in various sections. Section 95.35(a) limits access to persons with security clearance on a need-to.Lnow basis. Section 2.905 describes as to how access may be obtained. Applicant was correct in refusing to produce the documents containing the CNSI in the absence of a security clearance on the part of CANT.

Applicant has made a primafacie case that the documents should be withheld from public disclosure, whether they are considered to contajn proprietary 1 information, Safeguards Information, or CNSI. liowever, a number of matters ,

would require resolution if CANT wouhl continue to pursue access.

Those parts of PSP that consist of CNSI should be identified. It should be re-solved whether contents of the documents be considered proprietary information or Safeguards Information. The furnishing of access to Safeguards Information is on a "need.to-know basis" and breach of a protective order is subject to crim.

inal penalties,10 C.F.R. Il 2.744(e) and 73.21(c)(2). ^1hese conditions (k) not apply to privileged or confidential information disclosures. The extent and terms j on which disclosure would be inade to Intervenor would have to be decided and be made part of a protective order.

-12 c

F l

__ __. . . _ , _ _ _ _ . . . . _ _ - _ _ _ _ _ _ _ _ _ . , _ _ _ _ , _ _ _ _ _ _ . _ _ , _ , _ _ _ _ , _ - _ _ _ _ . . . -.._ _ .___m._ _

'Ihe foregoing would require a detailed examination of the documents. It would require that the examination be conducted an camera. Metropohran Edison Co. (three Mile Island Nuclear Station, Unit 1), Al_All-807, 21 NRC 1195, 1214 (1985).

Intervenor has already made known that it will not ;articipate in closed proceedings. CANT has consistently maintained throughout this proceeding that it would not participate in in camera proceedings involving classified information because of its pnnciple of bringing issues to public light. Tr.113, 160, and 186. There is no basis to belle ~e that Intervenor's atterupt, by letter of February 26, 1992, to get the diameters of the piping at potential online enrichment measuring points declassified, even if successful, will climinate all of the issues that need to be considered in the in camera proceeding.

~lhe public interest does require the conducting of an in camera proceeding, which is an approved process under the circumstances of the case. Intervenor, in being unwilling to participate in the process that could result in the disclosure of the information it scels, has effectively waived its right to further consideration of its discovery request on these matters, it cannot claim prejudice. Id, Applicant's request for a protective order on this issue will be granted and Intervenor's motion to compel will be denied.

C. Dispute as to the Completeness of the Respnnse to Interrogatories

1. Intervenor contends that Applicant cannot avoid answering relevant inter-rogatories by stating that tha answers are available in documents and then claim that intervenor cannot obtain the documents. In support. Intervenor argues that section 2,740b, which governs interrogatories, and section 2.740, which has the general provisions for discovery, do not contain an exe'.nption for proprietary information as (k)es section 2.790.

'The lloard firkis that Applicant responded to the int:rrogatories to the fullest extent allowable. Intervenor cannot obtain indirectly what it cannot obtain directly. 'the documents are not to be produced because of the sensitive information they contain. 'The information is not to be produced irrespective of what form the request takes, whether for the production of the documents themselves, or through questions about it. Applicant's motion for a protective order on this issue is granted and the motion to compel is denied.

2. Intervenor asserts that Applicant has not answered Interrogatory 18 fully.

It asked whether Applicant takes into account "all" conceivable and credible scenarios for unauthorized production of uranium, and Applicant answered that conceivable and credible scenarios have been taken into account, without mentioning "all." CANT calls this answer evasive.

In its answer to the motion to compel, Applicant responded that it has considered all conceivable and credible scenarios as suggested by NUREG/CR-13

i l

> 5734. With the answering of the qtgation, Applicant has rendered the issue moot %c motions on that issue are denied.

1 ORDI:R i liased upon all of the foregoing, il is hereby Ordered that:

(a) Applicant's motion for a protective order of May 18, 1992, is granted insofar as it seeks protection from disclosing the contents of the PSP and INMC.

LES shall not disclose the contents of the PSP and IWMC whether in response to a request for the production of the documents, in response to interrogatories, or otherwise, unless specifically ordered. The motion is otherwise denied, and (b) CANT's motion to comoci of May 19,1992, is denied.

TiiE ATOMIC SAFETY AND LICENSING IiOARD Morton 11. Margulies, Chairman CillEF ADMINISTRATIVE LAW JUDGE Richard F. Cole ADMINISTRATIVE JU[X3E i

Frederick J. Shon ADMINISTRATIVE JUDGE 3cthesda, Maryland July 8,1992 I

1 14

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l 1

Cite as 36 NRC 15 (1992) 1.BP 9716 4

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

Peter B. Bloch, Chair Dr. Jerry R. Kilne Dr. Peter S. Lam in the Matter of Docket IJo. 030-29626 OM&OM 2 (ASLBP Nos.92-653 02 OM 92-662-06-OM 2)

(Byproduct Material License No. 24 24826-01)

(EA 91 136,92 054)

(License Revocation, License Suspension)

PIPING SPECIALISTS,INC., and FORREST L ROUDEBUSH d.b.a. PSI INSPEC110N, and d.b.a. PIPING SPECIALISTS, INC.

(Kansas City, Missouri) July 10,1992 Atter an evidentiary hearing had been conducted and proposed findings were pending in this enforcement action, the Licensing Board discovered language in the license making the Radiation Safet/ Officer "complctely responsible" for compliance with safety regulations. Consequently, the Board issued a proposed resolution of the case under which the license would be revoked without any further determination of the degree of responsibility of the sole proprietor of Licensec. De Board scheduled oral argument on this proposition, which had not been addressed by the parties.

15 4

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-> -- , --n . ,-- - ,-v-n,-w-, ,7--,,- e w er. --~s,r x-

Rlit.ES Ol' l'R ACTICEt l'ROl'OSI:D ltESOI.LTI'lON When a Licensing Board discovered grounds for decision that had not been argued by the parties, it decided to arinounce a proposed decision and to invite oral argument by the parties.

MICMORANDUM AND ORDI?R (Proposed Resolution of the Case) ,

Licensee,l which is a small firm licensed to utilire a radiographie camera for industrial purposes, contests the validity of the license suspension and license revocation orders issued to it by the Staff of the Nuclear Regulatory Commisskm on October 17,1991, and April 22,1992.

We have teen reviewing the record 3 carefully, analyr.ing it froin the stand-point of the specific knowledge and responsibility of Mr. Ibtrest Roudebush, who is Licensee's sole proprietor. During our review, however, we made a sig.

nificant discovery about language in the license, and we reached some tentative conclusions, as shown in Table 1.

TAllt.E 1. Tentati e Conclusions

1. Item 7 of the contested license reads:

INDIY! DUAL RESPONSIllLl! IOR 111E RADtA110N SAlli'lY PROGRAM Radiation Safety Officer: Mr. Ken Kecun Mr. Ken Recum w sll ho\e complete remonsibihty ad authority to drect all aspech of the radiation safety prograr. af tne company. In addition Mr. Keton is tat enanager of the cienpany's radiography program. [ Emphasis added )

Speafically, Mr. Keeton's responsiNtities aall include: Ififteen listed respimsibihties, seven of whkh begin with the term adrninister") Source: 01 Report d'investigathe, One No. L91-011,1:shiNt 1, page 121 of 187.

2. Item 7 of the contested license, as just set forth, has been amended by Amendment No. 02. This amendment makes James A. Ilosack Radiation Safety Officer, but condition 17 continues the rest of item 7 in ef fect. Source: 01 Report of Investigation, Case No. 3-91-011, Exhibit 1, page 15 of 187.

I ne name of the 1.sce wee is bring specahsu. Inc. Ilouver, the orders sino have been enade agth cable to Mr-lwer4i Rmdchuah since there is no negal entity tiy the name d hping Spaiahsta. Inc.

2 An evidentiary heanna mas held in Kansas City. M.ssoun. Apnl 2s.1992,in May 1,1992 16

TAllt.F.1. Tentathe Conclusions (Continued)

3. Mr. James A. Ilosack has complete responsibility and authority to direct all aspects of PSI's radiation safety program and also to manage that program.

llence, hir. ibtrest Roudelush's knowledge or alleged culpability are irrelevant ,

to the company's compliance with its license.

4. It is appropriate to revoke this license because the person cornpletely re.

=

sponsible, hit. James A. Ilosack, has committed numerous, egregious vialations

-including the latentional falsification of records. Licensec has admitted these ,

errors.

5. It is outside the jurisdiction of this Licensing floard to determine the effect of this decision on a future license application by Mr. Roudebush.

In light of these tentadve conclusions, we have decided to schedule an on. ,

the record telephone conference, for the purpose of oral argument, on July 20 1992 Ea:h side will have 20 minutes to present its argument concerning the appropriate treatment of the fmdings tentatively presented in Tabic 1. The Staff may go first and may reserve up to 5 minutes for rebuttal. Licensec may also reserve 5 minutes for surrebuttal.

We urge that prior to the scheduled telephone conference the parties should seck to reach a voluntary settlement. "The date of the conference may be deferred ,

upon agreement of the parties.

Tile ATOh11C SAFETY AND LICENSING BOARD Dr. Jerry R. Kline ADhilNIS1RATIVE JUDGE Dr. Peter S. Lam .

ADhilNISTRATIVE JUDGE Peter B. Bloch, Chair ADh11NISTRATIVE JUDGE Bethesda, Maryland 17 o

Cite as 36 tJRC 18 (1992) LBP 9216A UtilTED STATES OF AMERICA tJUCLEAR REGULATORY COMMISSION ATOMIC SAFETY At4D LICEllSit4G BOARD

=

At4D PRESIDit10 OFFICER C

Before Administrative Judges:

Thomas S. Moore, Chairman and Presiding Officer Frederlek J. Shon James H. Carpenter .

In the Matter of Docket Nos. 030-05900 ML&ML 2 030-05982-ML&ML 2 (ASLBP Nos. 92 659-01 ML v2 664-02 ML 2)

S AFETY LIGHT CORPORATION, er at.

(Bloomsburg Site Decommissioning and License Renewal Dentals) July 17,1992 MEMORANDUM The Commission on July 2,1992, issued an order granting review of the NRC Staff's June 26,1992 petition for teview of the June 11,1992 consolidation order of the Presiding Officer and the Licensing Iloard in this proceeding. The order granting review directed the parties to address three questions concerning the proceeding. Additionally, the review order invited us to provide the Commission with "[our] views in this matter" as well as "[our] views on the positions of the parties in response to the questions posed."

We must respectfully decline the Commission's offer. As administrative trial judges charged with safeguarding the public health and safety in a quasi judicial

' can:nmian own, w 2 im. .i s 1M

-.- _ _ . -- -- =

l

. adjudicatory system, we must malatain absolute neutrality in disputes between the parties in agency proceedings. Our p>sition as impartial decisionmakers precludes us from advocating any position before a superior appellate tribunal as if we were another party to the proceeding. Disregarding this long and well-  ;

founded judicial tradition of neutrality could only compromise our institutional responsibility to ensure that neither the parties before us nor the general public have any occasion, real or imagined, to question our impartiality or fairness in conduedng the proceeding. Any party in a contested adjudicatory proceeding that believes its interests wuld be served by challenging any of our rulings before the Commission has the right to do 50. Similarly, if it is in the interests of another party to defend a part!cular ruling, it is that party's responsibility to do so. For trhl judges to assume the mantle of another appellate advocate to defend their own rulings serves no one's interests. Accordingly, we rnust decline the Comtnission's invitation to express our views in this matter. j llaving said that, we nonetheless believe it is appropriate to detail our reasons for consolidating the proceeding involving the Staff's February 7,1992 denial of the license renewal applications and the proceeding involving the Staff's February 7,1992 decommissioning order because those reasons do not appear on the record.8 fly way of background, there currently are three Safety Ught proceedings:

the Oh! proceeding involving an immediately effective Staff order of h1 arch 16, 1989; the Ohi 2 proceeding involving an immediately effecdve Staff order of August 21, 1989; and the consolidated htL, hiL.2 proceeding involving i the license renewal denials and the decommissioning order. All three of these proceedings are being conducted pursuant to the Commission's Rules of Practice in 10 C.F.R. Part 2, Subpart O, governing formal, on the record, adjudicatory proceedings. Unde. lying all of the proceedings is the need for the substantial ,

and costly cleanup of the Licensecs' Bloomsburg, Pennsylvania site and the possibility that the Licensces' assets may be insufficient to decontaminate the site to an acceptable level of risk.

Initially, a single Licensing Board (the h1L Hoard) was established to preside over a proceeding 'nvolving both the Licensecs' hearing requests.on the Staff's

, Fek ry r, '092 denial of the license renewal applications and the Staff's r ebruary 7,1992 decommissioning order' 'Ihereafter, the Licensing Boards 2

The June 11.1992 anser did rot contain a recitaum or reases for corwadaung the prweedegs because at eat ume the question or the authmiy or the 1Jcensms Itoard and Se heaidmg orrwer to cmsohdate the proceedings ses emceded by the starr (tr. $9-61). allayms any read to treight an taberwise nmune procedural order unth an esposiuan or est authonty or the advantages or cmsohdaurst. S dmetuently on June is,1992, starr counsc1 retraeted his cmcessim claimms, snar mAm. $at {hr) inadvenemly allowed (him)cir to be misundentomr' and oraDy mmed for rectumderaaon or the June 11 onier. Tr, Is2. Rather than rurther dclaymg the pmceedmg so that the start cuJd do what it shwld have dme imually,le, rile a wntien esemsidcration maum, wo eraUy denied est men Tr.161.

3 57 Fed, Reg 10.932 (Mar 31.1992) l o

19 i

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i b

presiding over the distinct Oh! and Oh!.2 i roceedings were reconstituted lio that all three proceedings, as they then existed, were before identically comtituted llaards.*

'Ihe original hiL Ikurd determined that the proceeding involving the license renewal denials and the decommissioning order should te adjudicated first i before either of the pending Oh! or Oh!.2 parcedings. This determination  ;

was based upon the likelihood Olat the Oh! and Ohi.2 proceedings would become moot in the event the lloard upheld the Staff's denial of the license renewal applications and the lloard sus:ained the. Staff's decommissioning 1 order. Thus, the htL Iloard decided that efficient and cost-effective case t

managur.cnt counseled holding one trial in an effort to avoid holding three s thereby minimizing the expenditure of the Licensecs' limited assets on legal fees and litigation expenses when those assets are needed for tic costly cleanup of the 111oomsburg site.

In response to a Staff request, on June 9s 1992, the portion of the htL proceeding involving the Staff's February 7s 1992 license renewal denials was severed from the proceeding by the Chief Administrative Judge. lie appointed a single Presiding Officer to hear that part of the case (the h1L 2 proceeding) under the Commission's Rules of Practice in 10 C.F.R. Part 2s Subpart L, governing informal adjudicatory proceedings.8 Thereafter on June 11,1992, the h1L Iloard and the htL 2 Presiding Officer consolidated the two proceedings under Subpart O pursuant to 10 C.F.R. 6 2.716.' We consolidated these procccdings because d

57 red Reg. II,s4)(Ap. 2.1992),

8 0nef Administrouve Judge's Mammandum (Daignating Presidmg otheer). June 9.1991

'm plain language of 10 CJ R. $1716, e s# pan o pmmion d the Camminskm's *Rulce of oerwral Appbcabihry." specthcally authnriaca pesiding oftmas. hke the Commushm itself. to consahdate nm-lae bnd pnneedegs (i e, pnweedmgs with dJtming pnsedurea) and duccia that 0:s smanbdated proceeding be conducted an amordance with subpan o pacedures. llence, wluiever autharity the Consnissam has pasuara to sation 2.716 to conschdais a subpan L and a Subpan o puceedes. er any sher preceedmgs employing doercen pnwedures, presidmg ofhews also have ther authority See 43 I ed Reg 17,79s.17.800 (1979).

Wah that in mmd, it la apparers that the subsequent pernulgathm a the special subpan L rules rar sarne enatenals twense puceengs did run supplant the authority d the Ca* mission es presides efLcers to cmsohdate pareedings, includmg subpan L proceedings. pursuant to secuan 2 716.11us rollows treen the opersum of undamrial rules of statusary anierpressuun whids are fully appbcable in consuums the Canmushe's regulatma.

Thnss rules require that the Cmmission's reguladans be read as a whole ir.ch lmg later enacted amendmeras-Lffect is in be gsvoi to each pan of the agulauana and ell paininns are to be truerpreted so they do n a confhet.

only af the terns of general rules cannat be barmonued wtth specihc suite,includmg later enacted specifw rules, do the tww premsmns prevsit stamd otherwise. only where there is an inescaphie confbet betwas general and spnri6c ptmaims or the regulatmns do the spectre rules apply. See 1A h. seger, SasAerkand $siaruary Cectructioa il 2134 .35 (4:h ed.1983). 2A N, smger. $mrAerkset sterurory Construenos i 46 05 (4ih ed 1984).

I:ssenually, these are the statutory interpretatim rules codirmed in 10 Cf.R. ll2.2.13 Ilare, the regulatory language of sociim 2.716 duca aca inherently confhet with the tenna of 10 C1R.

62.1201. the povaim that estahhahes the applicauan of Subpart L to Canrniasmn adjudicauvy procuedmgs Serunn 11701(a) does not use convenunnat statutory language of mandatory directum and esclusmty such at "snell" and *n awahatandmg any aber pnwisiat," that wmld cut oft the apphcanon of seahn 2.716. In these circumstances, there is no sound bassa ror rmdes a confhet beineen the genet rule of acctmn 1716 and the special rule or seenm 2.1201(a). and the later secten des mahing to mnsinct the authomy d the Canminamn or pesides oftners to consobdate prnteedmgs pursuant to the fermer.

20 l

l l

both cases shared common, unresolved, issues of first impression involving the agency's personal jurisdiction over the corporate subsidiaries of licensee USR ,

Industries, Inc., that likely involve disputed issues of fact? Similarly, because of the common factual setting of both matters relative to the substantive issue of whether the Staff's actions are sustainable, therc likely are other material factual disputes common to both proceedings.' Further, without consolidathm as a Sutpart O groceeding, the doctrine of collateral estoppel may well be inapplicable because that doctrine has generally been recognized to require a mutuality in the quality and estensiveness of procedures that arguably is lack. ,

ing between proceedings conducted pursuant to Subpart L, on the one hand, and Subpart O on the other? Thus, we joined the tv, proceedings pursuant to section 2,716 to avoid tic necessity of trying the same issues twice in two sciurate proceedings under diffenent procedural requirements, with the attendant risk of inconsistent factual fmdings by the Presiding Officer and the Licensing Ikurd emanating from the marked differences in procedures between a Sutpart L proceeding and a Subpart O proceeding,$' Additionally, we sought to avoid ,

the unnecessary expense of duplicative hearings that seemirgly would squan-der what by all accounts are the Licensees

• limited resources so those anets could be preserved for the decontamination of the Bloomsburg site. Accord- '

ingly, we found in our June 11,1992 order, as required by section 2.716, that "the consolidation of these two proceedings for all porposes will he in the best I

l

'these same emiested, unresolved, junsdicuorul issues are also preamt in bmh the oM and ost l rencewhngs.

8 or course, the actual de4errmnauon or how many ractual disputes saisi can only be roads after we resolve the pany's summary disposiuon mounni.

'3,s ParUena //aisery Co. ir. SAtwe,439 tls 322,331 a is (1979). see gancrally 1s C. Wr:ght. A. Miller &

F_ Cooper, feders/ Pradece amt Procad ** i 4423 (198th in J. Moore, J. t.ucas A T. Cumer, Meere's lederet Prachce,10#1[3. 3)(2d ed. Vs).

%2rther, cmanhdaurat had the added bencru or avtad'ng fatars htigauve nak over the pairnety or smlymg sv5n 1. prnceduria to the denial or enticznaly long rendmg heense renewal awhcauone when, in substance (tn contrass to rarm), the Starr's February 7.1992 acuan argashly was a con 4ucced bcense revocataan or some other type or i0 C F.R. Pan 2, subpan B.enrimemera action that would hm enutled the taensees to a subpan o heanns 21 w e y y .e, - - , . ,?- --*y--w,--a g--- i---,, -.r- ,-as.,,-,rw. .e.-. +,,-,,,.,y. ,-.---%.-.- ,... ., ., w  %,--, . , ,,.w v.m ,,e,-,,,--,-.e.,,--e,ee-=.w- ee--,w--v,.->

interests of justice r ': oc most condur.ive to the effective and efficient resolution '

of the issues and '.nc proceedings.""

Tile ATOMIC SAFETY AND LICENSING BOARDS Thomas S. Moore, Chairman and

, Presiding Officer ADMINISTRATIVE JUDGE Frederick J. Shon ADMINISTRATIVE JUDGE James 11. Carpenter ADMINISTRATIVE JUDGE Detherda, Maryland July 17,1992 e

u?i W

N J

k 1

I Order, lune 11,1992, at 2.

E

> 22

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I Oite as 36 NRC 23 (1992) LBP 92-17 )

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

Ivan W. Smith, Chairman Dr. Charles N. Kelber Dr. Jerry R. Kline in the Matter of Docket No. 50-336-OLA (ASLBP No. 92 665-02-OLA)

(FOL Ho. DPR-65)

(Spent Fuel Pool Design)

NORTHEAST NUCLEAR ENERGY COMPANY (Millstone Nuclear Power Station, Unit 2) July 29,1992 MEMORANDUM AND ORDER (Establishing Picading Schedule)

SYNOPSIS .-

This proceeding involves a licerne amendment for the recently redesigned

. spent fuel pool at Millstone Unit 2. The Board is considering several petitions f or leave to intervene and requests for hearing in response to the federal Register notice of the amendment application (57 Fed, Reg,17,934 (Apr. 28,1992)).1

' truua'J y peudens were fded by Mary tillen Maruu:i (undaad), Lanhvmon, Inc. (Jated May 27,1992), and Michael J. Pray (da:co May 29,1992). In addtdon, Ms. Marucci and others 6lat on behair or Cooperatave Ciuzens' Mmaanng Nenod (CCMN) on June 23,1992. Rosernary Gnfriths, on hne29,1992, and J.me@ M. Sullivan, on July 6,1992, filed nearly idendcal form pendans wiuch seek intervenuen indtudvally and which authorue (Conomsed; M

m l

The NRC Staff and the Licensee opposed early petitions on the grounds that they do not &monstrate standing to intervene and on other grounds. They have not yet answered later filed petitions.2 because the NRC Rules of Practice provide very broad opportunities to amend and to suppleinent intervention petitions, the Board has decided to defer rulings on intervention status until the final round of pleadings has been filed.

In this order, we set a schedule for the filing of amended and supplemental petitions to intervene and answers to such petitions. In addition, to aid the Board in ruling on petitions, we request the petitioners, the NRC Staff, and the Licensee to address specified questions concerning standing to interve ic, llACKGROUND in Licensee Event Report 92-003-00, dated March 13, 1992, Northeast Nuclear Energy Company (Licensee) reported that criticality analysis calculation errors with respect to the Millstone Unit No. 2 spent fuel pool had been discovered. 'The Licensee reported that:

The safety cmsequence of this event is a potential uncontrolled criticality event in tbc spent fuel pool. Upon consideration of the folicsing. a signif cant margi t to a critical condition was always maintained and, therefore. the safety consequences of this event were minimal ifactus orniued].

Id. at 3.

Consequently, on April 26,1992, the Licensee requested an amendment to its Millstone Unit 2 operating license incorporating proposed changes to spent fuel pool technical specifications. Licensee reported that the calculational errors were due primarily to an incotTect treatment of Boraflex panels in the calculations and proposed several corrective modifications to the spent fuel [ col design, procedures, and terminology.

'Ihe NRC Staff, on behalf of the Commission, found that the proposed changes are acceptable and determined that the proposed amendment involves a "no significant hazards consideration" as provided by 10 C.F.R. 6 50.92.

Accordingly, on June 4,1992, the Staff issued Amendment No.158 to the Millstone Unit 2 facility operating license with supporting Safety Evaluation by the Office of Nuclear Reactor Regulation.

cCMN to represent their respecuve interests m the pmcecdmg. on kly 2,19% Mr. Pray augrnented his peution to respnd to quesuona of umelmess. Mr. Pray also authorizes CCMN to represent 'mi interents. 'Ve discuss the stuus or the later filed irterveutim pleadmas m p. 28, ym.

1. in our orders of kne 30. and kly 15.1992. we twuested the NEC stafr end the Licensee to defer answering later r. led interversim ple.dtngs until funher order et - Bow we also euended the tune ror answenng.

24

As noted at the outset, the notice of the opportunity for hearing on the pro-posed arnendment had been published earlier - on April 28,1992. Neverthe-less, pursuant to the provisions of 10 C.F.R. 5 50.91(a)(4), the amendment was issued before any hearing could be convened, even though adverse comtnents and requests for hearing had been received.

QUESTIONS CONCERNING STANI) LNG TO INTERVENE Although the Petitioncts have not yet availed themselves of their right to state thei final positions on standing to intervene, they have expressed concerns about a fuel pool accident in general (Pray and hiarucci petitions) and a criticality accident in particular (Sullivan and Griffiths petitions). 'lheir concern is that, because of the proximity of residences, schools, and other physical features, they would be injured tv; such an accident at hiillstone. Thcse concerns are very similar to the traditional " injury-in-fact" ingredient of standing to intervene in NRC proceedings.

Similarly, the Licensee and the NRC Staff have yet to address the final positions of t!'c carlier Petitioners, and they have not yet answered the later-filed petitions. Even so, their answers to the initial petitions have raised possibly novel questions which should be answered before any final ruling on standing to intervene.

As a part of their opposition to the initial hiarrucci, Earthvision, and Pray petitions, both the Staff and Licensee state in various terms that: (1) any injury-in-fact to Petitioners must derive from the design change authorized by the amendment itself and not from a general concern about a criticality accident in the spent fuel pool; and (2) since the amendment reduces rather than expands the fuel pool's storage capacity, the amendment does not increase the risk to nearby residents from the operation of hiillstone even if a related accident scenario existed prior to the amendment; therefore, (3) no injury-in-fact from the amendment can be inferred from proximity to hiillstone.2 i

Taking their argument to its logical conclusion, the Licensec and Staff seem to argue that, if the amendment reduces risks from the pre-amendr6cnt condition.

l there can be no injury within the scope of the notice of opportunity for a hearing.

Living or functioning in close proximity to the plant would be irrelevant to the uc of standing to intervene. i l

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31's , stafr Res me to Farthvtsiim at 7; start Respec to Marucci at 7. t.icensen's Respmse to Marucci at i 9-la i 2S l

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1 ASSUMPTIONS Solely for the purpose of discussing the standing to-intervene issue, we assume (as Licensee states) that the amendment " simply imposes additional restrictions on the use of the Unit 2 fuel pool" and therefore would not increase risks from the pre-amendment condition, .Licensce's Reply at 10 Indeed, for purposes of analysa we assume thei the amendment actually decreases the risk of offsite releases from a spent iuct pool accident at Unit 2. We assume funher ,

that the pre-amendment accident under consideration is causally related to the event reported in LER 92-003-00.4 With these assumptions the Board invites the Petitioners, the Licensee, and especially the NRC Staff, to address the following questions in the forthcoming round of intervention pleadings, QUESTION NO. I Assuming as above stated, could an allegation tral the technical specifica-tions, as amended, do not bring the spent fuel geol up to the licensing txtsis and do not satisfy NRC criticality requirements, establish injury-in fact? In sim-pler terms, can nearby Petitioners suffer injury-in-fact frcm postulated offsite releases if the amendment increases safety, but not enough?

QUESTION NO. 2 If Question No.1 is answered in the negative, what relief from relevant post-amendment risks are available to nearby residents?

QUESTION NO,3 In discussing the final"no significant hazards considesatioa" procedures, the Commissior, provinco exampics of amendments that are conside3cd likely, and examples that are considered unlikely to involve significant hazards considera-tions,8 Among the examples in the "likely" category was:

' Any well-founded, properly pleaded allegation that sunding is based upon an bere. sed stu camed by the acnedment is not roreclosed by the Board's purely hypothedcal assumpums. As the licmsce note, the surr s dacrnunaum that the anu:ndment is a "no significtnt haasnis daermuuuan" is nd binding en Peuuoners.

!Jcensce's Reply to Pray peuuon at 13. Further, the Conunissue stated in the fmal procedures on "no sig:uficant huards emsiac.anons," that sudt a determinanon is precedural only, without substantive aufcay sigraficance See P,nal Proceduras and standards on No Sigraficers llaurds Cesideration,51 Fed, Reg. 7744,7746 (Wr. 6,1986).

I ld,51 Fal. Reg. at775 4 51.

26

(vii) A change in plant operation designed to improve safety tot whie. due to other factors, in fact allows plant operation with safety factors significandy reduced from those believed to have been present when the hcense was issued.

51 Fal. Reg. at 7751.

Does not the cited example, notwithstanding its category, indicate that the Commission does not intend to foreclose a hearing to persons whose interests may be affected by an amendment that does not in itself threaten injury, but where injury results directly from the amendment's failure to achieve r4cquate safety margins?

AMENDED AND SUPPLEMENTAL PE1T110NS De intervention rule Movides that any person who has filed a petition for leave to intervene pursuant to the rule may amend his or her petition without prior approval of the presiding officer (i.e., Licensing Board) at any time up to 15 days prior to the holding of the first prehearing conference 10 C.F.R. 5 2.714(a)(3).

In addition, section 2.714(b)(1) provides that, not later than fifteen (15) days prior to the holding of the first prehearing conference, the Petitioner shall file a supplement to his or her petition to intervene which must include a list of the ,,

contentions that Petitioner seeks to have litigated in the hearing.

He NRC intervention rule tends to be forgiving in the sense that Peutioners have a chance to conform their petitions after sccing any objectiara to the initial petitions by the Licensec or the NRC Staff. In this case, Petitioners would be well served by examining carefully those objections. The questions we posed above should not be regarded as a road map to intervention. Standing with

" injury-in-fact," at discussed in the cises cited by the Licensec and NRC Stait, is an absolute intervention requirement. Standing must be clearly and specifically established before intervention can be granted, nc Federal Register notice explained in detail the requirements for filing contentions in NRC proceedings. Ec Board recommends that the Petitioners study the contention requirements of the rule carefully since the rule provides that a Petitioner who fails to ratisfy the requirements will not be admitted as a party.10 C.F.R. I 2.714(b)(1), (2).*

• In perucular, secum 2.714(b) provides:

(2) Each contenuon must tessct of a specific staternent of the issue of law or fact to be ratsed a cartnwened. In addition. the peuuar.4r shall prtmde the following mformauon with respect to sad.

cmtendon:

(i) A hncf explanaunn of the bases or the contenan.

(Cena=we 27

)

nc Commission is not lenient in overlooking substantin shortcomings in

. intervention pleadings. It has stated that "the current section 2.714(b) provides rather clear and explicit notice as to the pleading requirements for contentions."

Licensing boards may not ignore those requirements when evaluating interven-i tion petitions. Arimna Public Service Co. (Palo Verde Units 1, 2, and 3),

CLI 91 12, 34 NRC 149,155 n.1 (1991).

LATER FILED PETaTIONS The Federal Regisfer notice set hiay 28,1992, as the date by which petitions for leave to intervene may be filed in this proceeding and cy hined that nontimely filings will not be entertained absent a balancing of the factors

! specified in 10 C.F.R. A 2.714(a)(i)-(v)? The petitions of hir. Pray, hir, Sullivan,

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and his. Griffiths were f. led after hiay 28.8 Complicating this situation is the fact

that all three of the later-filing Petitioners, arguably with standing to intervene, are members of CChiN and authorize that organization to represent them. Ms.

. Marucci filed a timely petition as an individual, but may lack standing to d

intervene as an individual. She also alluded to her role as the coordinator of a CCh1N. That organization later ratified his, hiarucci's initial timely filing.

De Board will consider amendments to petitions addfessing the five factors to be balanced for nontimely petitions. We shall also consider any arguments that the CChiN petitions as a group are timely. Licensec and the NRC Staff may, of course, answer these arguments.

1 (ii) A concise sia'enamt of the alleged facu or expert ermim which support the contenuen and on whwh the peuwmer intends to rely in poving the cmtentam at the beanns, wgether with references to

, ihnee speedie snurces and docunenu of wtudi the peuthmer is aware and m wkch the pcuncner intends 3

to rely to estabbah those faeis or sapest opmion.

! (ui) Suf6cient information (which may include informatim pursuant to peregraphs (b)(2)6) and (it) i of this seenm) to show that a genuine dispute esisu with the applicant on a material issue of law or fact his showing omst include c:ferences to the specific portius of the apphcation (including the appbcant's 4

environmental report and safety wport) that the penumer disivt(s and the suppornng reasons for each j dispute. tr. if the peunona behevcs that the applicanon fails to cmum informatmn on a relevant matter as reqmred by law. the ideuricadm of each failum and the supporung reasms for the peuuoner's behef. on

, tasues ansing under the Natimal fier.irnnmental Policy Act. the peudaner shall rde omtendons based on the sylicats envinmmental report. he reduoner van amend those contendona or Ele new cnntenuans tf um art data er conclustars in the NRC disft or rmal envirunmenalirnpact statement environmental assessment, or any supplements relatirg uiereto, that differ significantly from the data or cmclusions in the appbcant's document.

I j De Sve factnes to be balanced are:

(i) oned cagse, tf any. for failure to 61e m Ltme.

j (ii) De svadabihty c( other means whereby the peur.cner's interest wdl be pmtected.

l (id) he extent to which the petitimer's y.3ipation may reasonably be espected to assist m developing a sound record.

(iv) The satent to which the peunoner's huerest wdl be represented by esisung perues.

(v) De extmst to which the petitioner's nanicipation will brua&n the issues or delay the proceedmg 8

Mr Pray filed a later supplement dated July 2,1992. to his peuum in which he argues that his peution was not unumely. %e t.icensee and NRC staff have not had an opponumty to answer Mr. Pray's July 2 6hng.

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SCilEDULE FOlt FUltTilER INTERVENTION PLEADINGS

'the sequence and timing of the filing of amended and supplemental petitions under the rule can be changed by order of the Board to provide fof the efficient and rational management of the proceeding. 10 C.F.R. 65 2311, 2.718(m). Rcre is normally no need for a prehearing conference until it has been established by the filing of at least one facially acceptable contention by a Petitioner with standing to intervene that a hearing might be regmred? 'l herefore, the Daard suspends the provisions of the rule that permits filing up to 15 days before the prehearing conference and sets another schedule below.

ORDER Pleadings shall be filed in accordance with the following schedule:

Each Petitioner may file no later than August 14,1992, an rmended petition and a supplement to his or her petition which includes a list of contentions that Petitioner seeks to have litigated in a hearing."

Licensecs may file answers to amended petitions and supplements to petitions

' within 10 days after service of the amended petitions or suppicments.

' Also, if the Ittiuoners wait unul 15 days befoic Ote first recheanag conference to fue amended and surylemental peuuons, the answen h thme pettuons wmld nm be m the hands of the hoard ami parues until the very day of the preheanng conference at the earhest, and possibly several days later la shut, the Board ami parties would n.a be prepamd to attend to the very busmess for wtuch the picaeanng cmfarence is convened if the schedule set out m the mle is folhwmi N Peraca in NRC proccedings are rempansibie fa serving their papers da.xtly upon other remes and memte of the Board in comphance with the prmisima of 10 C.FA $ 2701. so far the Peuttoners have no been complytng wah the scrwce requtrenwnts The Clerk to the Licou.ng Board will pimide to the INuuoners a current servre

's for this proceedmg_ Peutionern must carefully follow the pnwmms of 10 CF.it Put 2 (Rules of Precucc)in fumre fihngs. Intwuvo antervenuon in NRC pnxcedings has a high pesabthty of fadmg A opy of the peitmeri regulauons,10 C F.R. Parts 0 to 50. is available Imm the tls Gwenenent Pnntbg office, surenntendent of Docurnents. M43 Step: SsoP, Washingum, rX' 2tM02 9323 or may be cuammixi at the local puble dwumeu romt as stred in the federal Regarer nouw of this proceeding 29 i

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%e NRC Staff shall fi!c answers to amended petitions and supplements within 15 days following their service.

Tile ATOMIC SAFETY AND j LICENSING 130ARD

! Charles NiKelber ADMINISTRATIVE JUDGE Jerry R. Kline ADMINISTRATIVE JUDGE t

j

! Ivac W. Smith, Chairman 4

ADMINISTRATIVE JUDGE l Bethesda, Maryland

' July 29,1992 ,

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,- m,- , = , . . - , , , , - , . ~ , . . - - . - . . - - _ . . . . . _ . , . , . _ _ . - - . . . _ . . - . _ . . - . . - , _ . - - - . _ . . . , _ . . . , , , _ - . - . - , _ _

l Cite as 36 NRC 31 (1992) DPRM 921 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS James M. Taylor, Executive Director for Operations la the Matter of Docket No. PRM S0-54 9ANIEL BORSON on Behalf of PUBLIC CITIZEN July 27,1992 t The Nuclear Regulatory Commission (NRC) is denying a petition for rule-making (PRM $0-54) from Daniel Horson on behalf of the Public Citizen. itc Petitioner requested that the NRC amend its regulations regarding the licent-ing of independent power producers to construct or operate commercial nuclear power reactors. The petition is bemg denied on the basis that current NRC reg-ulations provide authority for the licensing of an Independent Power Producer (IPP) should such an application be submitted ar.d for a review of the applicant's financial qualifications to construct and operate a commercial power reactor.

REGULATIONS: INTERPRETATION (10 C.F.R. PART 50)

Ihe exist.'ng regulations in 10 C.F.R. Part 50 provide authority to request the necessary information from non-utility applicants to perform a financial qualifications review, as well as require the applicants to set aside funds for decommissioning of the reactor.

REGULATIONS: INTERPRETATION (10 C.F.h Part 140)

Each licensee, utility or non-utility, is required by 10 C.F.R. I140.21 to maintain adequate monics, through several approved methods indicated in that section, to guarantee payment of deferred premiums to satisfy its responsibility under the Price-Anderson Act.

31 t

DENIAL OF PETITION FOR RULEMAKING

1. Tile PETITION in a letter dated November 22, 1989, Mr. Daniel llorson, on behalf of the Public Citizen, filed a petition for rulemaking with the NRC. The petition, which consisted of two parts, requested that (1) NRC pomulgate rules concerning the licensing of Independent Power Producers CPPs) in general; and (2) these rules include specific criteria for financial qualifications for an IPP secking a construction permit or an operating license for a commercial nuclear power reactor,

11. IIASIS FOR PETITIONER'S REQUEST Since all licensees of commercial nuclear power plants are presently regu-lated utilities, NRC regulations foi financial qualification of Icensecs for the construction and operation of thes,: facilities assume that local, state, or fed-eral regulat,ry bodies will ensure that nuclear licensecs have sufficient funds to safely operate their facilitics. Regulated utilitics have defined fixed markets for their electricity and usually are assured a set return on the amount of investment in plants which is included in the late base, llowever, IPPs, on the other hand, must compete openly in the wholesale marketplace and may not have a steady supply of customers for their power. Consequently, while their rates are usually set by the Fedcral Energy Regulatory Commission (FERC), if IPPs fail to sell all the electricity they produce, or if their plants fail to prcduce enough electricity, they may not make a profit. Therefore, the long term financial stability of an IPP is less certain than that of a regulated uti'i ty. This potentially precarious financial position may adversely affect the accrual of decommissioning funds, the promptness of necessary mair.tenance and repairs, the payment of waste fees, and the abihty to pay funds in the event of an accident at any commercial nuclear plant as specified under the hice-Anderson Act. Currently, there are no regulations specifically addressing the licensing of IPPs or the transfer of licenses to IPPs.

In light of the above, Public Citizen petitioned NRC to require an affirmative showing of financial qualification by an IPP seckmg a construction permit, an operating heense, or a transfer oflicenses. Additionally, Public Citizen requested that the specific financial qualifications be made part of the IPP's application for a license. The financial questions should include but not be limited to requiring the IPP to:

32

er Establish a procedure to ensure that sufficient funds will be available for payment to the Nuclear Waste Ibnd established by tk Nuclear Waste Policy Act.

Establish a mechanism to ensure that k money that the Price-Anderson Act req. ires licensecs to pay in the event of an accident at any commercial nuclear plant would be available when necdcJ.

Prepay into an external fund the cost of decommissioning the reactor,  ;

or demonstrate the absolute assurance by a financial institution that sufficient funds will be available for decommissioning.

111. PU111.IC C051MENTS ON TIIE PETITION A notice of receipt of the petition for rulemaking was published in the Federal Register on March 12, 1990 (55 Fed. Reg. 9137). Interested persons were invited to submit written comments or suggestions concerning the pet ion by May iI,1990. The NRC received 17 comments in response to the notice: 9 from public utilities / industry representatives,2 from public corporations,2 from state agencies,2 from citizens' groups, I from a private citizen, and I from the Department of Energy (DOE). The majority of the commenters (13) opposed granting the petition. The main reasons cited by the commenters who wcre opposed to the petition were:

The DOE, the New York Power Authority, and others, stated that they believed that current NRC regulations are sufficient to recog tize an entity other than an electrical utility as a licensee for a nuclear power plant. Further, they str.ted that Part 50 containe language that allows the Commission to obtain information on the fmancial integrity of an IP, to assure itself that the IPP iS qualified to build, operate, and provid<. for other financial obligations in connection with the plant for the life of the license.

The Nuclear Management and Resources Council (NUM ARC) as well as several utilitics pointed out that the Petitioner failed to indi; ate any specific areas of the regulations that required change or to p-ovide any argumcnts to justify the need for additional regulations at th:s time.

Financial qualifications for licensees ne addressed in the current regulations (10 C.F.R. Parts 50 and 140) and apply to all applicants.

A private citizen pointed out that the promulgation of additional rules is not required to ersure the protection of the health and safety of the public.

Several commenters pointed out that any lender or in estor supporting an application from an IPP would clearly insist on adequate financial arrangements to address all significant contingencies.

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l The Itlisades Generating Company pointed out that the IPP concept has not yet been applied to nuclear plants; even in the tonnuclear segment of the electric industry, the concept is still evolving.

The remaining four commenters were in fava af granting the petition.

The reasor,s provided for supporting the petition are as follows:

The State of Illinois stated that specific financial qualifications should be made a part of the application for an operating license. Satisfactory monetary provisions for plant decommissioning, Price-Anderson insur.

ance, and disposal of radioactive waste must be assured. IPPs should have no less culpability than a regulated utility.

Tiu Ohio Citizens for Responsible Energy stated that NRC has developed no substantive rules or a body of case law to address a situation such as the completion and operation of a nuclear reactor such as I,'try 2 by an IPP. Stringent financial qualifications review and standards are essential to ensure that the IPPs have sufficient funds to cover appropriate expenses. f The Alabama Pt.,;lic Service Commission stated thT the assumption should not be made that cu, rent regulations would encompass new entrauts such as IPPs. Ikther, IPPs need to know what vill be n' quired by the NRC to determine whether to construct or operate a nuclear reactor and be reasonably sure of making a profit.

Public Citizen sent in a letter tn NRC and reiterated essentially what had been stated in their petition.  !

IV. REASONS FOR DENIAL Upon receipt of the petition frnm Public Citizen, the Staff examined the petition in detail to determine which specific regulauons the Petitioner believed should be amended to address the liccasing of an IPP, or which regulations were inadequate to determine the financial qualifications of an IPP. llowever, the Petitioner provided no specific reference to the regulations in 10 C.F.R.

Chapter I that should be amended.

r fhe Staff then cramined each of the seventeen comments submitted by the public on the petition. None of the four commenters who favoted granting the petition provided any reference to the specific regulations that should be amended by rulemaking. One of the commenters stated that specific financial qualificatlans should be made a part of the application for an operating license and that satisfactory mouctary provisions for plant decommissioning, Price-Anderson insurance, and disposal of radioactive waste should be ensured. The Staff agrees that this type of information is important to any license application r.nd such information will be reviewed in detail during any license review of an M

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I IPP. Another commenter stated that IPPs should have no less culpability than a regulated utility. De Staff also agrees with this statement. Another commenter stated that NRC has not developed a " body of case law" to acktress IPPs. NRC has not developed a " body of case law" because an IPP ins yet to submit an application for a construction permit or operating license, end the Staff believes that the current regulations provide authority to review an application by an IPP should one be submitted.

in its petitie 1, Public Citizen has not presented any tangible evidence as to why or how the NRC regulations are inadequate. Nor does the Public Citizen demonstrate or state how the NRC would fail to apply existing regulations on a case-by-case basis to the circumstances of an IPP before making the necessary public health and safety findings prior to the issuance of any permit or license.

The Staff agrees with the comments of the DOE, NUM ARC, and others that the current regulations in 10 C.F.R. Part 50 can be appropriately applied to IPPs.

The Staff believes that the existing regulations in 10 C.F.R. 55 50.33 and 50.75 provide the authority to request the necessary information from non- k utility applicants to perform a financial qualifutions review, as well as require the applicants to set aside funds for decommissioning of the reactor. The regulations in 10 C.F.R. 650.75(d) specifically address "non electric utility applicants" and require these applicants to submit a decommissioning report to the Commission describing the cost estimate for decommissioning the facility and the manner (which must be acceptable to the Commission) in which the funds will be set aside. Moreover,10 C.F.R. 50.75(c)(2) specifically defmes the acceptable financial assurance mechanisms for a licensee other than an electric utility. Public Citizen has not indicated in its petition where the Commission's regulations are inadequate for accommodating a non-utility applicant.

Non-utility applicants for operating licensees must demonstrate financial qualifications pursuant to 10 C.F.R. 9 50.57, and 10 C.F.R. 9 50.80 allows the Currmission to request information on the financial qualifications of any applicant for license transfer.

Each licensee, utility or non-utility, is required by 10 C.F.R. l 140.21 to maintain adequate monies, through several approved meLiods indi ated in that section, ta guarantec payment of deferred premiums a satisfy its responsibility under the Price-Anderson Act. Moreover, N be suggested methods of guarantee are for any reascn inadequate or inapplicab!e Yr a particuwr 'icensee,10 C.F.R.

i 140.21(1) provides for "such other types of guarantee as may be approved by the Commission.

Pursuant to Public Citizen's concern that non. utility applicants will not have sufficient monies available to fund their requisite payment to the Nuclear Waste Fund, the Staff believes that DOE, the agency that administers the fimd, is the best judge of whether a licensee has sufficient funds set aside to meet the costs of disposal of radioactive waste.

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For the reasons cited above, the NRC denies the petition.

a Ibr the Nnclear Regulatory Commission James M. Taylor Executive Director for Operations Dated at Rockville, Maryland, this 27th day of July 1992.

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i e Cite as 36 NRC 37 (1992) DPRM 92 2 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS James M. Taylor, Executive Director for Operations in the Matter of Docket No. PRM 20-19 GENERAL ELECTRIC STOCKHOLDERS' ALLIANCE, et at July 27,1992 De Nuclear Regulatory Commission (NRC) is denying a petition for rule-making (PRM 20-19) fmm Betty Schroeder on behalf of the Gene il Electric Stockholders' Alliance, et al. He Petitioner requested that the NRC issue a regulation to require that a detectable odor be injected into the emissions of nuclear power plants and other nuclear processes over which the NRC has ju-risdiction. He petition is being denied on the basis that the proposed action is not necessary lwause: (1) current monitoring and emergency response proce-dures provide an adequate level of safety; (2) it would not result in any increased protection of the public health and safety and as a result would not meet the Ct,.nmission's "Backfit Rule," 10 C.F.R. 9 50 lW; (3) the proposed action is not technically feasible; and (4) the injection of odors in detectable concentrations over the Emergency Planning Zone for a nuclear power plant or suitable area for other nuclear facility would likely be detrimental to the envimnment.

TECllNICAL ISSUES DISCUSSED Re folicwing technical issues are discussed: Emergency Plans; Environ-mental Effects of Odorants; fIcalth Effects; Low-Level Radiauon Releases; Ra-dioactive Plumes; Radiological Monitoring.

37

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DENIAL OF PETITION FOR RI1LEM AKING I. Tlic PETITION in a letter dated October 8,1988, Ms. Betty Schroeder, Secretary of the GE Stockholders

• Alliance, filed a petition for rulemaking with the NRC on

!" half of herself, the Alliance, and "all the people in the country iUSA) and all future generations." The Petitioner requested that the NRC issue a regulation to require that a detectable odor be injected into the emissions of nuclear power plants and other nuclear processes over which the NRC has jurisdiction. De petition specified that the injected odor be similar to, but recognizably different from, the mercaptans used in natural gas.

II. HASIS FOR REQUEST As a basis for the requested action, the Ittitioner stated that compliance with this requirement would immeasurably improve health and safety of the public by providing for early detection of radiation leaks, giving the public notice of the need to take protective measures, De Petitioner recognized that nuclear facilities are required to maintain monitoring stations, but alleges that the accident at Dree Mile Island demonstrates deficiencies in the capability to alert the public of dangerous releases, in addition, the Petitioner claims that radiation plumes are erratic and unpredictable in their dispersicq upon release bacause of varying weather and geophysical characteristics of the terrain. Furthermore, the Petitioner asserts that scientific studies prove that even the smallest amounts of ionizing radiation cause harmful health effects, stating that there is ample evidence that radiation causes increased infant mortality, genetic abnormalitics, cancer and leukemia, and makes the body more prone to disease by " lowering" the immune system, By example, the Petitioner asserts that the natural gas industry requires inexpensive, nontoxic mercaptans (recognizable oders) to be injected into gas to help people detect gas luks and to provide confidence that the use of gas is safe.

III. PUBI.IC CO313fENTS ON Tile PETI 710N On February 1, 1989 (54 Fed. Reg. 5089), the NRC published a notice of receipt of the petition for rulemaking in the Federal Register. Interested persons were invited to submit written comments or suggestions cencerning the petition by April 3,1989. The NRC received 52 letters of comment in response to the 33 i

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notice: 28 letters from individuals with 3 opposed,24 in favor, and I urging a feasibility analysis; 10 letters from industry and industrial organizations argued against the petition; 13 public interest groups responded with I opposed,10 in favor, and 2 requesting that NRC examine the technical feasibility of such a requirement; and I local governmental entity in favor.

Many of the commenters in favor of the petition gave no reasons for their support. Some only provided statements, without giving the basis for their statements, that this requirement would provide assistance in detecting leaks and/or normal releases, that it would provide the public an advanced warning of leaks, on that it would enhance the public's ability to take protective actions or save lives. A number of commenters stated or implied that it would improve public health or safeguard the future. Two commenters suggested property loss and damage would also be avoided. One commenter stated that it would improve NRC awareness of public exposure. Several of the commenters who favored the petition felt it was important to assuage worries of the public, increase public awareness, or aid public acceptance concerning nuclear power and mdioactive emissions. One commenter, however, suggested that if an odorant were added to all emissions that it could mean the end of nuclear power. One commenter wanted to be able to detect leaks because she does not trust the government.

One commenter also stated that if the NRC was unwilling to require the odorant, the NRC would be demonstrating to the public that it was hiding the danger from emissions. One commenter, who was apparently in favor of the petition, simply submitted an article which addressed lasting problems resulting from the accident at Three Mile Island. A few commenters seemed to be in favor of the odorar,t only for leaks or abnormal releases, a few clearly believed that information on all releases should be provided to the public in this way. One of these commenters centended that there was no proof that allowable levels of releases were not harraful. Two commenters stated that the public had a right and a need to know about all exposures. Although a few commenters gave an opinion that it would be technically feasible, none gave any information to support that statement ather than noting the benefits of the use of mercaptans in natural gas. ,

None of the commenters presented any information that was convincing concerning the need for or the feasibility of the proposed requirement.

Although the Petitioner's proposal, if it were feasible, would provide one method of warning the public, the means currently in place are more effective.

As discussed further below, the companson with mercaptans in natural gas breaks down when one goes beyond the simplest of factors. As for this method providing more information to the NRC on public exposures, current systems for measuring releases, estimating doses to the pubhc, and reporting to the NRC are more accurate than the use of an odorant in emissions would be.

l As to the public's right and need to know what their exposures are, existing 39 i

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information, though not direct, is available to the public. Rir example, the NRC publishes an annual report entitled " Radioactive Materials Released from Nuclear Power Plants" compiled by Brookhaven National Liboratory for U.S.

Nuclear Regulatory Commission, NUREGNR 2907,8 Various volumes cover different report years (each also summarizes previous data), Whether c, act such a requirement in the long run would improve or diminish the public's faith in nuclear power would be difficult to predict; however, the question becomes irrelevant given the many arguments against the use of an odorant.

nrce of the commenters that supported adding an odorant to emiss:ous also suggested the addition of a safe, nontoxic colorant.

This suggestion is outside the scope of the original petition. Ilowever, the Commission notes that although a colorant might have some small advantage in terms of the timing of any warning, most of the considerations applicable to the use of an odorant would also be relevant to a similar use of a colorant.

He commenters that opposed the petition presented significant reasons for their opposition. Many commenters stated that there would be no significant increase in the protection of public health and safety. A few commenters concluded that the requirement would have a negative impact on public health and safety and the environment. Some concluded this because of the difficulty of choosing an odorant that would not be toxic when using the large quantities that would be necessary. Others were concerned that the safety of plants would be reduced. Some of the reasons expressed for this second concern were that:

an odorant would make it difficult for workers to respond in an emergency, problems of odorants at tne plant would make a nuclear incident more probable, an odorant might be explosive in the containment or corrosive, an odorant might be detrimental to the functioning of emergency equipment, and modification to systems might be necessary.

A number of the commenters stated that existing effluent monitors and notification procedures are more feasible, more sensitive, and more orderly and that present regulations require the integration of instrumentation and public notification procedures that would allow an adequate time for protecti : actions.

Some concluded that the use of an odorant would be unreliable ar,,1 maccurate.

Many of the commenters indicated that use of an odomnt is not feasible and discussed the technical difficulties. De main points were that: (1) the quantity of odorant required for even a threshold detection in an Emergency Planning Zone (radius of about 10 miles) for a nuclear pcwer plant is greater than is feasible, (2) odors could not be related to the amount of radiation I C 9 es i or NUREGs may he purchased from the Supenntendent of Documems,lis, Cnwernment Pnntmg ofrace, P.o. Dcs 37082, Washmgton, DC 20013-7082, Codes are also available fran the Natmnal Tedmicallnformadan sersico,528s Ibit Royal Road, sprmgridd. VA 2216L A copy is siso avullable for inspection and/or copying at the NRC Puhhc Docuinent korin,2120 L Street, NW (tower lect), Washmaton, DC.

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because of different half-lives or different concentrations, and (3) it is technically umenable to label fission pn> ducts with an odor Some commenters discussed the differences between radioactive emissions and the use of mercaptans in natural gas. They pointed out that (1) natural gas is piped directly to and used in homes and buildings where there are no other warning devices and where a leak can create an immediate har.ard to life and health; (2) racrcaptans in natural gas are intended for the detection of very localized leaks, thus very small concentrations are used; and (3) mercaptans are gases that dissolve into the natural gas. These commenters stated that the situation with radioactive emissions is drastically different with the objective of detecting releases to the unbounded outdoors for miles around.

Some commenters indicated the importance of a unique odor and discussed problems with the choice of an odorant. A nut %cr of commenters including one in favor of the requirement pointed out problems with mercaptans or sim-ilar compounds. One commenter submitted extensive information concerning the toxicity of various mercaptan compounds. One commenter suggested pep-permint or a specific perfume. Another commenter pointed out that even a usually pleasant odorant could be an allergen to some peopic.

Other problems pointed out by the commenters were: (1) the odorant would be overwhelming on site and possibly toxic to workers, (2) there would be a likelihood of false alarms as a result of similar odors or because of system malfunctions, (3) the length of time for the odor to reach the public would be unacceptably long, (4) the cost of the system would be an unnecessary financial berden to licensees, and (5) the public would have to be trained to recognize the odor. Some problems pertaining particularly to the use of an odorant in routine emissions were noted: (1) a problem of aesthetics for nearby residents, (2) olfactory fatigue, And (3) the possibility that the odor would become too familiar and not be responded to when appropriate.

I Generally, the NRC agrecs with those commenters who were opposed to the petition. Although there may have been a few minor overstatements or misstatements, NRC agrees that all of the basic reasons given by the commenters fa. > ssing the petiuon are valid. ,

in addition, two responders submitted that in accordance with 10 C.F.R. 9 2.803, the NRC should not have instituted this proceeding on the basis that the i

petition was without merit and a waste of NRC, industry, and public rescurces

! and presumably not worth public comment.

The NRC's regulations require that a petition that meets the threshold requirements in 10 C.F.R, 6 2.802(c) be docketed as a petition for rulemaking.

Although publication for comment in the Federal Register is discretionary, it is not a burdensome procedure and affords members of the public an opportunity to participate in the agency's deliberative processes that woula not otherwise be available. Public comment is frequently of value in considering the merits 41

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of a petition, particularly where the petition raises an issue for the first time.

Generally, the NRC prefers to err on the side of openness rather than invite public distmst.

j IV, REASONS FOR DENIAL De NRC has considered the petition, the public comments received, and other related information and has concluded that the issues raised by the petition

are without merit. The following is a discussion of the details of that conclusion.

%c primary concern of the Petitioner is a perceived need to improve the health and safety of the public by impmving the detection of radiation leaks and providing the public with notification to take protective measures. In fact, for the case of nuclear power reactors, systems for the detection of radioactive leaks and the ability to quickly notify the public to take protective measures are in pixe as required by NRC regulations. A number of these measures were insututed based on lessons learned from the TMI accident.

Sensitive and redundant radiation monitors are located throughout nuclear power plants to provide detection and alarm capability at the point of release.

These monitors measure, numerically and directly, the amount of radiation. In contrast, if detection of radiation were dependent upon identification of an odor by a person offsite rather than an instrument, the detection would be delayed by at least the time it would take to reach the first persca off site trained to recognis the odor. At best, the use of an odorant in conjunction with mdioactive emissi - e.ould be an indirect and not a quantitative indication of the presence of radawuvity, j Rc Petitioner contends that the accident at Three Mile Island demonstrated def.ciencies in the ability to alert the population of dangerous releases.2 After the accident, the NRC did conclude that the requirements for emergency preparedness needed to be significantly upgraded. Consequently, regulations claborating the scope and contents of emergency plans for nuclear power plants were instituted, included in these requirements are capabilitics to promptly and accurately detect releases of radioactivity, as well as the potential for a release, 3 and to notify the public within 15 minutes of the declaration of an emergency.

Before a nuclear power plant is licensed to operate, the NRC must verify that the licensec's emergency plans and procedures are adequate to protect the public health and safety in the event of an accident. Further, the emergency planning for these licensecs must be coordinated with local and state authorities. Also, 2ne Peuhoner shmld note that careful analysis or the actual raanamve release dunng the accident at Three Ric Island showed that the resultant &se to the pubhc was caparable to that whwh would result frm one or two trans-Atlanue cemenaal airhne tnps. and therefore, would nd be cmsidered dangemus.

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emergency plans must be maintained and updated annually and exercises must be conducted annually (with state and local participation biannually). In addition, the NRC inspects licensecs annually to ensure compliance with the regulatory requirements.

in summary, for the case of nuclear power plants, a system is already in place, which the NRC nas previously determined provides adequate pmtection of the public health and safety, it is unlikely that the addition of an odorant to emissions could add any margin of safety to that provided by existing systems.

Therefore, the addition of an odorant to the radioactive emissions from power reactors would not meet the Commission's Backfit Rule,10 C.F.R. 6 50.109.

In the case of NRC licenses other than those for power reactors, emergency preparedness is commensurate with the hazard. The potential radioactive hazards from most of these licensees are not sufficient to affect the general public.

Ilowever, for those licensees with sufficient materials to meet the criteria for requirinE an emergency plan, the appropriate surveys and monitoring for radioactive releases are required, as well as timely reporting of radioactive releases to the proper authontics. As in the case of power reactors, the existing -

required systems have been judged adequate and are superior to the indirect indication that would be provided by an associated odorant.

The Ittitioner speci6cally asserts that radiation plum.-s are erratic and unpredictable in their dispersion upon release because of varying weather and geophysical characteristics of the terrain.

Plumes of radioactive substances behave in accordance with their physical and chemical characteristics. In this respect, they are no different from plumes of stable elements with the same physical and chemical charxteristics, such as temperature, velocity, density, particle size, etc. The NRC, other federal agen-cies, and licensees routinely predict the dispersion of radioactive plumes based on dispersion models (that are often computerized) that include factors such as weather and terrain. As with all modeling there are associated uncertaintics.

These models are used to predict the path of plumes and to enabic public of-ficials to recommend protective actions before the plume arrives at downwind, populated areas. .

in contrast, the use of odorants would require the arrival of the p!ume in populated areas to initiate any protective actions. Precautionary evacuation, with virtually no radiation dose to the public, would not be an option with the use of an odorant. An additional problem is that a gaseous odorant may not have the same physical characteristics as the radioxtive releases and thus may not follow the same path as the radioactive emissions. If this were the case, the detectability of the cdorant may not be a good indicator of the presence or the concentration of radioactivity As discussed extensively by some of the commenters, the use of an odorant .

for the purpose of warning people of radioactive releases is not feasible, Most 43

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sources of potential releases are not in a form such that an odorant could be dissolved into or otherwise associated with the radioactive material in a way that they would be automatically released together, it would be necessary to rely on a system of detecting radioactivity, such as existing measuring devices, which would then trigger the addition of odorants to stack effluents or venting systems, it would not be possible to account for all sources of releases, although main stacks or vents would be the primary sources of releases, in part because of the complexity of implementing such a requirement, reliance on licensee compliance and government enforcement would still be necessary. Thus, the problem of lack of trust of a segment of the public in the licensees and the government could not be eliminated.

A further concern is that the concentrations of odorants used would have to be very high at the point of release in order to be detectable at any significant distance. Concentrations reaching people would vary considerably, depending on the distance from the source and other facters, such that odca; I

would likely be overwhelming on site and in some locationi off site and quite possibly toxic while being undetectable at other locations. As noted above, it would also be impossible for the chemical and physical characteristics of the odorant to match those of all the releases that are both gaseous and particulate.

Thus, the concentrations of odorants would not remain proportional with the concentrations of contaminants. The concentrations of odorants would also not match the sclative hazard of contaminants, because the radiotoxicity of various nuclides varies greatly.

'Ihc prospect of injecting e odorant into emissions of radioactivity also raises an environmental issue. If the odorant were used in connection with normal permitted releases as specifically suggested by some of the commenters, it would cause the institution of an objectionable and continual insult to the air quality in and downwind from licensed facilities. For example, it is highly likely that the addition of a mercaptan-like odorant to radionuclides used in the nuclear medicine sections of hospitnis would be intolerablv. Similarly, residents downwind from nuclear power plants would be subjected to a decreased quality of air, it would be difficult, if not impossible, to select an odorant.that would not be toxic in the concentrations required. As discussed above, the addition of an odorant would provide little, if any, benefit to the protection of the public health and safety. Therefore, the detrimental effects on the environment outweigh th benefits, if any, of injecting an odorant into radioactive emissions from NRC licensed facilities.

The petition erroneously states that scientific studies prove that even the smallest amounts of ionizing radiation cause harmful health effects. On the contrary, there is a controversy in science on the health effects, if any, of very small doses of imizing radiation. Nonetheless, the NRC regulates on the basis of the linear nonthreshold hypothesis which assumes that there is no threshold 44 i

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of dose below which there is no harm, i.e., that even the smallest doses are potentially harmful.5 Taking all the considerations above into account with respect to the early detection goal of the proposed requirement, the Petitioner fails to recognize that more timely and sensitive methods of detection of radioxtive emissions are already in place Similarly, with respect to the ability to notify the public to take protective actions in a timely manner, the Petitioner does not recognize that an effective method for notifying the public is already in place.

Therefore, there would be little, if any, increased tenefit to the public health and safety as a result of the proposed requirement.

In conclusion, the NRC finds the petition without merit, and denies the petition.

For the Nuclear Regulatory Commission James M. Taylor Executive Director for Operations Dated at Rockville, Maryland, this 27th day of July 1992.

-3' Die Petitimer also crtoncously states that the natural gas industry requires the injection or odors into gas for conmercial and dcenestic use. in fact,it is the federal gmernment that requires the use of odorunts in natural gas as stated in the regulatims (49 C.F.R l191626) 45

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