ML20155A081

Nuclear Regulatory Commission Issuances for July 1988.Pages 1-71

ML20155A081
Person / Time
Issue date:	09/30/1988
From:	NRC OFFICE OF ADMINISTRATION & RESOURCES MANAGEMENT (ARM)
To:
References
NUREG-0750, NUREG-0750-V28-N01, NUREG-750, NUREG-750-V28-N1, NUDOCS 8810050202
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{{#Wiki_filter:_ i NUREG 0750 Vol. 28, No.1 Pages1 71 i t L -~ NUCLEAR REGULATOR.Y COMMISSION ISSUANCES July 1988 I i O ge Y kW5 M l' U.S. UCLEAR REGULATORY COMMISSION 8G10050202 030930 PDR NUHFG l 0750 H PDR l I t I } l 1

t ...-.n.-....---...--..--- f Available from Superintendent of Documents U.S. Govemment Printing Office Post Office Box 37082 Weehington, D.C. 20013 7082 A yeer's subscription consists of 12 softbound leeues, 4 indexes, and 2-4 hardbound editions for this publication, j Single copies of this publication are available from National Technical Information Service, Springfmid, VA 22161 l l i I Errors In this publication mey be reported to the DMelon of Freedom of information and Publications Services [' Office of Administration and Resources Menagement U.S. Nuclear Regulatory Commiselon Woohington, DC 20066 (301 /492 4825)

e s NUREG-0750 Vol. 28, No.1 Pages 171 8 NUCLEAR REGULATORY COMMISSIO \\l ISSUANCES July 1988 1 1 This report includes the issuances received during the specified period from the Commission (CLl), the Atomic Safety and Ucensing Appeal Boards (ALAB), the Atomic Safety and Ucensing Boards (LBP), the Administrative Law Judge (ALJ), the Directors' Decisions (DD), and the Denials of Petitions for Rulemaking (DPRM). The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or to have any indepen-dont legal significance. l JU.S. NUCLEAR REGULATORY ~ COMM SION. 'A', h ' ~ Prepared by the Division of Freedom of Information and Publications Sorvices Office of Administration and Resources Management U.S. Nuclear Regulatory Commission 4 Washington, DC 20555 1301 /492 8925) l

s . c . y .u .- g- . 1 ~ f 4 8 COMMISSIONERS .s. 4 I Lando W. Zech, Jr., Chairman Thomas M. Robens Kenneth M. Carr j Kenneth C. Rogers ? I l t i t i l Alan S. Rosenthal, Chairman, Atomic Safety and Ucensing Appeal Panel B. Paul Cotter, Chairman, Atomic Safety and Ucensing Board Penel a 1 e I [ 8 l l 4 s l[ e J e t

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CONTEFGS Issuances of the Nuclear Regulatory Commission ALPRED J. MORABITO (Senior Operator License for Beaver Valley Power Stadon. Unit 1) Docket 55 60755 SP MEMORANDUM. CLI 88-4, July 15,1988....................... 5 . i LONO ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Stadon, Unit 1) Docket 50 322 OL 3 1,

• MEMORANDUM AND ORDER. CLI 88 3, July 15,1988.......... 1 Issuances of the Atomic Safety and Licensing Appeal Boards FLORIDA POWER & LIGHT COhTANY

('Thrkey Point Nuclear Generating Plant. Units 3 and 4) Dockets 50 250-OLA.2,50 251-OLA 2 (Spent INel Pool Expansion) DECISION, ALAB 898. July 28,1988.......................... 36 PHILADELPHIA ELECTRIC COMPANY (Lirnetick Generating Station. Unit 1) Docket 50 352 OLA (TS lodine) DECISION, ALAB 897, July 18,1988.......................... 33 PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al. (Seabrook Station. Units 1 and 2) Dockets 50-443 OL 1. 50 444 OL.1 (Onsite Emergency Planning and Safety issues) MEMORANDUM AND ORDER. ALAB 895, July 5, '1988.......... 7 i PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al. (Seabrook Station, Units 1 and 2) Dockeu 50-443 OL.1,50444-OL 1 (Onsite Emergency Planning and Safety Issues) MEMORANDUM AND ORDER, ALAB 896. July 15,1988........ 27 a Ill O

~ ~. Issuance of the Atomic Safety and Licensing Board 4 VERMONT YANKEE NUCLEAR POWER CORPORA *I1ON (Vermont Yankee Nuclear Power Station) Docket 50-271 OLA (ASLBP No. 87 547 02 LA) SECOND PREHEARING CONFERENCE ORDER. LBP 8818. July 12.1988 ..................................43 Issuance of Director's Decision DETROrr EDISON COMPANY (Enrico Ferm' Atomic Power Station. Unit 2) Docket 50 34 l DIRECTOR'? '.ECISION UNDER 10 C.F.R. 6 2.206, DD 88 11. Juy 28.1988 '................................... 49 Issuance of Denial of Petition for Rulemaking QUALIT( TECHNOLOGY COMPANY Docket PRM 50-47 DENIAL OF PETITION FOR RULEMAKINO. DPRM 88 3. July 11,1983 .................................61 l D e lv

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,.(: Cite as 28 NRC 1 (1984) CU-48 3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i COMMISSIONERS: [ Lande W. Zech, Jr., Chairman Thomas M. Roberte Kenneth M. Carr '4*eMh C. Rogers ( in the Matter of Docket No. 50 322 OL 3 (Emergency Planning) { LONG ISLAND UGHTING COMPANY (Shoreham Nuclear Power Station, f Unit 1) July 1$,1984 L The Cocnmission denies Intervenors' motion for reconsideration and reversal ( of CL187-5,27 NRC 884 (1987), in which the Commission had dec!!ned to l reopen the record on issues concerning the role of the American Red Cross in an emergency and the adequacy of "congregate care" facilities for sheltering evacuees in an emergency. The Commission Ands no new information in Intervenors' motion to suggest that the nesult reached in CLI 87 5 was incorrect. RULES OF PRACTICE: REOPENING OF RECORD (SATISFACTION OF REQUIREMENTS) Movants cany a heavy burden in satisfying the requirements for reopening of a record, under standards outlinui by the Commission ir %lskana Powr & i UsAt Co, (Waterford Stearr ":-Tic ?:ation, Unit 3), CLI 85 3,21 NRC 471 i (1985), gf'd Oystershell Alm., ; v. NRC,800 F.2d 1201 (D.C. Cir.1986). I g 1 t 1 I I --c...

~ s RULES OF PRACTICEt REOPENING OF RECORD Motions to reopen cannot be permitted to be a means for parties to pass off old, unsuccessful contentions as new and relidgate them in hopes of a better result the next time around. t RULES OF PRACTICEt MOTION FOR RECONSIDERATION The opportunity to 61e modons for reconsideradon should not become a garr.e in which the resources of the Commission and the parties are wasted in endless reiteradon of the same arguments. At some point the adjudicatory process mus: ,,~ i come to an end. j MEMORANDUM AND ORDER In CLI 87 5 (27 NRC 884), decided June 11,1987, the Commission granted in part and denied in part a motion, aled by Intervenors New York State Suffolk County, and the Tbwe of Southampton, to reopen the recori of this operating license proceeding. The motion was granted as to issues raised by the withdrawal of a radio station from the Shoreham emagency broadcast system, but denied as to Intervenors' claims regarding the role of the American Ped Cross in i an emergency and the adequacy of "congregate care" facilities for sheltering evacuees in an emergency. On June 30, 1987, Intervenors Sled a motion for reconsideradon of those parts of CLI.87 5 which denied their motion to reopen. Finding no new information in that modon for reconsideration to suggest that i the result reached in CLI 87 5 was incorrect, the Commission denies the modon for reconsideration, which was, moreover, untimely Aled, having been Sled 19 1 days after the issuance of CLI-87 5, rather than the 10 days provided by 10 C.F.R.12.771(a), with no showing of good cause for lu lateness. Movants' Arst argument is that the Commisskm erred in reasoning that it made 11tde difference whether the American Red Cross provided assistance to 1 the pubile pursuant to a formal agreement with the utility or simply in accordance with its established policy of coming to the aid of the public when the need arises. On this point, the modon for reconsideration offers no facts and no arguments that were not considered and rejected by the Commission at the i time it is!ued CLI-87 5, and the Con mission sees no reason so alter its earlier l judgment. Contrary to the movants' claim that "there is no assurance of ARC support in an emergency" (Motion for Reconsideradon at 6), the August 21, 1986 letter from the Nassau County Chapter of ths American Red Cross stated plainly that it was "mandaurd" by charter to perform the role out!1ned in an earlier letter from that organization, dated July 25,1984. The gist of the August 2 I \\

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? 2 i 1986 louer was merely that the July 1984 louer had ermneously been capdoned l an "agmement." Movents'second argument is that it was error for the Commission to sfuse to mopen the record on the issue of congregate can thcGities. The Commise6cn l disegnes. To the entent that the motion to reopen was based on the leser l from the American Red Cmes, the same reasoning oudinad above is applicable. i Again, that loner by no means m.hme as the latervonors' moelon to mopen i 1 boldly declared (at 2), the Red Cass's "refusal to agren, idendfy, designate, i 3 open, or operate such centers in a shoreham anergency." Movents menissedy i ~ failed to carry the heavy burden that the proponent of a modon to reopen to:ss, under the standards outlined by the t'a==naian in feedsdans Power a Ug4 l Co. (Waterford Steam Electric Station Unit 3), CLI45 3,21 NRC 471 (1965), I qf'd. CynersAell Alliance v. NAC, to) F.2d 1201 (D.C. Cir.1986). j The modon to reopen was also based (at 1213) upon consin lesers drorn l facility owners, presented to the Licensing Board on September 26,1986, by j ] Mr. Howard M. Koenig. Superintendent of Schools of the East Meadow Union. Free School District. Although the September 1986 dass cited might suggest i at drst glance that the information offered was new, having come to light aAer the Licensing Board's August 1985 decision on congregate care contars, that is l 1 not the case, Reference to Mr. Koenig's September 1986 testimony (TV.17,003) s ] reveals that his major complaint was that the Atomic Safety and Licensing Board had declined to accept those same letters into evidence when they were presented l by a subordinate of his, Mr. Leon Campo, in early 1985. ~ In fact, Mr. Campo's testimony, with letters anached, was proffered to the [ Licensing Board by the Intervenors on February 19,1945. By order of May 6, i i 1985, de Board rejected it as outside the scope of the proceeding. On May 17, 1985, Incarvenors again offered the letters to the Licensing Board as part of a Modon for Reconsideradon and in the thernative, Motion to Roopen the Record, 1 On June 10,1985, the Licensing Board denied that motion. On June 25,1985, Intervenors moved for the admission of the loners into evidence fa a third time. l l Tr.15.940. The Licensing Board denied the motion. After the Licensing Board rejected the Intervenors' contendon on cong ogate care centers in LBP45 31 l (22 NRC 410), issued on August 26, 1985, the eactusion of the letters was t Taised unsuccessfully before both the Appeal Board (as part of the Intervonors' appeal of the August 26,1985 Concluding Partial laisial Decision on Emergerry d Planning) and the Commission (as part of the Intervenors' ptition for review ] of the Appeal Board's decision in ALAB.832,23 NRC 135 (1986)). On the ] issue of the letters, therefore, the Motion to Roopen and the lastant Motion for Reconsideration represent the Intervenors' sixth and seventh bits at the apple, respectively. Motions to reopen cannot be permined to be a neens for parties to pa : off old, unsuccessful contendons as new and relidga's them in hogms of a i i j 3 .I 4 l 1 4 i i _--__--_._.-,__,,__,,____~_%_, ,- ~ _ - - _ ____,_.-_. _. .,_ __ -,,,r-, _.,

s .,9 beser moult the next time around. Nor should the -:44e2 to Als motions f for sconsideration become a game in which the resources of the Conunission and the parties are wasted in endless reiteration of the same arguments. At .i. some poirs the aQadicatory process ranst come to an end. The motion for ~ reconsideration is denied. It is so ORDIDLED. For the Comh'i j j ) SAMUII. J. CIGI.K 'a e Secretary of the Ct amission Dated at Rockvine, Maryland, this 15th day of July 1988. 1 1 1 i e I, i e J l 8 l I 1 i 1 ] 1 I I g i

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e Cite as 28 NFC 5 (1988) CLl-44 4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS: Lando W. Zech, Jr., Chairman Thomas M. Roberts Kenneth M. Carr Kenneth C. Rogera in the Matter of Docket No. 55 40755 SP l ALFRED J. MORABITO (Senior Operator License for Beaver Valley Power Etation, Unit 1) July 15,1944 The Administrative Judge in this proceeding has determined that Staff incorrectly denied a sertiot reactor operator license to Mr. Morabito. However, since Mr. Morabito has taken employmeet outside the nuclear industry and has no present need for a license, he cannot, under Commission rules, hold a license. Since this fact is undisputed by Mr. Morabito, the controversy over the license i r denial is now moot. De Commission therefore vacates the Administrative Judge's decision, as well as the Staff's license denial. l MEMORANDUM i On April 20,1988, the Administrative Judge determined after a hearir.g that the NRC Staff had erred in determining that Mr. Alfred J. Morabito had failed the simulator portion of his senior reactor operator license examination, and that the Staff had therefore incorrectly denied Mr. Morabito a senior reactor operator license. De Judge later modified that decision, by order of May 18,1988 (1.BP-8816,27 NRC 583), to make clear that it related only to issues adjudicated in the proceeding, and that the Staff retained the authority la determine wNther 1 other requirements for a license had been met. 5

l.' 1 t t Also on April 20,1988, Duquesne Light Company advised the NRC Staff that the candidats had taken employment outside the company's nuclear group, and that the request for his senior reacMr operator's license should be considered a 1 withdrawn. l ~ Under the Commission's rules,10 C.P.R. Part 55, possession of an operator's license is conditioned on there being a present need for the license. Although Mr. Morabito has suggested, in a May 10, 1988 leser to the Judge, that the license be issued resoectively and then cancelled as of the dass that the company withdrew its certiacation of need, we believe that this would be an empty saarcise. Since Mr. Morabito does not dispute that he cannot now hold a senior reactor operator license, the controversy over the Staff's denial of the license is l now moot, and the Administrative Judge's decision and the Staff's underlying denial are therefore vacated. It is so ORDERED. Por the Commission l l 9 SAMUEL J. CHILK j Secretary of the Commission i I } 4 Dnied. Roavme, uaryiar.d. i this 15th day of July 1988. 4 i l t 1 i i l e .I l 1 1 1 i l 1 i i I I I I i. .) i j l 0 1 i 1 I l I k j a _.-___\\---..---.--,._mm,----mm- ,e- .m,,, -r -,,_-cu,. -y _.~w ,,--,%..-.-,-ne ,--r-y_w,.-,

4 1 l l l 1 i Atomic Safety and ) Licensing Appeal l Boards issuances ATOMIC SAFETY AND LICENSING APPEAL PANEL i i I Alan $. P.osentha', Chairman j Dr. W. Reed Johnson Thomas S. Moore Christco N. KoN Howard A. W6 bee \\ i l 1 l i ) 4 l 4 i I l l i l i

~ Cite as 28 NRC 7 (1988) ALAB-405 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND UCENSING APPEAL BOARD Administrative Judges: Alan S. Rosenthal, Chairman + Thomas S. Moore 4 j Howerd A.Wilber in the Matter of Docket Nos. 50 443.OIA 50 444 OL 1 (Onsite Emergency Planning and Safety issues) PUSUC SERVICE COMPANY OF NEW HAMPSHIRE, et af. (Seebrook Station, Units -f and 2) July 5,1944 On appeal from the Licensing Board's denial of the intervenors' petition pursuant to 10 C.F.R. I 2.758 to waive the electric utility exemption provisions of the Commission's financial quali5 cation regu'ations, the Appeal Board afarms the denial of the petition. With respect to a separate petition Sled by the Attorney 4 General of Massachusetts with the Appeal Board, the Board certi6es the petition to the Commission for a determination whether the rule provision should be waived. RULES OF PRACTICE: CHALLENGE TO COMMISSION REGULATIONS The Commission's Rules of Practice prohibit direct challenges to any b7C regulations in agency adjudicatory proceedings.10 C.F.R. 5 2.758(a). 7 i -y,, .w g

e RULES OF PRACTICEr WAIVER OF RULES The Rules of Practice contain a limited excepdon to the proscripdon against challenging NRC regulations and provide that a party to a licensing proceeding ^* may petition for a 'vaiver of a regulation ifspecial circumstances with respect to the subject matter of the particular proceeding are such that applicadon of the rule or reguladon (or provision thereof) would not serve the purposes for which the rule or reguladon was adopted. 10 C.F.R.12.758(b). RULES OF PRACTICEt WAIVER OF RULES The Rules of Practice further require that a waiver petidon be accompanied by an afadavit that both sets forth the special circumstances justifying the requested waiver and explains why the regulation would not serve its intended purpose. 10 C.F.R. I2.758(b). RULES OF PRACTICE: WAIVER OF RULES Only the Commission, however, is authorized to grant the petition and waive a rule. A subordinate board may deny a petition but if a boa.d determines that the peution makes a prima facie showing that appik.ation of the regulation at issue does not serve the purpose for which it wes adopted, the petition must be certined to the Commission for a determination whether the reguladon should be waived.10 C.F.R. 5 2758(c) & (d). FINANCIAL QUALIFICATIONS: APPLICABLE STANDARD The Commission's substantive anancial qualineation regulations require that cr.rtain applicants for operating licenses, as part of the license application, submit information demonstrating that the applicant possesses, cr has a reasonable assurance of obtaining, the funds necessary to cover estimated operation costs for the period of the license, plus the estimated costs of permanently shutting down and maintaining the facility in a safe condition. Similarly, before granting an operating license to an applicant, the regulations obligate the agency to determine whether the applicant is Snancially qualiaed so operate the facility. 10 C.F.R. Ii 50.33(f), 50.40(b), 50.57(a)(4). FINANCIAL QUALIFICATIONS: APPLICABLE STANDARD The Commission's regulations speciScally exempt from the 6nancial qualia. cation reporting requirements applicants that are electric utilities, Le., entities that 1 generate or distribute electricity and whose rates for service are self-determined g 4 i m-

4 s I or established by a separate regulatory authority.10 C.F.R. 96 50.2, 30.33(f), 50.40(b),50.57(aX4). RULES OF PRACTICE: WAIVER OF RULES I '!he isladvely small number of waiver pedtions Sled in NRC adjudicatory proceedings and the fact that few, if any, such peddons have been successful evidsace the dif8culty of moedng the waiver standard. It also underscores the i Commission's comment that such a pedtica "can be grensed only in unusual 6 and compelling circurastances " Northern Sseses fomer Co. (Monticello Nuclear riana=4g Plant, Unit 1), CLI.72 31,5 AEC 25,26 (1972). l FINANCIAL QUALIFICA'110NS: CONSIDERATION IN OPERATING LICENSE PROCEEDINGS The Commission's purpose in promulgating the electric udlity exempden to the inancial qual 18 cation ingulations was to eliminate case by. case review by the staff of an Individual applicant's anancial quali8cadons as part of the t operndng license review process and to remove such issue hem adjudicadon i in any operating license proceeding. Its radonale for the exemption was stmightforward: clectric utilldes were presumed to be able to Saance the safe i operation of their facilities through the ratemaking process. 1 4 4 RULES OF PRACTICE: WAIVER OF RULES 1 A prima facie showing within the meaning of 10 C.F.R.12.75s(d) is one that is "legally suf8clent to establish a fact or case unless disproved." fac$c Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB 453,16 NRC 55,72 (1931). APPEARANCES Paul McEachers, Portsmouth, New Hampshire, and Robert A. Backus, 4 Manchester, New Hampshire (with whom Matthew T. Brock, Ports. j mouth, New Hampshire, was on the brief) for the inservenors appenants Town of Hampton, New Hampshire, New England Coalition on Nuclear l PoDution and Seacoast Anti. Pollution League. j Stephen A. Jonas and George B. Dean, Boston, Massachusetts, for intervonor. petitioner James M. Shannon, Attorney General of Massachusetts. 1 s I U, l i

Thoenas G. Dignan, Jr., Boston, Massachusetts (with whom George H. Lewald and Kathryn A. Selleck, Boston, Massachusetts, were on the brief) for the appikanu Pub!k Servke Company of New Hampshire, et a1. Gregory Alan Berry for the Nuclear Regulatory Commission staff. i MEMORANDUM AND ORDER We have before us the appeal of the intervenors Town of Hampton, the s. New England Coalition on Nuclear Polludon, and the Seacoast Anti Polludon ~ 1 League (hereinafter "appellants") from the Lkensing Board's denial of theirjoint 1 petidon to waive the electric utility exempdon provisions of the Commission's Anancial quali6cadon reguladons.8 Those provisions prohibit any examinadon during an operadng license proceeding of an electric utility-app!kant's Snancial ability to operate a commercial nuclear power plant. The appe!! ants seek to have them set aside in this case so that Public Servke of New Hampshire (PSNH), I the lead applicant and principal owner of the Seabrook facility,8 could be made to demonstrate, prior to low pont operadon, that it is Snancially quali6ed to operate the facility safely at low power. While the appellants' appeal was pending. PSNH Sled a petition for reorgani. zation under Chapter 11 of the Bankruptcy Code in the United States Barkuptcy Court for the District of New Hampshire. Recognizing that this new develop-ment wuld likely lead to the Sling of addidonal waiver petitions, we provided the appellants an opportunity to amend their pedtion or, alternatively, to Sie a new one. Nnher, we directed any other party seeking a waher of the Com-mission's Snancial quallocadon regulations before authorization of low power operadon to Sie a pedtion at this time so w could consider all peddons to-gether.8 In response to our order, the appe!! ants aled a supplemental brief and the intervenor Attorney General of Ma;sachusetts joined the fray and Sled a peddon to waive the same provisions of the Anancial quali6cadon regulations. For the reasons that follow, w af6tm the Licensing Board's denial of the appellants' waiver petition and certify to the Commission the peution of the Massachusetts Attorney General for a determinadon whether the electric udlity e:,empdon provisions of the anancial quallScadon regulations should be waived. . I u___.t.,,4 o,q,, g4,,,, gg g,gg I Ps.501 ewas ss.s4952% afibe sembsmak sneasy and sisma ember pMis and havesence iend pe=ar summyenne own te suunaamder. 3 % and order Qasniary 29. IMt) en s-s. l l 10

s i e. ~ l I. A. The Commission's Rules of Practke prohibit direct challenges to any NRC regulations in agency adjudicatory proceedings.' The same rules, however, contain a limited exception to that proscription and provide that a party to a licensing proceeding may petition for a waiver of a regulation if "special circumstances with respect to the subject maner of Ot3 particular proceeding are such that applicadon of the rule or reguladon (or provision thereof) would not serve the purposes for whkh the rule or reguladon was adopted.*s 'Ihe Rules of Pracdce further require that a peddon be accompanied by an af8 davit that both sets forth the special circumstances justifying th: requested waiver and explains s. why the regulation would not serve its intended purpose.* Only the Commission, however, is authorized to grant the petition and waive a rule, A subordinate board may deny a petition but if a board determines, on the basis of the peddon and any responses (including counteraf6 davits), that the petition makes a prima facie showing that the reguladon at issue does not serve the purpose for which it was adopted, the petition must be certlaed to the Commission for a determination whether the regulation should be waived.' As part ofits consideradon, the Rules of Practke provide that the Commission "may direct such further proceedings as it deems appropriate to aid its determinadon.** Here, both the appellants and the Massachusetts Attorney General invoke these procedural provisions in seeking a rule waiver. B. In turn, the Commission's substandve anancial qiittiacation regulations require that certain applicants for operaung licenses, as part of the Ikense application, submit informadon demonstradng that the applicant possesses, or has a reasonable assurance of obtaining, the funds necessary to cover estimated operation costs for the period of the license, plus the estimated costs of permanently shutting down and maintainbg the facility in'a safe condition.' Similarly, before granting an operadng license to an applicant, the regulations ob!! gate the agency to determine whether the applicant is anancially quali$ed to operate the facility. But the regulations speci6cally exempt from these requirements applicants that are electrk utilities, i.e., entities that generate

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4 o, . s + 4 9 1 I a t or distribute eleceicity and whose rates for service se selfalseannined or a i estabushed by a separate regulatory amihority.88 l It is the relatively new electric utsuty esempden provisions that the appellants and the um no Amorney General seek a have waived. Mir a number ( 1 of years prior to 1982, the theal=3aa's aguladons regaind applicams for l 1 construction pennits and operadag licenses Snr consnemial anclear power l pines to als anancial inibnneden softcient to estehush, r-;: Mi, their qusuecadons (1) to bund and (2) to opemes and a hh he facilides.is t t In 1982,she e-l=h amended the agulmions to elindsats enshely ihe .~ i n ' Ihr Anancial psa,.aa= review and endings gar elsemic unlueles l spplying fbr construeden pennia or operadng ILunes." Upon judiend review, j .~ he ver, she Court of Appenis sur the Disates of twmala Commit sound i that ilh, a=aamaaas was not supponed by the Pa==i=8a='s sensed redonals t contained in the accompanying statement of basis and purpoes. Accordingly, l q the court remanded the rules to the agency for further proceedings 88 Thereaner, t ) the Commission amended the reguladcas a second thee e olisdness only the Aaaaelal aview and Sadings requirements for elecate C ; 7 license i applicants whGs retaining such provisions for constmedon pennit appucents.is The validity of these==aamaanes was then igihold by the Dissrict of Colundda [ Circuit.ie i The Coni =leah explained its radonale for esempdag electric utluties fWom the aview and Andings. ; ' - of @e Saancial piae=*h mgulations l 4 In a four. pert statement of consideradons accompanying the 1984 enactment. Because the purpose underlying the esclusion of electric vanities fWom the l 4 provisions of the agency's Anancial 7 - '-- reguladons is conmal en the l resolution of the waiver peddons at hand, a brief rehearsel of the Ca==lamica's l 4 major points in its staaement of consideradons is in ords, t J First, aher recidng the utigation history of the regulations, the Commission ( ) stand its benet inat i essebym sowiew of Amensiel gestitesmans for es ensade manies a the eyespens liessee [ mese is mesesseeery des to the shility of asah umhmes to snesser, to e suSees hoses, all er a yesmen of the seems of esmososien one seNoness suas of sees speamen itsench the ai., y,sesse,t? 1 4 ll e CJA HM2.KpfL n'en NJheM41 l is 1 ans le CJA H MMfL MetM. NJheXe) Otta.

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~, = _ - - l l o g' i ~ Acconting a the Conuaission, such funding was assured because all putdic udiky comunissions are legally oldigated to set a usility's mese so that all raaaaa*Ma cosa of serving the putdic are recovered." l e Nant, the Comadssion tosponded to conunents opposing the proposed amend-I ment and chauenging the presnise that the ratomaking pegoess provides reason-alde assurance that nuclear utilities will be alde to recover sufScient fimds to operate safely. In general, it determined that such comuments misapprehend the 1knised function of the nancial disclosure.--7 _

1. and the NILC's prior j

a practice. In reaching this conclusion, the a==laala= traced the history of the c agency's taancial ; 'e- "- reguladons and found that their laidal focus had been on the avallandlity of funds rather than on whether the freds won property ) spent on safe operadon. Likewise, the agency's long standing practice had been l to con 8as its review of Anancial sutunissions to assuring access to a source of i l ] l funds; the agency had never sought assurance that the monies would be property i spent. Punhar, the Convaission pointed out that a amarial disatdlity is not a l s safety hazard per se because the licenses is required under the Ceaunission's j regulJons to cease operadng if necessary funds for safe operadon are not avail-l alde. Plantly, it noted that concern for safe performance is not conened to thoes neinties with just Anancial protdems and that safe operadon is best ensured by i other regulatory tools such as the N3tC's inspection and enforcement process." l From these consideradons, the Commission concluded that the concerns of commenters to the effect that tremaidng bodies do not guarantes funds received by udlities will be applied to safe operadon of a facility are irrelevant [ l to the limhed assurance the Commission's reguladons were intended to pnwide. ] Similarly,it found far wide of the mark commenters' asserdons to the effect that the ressmaking process doss not provide assurance of safe opestion because it does not ensure a Raed level of pro 6tatslity, which, in turn, can only be ] guaranseed by allowing recovery of all requested rate inenases. 'the Commission [ otserved that its reguladons made no assumpdons concerning runs of nearn or i i level of pro 6ts; rather, ks premde was that reasonalds and prudent costs of safely operadng a nuclear plant will be recovered through the ressmaking process. It stand that any proats or sturn inyond ihet an of no regulasory concern because "It]he Convaission's concern is wkh safe operation, not pro 6ts. 'the Comunission based ha conclusion that esponses associated with safe t plant operadon will be recovered through the resemaldng process on a nadonal f j survey of the Nadonal Association ofItegulatory Utility tw-1..laaars and the l NILC staff's analysis of that survey. Accordag to the Commission, the survey I established that, even though rate commissions often deny certain requested cost ( wg } "M m M.Ns4 8M a M.Ne, 1 j 13 1 i 1

e Isoms that lead to smaller proot margins, such disallowances are never so great as to preclude the recovery c( operadng costs. Moreover, the survey showed that all ratemaking authorities have the ability to ensure that udlity revenues s meet the costs of NRC safety requirements, ahhough the mechanisms very from stals to state.8' From this survey, the Commission concluded that the rulemeldng mM demoesuenes semeneauy est the nu preeen menu ihan nede mended see nede apenine we be made evenshie w maulmed eheiric maliin sines ehemmins see euwenes== es i eene m.jessiw of ihe amaneial qualisunion nde me casenme6en esmeinem em, aber see in i - ' enese, no esse 4y. ease litisessen of the snancial n'"- of seek oppheems i is waneened." i '!he Commission also pointed out that there was some suppnt in the rulemaking i 4 record for the proposition that thera is ndconnection between the agency's Anancial q'yHAMon ggyjew and safe operation of a facility but it sp0Ci6cally eschewed footing the electric utility exempdos on that basis. Importantly, however, it declared that "if such a link could be identl6ed for any given facility, the Commission would not be precluded kom examining the Anancial quallacation of that facility under 10 C.F.R.12.753."8 In the Anal portions of the statement of considerations, and aher reserving l its full authority pursuant to section 182a of the Atomic Energy Act of 1954, l as amended 8* to require additional anancial information from an applicant, the Commission noted that 1 l (e)= enespiian w or weivw fresa ihe ruk prwhdas sesendemmen et sancial qualiscesion ] in en opsmuns lieanse ; : -n wat be made it, penmees to 10 C.FJt. I173s special cimenmaacu em so.a. For umnpie, we en nesyiise a perma sancial qualiscesion sview for en operating license applecess misht be appropeises 36me e ihmehold showins is sende det, in a peniaalse sees, es leent yehtie unaisy eenenission wiB aos eDew the teial met of erweiins ihe fuGiry a he messed enush mine.as It then ladicated that in normal circumstances the amendment will reduce the time all participants in the operating license process spend reviewing an electric utility-epplicant's Snancial qual 15 cations because the utility is presumed to be i able so inance operation of the nuclear plant and that "[t]he rationale for the l J Su E ld a M.?M 8 1 9 14 ei s5.7sl aJ. h - , -"y,- . -; e eine segumee se e enumenet maner heumme, hmhedos j en eienne emisy, na.ry the eeuwy er en shes er e henknepuy y== to Camensseum esensely has maw me poemmy er a mammaman he.se oesar eed me hiasman entsatay er as elemew eeksy. le CJJt. 83434mX1h su s2 Fet met las2 (1M7k ) 8'42 UJ C. I 2251 as 4, y,4, g,,, y,73 g, i I 1 I 14 l I p ,,,,,------.-m .,r---.-,m- ~,, - -.,, _ _ _ _, - - -,, ,----.-.--.,,---n p., ,a

4 ~ I i rule is in ofrect a seneric determination out regulated or alf-regulating pubue uduties are anencinny q= aim no operam nuclear power piams.* e II. i i As earlier indicated, the appellants' potklon sought a waiver of the regulations amanpdag me appucents' lead owner, PSNH, ham having a demonsense, prior a===aan batty a operais at low power and io kw. power aumortandon, km a then to d=====lada= the Seabrook facility, la support of their request, the i appeuents prknarily round upon PSNH's then recent July 1987. 8-K Aling with a the Securities and Bachange Commission that, hver alis, described the elecesc 1 uduty's severs Anancial crisis and fcescast the likshhood of prorwe6ings under the Bankiuptcy Code if a Anancial plan to improve its dire circumstances could ) not be W:-;+2 by the end of 1937. The petition also ressed on the New HampsHrs antiCWIP (Construction Work in Pmgress) statute that precludes any recovery of costs for operating the Seabrook plant unless and undt k enters comunercial service.8' Accorthng to the pathion these factors, combined with i the uncertaindes of the inevitable bankruptcy proceedings, presensed suf5cient i special circumstances to jusdfy the requested waiver. j la denying the appellants' pethion, the LE='=,. Board looked to the Corn-l 1 missiert's statemect of considerations accompanying the rules and concluded ( I,. that "[t]he Commission did not implickly or empressly -:- - ;'r or state that l J an operadng license Applicant's Anancial distress and possible bankruptcy were j special circumstances which could resuk in an saception or waiver under 10 C.P.R.12.758.'98 At the urging of $c applicants and the staff, the Board de-termined that a waiver was appropriate solely where there was a showing that l a raiseener wul not permit a utilky to recover reescamble costs of construction and suf8cient costs of safe operation. Hence, the Licensing Board held that i the appenants' pedtion was fatally defective because it fausd to demonsvase l j that, in the event of the issuance of a full-power Heenes, ihe New Harapshire Public Utiikiss Commission would not allow recovery of construction and op-l eradon costs." Ahcrastively, the Board doestmined shot the appellants' forecast l ibt PSNH's future in the event the utility Sled for preesction ham its credi-i lors was "whoDy speculative" and thus could not forin the basis for a prima i facio showing that the application of the electric udlity provisiona of the saan. ) 4 1 4 1 i og "ses MK aev ans6 Am. 37:A =um 6-eom,m minn.7. j m u n e. I u i } ) i I i i I , _ _ _ _ -..., _ ~ _ _ _ _ _, _, _ _ _ _ _.. _ _, -, _,..,,, _ _ _ _,, _ _ -. _ _ _ _ _ _ _. _ _. _ _ _ _,.. _,, _,, -, _ _ _ _ _ __,_,__,,_ _

k, .s l cial ~amadon regulations does not serve the purpose for which they were 3dopted,38 Although 10 C.F.R. I 2.758 provides a mechanism for setting aside an agency rule in a speciac case, its provisions are intended to ensure that duly promulgated regulations are not lighdy discarded. Thus, only the Commission can authorize the waiver of a reguladon, and in order even to get the waiver questina before it, a party arst must make a prima facie showing to a subordmate board that special chcomstances in the particular case are such that applicadon of the reguladon would not serve the purpoos for which it was adopted. The reladwely small number of waiver petitions aled in NRC adjudicatsy proceedings and the fact that few if any, such petitions have been successful evidence the dif8culty of 7, s i meeting the waiver standard. It also underscores the Commission's comment that e such a petition "can be granted only in unusual and compelling circumstances."85 i On the basis of the factors asserted by the appellants in their petition and in their supplemental brief before us, such compelling circumstances are not present l whh respect to PSNH's low power operadon of the Seabrook facility. Therefore, the Licensing Board reached the correct result in denying the appellants' petition. l The appellants are correct that PSNH's recent banknytcy $11ng is the $rst by ) a major utility since the Great Depression and that bankruptcy raises a host of uncertainties for PSNH. But, without more, these developments, even when considered with the New Ha.npshire anti-CWIP laws, do not meet the test of section 2.758 for C:rtifying their waiver petition to the Commission. Because PSNH's bankruptcy $ ling is so unprecedented, the appe!! ants' arguments have a certain visceral attraction. Such a reaction, howver, can never be a proper substitute for the showing required under 10 C.P.R. 5 2.753 - the only basis on which we are authorized to act. Simply stated, the Commission's purpose in promulgadng the electric utility exemption to the Anancial quallocation regulations was to eliminate case-by. case review by the staff of an individual applicant's Snancial quall8 cations as 2 l part of the operating license review process and to remove such issue from adjudication in any operadng license proceeding. Its redonale for this change 38 j M et la The tJammag seed else desad the appmDeus' poem e see psensdual ganader o) that he Teve et Hamyse, seush Alad *e jase pumassa en behalf et as esas afp.m Immed,eq is g) a by d vuese of an easke see assenacy tessee a aan pasempense he se psommutas ed (2) em en assesna 4 Aad Palknee tangse and to Noe Smeland Cambassa en Nualear Pelhassa ease se pseyedy supuummand hafase to sense besses as sense of appensamme P esmedmass wuh 10 C.Fa. $ 1713 had ham hind a ter hshelf by emmasal for en Tese of Hasapess6 M en 24. Nas suyassely. to mafr esas ne suppen se tasemme seasd's pausesel sahmes and the appineesus pay ady np emmse is ihast Jos leC seedr's asurene to immeemes' ] Appost cessasser s.1997) as 3 es2; astaf of AppissemeMppeDem (Osnmber 25. IMh en 9 la ha het af er eftsmesse of se tassamme amase's suma eseyens en spymnams' oesvar paman, t e immmmmmesy ser as to i J dames es u I n of $ ass pweemsel adimos we man. hommer. not to maneng enhas epymne to be based en e In@Jy dubness senema et ma ensbar esem a 12P ed M. N Nhc 132.135 H 0906) Phste, en seasd's - - of emman 1713 d ee salms of Pinsese appenas is be ', - ^ ' and om edy sessen sure j mer euhasses be else euesasde es oeune plandes pseense of esmer passenemsk "Noahese samme rame ce. (MenesDe Muslaar Q emenes Plan, thus 11. C:M241, s ABC as. 36 Off2) d 16 b 4 i o ---,___.-,,,_---------.,_,.,____...-__-._-_.,.,_.__.._,__-,____y__..m_ -.,,y~,__

( ~. ~ j was straightforward: electric utdisies woes presuned to be alde e $ nance i the safe operadon of their faciuties through the ressmaldag process. Dus, as we earust rocked in reviewing the stassment of consideradons====Taaying a the amaswimam, the Comunission stated that "case.by case review of Saancial { q=allaminaa for au electric utilldes at the operating license sesgo is unneessaary th s to the aldtity of such untides to recover... cosas of safe opersdon timough 1 { the mesmaking process."= In its manaa=am accompanying the zh, change, the a==6aalaa also c elaborated upon the special circumsmaces t%st would entshlish that the purpose of the reguladons was not being served and therefore warrant waiving the electric unlity esemption so perinit lidgedon of an applicant's Saancial qmmusemaiam. l { speciscany, it peiness out ihat a waiver would be appropetais to review an eleceric udlity-applicant's Anancial qualiacadone upon a showing that a local J putdic utility commission would not allow recovery of the cost of operadng a nuclear facility.# Contrary so the determination of the Laconsing Board (and i the arguments of the applicants and the staff"), however, this Commission j j example was merely illusendvs and does not consdenes the oscisive method thr meeting the standard of 10 C.F.R. 92.753. Not only is this clear troen j 1 } the contest of its statement, but tir, Commission noesd at another point that a waiver e emplors die Saancial quellacatians of an electric utility-eperating i 4 inoones applicant would be appropriate if a nenus between the safe operation l j of the theility and the appucant's Anancial situadon were shown." But the appeuanes have not estabushed any special circusastances of the type noted by } j the C-Mica that might warrant adjudicadng P$NH's Anancial quau8 cation j to operate Seabrook safely at low power. 4 Refere us, the appouants laidally argue that the Commission esempted electric utiikies from the Saancial qualiacadon requirements because such andties are "assured" of funds for safe operadon through the retomaking i ] process. Dey then' claim that, in setdag fonh this rationale in the statement of l l considerations accompanying the amendment, the cadaala= used the word j "assure" as it is de6med in Black's Law Decdonary, i.e., "'[t)o make certain and i put beyond doubt '"" Dus, the argument goes, to most the regulatory waiver j standard the appeuants need only show that the New Hampshire Putdic Utilitire j 1 l "# M ase a ss.1#. k regumme me danse in e numani,sehs.same men. es commene mand l em %en empenese exhus es commmmem e enemman est a e gumme name ebene ehme eend tm pumuned Sammessy geekend to symme the musimme pines ter haue ennemass and ens ester sesotyeese j p =d. net a 33.731.em name e ames summmay me e a M ass isAes oses> j e Pe "amur af Asphaem>Appumus ODember aL 6981) a s; Asyhemas' asyl to amar er semanna Am-Pe t ] eensah 3.1984) e e II; h 49 85. #. 35; teC siss e amyssen is bassumme Asynel gemember 3 I 1 I a ik Mle hen ampense @dasub 30.1900) m Is51s. h 4% et { 88 # Fe6 seg as 35.Mi as, { "lmenemm amar en sayys er Appent (sequuuber St.19e7) et s a sL3. i j ,1 17 I l ) j . ~ - ~

i. ~ -~ Commission cannot "assure" that the cost of operadng Sealwook at low power will be recovered through rates. In their view, the waiver petition does this because the New Hampshire statute bars PSNH hem recovering operating costs J. for low power if Seabrook never enters commercial service and there can be no "assurance" Seabrook will be licensed for Adl power by reason of PSNN's dire Anancial aaaaaan

• The appellants' argument is serioubly Rawed. Tb begin with, it is erroneously promised on a de6nition of the word "assure" that Sads no suppait in the inn-guage of the Commission's Anancial pallAca&= regulsalons of their history.

Indeed, those regulations use the term W assurance"- a term funde-mentally at odds with the appeuanu' assened meaning." Moreover, the sppel-t lanu' meaning, if accepus, would efrecovely munify the Comminton's stated todonale for the amendment. Rather, as the District of Columbia Circuit stated in upholding its validity, amenemi euniiseenien = vies, egen sten emewm, no.w n,ihed ehesime eensimy, only a shoeies det these see "mesomehle seemenes" of smeneens die some of openesse. The tw-ha essenneed then ihe mesmans pensene pse wee een meannehis mensense. end then desenminnuen le ass sendosed inerm sempty hoseuse. E,sendneene een he pasiend imdw which the funds would nas en be eveilshio, sensind, and poupady spam# Because the appellants' entire argument is built on an erroneous and totally unsupported premise, it must fail Furthermore, the appellants' argument cannot be saved by their reliance on the New Hampshire and CWIP statute. That law, like similar enactments of many stales, precludes only the recovery of operating costs until the facility is put into commercial service. As the appeHants concede, k does not bar the applicants from using currently available funds to cover the coeu of low power operation." And the "speci6c aspect... of the subject matter of the proceeding" to which appellants' waiver petition is addressed however is the operation of Seabrook at Iow power. Thus, absent a showing that the appucants have lasufncient funds to cover the costs of low power operation, this statute does nothing to advance their cause, Nor have the appellants even attempted such a showmg.* They have "Met 41

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e. Aac,19s F.2d at I?s.

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i 8 lamasnay, en egyesens ameshed is ear tour e dessmens emmassly halyng is emahtsh M ihn egysum Asema yesusass is ensam isai er em Aasmes sangy Am er 19M, as emedad, es seN. m Aason 19e?.sussemed Anemmel admuseum 8mma PsNN emmenaseene est es epyboms en es was esult mes en umsgued aus er bsw-pume symmess 3se agbe p. E The epymness seested psPero segumm.te mesan to ear tour, tes=usse' nest in Se er Appel Claysmear 3s,19 7n Bah, a testasse is imme suas aeten & Nasuse, psNN. in Unned sesess reselser aseulsessy Commame tasymmeur s, las7n 1g 9 9 u ~

a failed, therefore, to make out a prima facie showing of special circumstances that warrant a waiver of the electric udlity esempdon of the Anancial quatiAmtan regulations. Accordingly, the 1.icensing Board correctly denied the petition. la their supplemental brief Aled aAer PSNH sought protection under Chapter 11 of the Bankruptcy Code, the appe!! arts claim simply that the bankruptcy Sling, per se, requires & grant of the requested wsiver. This is so, they argue, because the assumpdon underlying the electric utility exempdon, Le., that the ratemaking process will provide the necessary funds to operate Seabrook, is inapplicable in the case of a bankrupt utility where T]urisdiction over PSNH as debter in possession is now vested in the UJ. Bankruptcy Court, which snay or may not atsempt itself to exercisa rate seuing authority."* The appellanu add, however, that they believe it highly unlikely that the barsruptcy judge would attempt to esercise any rate.scuing authority." The appellants' new posidon suffers from much the same defect as that pordon of their laidal argument based on the New Hampshire and CWIP staans. The appellants seek to have the regulations in question waived in order to permit an inquiry into PSNH's Saancial quallAcations to operate Seabrook safely at low power. Once again, therefore, the appellants need to establish that PSNH and the other appilcants lack suf6cient funds to operate Seabrook safely at low power. In other words, if they are to rely on PSNH's 61ing of a Chapter 11 reorganization petition, they must demonstrate that the bankruptcy proceeding deprives PSNH and the other applicants of the fmancial resources to operate the facility safely at that power level. The appellanu have totally failed to make this required showing.as Rather, the appellants merely aver, without more, that PSNM's reorganization petidon may exclude PSNH from the ratemaking process. Similarly, they have not even substandated their claim that the Bankruptcy Court has either the authority or the inclination to preempt the state ratemaking process. Indeed. they opine that this scenario is unhkely. Such bald assertions, even assuming their relevancy to low power operation, fall far short of meeting the appellants' burden undet 10 C.F.R. $ 1758.*

• s ma A*Peanne 1 men ampum te Ayynt seest hasanoen and osee Oda.ory D.1940) a Gemmes enemG
  • sd as m3.

As peanuely mand tese mese at len, os pre ded se apresens ed es appeaans, w emed ese wunes 88 er w nie a me. ene >sNH oma e pu,= :===s mee oasier i er me ausaipary aner oppi eue a,4. d pna es u a 4.e end c.4.et, ray me as ps af to cJ A 6 a Tse end on wee apenaemar mes) na pen w =n a s pen ,y 29.1964) et 4 ma ases een ammad one server passe er See a ese sea, te appecanes r.;ed e,,' _' Dner me eneemmun. As to appisemme p=me as a ese wy, me opper e* aw a em one.pt, =* een an se p.m d es e ans Albbengh We geppm $ag oppussed se De Twee, p ag9esen4' fe.bre w semply veh em es$s and $4 meios of Ptosese pasmas es Pd boa s Ier o.apenag el 6e opposeme' esprismanal 8'ese "The appaamme ease esssa ** be of a==ees eci reme by PsNH seemus e enennel y

• r bigmay teamme tenhagery semas osin messe _

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s s a, III. We now turn to the petition of the Attorney General of Massachuseus. In response to our instruedons, the Atsorney General Aled his peddon to waive she electric udlity pro isions of the Anancial quallocadon regulations directly with us and, like the petition of the appellants, it also is directed at the low power aspect of the proceeding." The Attorney General's pedtion is accompanied by several atadavits and nutaerous other documenu arranged in fourteen appendices that total some ninety 6ve pages. Since subrpitung his trutlal peddon, the Anorney l General has Aled two supplements containing some 130 pages of anachments l that purportedly contain previously unavailable informadon.* t i -i In a nuuhell, the Attorney General's initial petiden and supporting doc. ~ umentation purport to show the substandal present and potendal future costs associated with low power operation of Seabrook and the constraints on the availability of funds to PSNH caused by the New Hampshire.ati-CWIP statutes and the ongoing bankruptcy proceeding. The petiden also seeks to establish the inability or unwillingness of the other joint owners to cover any part of PSNH's share of the etirrent and future low power costs. According to the petition. these factors demonstrass that PSNH has a shonage of funds for its share of Seabrook cosu and hence the applicants have insuf8cient funds for t I l seO N M U j blemasonese and Order (7erury 23.1948) et 4, 410, Ahhm.sh e is emif+.edme aan ' ' esames v, 1 meer enserumes. eu anwe umse, when o enn een emme, esas== esener em app. cans' tuem er emewhee em oppa.sous et om eassins e.tay pse et me amenmet e a-see.aeems will es es ihe Ivyee for wenst emy wese oderned. la ehm% Go appaamma have pumand is muuhme in ein psumamenes befm. me senhngen, Caun om e = si.eemu ame Isme need.ene, een psW and es mher apphoems his i sarnaams feeds is armees seeksed enfelp et lee powen Nor beve rsy dummusemas any aske kah teamma i 1 P1We tanknepsy 4:aae end enfuir as De feelsp. '% ais e p la ne ps.w sand as immeemeneen ym.we and me. > men. pund d se oppsamms = 1 eppeammy w mand ear ene remuse w m nie e eso== else esamed esp mher pen, met insmead as 4 m a mener pawm wh magma w es no.p r espee et me pumamene w de a moedent, a meer ese t se onde easeder na med pneesse tagseur. see 64mamenema md ceder Quesary 39. Itse) et 1 Pisanes is est insirumam, es b4emmetimane Aassesy Omenal tied he poem., s la ser oppsoman is es Arveep Omanere pennen, me apphaesse asumummed, eigene est es Aames, [ o.amit hee== em pbed e,a se mese hemme se f, e== ma ed w me e, Ommer espas er ein i epmews hamase p e.ed.as Appt.se.as' ampene e -- = u-Aemses f mader le CJ A 1734 (Apel 4 t it64) a 1 Fir esppas es appinese pommen:p pene to se esa emmme of the Aaenes osamere pmate emi se,.ams e==== ef

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1 eensk.nen e pet aed Das e amensal endues of as tsa emumme of en pene er e madme of ou =Ghale pehma ladead se slanas smesse of to tem penemph emap6maly espan to apphsams' mammen b esem est te rema.m "-- n:el em a is men hheis ene== *si admeeses emmene te me emu 64 enh nee,smer sgassese... via est to eveJehle emmes We podenry of es pl.*44 tenhngers

• W Aessesy osasi James K 36eamen's Press Under 10 CF A 1714 04eah 7. Ites) si 3 thouseaar Damm1 i

es a W is baseneA eses Anrery omneel Jens K shannan's pen.ee tbdur le CFA 1794 Oder 13 S 1948) besmeersar 5.prienna Il sesend s.nlemme w tenamnem ssee Aamesy omnent amman K sensman's Pame Under ie cJA 1134 one 2.1944) thamineae S.pylemas 14 20 l i 4 s -n 7---- n----- ,n, - -. - ~ - - - - - -,

, _ _ _ _ _ _ m ____. _ ~ ~, e,\\ f i 4 i i M sNe N*powW % of M W W @ W W l meinasmance of en facuhy monia met in necessary. In es second emppiamen to me petition, the Anorney General asuns est ancest join owner holding an i' 11.59M05 interest in Seatwook, Massachusses Municipal Wholesale Bleswis i Company (MMWEC), has hahed its menthly pro men sham payments se to l pet $ect, themby cuessing an additional shonage of the funds needed to operans [ i d e the heility at low power. Akhough the applicants and the staff oppose the petition, they have not j i aned any causaraindsviu or omer enheim anempdag a rebut me Amarney Osment's docuenensory allags.* Rasher, a they did in suposesfety opposing the appellams' waiver peakian tehre the Licensing Board, die appusses j and the staff messly point so the Comunission's senesusset of oossiduadons E:- ;r,k.g the amendrnent and argue that the sois metod int ehmining 1 i a waiver is to demonesate that the electric uniur; 4;":- will be unable i j j to focover the c ase*, of safe operation of the Seabrook facility throuWt the ressmaking process. In their view, the Attorney General must sashe a prima 4 j hcie can that es New Hampshim Public Utiuty Commission will deny em applicants recourse to the r9samahlsig process once Seatwook is fully licensed [ i 3 . and achieves commercial operation. Because the Anorney General has not even l enempted sudt a showing, they clahn his waiver petition must be denied." As previously pointed out (m apre p.17), the Achules' heel of this i argwnent is that the Comunission in ks statement of considerasions did not llank l l to this single situation the special circumstances in which a waiver would be f ~ f approprians. Rasher, the lastance of a local public utdity===lanton dientlowing i any recovery for operedng a nuclear power plant was ciend by the Comunission as an LIloweden of special circum:*ances where applicados of the amentment j i would not serve the purpoes for which it was adopted. Connery to the apparent belief of the applicants and me start, the 'a-ma iam's esemple was just r j that, and neither the language used to insodoce k ('*(f)or enample") nor me l l surrounding conesat support the noelon that no asher candidone can present A j f special circunstances warranting a waiver of the electric sed 6ty enempelen f provisions." Moreover, in the same senerment, the Comunission indloased met a l f ) showing of a link between an electric undley operating license applicent's poor l 3 I ad e = e m. movies== en amme, emmai aus = us ausse i

• ns

, e es e. name, ans war me=== to ed en es,em es me== d en ammes, Es ns s dammmmmy emmens e as sumst Dec sus ampass Star is.19001lec seus empaan esas t,19th f aim engi a ed as stymn is es Ahme er es Aasey ommere game es oss suam h he i een aspens est ase mgytenemel they en ass pumused by es embe er ommeur e es een't ammen, teesse. to omnessamm's hele en aus ages e as is es sepan er ammemme e ausse pasemsk l j esames enhas pusseus e puse Imm shoe o eased. ens e fast unsus puuma, een etene see fuss as W eesse passess esmas est emmemmus e espelesema to pomme to eesses pAgyheems' angemas h appemme to hemenemsses Aamusy emmere penen Unde ' l lj gl. lese) en e4, pec sans ampasse Deust 3.1988) e it,1434 ~ ee Pud see as M.?ll. j i i i 31 1 I i

t i Anancial health and safe operation of its nuclear facility would justify exploring the Saancial quali8cadon of the troobled utility under 10 C.FA 92.758.88 Obviously, if the Commission intended its arst example to be exclusive, it would not have recited the other. The apptkanu and the staff have m3* NM+1 the Commission's stater. tent, and the premise of their argument opposing the i Attornry General's petition is simply incorrect. Further, their argument ignores that it is the low. power operadon of Seabrook that, in the la lunge of section 2.758(b), is "the subject maner of the particular proceeding" or, more precisely,"the specioc aspect... of the subject maner of the proceeding as to whkh apptkadon of the avle or reguladon (or provision thereof) would not serve the purposes for whkh the rule or reguladon was adopted." The fact that at some indeterminate time in the future, when Seabrook is fully Ikensed and enters commercial service, PSNH can recover its operaung ~. costs does not answer the Attorney General's assertion that PSNH currently a lacks suf8cient funds to operate Seabrook safely at low power. It is the Anancial inability or unwillingness of PSNH or some other joint owner to fund its share of the cost to operate Seabrook safely at low power that, if established, provides l the special circu.nstances warranting a rule waiver. And, the factors that have created the deAciency in funds to operate the plant safely at low power comprise I the Auorney General's prima facie case that the electric utility exempdon in the anancial quallacation regulations does not serve the purpose for whkh it was i adopted. Yet the applicants and the staff have not even addressed these factors. We have found that a prima facie showing within the meaning of 10 i C.FA I 2.758(d) is one that is "legally suf8cient to establish a fact or case unless disproved."85 Here, in order for us to certify the petition to the Commission, the Anorney General must establish that the applicants lack suf6cknt funds to operate Seabrook safely at low power. In an anempt to do this, the Anorney ) Genera!8:51 ch onkles, wi,h appropriate documentation, the ownership share of each of the twelve joint owners and co. applicants of the Seabrook facility i and notes that the Seabrook Joint Ownership Agreement does not obligate any l joint owner to assume the obligations of another defaulting owner 8' The petition 8814 m as. 8%W c and rwas co. De6ia canym Nahe Poes Resa, Unos I ed 2, AtAs 433. t6 NRC s3.72 1 f gML). Penee sa 4, Ahhmask they de een seq ant es a she.nd be dammesse er emmed as em pund, en appeseus d angssa en een suspense is to Ameney Osmosel's pumaan tai to punem Suns to assyly och he endses i sugeasumes er is CJ A 51754M Applanesus' aespasse in oppeases to nemmestensus Anasusy Gassel's Peuem Unew 10 CJA s,7H Lapel 11.1944) a s4 h punisse psenem ess to panen shna be " by en 65deve tes adsunde to espen af es ewhpsa mese er to passeneug to sessh apphasene t er to sais.ess see.:aneame me.nd oss earn es y=spese ree eksh her see eespeed neeer, a esas not es at5deg sha.14 ses fest he avoismaaneus ).si.rywg te segunned onwar. As he appineens ese eeR eense, besseer, en sf A4ses ns e owere tasuwes an otest to alless smises leas sehes has knowledge la e ause sesh as tus einese the yateos fans ese susesmed in tones W, a to appveyees 1st en Amarasy Oment to spea en be eene se to tems psenne ouh seienswo te desemanary een.bia i 22 l l 1

v c, s then shows thes none of the joint osmers has made any ca==Imamma to mest any payunent shortfal',s that insult hem PSNH's Amancial diftcukies." De Amorpsy General also details the coser of operadng Seabrook a low power, Based on the agures PSNH provided the semir in mayonse e a request for anancial inferination beveral months before PSNH's bankrigacy Aling, ths

• peeldon scius inst ihe cost of low-power operados over de cunus Seeksook i

apendag budget of $10 minuon a mondi is an addideaal 33,458,000 over a l three mondi period. Phrther, the cost of insurenes w65 lamesse appsemissesty l $2,785,000. PSNH's share of tisses costs as a 35.30952% owner wl3 tossi i $2,291,607.8 In addition, the peddon lism the various salvage values for em esetity in les present condklon and aher it is hw by low power opendon and dessus the costs associated with permansady shusens down and I malateining the escuity in a safe condidon? Neat, the Attorney General turns to what he arms the P of PSNH's bankmpecy &nlag. Italying upon hornbock bankruptcy principles and l the Bankruptcy Code, de Anorney General claims that low power operados of j Sentwook would subsmadany alter du satus que of the debear's esses becanse L k entails =hamasini addhional costs and impairs the current salvage vehe of die j plant. He concludes, therefoss, that such opendon is not in the ordinary course of business and seguires approval by the Bankruptcy Court. He enn assens est such approval is emmeanly untanly because sentwook, in era, is unubety j a moeive a fun-power ucense dus e ins irmandiabis saws in ks emergency plans.8 Lasdy, du Anormy General pohus out that de New Hampshin and-CWIP stamm precludes any raw must for PSNH for low power opereden." Dus, the Attorney General claims that these factors demonstrats a shonedl in j PSNH's ponion of the funds necessary for low power opendon and the standard for a rule weiver has inen ma? In the trat ni 7 mv to the peddon, the Astorney Oensent added infonnesion I aimed at bolstering his claim that PSNH 1acked funds to meet is share of the 8 summe es S. ha en suced, en Aument omnant sehe seen es meme is e ommsens Dipumma of hhhs theur Camel Grut3 muassemssy by Wumed Emmesmas Campme, es eased lupus suas et satsme sue l s 17Je hmman, means es name of es eastumah esame ans mee e summmunes e amm emy rest paymme M mea W N. no Anm.m., amew. -.we e.hs mmes w.summe e u.ame ns sme m es 3.i.mmm. i henne es end. Asse and Afe lasgus umumus a es psugumb Man ademmmun e dogas e ches aus ese sammt ese ate Ammaa5p unable as ammunip immikse is mamme ens causs d suesunk emak M m S 7. Das emagia, en ommel mam es emme amust te Umsus Bumssume e same em La esse tusumansassham W unhous appemeL M. Agymes N. In eetman, es punten else sukus esa es amm emme es ens ammann emmmmme n--a tummi name omiyamesen km. weh a getNOS shua, sensed ashung in mamshly Samtsee paymmes a lH6 M al a Appmes Va. M e 614 8'M as bit. EM a 1114. 8M at 17. og,, gg,gg, l l j 2

n i .. ~. i i .;n t costs for low power operadon of Seatwook. Speciacally, the sepplesment in-i claded documeniadon that me sankruptcy Cost had ammarised PSNH to pay inemost on las First and Second Mangage Bonds and that the musene for the nint Mortgage Bonds was seeking siedler interest psyunents.a k also insiedad n PSNH's 1937 Perm 10 X Aled wie he Securkies ud Rashange Comuniesten stadng that PSNH would lack sufaelent funds to mainssin he ammhly Seatsook

t psynens if k was ordssed io pay interest on the nied Maripage sends.a pur.

I ther, the supplement provided infonastion on the worsening Amancial candleton s l of the owners holding the thini, founh, GAh and sevene ingest imenests in i Seatsook.* i { i Finally, in the escond supplanent to the peddon, he Assuracy Geneal l staans that the Board of Directors of MMWEC, the foenh largest owner of i Saatwook wkh an llJ9 Mon inearest, voted on June 1,1938 not to make i i is monskly payment, due June 2,1983, of ongoing Sestwook cosas and to i (. 8 set out of the project." Accorsag to the Auerney Generet, the MMWBC Board voted n '-=#y to endorse the recommendations in two repara of he Genem! Manager that advise drawing down MMWBC's pre hinded consencdon I payments by ceasing future paymenes beginning with June. De sepons note that these payments will meet MMWEC's oldigstions for two or neues menshe a at current levels of expenditures. They also cau for MMWIC to prepare a proof L i; of claim for Aling whh the PSNH bankruptcy proceeding and to prepare to embe legal action against the constructors of Seatwook." j De Attorney General's waiver petition clearly amanhMahas ghg gangag momhly j operadng costs for Seatrook and the additional costs associated with kyw i { power. It also Anblishes that in the event PSNH emper6ences a shortfall in l moedng its Seatwook payments none of the o$er joint owness is oldisseed to j make up the shonage and none of thesn has made any comunisment to do so, i Akhough not critical to his case, the Anorney Oenomi's pathka goes a long way toward demonsarsting that several of the joint owners whh the larger intersees } 4 in Seatwook am ascauy unable to pick up any of PSNH's funding desciencies. i j Notwithstanding these consideretions, the laidal waiver peddon fails to i danonstrue me asundal fact mat PSNH. even though k is in the adest of f a i.nbru,ecy e,,roces ng. cann. men hs share of.s iow.,o, j operation costs for Seabrook. Rasher than semidish this point, es Amarney [ j General offers only speculation: Srst, that Seatwook is unhhely to receive a full power license and second, that the Bankruptcy Coun is unhholy to l 1 4 " supplanen a m 4 & Asym,ese I, EL f e g, 3 g 4,,,,,,, gy, j e M m e 1 4 Agym ese vt,vs.

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l,.. ~ - ~. i L 1 l I j spprove any w Mn: by PSNH for low power openden became Seatwook l is unitely to receive a full. power Beense. TMs chain of events, however, b just too unsous to meet the Amorney General's banism under 10 C.P.R. 82.7$8(c). i Moseover, sus prognostication on the ukhnans flell power lloemens of Seahroek l l Ignores the Commission's proWbition on speculating on the outcome of engelag proceedings in applying speclec reguladeus - hue the waiver psorisions." l Acceedingly, the laisial potkien does not esisWish a shortent in Amds by pgNW j sad, in turn, the applicans' funds to operses Seehrook at low power, f .ui.e g..e.Mai,s.kn b.ned.,.e 4 rney oen s second supplement. a elesity esablishes ihst.e joka owaar wth the Spunk lugest t inauset in Seehrook has ceased its monthly payiness and h moving to est out i of the projast. Because MMWEC already had made pse ftsaded paysasne to the prepot, whie at cunent empendian kven win condmus a mest is ouisadens for two to ilmes months, the impact of MMWBC's acalon on Seahrook funding wGl not be fok for stary to ninety days, la enact, MMWBC's action is the esse l i e if the Board of Directors voerd on June 1 to cease paymens eftsceive en i August 2 or Seposeber 2. As matters now stand, the tomahdagjokut owners and l l applicans wSI have a substantial 11J9340% deaciency in monddy opssadag i expenses and the additional funds necessary to operass Seelanck safely at low power u the supiration of met period. j It is possible, of course, that other joint owners will step forwed to meet j the shontan caused by MMWEC's action, akhough it is a reasoneWe infuence t hem to Anorney Ooneral's docums: seelon wish respect to those ownese and j the possibuity of a shonfall by PSNH that the other joint owners wit not do - j so. It is also possible that MMWEC may return to the fold. Indeed, any j number of possibilities can be postulated. But the Anorney General's prkna ) facie case need not foresee and forecione every such poossbeky. In the same j way $at the Aterney General cannot most his Insden by speculosing on fistue i J e - <. _ - u..st,m e m. F.,. ass, m cu as e. to pec ms, im o'.u cu* ti. it tec ma. und osan s gt es eqpimme d es Amau.sy ommere poem 4P w to 'I.f Akha . % e. - e -. d.e e. re s e-smesme ets top 9see symemen shoube em to ammmasp semos a It Sussome> m. nummmmanum4 humus. b e seen es e memesy opphasth mir she o haeay has smead es me er in used Iph he i lf tems es sem my casadsomum en ein pas er es lee erseene enemmannes sushame i eAm hup 9mus symumen enumsWy sus esmal er es puheseus e gendung abus es enune l i er es epemens humus puuments4 fta is a comes e es epsens d seksuuh a les psee een sugesus j tummesas seems em sush eyseman eeses e een to huent aus apues a ha poem i leuuns, utan Go ammemmus as es huutal gushassaan ageuses see km elem,su [ cumusam, h es asens er ommemesse ensumpampus emme emmenen. es amesmune er es==nummune heese she id to shamens tem asemess wehamass e.se and asund to eastuut user essweemmes asummmmmme me.densus 8t Fet as. m18.151. Akhesh e 1 i ensi enemmeamag ade has ese am umas sl Fee, nog sahls pues F.leen om essam se test l es e-. s e e,e mes nnss tr.es thenia et commen osas Es.m ae.me p anames== samended w ee cuma 1 . e e . - me m _ e as. i 25 i 3 I l e 4 --,------,--,r-,-ymry.-,-.-w.-,-ym_ -.-w -,-,w-w-- ,,---w.m-m-m,- ,--w---

events, specMarina on future events cannot defeat the Attorney General's present showing that, as matters now stand, the applicants shonly will have more than i an eleven percait shortfall in the funds necessary to c9erau Seabrook safely at low power. Thus, the Attorney General's waiver petidon presens a prima facie case that the applicants lack suf8cient funds to operau Seabrook safely at low power and, pursuant to 10 C.F.R. I 2.75g(c), we must certify the pedtion to the Commission." As earlier noted, it will be for the Commission a ddle whether to grant l the peddon and thus to walve the Atiancial quali6cadon reguladons in queadon. I Only if the Commission provides the rollet will t's Ataorney Ceneral or another party be in a position to Ale a new comendon directed to the applicants' asserted lack of the requisite inancial ability to operale the facility safely at low power. (Up to now, any conundon along that line would have been j subject to summary rejecdon as consututing an impermissible anack upon the l Commission's regulations.) In submitting any such new contendon, the Anorney General will be required to address the Sve factors governing the admlasion of 1 law 41ed contendons that are set forth in 10 C.F.R. I 2.714(a)(1) and demonstrata that, on balance, those factors support its acceptance. For the foregoing reasons, we 40in's the 1.icensing Board's denial of the appellants' waiver peddon and cert (y to the Commission the Attorney General's petition. It is so ORDERED. i FOR THE APPEA1. BOARD i l C. Jean Shoemaker Secretary to the Appeal Board 4 a i .eA .,o <. - ese.,use-ee e e .mu amad egne est to NRC seat oQ enemme en evearuy mer emesa 183s of to Atems Bassp As to empass Imme Appissess asst hafounnesa es met be semesesy Ins em Conseemma to eussanne utsess to egyhesese Sur a lessee ehmad to yesund se dene&* PRC sef Resyssess (heasub N 1944) et si aM Ahnendt as esmunes e ne esen:p seisens to se genames tafee us, es snaf eyynes is he espas est osa tegn as ens esas to 9seema of te sanneal gunhAmses is poemal to es beenen dommam, a e syyssymmes to et se erri.s.m m as sea. tw enre e,e,mee e enside w mes-sa. J lim.e se now, ime se wie to demasse in Feve af Cewand Jasense e, MC.733 F.2d 1437 (D C. C3s.1964k est domed att L!A 113: GM5h Ties t to essa read sa me of he Casuuneman's emogmer plear*e reis P'"8 mens e87 besume en amanes of Sea meusnel to es bemang dammen vielsend e pany's beastas meses ende sesman 199(a) ) et es Aammas Emessy Aa 24 f I

V Can as 24 NRC 27 (1844) ALAB 4N UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ^ ATOMIC SAFETY AND UCENSING APPEAL BOARD Administrative Judges: Alan S. Motorithal, Chairman Howerd A. Wilber the Matter of Docket Nos. SM45 0L.1 80 444 OL.1 (Or3Jte Emergency Planning and Safst/ tasuas) ) PUBLic SERVICE COMPANY OF NEW HAMPSHIRE, et al. i (Seabrook Station, Unita 1 and 2) July 18,itse The Airpeal Board denies, as laterlocutory, the applicants' appeal from a Licensing Board ruling that a parucular corandon was not moot; the Board also i denies the applicants' alternadve request that it undertake discretionary review of the Licensing Board ruling. RULES OF PRACTICE: APPELLATE RE)1EW The single excepdon to the general proscripdon against interlocutory,% contained in 10 C.F.R. 2.730(f) of the Commission's Rules of Prai:tica is found in section 2.714a. That section permits an appeal, ce censin limlied and precisely denned queadons, frce an order on a peudon for leave to inursene in a proceeding. In the instance of an ordet granung such a petition, the.awherizadon extends only to appeals by a party "other than the peddonee t. 'he queadon whether the peddon... should have been w hotly denied." 10 CE.'. 2.714a(c). I 27 I I

s ~. i RULES OF PRACTICE: INTERLOCUTORY REVIEW A request for discretionary review of a Licensing Board ruling is not ordinarily granted unless the cht.!!enged ruling either (1) threatens the par - adversely effected by it with immeAla'a and serious irreparable impact whic' as a practical matter, could r.ot be alleviated by a later appeal or (2) affe i j the basic structure of the p xceding hi a pervar.8 e or unusual manner. Public v Service Co. ofIndiana (Marble Hill Nuc' ear Generaung Station, Units 1 and 2), ALAB 405,5 NRC 1190,1192 (1977). RULES OF PRACTICE: APPELLATE REVIEW (SCHEDULING ,' } DECISIONS) The Appeal Board has emphasired repeatedly in the past that matters of 4 scheduling rest peculiarly within the licensing board's discredon; the Appeal Board enters that thicket reluctantly, particularly so when it is on an interlocutory basis. Consumers powr Co. (Midland Plant, Units 1 and 2), ALAB 541,9 NRC 436, 437 38 (1979). APPEARANCES Thomas G. Dignan, Jr., and Deborah S. Steenlanel, Boston, Massachusetts, for the applicants Public Service Company of New Hampshire, et al. Diane Curran and Dean R. Tousley, Washington, D.C., for the intervenor New England Coalition on Nuclear Pollution. Gregory Alan Berry for the Nuclear Regulatory Corr. mission staff. MEMORANDUM AND ORDER Last April, we remanded to the Licensing Board once again the issue of the environmental qualification of the RO58 -lat cable used, according to the information in the evidentiary record, for data transmission in the Seabrook nuclear power facility's computer systern.8 Subsequently, the app!! cants 6 led with the Licensing Board a suggePJon of mootness, accompan}ed by several afadavits. '!he suggestion was founded on the applictnts' assertions, said to 8sa Atas-sti,27 mic ut osis). As 4 aw a

m. w hw w n 4 i.*= s 4 w.

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e be supported by the afadavits, that (1) only twelve of the 126 instaBed RO58 cables were routed at least partially through a harsh esivironment within what the applicants characterized as the "nucleu island" and, as a cce-yer.ce, required environment ' quallacation by reason of 10 C.F.R. 50.49, and (2) those twelve cables would be replaced by RO59 coaxial cables with respect to which there is no current environmental qualification issue.* i The suggestion of troomess was opposed by both the NRC staff and the intervenor New England Coalition on Nuclear Pollution (Coalition),114 sponsor of the contenilon that had put the environmental qualiacation of the RO58 cable into question. In the staff's view, the matter was not susceptible of resolution on mootness grounds. Rather, according to the staff, the appropriate course was the reopening of the record to receive, arst, the afSdavits submitted by the applicants and, thereafter, any "relevant and admissible evidence in support of or opposition to [alpplicants' position" that either the Coalition or staff might wish to submit.s For lu part, the Coalition maintained, later alla, that the applicants' 811ng had "all the characteristics of a summary disposition motion," yet left unresolved "material issues of dispute between the parties."' In a June 23,1988 transcribed telephone conference call, the Licensing Boerd rejected the suggestion of mootness, disected the commencement of discovery and invited the institution of summary disposition procedures.s As the Board saw it, s'ill open questions stood in the path of a anding that the environmemal quallacation issue had become moot.8 The applicants now seek an immediate appellate examination of this result.' To begin with, they claim an entitlement to appeal the Licensing Board's ruling under 10 C.F.R. 2.714a.8 Alternatively, should we and the ruling rk;t appealable as a matter of right, they ask that we exercise our discredon to review the ruling by way of a grant of directrd certification under 10 C.F.R. 2.718(i) and 2.785(b)(1).' 83ee AM'sussenka of Moouwa (May 19,1988) at 2 er est. h appease free the er8ders of oursW A. Kodowski (at 2) met, sentrary se the hepremmen lea by the ensens e%demary reserd, omne d the twelve eeWes en to be used fee purposes een assocuted wuh the sesbesch eenywier eyenne. 8 NRC staff Respense ta Applicarue' sussesq m of Moenness Ouse 1,1H4) et 11 11 'New Ensland r% en Nudent P6uan's Rampanes is Apphieses'seesemaan of Mestress Resorthas Emuneesensal QuahAsuien d Ro 34 CaWe Qune 9, itH) et 1. F4 la pan. es Ceehman's sung rehad uten en esached ar8devst 8Jee Tr. I177 79, t1St. on Jme 2s, the neerd innsed a summerenden in wkh a manssinhead these seeiens aad asned that the se.evess poems of the senseript were being earved se the panies. 8 Jee Tt. I178 79. 'The tJeansing seerd deshaed the oppucanis' veepsen that h sehr this maner to at See Tr. It?s. 8 Jee Applisents' Appeal and Petiticn rar Duessed CaruAcaden of an order et dw Aimais safety and taemeing seerd Repsass Apphaenu* sessesues of Maremens wuh Respea is the temas of Earveemsmanal ?"* r of Ro 38 Cam One 28,1988)(hereinaAer, Appliceans' Appeal) u 1 A '14 a 14 Is. Jee PaHe Sevice Cs, e/New Itaspeke (sembrech staten. Uniu 1 and 2L At.Aa 271, t NRC 47s. 442,il (1973) 29

r i i ~. ~ i We agree with the staff and the Coalition that the appeal will not lie and, further, that the well. settled standards for granting discredonary interlocutory review of a Licensing Board order are not met in this instance. Accordingly. f, we dismiss the appeal and deny directed certiacation.

1. 'It scarcely could be more obvious that the provisions of 10 C.P.R. 2.714a i

have no application in the circumstances of this case. As the single exception i to the general proscripdon against interlocutory appeals contained elsewhere in the Commission's Rules of Practice,88 section 2.714a permits an appeal, on certain limited and precisely deaned quesdons, from an order on a peddon for i leave to intervene in a proceeding. In the instance of an order granting such I a petition, the authorizadon extends only to appeals by a party "other than the petitioner on the question whether the petition... should have been wholly t denied."88 In othes words, to invoke section 2.714a the utility applicant must be in a position to assert that the petidoner for intervendon should have been totally excluded fror:: participation in the proceeding. It will not suface to claim merely that, although properly granting intervention, the Licensing Board should have rejected certain of the contentions advanced by the pedtioner. 'Ihe Licensing Board ruling here under attack has nothing at all to do with the a grant or denial of the Coalition's intervendon petition - which was Aled and acted upon many years ago. Nor, as it happens, does the riding bear upon the Coalition's right to participate in this operating license proceeding. Not only is the Coalition taldng an active role in the litigadon of the issues presented 3 in the offsits emergency planning phase of the proceeding, t,ut also it still has an appea! pending before us on another matter raised in the onsite emergency planning and safety issues phase (i.e., the phase that embraces the emironmental qualification issue now at hand).88 In short, the absolute condition precedent to the resort to section 2.'114a is simply not present.88 l i 10See 10 CJL 17% 88 to CJA 1714e(s). The endeneet to appeal fman en ede derrying an hearvem6am poden of ne relevenne bere is emaed in secuan 2.7144(b). u3et AIAB.494. 27 NRC 632 0900. la neung done fees, we de ass mean is haply es. had the shaDensed I esder addreened ihe quesues of me t'aah's commed sesidenes ne panaspete in the pseemedans, esseen 2.714e wedd have been evealable se se oppliamens. Per the appliennes would sua beve been eenfressed with the i feet that one order wedd not have been amased an, and would met have despeemd of, en heervenee pension med he seppienes sessaamang the ireer.iner's proposed U sven if fasseeBy serveen, the applaconis' beunenes that the tJeaneng seerd *,hecy obenged" the "seammen to be lisiasted"(Apyheeses' Appeal et 14) is < pane beeJe me point As we have seen, seseen 1714e done see [ L askedes na baadeaaery appent bened open a claan of dies ehereener, h is egneDy irvelevess dent, as the apphasens funhar neues (.6 st) ween they to pseve.1 on ther seenpeed appeal. amas sensee mener (sende be bremds) to a eleme? Whenever, for eaangle, a liamming boasd dense a menes for ansonary disposines se a pennenlar i issue. s assoameful " n, appnl free that dadal suuntady wedd being s esses mener to a sloos '!het eenoderadan has ment been thoua>s ant $esens to pastfy esenainseg la 4 -- et 10 CJA 1730(0, appeds free pensary dispennen dar.lais. Jee, e 3. seassione fewer and ud r Co. (Weaerfed sessa Elesene siseen. Una 3). AIAS 220,8 AEC 93. 94 0974). =a l l 1 A e e

2. The applicams' alternative request that we undertake review of the Licensing Board ruling in the exercise of our discretion stands on scant better footing. As the applicants acknowledge, such relief is

• ordinarily granted unless the challenged ruling either (1) "threaten [s] the p.aty adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affect (s) the basic structure of the proceeding in a pervasive or unusual manner."t* We are satis 6ed that neither of these standards is met here, The app!! cants do not appear to assert that the ruling below will have a serious irreparable impact upon them, and it is clear to us that any such assertion would be unavailing. Insofar as the other prong of the Marble Hill test is concerned, we are told by the app!! cants that, because it purportedly "has resulted in a proceeding, or discrete portion thereof, not being wholly terminated when it should have been," the ruling below "does not merely affect the structure of a proceeding, it creates it.-u Bdt the same could be said of any licensing board determination that declines to end the litigation of a particular issue at a time when one of the parties thinks it should be terminated. Inasmuch as determinations of that stripe are quite commonplace in NRC licensing. proceedings,58 one would have to stretch the reach of the second Marble Hill prong a considerable distance in mder to bring them within its bounds. Neither have we been given nor do we perceive any good reason to indulge these applicants in that regard. To the contrary, there is absolutely nothing before us to distinguish this case from the myriad others in which, although dissatisfied with a ruling that has the effect of prolonging the litigation of one or more issues, the party must abide tae event of further developments before seeking (if still necessary) appellate relief."

l I4 Pee ferwc4 Co. e//=deas (Mahle IL:1 Nec3 ear oensrius ution, Units I and 2), AIAs 40s, s NRC s 119e,1192 (1977) (fecuese enmed). u Anhesess' Aneal at is. 88 Evwy time e lacensing bead o&nus e eeraames one objecten e dernes s sneuen fee ownmary espcsinen,la heves far addsaamal presseen as and posse:e trul ne issue est at least ue pony beheves shedd na be empiered

fweer, U ties is se evei $*ush ee neuk rasy be that, ence twear linseusa is emeaned, the geeseen wheiher the issush) warranted adeuanal saannnaues "wdl be meet and of acadernas treerest ordy." Appiaceans' Appeal at is. It is only le k'6 y nausual eumansuoces wture there is the poienual of iriepenble harm - est posses bee j

hl - that se prospas of meemass edl be desned a reisvere senadersuon en me quessen whether heeleasiery appeuene senew of a panacular licenseg board eder ehedd be allooed. Jev, e g, Kanese oar and Kle<me Co. two:t Creek Nurjeer oeneratie suuon, Una No.1). AIAs.327, s NRC 404 0976)(-- --, review ) of se denial by the tjeeneca seard of a panessve arder och respost to the esdemase of eenaan pnsing terms of a maalear feel supply assarec4 31

~ ~, Appeal dismissed; petition for directed certl6 cation denied.58 It is so ORDERED. i FOR THE APPEAL BOARD i C. kan Shoemaker Secretary to the Appeal Board s l l l l r l' Ahhaugh appeang the abat souths by De oppbcans. 6e NRC matf eats as is erset se tJeona is espeau lie A _.rnn d f.m RG58 sable. _. rd phAcamen W In ens eenecten to raff twenese that the beenas echadule estabbahed by me B eard below ta the June 23 islaphane eenfeense is essenve, permeulady la a&rmag mese then sia oests far esenwry. see Tr.188185. Da ' tele have anchamand sepese in the past thes snausse of enheenhas rest pesuhady wuhin the beenmas board's escrohen we amar that Gudat febaswaly, paamulady as when it is en se 6tnerlocutary beau.* Cearesners #cer Co. (Mdand pters. Uma t and 2) A1AB 54),9 NRC 434,437 38 (1979), and denaces thee enad. la @ms sese, dame is inadoers seuse is put ihm solusunse to ano mA N W is free, of sewee is ensk sessenderene af the i tJesuce Beerd. enheede by tus 9 32

Cite as 28 NRC 33 (1988) ALAB 897 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Adminlettative Judges: Alan S. Rosenthal, Chairman Thomas S. Moore Howard A. Wilber in the Matter of Docket No. 50 352 OLA (TS lodine) PHILADELPHIA ELECTRIC COMPANY (Limerick Generating Station, Unit 1) July 18,1988 Upon sua sponte review, the Appeal Board affirms a Licensing Board order authorizing the issuance of a proposed amendment to the technical specifications for the Limerick nuclear facility. DECISION Before us is the Licensing Board's May 5,1988 memorandum and order, au. thorizing t!c issuance of a proposed amendment to the technical specifications for the Limerick nuclear facility.' The intervenor Air and Wasr Pollution Pa-trol (AWPP) attempted to appeal that order. Because of the failure of AWPP's representative to comply with governing provisions of the Commitsion't Rules 3 see LBP ss 1127 b1tC 49s. 33

..c l of Practice, the Appeal Panel Chairman rejected the appeal.8 No other appeals having been Aled, this Board has reviewed the Licensing Board's determinadon sua sponse. That review has disclosed no error requiring correcdve acdon. Insofar as challenged by the intervenors,8 he technical speciacadon amend. t ment in question is concerned with certain of the aedons to be taken in the event of a temporary increase in the concevitration of radioacdvs lodine in the i reactor coolant. This phaaasaaaaa. referred to as an "iodine spike," is occa-sioned by such developments as a change in the power level of the reactor that, because of fuct cladding defects, may cause the transitory rolesse of addidonal radioactive iodine from the fuel rods. The amendment wouki remove certain exisdag reporting requiremenu in the wake of an lodine spike. In seeldng the i removal of these requirements, the utility applicant was following the suggestion of the NRC staff. In a generic letter sent several years ago to all nuclear facil-lty licensees and applicants, the staff had expressed the view that the reporting requirements were no longer necessary.* The Licensing Board granted the applicant's motion for summary disposidon of the intervenors' consolidated contendon to the effect that the pro' osed amendment would "downgrade" reporting requirements for iodine spikes to the detriment of the public health and safety.s In doing so, the Board concurred in the staff's conclusion that other reporting requirements, not affected by the proposed amendment, would ensure that the Commission is kept appropriately informed of iodine spike events having possible implications for the public health and safety.8 We agree wi'h the Licensing Board's disposition of the issue. The short of the matter h dat nothing was put before the Board that raised a genuine issue of materia!.act with regard to the need to continue the speciac reporting requirements that the technical speci6 cation amendment would eliminate. The affidavits submitted in connection with the app!! cant's summary disposition motion and the staff's Aling in support of that motion demonstrated that 8see Jene is t98s esder (mapublehec. The les is order emed em this IWine summed ews eaar AwpF's sepsesseeeve seenved spen 6e pudense fsm the Appeal Paesi omamel neposeng =0s: seed be dose is pudess $e oppenL 8 to addinia w ee Mr and wour teameen revel. Raben 1. Amheer== posed 1 e ne beareese h se Mr. Amhant did een endesver is appeal oesn the IJssushig need's Map s seder. see osuute tmier No. 85.t 9 (septemeer 27.198ik maned by Hash L Thessess, den Duaner et to Dtvuesa er IJemang in the of8ee et Nralene Reneer Assulemen. The laser see seeshed is the tJessese's Amewer te opyeesse is Requem for Hennes and 14 eve is Isservene by Mr and Weser Peasses Penni (Mer 20.19s7). 8 137 4812,27 NRC a e97. 307. 814 a sed 47. As the aeft eteerved in a federal heisese seeise piehshed en Mmeh 12. Its? (em ss Ped. Res 167s. 7602h thsee eher seperiang sagensnene ese fasad le 10 CFA M72(bXIX0. M7s(bX1Xio. end M73(eX2X4 le add.iasm. *e intennesen sagesdans seene spines thee fenmeds wee se be essessmed si e spenel 344ey sapen mesi, se the samali er the indeseal spen %esen

• ese he bishaded in to selsy's aswel supon to se NRC 34

e the retained reporting requiremenu will suface. That demonstradon was not countered to any extent by the intervenors. ~ Ibr the foregoing reasons, LBP 8812,27 NRC 495, is affirmed. It is so ORDERED. POR lite APPEAL BOARD C. Jean Shoemaker ~ l Secretary to the Appeal Board 9 W O I I l 4 35 a i ~ ' " " ~ - ~ ~ -. - - - ,,a.-,.,

Cite as 28 NRC 36 (1988) ALAB408 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND UCENSING APPEAL 80ARD Administrative Judges: Alan *,. Rosentnal, Chairman s Christina N. Kohl Noward A.Wi!ber In the Matter of Docket Nos. 50 250 OLA 2 50 251 OLA 2 (Spent Fuel Pool Expansion) FLORIDA POWER & LIGHT COMPANY (Turkey Peint Nuclear Generating ~ Plant, Unita 3 and 4) July 28,1988 Upon sua sponte rev3w, the Appeal Boani afSrms, with the addition of a condition, the Licensing Bcird's decision (LDP.88 9A,27 NRC 387 (1984)) approving amendments to the op. rating licenses for Turkey Point nuclear facility that allow the applicant to expa,td the capacity of the ' pent fuel pools at the facility. OPERATING LICENSES TECilNICAL SPECIFICATIONS There is neither a statutcry nor a regulatory requirement that every operational detail set forth in an applicant's safety analysis report (or equivalent) be subject to a technical speciacation, to be included in the license as an absolute condition of operation which to Icg*Jiy binding upon the Ikensee unless and until changed with spelfic Comrnission approval. Portland General Electric Co. ('Dojan Nuclear lant), ALAB 531,9 NRC 263,273 (19.'9), f a

b OPERATING LICENSE: TECHNICAL SPECIFICATIONS '!he contemplation of both the Atomic Energy Act and the Commission's regulations is that technical speciScations are to be reserved for those matters as to which the imposition of rigid conditions or limitations upon reactor operadon is deemed necessary to obviate the possibility of an abnormal situation or event giving rise to an immediate threat to the public health and safety. Ib'd. OPERATING LICENSE: LICENSE CONDITIONS Pledges by applicants to the staff or adjudicatory boards to guard against ~ certain specified safety problems need not be turned into technical speciacations to become enforceable as a license condition; those pledges can be formally Incorporated into a Licensing or Appeal Board order in the proceeding, which is enfon: cable to the same extent as a Commission decision. Commonwahh Edison Co. (Zion Station, Units 1 and 2), ALAB-616,12 NRC 419,423 24 (1980). APPEARANCES Joette Lorlon, Miami, Florida, pro se and for the intervenor Center for Nim: lear Responsibility, Inc. Steven P. Frantz, Washington, D.C., and Norman A. Coll, Miami, Florida, for the applicant Florida Power & Light Company. Benjamin II. Vogler for the Nuclear Regulatory Commission staff. DECISION 1. In March 1984, the Florida Power & Light Company (appilcant) sub-mitted an application for amendments to the operating lleenses for its two-unit 1brkey Point nuclear facility to enable it to expand the capacity of tim spent fuel pools at the facility. In July 1984, the Center for Nucicar Responsibility, Inc., and Joette Lorion (intervenors) Aled with the Licensing Board a tirnely request for a hearing and petition for leave to intervene in the proceeding. While the intervenors' submission was still under Licensing Board ad-visement, the NRC staff determined that the proposed license amendments

• • involve [d] no signiacant hazards consideration" within the meaning of 10 C.F.R. 50.92(c). Accordingly, in November 1984 and under the authority of 37

y h. ~ M 10 C.F.R. 50.91(a)(4), the staff issued the amendments subject to the outcome of the pending intervention petition.8 In September 1985, the intervenors were admitted to the proceedang, together ~ with seven of their proffered contentions.8 Subsequently, the applicant obtained 7. surnmary disposition on 6ve of the contentions and the other two (contentions 5 and 6) went to hearing. On April 19,1988, the Licensing Board rendered its initial decision in which it resolved contentions 5 and 6 in the applicant's favor.8 The Board therefore concluded that the license amendments issued by the staffin 1984 should remain ~ in effect without modification.' The intervenors have not appealed this conclusion and, thus, the initial .~ decision is now before us for review on our own initiative.s That review has disclosed no reason to disturb the license amendments. For the reasons set forth below, however, we are constrained to incorporate in our affirmance of the Licensing Board result a direction that the applicant give effect to a representation it made to the staff.

2. The expansion of the capacity of each Ibrkey Point spent fuel pool has been accomplished by the replacement of the former fuel storage racks with ones that provide less spacing between the individual fuel assemblics. To ensure that the interaction between assemblics remains suberitical by a specified amount, the applicant has placed a neutron absorblag material, Boraflex, in the new racks.

The applicant supplied the Licensing Board with copics of letters to the staff in which it stated that it would (1) establish surveillance programs to assess the continued effectiveness of the Botaflex;8 and (2) not store any fuel with an enrichment in U 235 greater thr.n 4.1 weight percent prior to completion of the next surveillance in approximately three years.8 In the initial decision, the Licensing Board took both of these representations to be commitments on the app!! cant's part and, in reaching its result, placed considerable reliance upon them. Given that re!!ance, we thought it desirable to seek the parties' views on whether the Licensing Board should have con-verted the representations into license conditions. Although our June 27 order (unpublished) soliciting those views did not so note, in taking that step we were Isee 49 Fed. Res 44.s32 (1984) 1see IJP ss 34. 22 NRC s94 8s,e lap 84 9A. 27 NRC 387

• 14 et 41s.

8s44 Caer:4 #c.c Co. (Vogde FJerufe omersus Mars,l'aus I and 2k AtAB-8s9. 2s NR end seems cued earma. ' 'see leser fan steves P. Frima to se IJeansea Beard 04 is. IH7% Amadeuss (lemar b to se Courvmeeien Q410, lH7h demsnated I 87 219k 'see lenar frmi swven P Frana is se Immsea Board (Aest St. lH7h Anaciones Oster to es Cmunuaaen (Augw 27.1H7h despated L.17 M3h Accordag to opphcers wunene Rassed Onddr, survs3ance has now beni schemed rar Desseber 1989. Tr. 246-47. 311 ~ -_g- ..m.

~. I also influenced by the seeming internal disagreement within the staff respect-ing whether, in fact, the applicant had committed itself not to store fbcl with more than a particular U 235 enrichment prior to the next surveillance. Staff a witness Laurence 1. Kopp, a nuclear engineer in the Reactor Systems Branch j of the Of6ce of Nuclear Reactor Regulation (NRR), expressed the opinion that no such commitment had been made or, indeed, was warranted.8 But shortly thereafter, Conrad E. McCracken, the Acung Chief of a different NRR Branch and a member of the same panel of staff witnesses, stated unequivocally that letters from applicants such as the one embracing the 4,w.;milons in question are treated as commitments.' In their response to our order, the intervencrs maintain that a license condidon embracing the two repr==>a'a'taae should have been imposed by the Licensing Board and should now be imposed by u:.t* Por their pan, $ e applicant and the staff take the opposite posidon. In this connection, those perdes call attendon to our decision almost a decade ago in the proceeding involving the proposed expansion of the capacity of the 'nojan facility's spent fuel pool. Rejecung the insistence of the intervenor State of Oregon that, later alla, certain operational details set forth in the applicants' "design report" for'the expansion be converted into technical speciacations to be imposed upon the operadng license, we observed: 6ere is naiser a statutory not a resulatory mquirement &at ewry operational detail set forth in an applacant's safety analysis report (or equivalent) be subject to a technical speciRcation. to be included in 6e license as an absolute condidon of opereden whid is legdly bindins upon the licensee unless and until chansed with speci8e Cornmission approval. Rasher. as best we con discern it,the contempladen of both 6e [Atorn.ie Enersy) Act and the resuladens is that technical speciacadons are to be esserved for those meuers as to which the imposition of risid conditions or limitations upon nactor operation is deemed necessary to obviate the possitility of an atmormal situation or ewis sivins rise to en immediais threat to the public healih and safery.18 We need not decide here whether that standard is saus6ed. For there is an acceptable alternadve means of ensuring the observance of the applicant's representadons. 8 Tr. 358.$9. Dr. Kepy was een enhed ebne the reposeseen esseurung the servenense propens-8Tr. su Mr. McCrashes eines ilus menemme aber been resended af Dr. Kapp's endser emerary temuney I81m esercises sur dueressi to hear frun en of to panies belee as to mener af the wearere for a beerm h we ese ne need to pees apen ebenhar by nas inkang en appeal famn the samel dennen. se hearwoors save op any funher emailenes le perumpois as er este in the pressedan6. We betalerly how rueeres jedphers en ens gemise. 18halead oveeral Eleceu ce. (Tresa Neclear Plass). AtAa.531,9 NaC 2d3. 273 (1979) ($meansas eiumeo see "Proposed Petary steeseems en Tedvus41 * > - L,. m far Nee 4eer Power asenners," $2 Fed. Res. 31st 0947) I I J -_ _.. _, _,_ ~..

l p_'. l l ~ 1 .s 'The year after the Trofan decision, we confronted in Zion an appeal by the State of!!!inois from the Licensing Board's authorizadon of the expansion of the storage capacity of a spent fuel pool. The State claimed, infer alla, that that Board should have raised to the level of a technical *Whba certain commitments of the app!) cant respecting such matters as the conduct of I* a corrosion surveillance program. Although concluding that the Trojan standard was not met, we went on to say: nis does not mean the Staae's concerns ase frivo" he slow acaion of corrosson and a gradual loss of neutron. absorbent maserial can presei. serious peaki===a if left wa However. Illinois' fears -ihat the conimioneras to guard assinst these possibilities might be l f withdrawn without prior staff noti 8cetim or approval and thet the sneens for enforcing then j 1 an inadequie - een be aneyed wiihout freightirs ** *pplicant's licam wie additional i technical speciScauons. De applicant has pledged to the staff, to the IJennaing Boesd and i .I to this Board not to change or drop shoes commistneras without prior staff approvel; it has

• 5 esprusty acknowledged that those premius were made to obsain fewerable seien on the e

proposal now before us.... We perceive no remon why that pledge should not be formally incorporosed in out own order in this case, which is of course enforceable to abe same steent as a Comrnission decision. Bis disposition settles the permanence and enforceability of the applicant's commitments without trampling m any party's rights....t2 If anything, there is even greater cause to follow the Zion route in this case. As we have seen, the record leaves in doubt whether the staff deems the applicant to have made a commitment not to store, prior to completion of the next surveillance program, fuel with an enrichment in U.235 greater than 4.1 weight percent.88 In this connection, there is at least some foundation for Dr. Kopp's opinion that no commitment was made. Ibr the evidence indicates l that (1) in their present form the license amendments unconditionally authorize l the storage of fuel with an enrichment in U 235 of 4.5 weight peteent; and (2) the applicant has agreed, at most, merely to nodfy the staff if it decides to exceed the 4.1 weight percent limit before the next surveillance.38 l In short, at present there is a lxk of full assurance that the applicant will adhere to what the Licensing Board (perhaps mistakenly) took to be a I commitment that could be relied upon in arriving at its ultimate determination { that the teracking of the spent fuel pools did not pose a significant safety concern.is On the basis of the evidence before it, however, the Licensing Board was qulto right in attaching importance to the applicant's representations. l 13 Casiswe eeM Kdaee Ce. (Z en s4einen, thuis I and 2), AIAa416.12 MtC 419. 423 24 (1964 (fesome enmand). 13 h 6s ass sneer trare the naft's subumsman to es thibsr at neppena Dit Kevy's possum en the pennen er, bunned. thes of Mr. becCredai. 8* Tr. 282,83. 303. 13see 12p.88 9A. 27 MLC et 41s.14. 1 .,-n

a + y 'Ihe testimony of witnesses for bot the applicant and the staff cited the i Boraflex degracation that had occurred in the spent fuel storage racks at the Quad Cities nuclear facility. That degradation brought about, among other things, gaps (i.e., holes) in the Boradex shecu incorporated into those racks.58 Whether such gaps will be experienced at 'nsrkey Point remains to be seen.8' Should gaps develop, Isowever, they would have an effect up a the neutron absorption ef6cacy of the Boranca sheets. 'Ihe extent of that effect would hinge upon the alze and location of the gaps. 'Ihe results of a gwp sensitivity study performed by the Westinghoase Electric Corporation, taken in conjunction with the Quad Cities experience, suggests that it is unlikely that, so long as the stored fuel does not have an enrichment greater than 4.1 weight percent, the reactivity ilmit specl6ed for the pools will be exceeded.58 But, should the enrichment level be 4.5 weight percent, there will be much less room for con 8dence that any gaps at "narkey Point will not occasion the violation of that limit.t' In the circumstances, wt, might remand this matter to the Board for a reassessment of its determination that no safety concern attends upon the reracking. As we see it, however, the preferable course is to invoke the Zion precedent and, by doing so, to bring the proceeding to a close without further I delay. More particularly, we direct that, pending the obtaining of sadsfactory results from the next surveillance, the applicant shall not store in either of the reracked pools any fuel with an enrichment in U 235 greater than 4.1 weight l percent unless it requests approval to do so pursuant to 10 C.F.R. 50.59(a)(1) i as if a technical specification were involved." On the basis of that direction, coupled with our review of the balance of the record, LBP 88 9A,27 NRC 387, is affin.ied. It is so ORDERED. FOR THE APPEAL BOARD i C. Jean Shoemaker Secretary to the Appeal Board 1 18 Sw Kap and omddy. fel Ts,221 es 27 2s; Ws. foL Ts. 339, et 6 9. l' Aseerdq to suf wwues hmes wieg. the enseeeeen seve*s ser feneseen sename endmansuned, Jw Wg. feL Tr. 339, as 7. Dr. Weg 4,4 a(Ist the eenpense eat e. gepe suele be pre =used by es ohnsdage et j 6e ehems as the reseh er genuma adienen. IEd { 18See seyd fel Tr. 22% et s. 7 9 & Fisuse s. j l'Id. Fasase 2. "We ese no esed for e apenae ineseyerenen tree due eeder er se oppliesse's._, "en sospesens tw eendast of survmDance payems is aesame the seemnud eftersvenees et dro aere8es. De mafr's ahms wie j es aberseianees ihet repressestaen es e eemmmmes and we ese arm & des een the staf esE ofanes in se d b6eresne. mar duestien wie record te ibe ennsionere lwaunenen prorndes an adensmel tasenne to oesry eut the P'"'***d **Esa8e PNG'*"8 41 l ,.m _.. - _, -.,__ -,.,. _ - _..,,. ~, -, _ -

< *< '. e e 'q y %{ h p Qh*f.i,r ;}3,,,

2. q; w

\\ s ;. e J Atomic Safety and Licensing Boards issuances i ATOMIC SAFETY AND LICENSING BOARD PANEL 3 j B. Paul Cotter,

• Chairman

} Robert M. Lazo, 'Vice Chairman (Executive) a Frederick J. Shon, *Vice Chairman (Technical) l O - O r Members aa i Dr. George C. Anderson Dr. Cs. Jet H. Hand, Jr. Dr. Lhda W. Uttle Charles Bechhoefer* Jerry Harbour' Dr. Emmoth A. Leubks .M Peter B. B!och' Dr. David L. Hetrick Dr. Kenneth A. McCollom A Glenn O. Bi.ght' Ernest E. Hill Morton B. Margulies' Dr. A. Dixon Callhan Dr. Frank F. Hooper Gary L. M.thollin James H. Carpenter' Helen F. Hoyt' Marshall E. M, iter Hugh K. Clark Elisabeth B. Johnson Dr. Oscar H. Paris' Dr. Richard F. Cole' Dr. Watter H. Jordan Dr. David R. Schink Dr. George A. Ferguson Dr. Michael A. Kirk Duggan lven W. Smith' l Dr. Harry Foreman Jerry R. Kise' Dr. Martin J. Steindler "1 Richard F. Fester Dr. James C. Lamb Ill Seymour Wenner f;; i John H Frye Ill* Gustave A. Unenberger' Sheldon J. Wolfe' 1 j James P. G!eason 't j -{ w ?' I t a l t

• Permanent panel members f

1 i ~ 4 . "'i; h s; ,4+ 4 j. i~ 3 g 1 M.. <!% kUM.< 4 i

Cite as 28 NRC 43 (1988) LBP 8818 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Adminletrative Judges: Charles Beenhoefer, Chairman Glenn O. Bright Dr. James N. Carpenter in the Matter of Docket No. 30 2710LA (ASLSP No. 87 547 02 LA) VERMONT YANKEE NUCLEAR POWER CORPORAVON (Vermont Yankee Nuclear Power Station) July 12,1988 In a proceeding involving the proposed expansion in capacity of a spent fuel pool by means of reracking, the Licensing Board denies a request for an emergency, temporary stay of a license amendment that permitted the reracking (although not the requested expansion in capacity). 'Ihe Board also summarizes the discussions and rulings at the proceeding's second prehearing conference. RULES OF PRACTICE STAY OF AGENCY ACTION The proponent of an emergency, temporary stay of agency acdon pending review of a motion seeking permanent relief must demonstrate irreparable injury in order to obtain such emergency relief. TECHNICAL ISSUE DISCUSSED Consideration of Alternatives. 43

e, .e ~ SECOND PREHEARING CONFERENCE ORDER (Rulings on Temporary Stay Order and on Schedules) On June 28,1988, the Licensing Board conducted a prehearing conference in this proceeding, in which Vermont Yankee Nuclear Power Corp. (Appil-cant) is seeking authority to expand the capacity of the spent fuel storage pool at the Vermont Yankee Nuclear Power Station.8 Participating in the con-ference were the Applican:, the New England Coalidon on Nuclear Polludon (NECNP)(Intervenor), and the Commonwealth of Massachusetts and the State of Vermont (both currently participati,ng as "interested States" pursuant to 10 C.F.R. 6 2.715(c)). The conference was initially billed as a "status" conference, in which the t - Board was to be apprised of the status of various documents being prepared by the Applicant or NRC Staff, to enable the setting of further schedules for the proceeding. On June 13,1988, however, the Commonwealth of Massachusetts and NECNP filed a Joint Motion to stay the operation of IJcense Amendment tot to the Vermont Yankee operating license, which had been issued by the NRC Staff on May 20, 1988. That amendment by its terms permitted the Applicant to install new racks in the spent fuel pool, capable of storing up to 2870 fuel elements, but continued the present 11mitation on the capacity for which the racks could be used to the currently authorized 2000 fuel elements. By Memorandum dated June 20,1988 (unpublished), the Board posed three questions to the parties concerning certain matters raised by the Joint Motion, to be addressed at the prehearing conference. Following is a summary of the matters discussed and rulings made by the Board at the conference.

1. The Applicant confirmed that the document setting forth details of its revised fuel pool cooling system, about which the Board had inquired in the Notice of the prehearing conference, had been submitted to the Board and parties on June 7,1988 (Tr. 230). The Staff indicated that it expected its review of the cooling system to be completed in August and that its safety evaluadon (SER) and environmental assessment (EA) would be issued in early September (Tr. 231). Upon inquiry from the Board, however, the Staff indk.4ted that the EA had already been written, although not released ('n 250, 322). The Staff held out the possibility that the EA might be issued somewhat car!1er, in August.

j The Board requ sted the Staff to provide a status report on the issuance of the EA (or other envitenmental review document, as applicable) as of August 1, 1988 (Tr. 325). 3 Neuse et we contensue. dead May 24.1988 een puuahas ta tw rederet Aeguse en May si.19st Os Fed. Ras 19.8M). 44

2. NECNP (as well as the Commonwealth of Massachusetts and the State of Vermont) requested additional discovery concerning the revised fuel pool cooling system (which is the subject of Contention 1). The Board rejected the Applicant's claim that the contention had become rr..* as a result of the Aling of an FSAR, amendment (on June 7,1988) inwrycr.dag a revised fuel pool i

cooling system, on the basis that the question whether the revised system was capable of performing as specided was still open m. 323). The Board granted 60 days' additional discovery on Contention 1 between the Applicant and NECNP and the interested States (Tr. 323 24). Ibrther, the Board ruled that discovery between various parties and the Staff on this consension should await the issuance by the Staff of its SER. On Contention 1 discovery against the Staff wiu eatend for 30 days from the date of service of the SER; l l the 30<isy period will encompass second round interrogatory questions but not I responses (Tr. 338 39). (the schedule for the submission of new contentions l based on the Staff review documents, and for discovery with respect to new contentions which may be accepted, remains as set forth in our Prehearing l l Conference Order dated May 26,1987, LBP 8717,25 NRC 838,862 ) l

3. With respect to the Joint Modon, in which the State of Vermont indicated that it had joined (Tr. 280),8 he Commonwealth of Massachuseus moved orally l

t for emergency relief, for a temporary stay of License Amendment 104 pending our decision on the merits of ec modon (Tr. 267). The Commonwealth explained that such emergency relief was subsumed within the Joint Motion's request for "such other relief (beyond the injunctive relief primarily sought by the motion) as may be necessary and equitable under the circur.utances" (Tr. 271). Vermont and NECNP joined in the request for a temporary stay (Tr. 280,281). The Applicant and NRC Staff each opposed our granting of a temporary stay. They raised jurisdictional, as well as pmedural and substandve, reasons for our denying the request for emergency relief. The alleged basis for both the permanent and temporary stay requesu is that the Staff, in issuing an amendment that permined reracking, without l preparing and releasing an environmental review of the entire fuel pool capacity l expansion, violated the requirements of the Nadonal Environmental Policy Act, l 42 U.S.C. I4332, as implemented by NRC in 10 C.P.R. Part $1. The claim is that the Staff, by reviewing only the environmental aspects of reracking (which it found to qualify as a categorical exclusion under 10 C.F.R. I $1.22(c)(9)), has improperly segmented the environmental review of the entire applicadon. The Intervenor and interested States asserted that there is no "independent utility" to the reracking apart from its contribudon to the entire project. If that utre so, the 8. i e z. nst. *e see et verine a:e4 e n.=:r s m a.,r,.n er me i %ee, weesene set 0 a janed in es neuen seeLeg a sey or 14eesee Amedesre 104. As to ame of he psebeoems assierenee. se neerd bed not yet seseved est reeram 43

' ". L ;, j.. ' ~ Staff's action in approving License Amendment 104 without an environmental review of the entire proposal might well be void. De Board perceives at least a primafacie basis for the validity of this claim. But because of the signiacant procedural and substantive objections asserted by the Applicant and Staff at the prehearing conference, the Board declined to decide any of these questions prior to considering the written responses of the Applicant and Staff to the motion. 'the Board denied the request for a temporary stay solely on the basis that the latervenor and interested States had not demonsented irreparable injury, as required by 10 C.P.R. I 2.788(e)(2) (Tr. 316). 'that ruling was without prejudice to a ruling on the permanent injunctive request or even to whether irreparable injury would have to be considered in ruling on the permanent inNW De only injury asserted was that our eventual consideration of alternadves, as sought by the intesented States and NECNP, would be prejudiced if most of the physical work leading to the expansion in capacity had already been performed (TY,266, 276). However, it appears that the Applicant has already purchased and paid for the new racks (Tr. 243). Moreover, any review of shernadves which we may be called on to undertake will be carried out on the assumpdon that no expenditure at all had been made with respect to any of the expansion alternatives - in other words, all expenses for purchase and installation of the new racks are at the risk of the Applicant. This is not to say that the Staff may ignore the mandates of NEPA with impunity; it is only that, for temporary injunctive relief to be granted prior to our decision on the meriu, a strong shewing of irreparable injury must be - but has not been - made. For the foregoing reasons, it is, this 12th day of July 1988. ORDERED:

1. The motion of the Commonwealth o! Massachusetts, NECNP and the State of Vermont for a temporary stay of License Amendment 104 is hereby denied, without prejudice to our ru!Jng on the request for a permanent injunction.

2. Rmher discovery, as set forth in 12, supra, is hereby authortred.

3. The NRC Staff is hereby requested to provide us by August 1,1988, with a status report on its preparation and schedule for release of lu EA (or 6

b g

other environmental review document, as applicable) for the endre spent fuel pool expansion application. a POR THE A1DMIC SAFETY AND LICENSING BOARD 1 Charles Rechhoefer, Chairman ADMINIS'IllATIVE JUDOE i Dated at Bethesda, Maryland, this 12th day of July 1988. 6 1 I i 4 I I t E l l i i il J 47 I J t l l .m.

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r Cite as 28 NRC 49 (1988) DD 8811 UNITED STATES OF AMERICA NUCLEAR REGUI.ATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Thomas E. Murley, Director in the Matter of Docket No. 50 341 DETROIT EDISON COMPANY (Entleo Fermi Atomic Power Plant, Unit 2) July 28,1988 The Director of the Oface of Nuclear Reactor Reguladon denies a peddon aled by the Honorable James Caldwell, the Honorable Steven langdon, the Honorable Herb Oray, and the Honorable Howard McCurdy, members of the Canadian Parliament, concerning their request that the Fermi 2 nuclear reactor not be allowed to operate. VIOLATIONS AND CIVIL PENALTIES Discrete vlotadons at a nuclear facility do not give rise to a signiacant safety concern so long as they have been cured or are being cured, and there has been no overall breakdown in a licensee's Fograms tnat would raise legidmate doubt about the safety of the facility. Although it is expected that Ilcensees will pay medculous attendon to, and achieve and maintain a high level of compliance with, NRC requirements,it is recognized that errors may occur. What is most sign 16 cant is that violadons, when identined, are properly assessed in terms of understanding their signiacance and cause, and that necessary correcdve medons are taken to prevent their recurrence. TIIE GENERAL ELECTRIC MARK I REACTOR A peddoner's concerns regarding possible containment failure at a General Electric Mark I reactor are misplaced because the estim:ted mean frequency of core damage for this reactor is only 1 chance in 100,000 per year, and the 49

probability cf a large accident resulting in one or more early fatalities is only 1 in 1 million to 1 in 1 billion. EXEMPT 10NS FROM INERTING It was not a safety concern for the NRC to grant an exempdon to a boiling water reactor from inerting primary centainment during initial startup testing since the potential for an accident was small while the plant was operating at lower power levels. Moreover, it was important not to inert the reactor's containment because of the need for startup testing and the need for personnel to enter the containment during this testing for visual inspections. DIRECTOR'S DECISION UNDER 10 C.F.R. I2,206 3 INTRODUCTION By Petition to the Director, Of6ce of Nuclear Reactor Regulation, dated February 4,1988, pursuant to 10 C.F.R. 6 2.206, the Honorable James Caldwell, the Honorable Steven Langdon, the Honorable Herb Gray, and the Honorable Howard McCurdy, members of the Canadian Parliament (Petitioners), have appealed the decision to allow Fermi 2 to go into full power operation. The Petitioners base this request upon information contained in a January 15,1988 letter to Detroit Edison Cornpany (Licensee) from Mr. A. Bert Davis, Regional Administrator, Region III of the U.S. Nuclear Regulatory Commission (NRC), and an attached Regulatory Assessment, authorizing Fermi 2 to operate at full power. According to the Petitioners, these documents reveal the existence of a number of dcociencies at the plant that should have prevented the NRC from granting this authorization. The Petitioners also base this request on their assertion that Fermi 2 should not be allowed to operate because of certain deSciencies in the plant's design and certain past attempts by the Licensee to withhold information from the NRC. As speciac relief, the Petitioners request: (1) that the January 15, 1988 decision authorizing full power opeistion be overturned; (2) that the license to operate Fermi.2 be revoked; and (3) that the Licensee be required to prove, to the satisfaction of both the NRC and the relevant Canadian authorides, that it is absolutely safe to operate the plant and that such operation does not endanger the health and safety of the people of Windsor and Essex County, Canada. By letter dated March 16,1988, I advised the Petilloners that the issues raised in the Petition were under consideration and that the NRC would respond within 4 \\

~ a reasonable time. Ibr the reasons set forth below, I have determined that the Pedtion should be denied. DISCUSSION A.

Background

Before assessing Petitioners' c==%. a review of the besyv, 4 of this matter would be helpful. Detroit Edison Company, the Licenses for Perml 2, received a full power operadng license for Permi 2 on July 15,1985. This license was granted without NRC knowledge of an out of sequence rod-pull event that occurred under a lower power license on July 2,1985, and resulted in the reactor going cridcal ;sest,&; sly. Pbuowing disclosure of the event, the i NRC issued a Conarmatory Action IJtter (CAL), dated July 19,1985, to the Licensee. This CAL, among other things, conarmed the Licensee's commitment to obtain concurrence Dom NRC prior to exceeding 5% power. In addidon to the rod pull event, numerous Technical Speciacadon and procedural violations occurred at Fermi 2 between July 1,1985, and October 15,1985. These violadons, along with the out-of seqmace rod pu!! event, were described in an NRC inspecdon report for Fermi 2 (50 341/85040(DRF)) dated November 14,1985. A total of $375,000 in civil penalties was =** mad by the NRC for these violations. Because of the nature and magnitude of the Fwmi 2 problems, the Licensee was not allowed to resume operadng the unit beyond 5% power. A 10 C.F.R. I 50.54(f) letter was issued on December 24,1985, identifying the NRC's cor.cern and requesting that the Licensee evaluate and address management weaknesses, develop a ccmprehensive plan to ensure the readiness of the facility to restart, and identify the actions necessary to improve regulatory and i operational performance. 'Ihe Licensee responded to the $ 50.54(f) letter on January 29,1986. Actions taken by the Licensee included improving its operations and security plans, changing management personnel and structure, and forming an Independent Overview Committee (IOC). The NRC reviewed and found these corrective actions to be acceptable. Additionally, hold pointa in the power ascension of Fermi 2 at 20, 50, and 75% of fuu power were established which could not be exceeded until the NRC had assessed Permi's operadons at each stage and found them acceptable. To accomplish these assessments, an NRC Restart Team wat formed, led by a senior NRC manager. The IOC also independently assessed the Licensee's ability to exceed these regulatory hold points. The power ascension and assessments required almost 2h years to complete By letter of January i 15,1988, Fermi 2 was released from the Anal hold point of 75% and allowed j to go to full power. '!his letter is the subject of the Petition. 31 _m

+ 3 s ~ 2. B. The Petitioners' Concerns with the January 15,1938 Letter and the Attached Regulatory Assessment Regional Administrator A. Best Davis' January 15,1988 letter authorizing the ~ Licensee to allow Fermi 2 to proceed beyond 75% power is based primarily on the recommendations of a special NRC team of managers and technical experts established to monitor the Licensee's initiatives and plant performance. This team closely monitored the Licensee's performance during Fermi 2's operation up to and through each hold point. As part ofits decision of whether to relasse the plant from the ?$% power hold point, the team considered all known areas of weakness. It then analyzed whether suf6cient isnpow= had been made or would be expected in these areas to support full power operation. Input for the Regional Administrator's decision to release the plant from the 75% power hold point was also provided by the NRC's Of$ce of Nuclear Reactor Regulation and by Region III technical divisions. During this period, the IOC also it. dependent!y assessed the Licensee's performance. The Restart Team's conclusions were listed in a detailed written assessment (hereinafter referred to as the NRC Staff Assesstnent) which was inclided as an attachment to the January 15,1988 !ctter. The Restart Team concluded that identi6ed problems at the facility had either been resolved or suf5cient progress had been made in resolving them to allow Fermi 2 to be operated safely at full power. It also noted that some areas still required improvement. The January 15,1988 letter of Mr. Davis incorporated these same conclusions and also stated that continued work and effort by the Licensee were required. The Petitioners claim that these words of caution by the Restart Team and Mr. Davis, advising the Licensee that improvement is required, are grounds for their requested relief since they signify that the facility is not ready to be operated. We do not agree, since the statements in question' were intended to encourage the Licensee to strive for excellence and to improve lu past performance. A challenge to achieve excellence is often given by the NRC to licensees, and it was not intended to imply that the Licensee is not competent L 8 one et sens su==e= reued ep-i by o. Poweses a wr. ome' ed.we w me J.--e en "swe paw swea cues menshe er(asuvusas opereuen hee sheen e peesuve arend ieward Ireproved partemeses, and year eserna opuseuse es essendsw&J eseepsable, siriaacus west and eden es pena pen as na repared to basesse a good performer." ne Peuemme else pened a sienenes by Mr. Dme thst *sammen ne dined. seed esammeneemssu, edieresse to prucedees esad sparedsmal pasformenee sendseds, se med as a slew and emeasse oppseesh wiin }' seterie managenes europs and teseoss ese sepaaus to essaue.ed naesses6sl A

• he Petnesee sieve these amareens asubhan est se Lkenses Leds uviperiass serininas esseseary to operee e moeder feehn and that the tJeansee le not e *geod poderme." Hemover, the Peassees mesheesiones these asemeens anee $sy were ses W to servey that es tJoensee lasta Gene eenDiese (La. essense to dead. gned enviam=aan= e, met, seder, es tJeereas was being remuided, es seek ey Issenese obe is ebeus to begui AaD powes operouse, est mese ese se types et peLees necessory to estely apeone e snelser insiher. samaarty, y

sie eneswegeeste far the 14# esses to beeerne e *gend performer

• wee est beended to ennen tot to IJamese see mespeb;e er aparetarg $e faciLay estely; a see meely a seameneandeten tot the (demiere eneve es he bemer.

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I to safely operas. Permi-2. If the NRC had believed that Fami 2 could not be safsly operated, then the Licenses would have been ordered to shut down the facility. 1he Petitioners also claim that the NRC Staff Assessment reveals that there 8 are a number of problem areas remaining at the faciliry that should have prevented the NRC from allcwing it to be operased. As a basis for this claim, the ratiooners have quomo from moes pardone of the span where desciencia were listed. SigalAraady, however, they have ignored those portions of the j report that explained that thew de6ciencies had either been corrected in whole or at least suf8ciently to allow the facility e operate safety at full power. By l ignoring the corrective measures that were taken, they have failed to provide any basis to suggest that the facillry cannot be safely a==M Under these i drcumsta.)ces, no basis has been provided for the relief the Petitioners seek. The Pedtioners' underlying basis for their request to shut down Fermi.2 t appears to be that nuclear plants with identiaed problems should not be allowed l j to operate. However, although it is expected that licensees will pay meticulous i atieaalari to, and achieve and maintain a high level of compliance with, NRC requirements, it is recognized that errors may occur. What is most signiacant is that violations, when identlasd, are pioperly assessed in terms of understanding j their signiacance and cause, and that necessary corrective actions are taken to prevent their recurrence. Discrete violadons at a nuclear facility do not give rise to a sign 16 cant safety concern so long as they have been cured or are being cured, and there has been no overall breakdown in a licensee's programs that would raise legidmate doubt about the safety of the facility. See FMladelpMa a Electric Co. (Limerick Generadng Stadon, Units 1 and 2), DD 85 II,22 NRC j 149,161 n.7 (1985), Arhona Pub'Ic Service Co. (Palo Verde Nuclear Generating Stadon, Unit 2), DD-86 8, 24 NRC 151,166 (1986). 'In the case of Fermi 2, after deaciencies and programmatic breakdowns were identiAed in 1985, the 1 NRC Staff ensured safe operadon by requiring the facility to operate st reduced l j power levels until the problems were sutaciendy addressed. A special team j was assigned to monitor the Licensee's inidatives to resolve these problems and the plant's performance. Only after this team, the Region, and the Oface e se. e er.e d, ies - so i.s,.d..e nec s,.--

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edequesy of the TCs tuswa of me fondweist eymen; se maapesed vereom et es sehester inst emesswy esame hans te mand for seyeue ud supleoense d pano Jose *We 88 Plano essem of Duesuber 11.19th te { emese far mas esse hee and tJ4a head mysey pipens vesnesar to fe&se to have ans.eposias lesy esamesy enindedes to )sery to paremnemme d teememie eseng baseh assides emmenes; to fease to be,e es seter p.m sr es,ser eyeise n.ar ayane net; se h she.een eessa e-ee d e=eme see smead sien ) es les emmenes; a messem te es e eesmo n n - 1 ues to fahse w emeas mair mww essrias d no cuent sense sah aea 79en; se,e,al Nac edaeumes messe esi had nsa ye bem fd ses hea i to faame to have e anel energewy suspees pies is paese for se of wedest and asses d"- esseus vim a 6e IJammans's peseren to buyseve Tedumeel "; - , and e faame of ee IJamese's tasang pouyen to esity fedwease esenL ~ a 33 1 -. -.. ~ - - ,-,-------,,,,-g ,n ,-----,_,,,m..,---.

o. -7 ~ ./ 'I of Nuclear Reactor Regulation were satis 8ed that these problems were being / property addressed was Fermi.2 s!!owd'to operase at full power. . E} la reaching its decision to release Fermi 2 from the 75% power hold point, J. the NRC considered in detail the items now cised by the Pedtioners tom the January 15, 1988 letter and attached NRC Staff Assessment The NRC also ..i carefully weighed many of these saine issues in allowing Fermi 2 to proceed ,. I past ti,e hold points for power ascension that had been previously set The Petitioners have not produced any facts to undermine these indings. Under these circumstances, I conclude that the issues cited by the Petitioners wkh respect to the January 15,1988 letter and the NRC StWf Assessment do not provide a basis for grandng the requested relief. C. Other Concerns Raised by the Petitioners In addidon to their concerns arising out of the January 15,1988 letter and the NRC Staff Assessment, the Pedtioners have identi8ed the following addidonal prob! cms concerning Fermi 2. l t I 1. The General Electric Mark i Rractor l The Pet.itioners claim that certain NRC research establishes that the General Ehetric Mark I reactor, which is the design for Ferml-2, is an old and inherendy risky reactor design whose containment will fall in 90% of severe accident scenariot. The Petitioners' concerns are based on information contained in Draft NUREO 1150, "Reactor Risk I'.eference Document" (February 1987), which is a recent NRC draft analysis of different reactor designs. The evaluation of severe accident vulnerability involves three distinct evalu-ations: arst, the probabillry of an accident involving core darnaget second. the likellhood of containment failure; and, third, an assessment of the radiological consequences and public doses resulting from the accident. All three issues must be considered in making a determinadon on the magnitude of severe accident risk and what actions should pavdendy be taken to reduce those risks. The studies that have been conducted emphasize that the results inherendy 3 possess large uncertalndes. The draft results of NUREO ll50 present the most recent program, whose intent is to accurately reflect the severe accident risk at i a number of U.3, nuclear power pianu, and also to properly re8ect the areas of uncertainty. That study included an evaluadon for Peach Bottom, a plant quite similar to Fermi in reactor design and containment. '!he study presented the estimated mean frequency of core damage to be approximasely I chance in 54 ,6 6

e e 1 100,000 per year of cparation. Another comprehensive risk study conducted for the 1.imerick plant estinv.d n mean core damage probability of 1'in 10,000. These results are CNlw; with NRC's belief that core. melt accidents are very unlikely. Draft UU/L.1150 also investigated the probability of early containment failure following a core melt, This study concluded that our - ability to accurately predict the response of a Mark I containmerd was limited for situadons where it was subjected to the harsh temperat,are and pressure xndidons following a core. melt accident. As stated earlier, the report indicated that containment failure probability (for these extremely unlikely events) could likely range from 10 to 90%. These uncertainties are currently the subject of research efforts to becer predict the behavior of containments during severe accidents, so that a more complete risk perspective een be assembled for guiding our regulatory activities. However, it is important that these uncertainties be properly characterized. They are not identl8ed de8ciencies in the BWR Mark I containments, which have been demonstrated to satisfy their design performance requirements. Rather, these uncertainties are areas that guide our research investigadons, whose goals are to provide improved undentanding of very unlikely risk situations at nuclear puwer facilities. Results from these studies (including high containment. failure probabilities) also allow us to calculate public risk estimates assuming that one element of the three that go into a risk assessment (containment failure) is less favorable, Even allowing tta large uncertain (les that result in a high upper value for containment failure, the NUREO 1150 study estimated that the probability of a large reactor accident that results in one or more early fatalities ranged from I in 1 million to 1 in 1 billion. Given a severe accident, the probabilities of very high radiation exposure and the distances over which they would occur were also estimated to be reasonably small. The risk levels for Fermi would of course depend on its actual core. melt probability, containment behavior, the local demography, and could vary somewhat from the results presented in NUf.60 1150. 11:4 results of this and related studies do, howtver, support our overall conclusion of low severe. accident risk at the Fermi piant. One cortributing factor is that the massive reactor containment structurca may retain considerable radioactive material following a core melt even if its pressure boundary is failed. In this regard, containmens failures include cracks or other phenomena that result in loss of pressure integrity that can result in leaks but should hot be viewed soley as catastrophic failure of the containment stru6ture. Plateout ud deposWon of material with*n containments, even though there may be leakage, also increase the time available to implement effective evacuation activities. While we believe that severe. accident risks are low at operating nuclear plants, our goal is to pursue additional acdvides to achieve even lower levels of public risk. T7 assure that our risk conclusluns are applicable to e!! oper. 55 4 I - 1

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l 7 f w;. ; + +: + c ', .o ating units; c. number of programs are going forward to assess seves accklent likeuhood and consequences. These programs include plant spectac sndies to l ~. determine any severe-accLnt vulnerabundes, both horn the perspective of ac. t 5* a..g ' ; (. f. cident hoquencies and hom containment performance following a cose melt. .,. p, b,.: '. Any problems will be desh whh if identi8ed. This program is known as the l , ? ' A, '...' '*j individua: p'. ant examination (IPE) program which is expected to commence l., l - t,' ;,. / later this year, nose and related programs win be conducted to provide funhar l t' assessments of severs accidents on a plant speciSc basis, so that appropriately j Iow risk levels can be maintained. i i 1 2. The Esemption pen inerting De Peddoners also contend that Fermi 2 is unsafe because of the exempdon l e i l k has received from the general rule requiring the inerting of the primary } d' containment system with nitrogen. According to the Petitioners, this exemption i ? endangers the surrou.vMng area by increasing the risk for an acMam at the i i reactor. At the outset, it should be noted that the inerting esempdon is no longer 1; operative and the faculty is now required to be inerted in accordance witi its s ~ 3 l sechnical speci8 cations. Nevertheless, in addrearing this contention, a brief r l technical explanation of this subject is helpful. De purpose of inening is to limit the possibility of post accident hydrogen saplosions inside the primary containment. To prevent such explosions, tir :nntainments of bouing water t '- i reactors (BWRs) are normally inened during operation. However, there is an s excepdon to this general rule, which has been granted to Fermi 2 and almost 11 i j other recendy licensed BWRs, that allows reactor license 9s limited esemptions froen inerting during initial operatient so that they can perform startup tesdag. l These exempdosis are limited to the end of saanup testing or 120 offe.:tive full power ditys, whichever occurs Srst. Stanup tests are imponent since they i l casure that ths nuclear facility's systems function as designed and that problems j idanuSed during d.e tesdag are catected, it is best that the sencWs containment l o not be inened dunng certain tests so that personnel can enser h for visual l inspections, ne potential for an accident and subsequent hydrogen explosion during startuo testing is small because the plant generally operates at lower j ~ 1 power levels and experiences several startups and shutdowns during this period i j which decrease the potendal buCdup of Assion products. i Because of the need for startup tesdng and the sinali degree of risk of explosion during this tesung. the decision to anow Fermi 2 and other BWRs limited exempdcas kom inerting was fully jusd8ed. Upon expirat on of this l exemption. Fermi 2 was incried in accordance with the.c

_ of the

) i technical speci8 cations governing the operation of the facility. { ,i f f j 56 t i l i i I I i 1 i 1 -=

~ l i l 9 .f. The Mittedinedequeer Aj>asenetures The Peddoners claim that there have been "condnual discoveries of inade. quass infrastructure included in the construction of the reactor" that have resulted la continuing accidw and problems at the plant. Ahhough it is not endroly clear what the Peutioners mean by their use of the word "inorestructure," ! disagree with this characterizadon if they are [ ) implying that the design of Fermi.2 is de6cient. The NRC has found that se design of this unit meets our reguladens. Nevertheless, I acknowledge that there have been dah in the im;' -~-#= of his design into the as. l l built features of the plant and the plant's technical speci6cadons and opeansing 4 procedures. Many of the Fermi 2 operadonal problems were caused by these l de8ciencies. However, as discussed atme, these desciencies, and the Licensee's 1 resolution of them, we o taken into account during the NRC's detained regulatory [ l usessment following its Conarmatory Acdon Letter of July 17,1985. Based i { upon this anaamam the NRC Staff determined that these ds8ciencies had been l adequately resolved or were la the process of being resolved in a time frame i and manner accepts.de to support NRC's release troen each hold point. l For thase reasons, to the salent that Fermi 2 may have had an "infrastructure" l probiern, the Petitioners' concern is not valid since remedial acdon has already [ been taken. h 4. The large Number of Violadens et Fermi 2 and the WIAholding of l 1 Idermettenhem he NRC The Pedtioners also claim that Fermi 2 has one of the highest levels of "Snes" for breaches of NRC regulations of any nuclear reactor in the United l l States, and that one of these violations, which involved the Licensee withholding ( { informadan about the facility reaching criticality just before it was issued an l operadng license in 1985,is grounds for now revoldng this license. 1 ) Ahhough Fermi.2 has experienced a twee number of violations compared to i other reactors, the NRC has devoted considerable regulatory oversight to Fermi. i 2 to assure that the problems causing these violations have been adequately addressed. Regulatory actions taken by this Agency have included issuance I of the July 19,1985 ConArmatory Action Leuer and the December 24,1985, l 650.54(f) Ictier, discussed above. In addidon, civil penaldes have been levied to emphasias the seriousness cf the violadons and the need for the Licenses to improve its operations. The Licensee's inidatives, designed to recdfy these l problems, have included sigalacant management and organization:al chargs, and i numerous im w.er.1 programs focused on improving personnel and hardware r performance. l N 1 1

3 s e s. ,..;. 3 ' : These improvements and regulatory acdons have provided reasonable assur. ance to the NRC that the problems causing these violations are being properly addressed and that the present operadon of Fermi 2 at full power is justi8ed. .n3 The NRC will condnue to closely monitor the operadon of Fermi 2 in the fu. ture. The information withholding incident in 1985, which the Petitioners claim consutules a basis for withdrawing the facility's operadng license, was acted upon by the NRC in 19g5 by the imposidon of substantial civil monetary penal. ties on the LWaa-and not allowing the facility to operate beyond 5% power. (See Discussion, 9 A sapra.) There is no new informadon that would provide a reasonable basis for now reopening the question of whether additional penaldes should be assessed for this past violation. e 5. The Utensee's SAFETEAM Protrene The Peddoners further claim that the Licenso.'s S AFETEAM prograni"holds back information from the NRC." However, they have effered no facts to substantiate their claim, and there have been no problems or occurrences at the facility to indicate that the SAFETEAM program has inhibited or restricted employee communicadon with the NRC. SAFETEAM is a voluntary program not required by the NRC, established by the Licensee in 1983, to assist plant managers in the early identi6 cation of e rors or omissions during the construction and operadon of :he plant. The program provides an opportunity for site workers, in conadence, to express to a l select group of Licensee's representatives concerns that may not be recognized l or effectively responded to through normal channels of commumcation within the Licensee organizadon. Past NRC inspecdons and investigadons have irticated that issues brought into the S AFETEAM program have been addressed, Although the NRC identi6ed certain programmatic weaknesses, safety related i l concerns were found to have been property addressed by the Licensee.8 The Licensee's SAFETEAM program does not interfere with its employees' l l righu to report satety reland manets to the NRC. Employees at the facility { g are still encouraged to report safety.related problems directly to the NRC by .j notices that the Licensee has visibly posted on site. In these notices, employees i are alerted of their right to contact the NRC and advised that their ':onadentiality will be maintained in the event such contacts are made. Under these circumstances, I conclude that Petitioners' consention regarding SAFETEAM lacks merit. ] 8 The sumes of emne NRC inspesace Gaenas ese esmanamed in NRC L& sayen NesL M34145029 and 4341 A5037, dated My 2419s5, and Omaher 2s,19s5, suspesuvely, Si . _ ~ _

a ~ l l CONCLUSAON The deaciencies at Fermi.2 idend8ed by the Peddoners as issues in their Pedtion were all well known to the NRC and were previously considered in our regulatory dechions. Civil penaldes were imposed and a Conarmatorj Action louer and a 550.54(f) letter were issued to ensure that these de8ciencies were sdequately addressed. To ensure the safe operadon of Fermi.2, this ',acility was not allowed to operats at full power for ovw a 2. year period undt adequate a assurances had been received that mese de6ciencies were adequately addressed. The NRC's January 15,1988 letter allowing full power operation was thus fully just16ed. Por these and the other reasons discussed above. I And no basis for taldng the actions requested by the Petitioners. Accordingly, the Petitioners' requests puant to 10 C.F.R. 9 2.206 are denied. J l As provided in 10 C.F.R. I2.206(c), a copy of this Decision wiu be aled with the Secretary. t FOR THE NUCLEAR REGULATORY COMMISSION 4 Thomas E. Murley, Director Of8cc of Nuclear Reactor l Regulation Dated at Rockville, Maryland, t this 28th day of July 1988. i i i Ji a 9 i 59 l J ) 1

Denials of Petitions for Rulemaking l l 1

8 o 4 I Cite as 28 NRC 61 (1988) DPRio-88 3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS Victor J. Stello, Jr., Executive Director for Operations In the Matter of Docket No. PRW 50 47 QUALITY TECHNOLOGY COMPANY July 11, itse ne Nuclear Regulatoiy Commission (NRC.s denying a pedtion for rule. maldng (PRM 50-47) Aled by Mr. Owen L. nero. President of Quality Technol-ogy Company. The petition is being denied because (1) the calsting reguladons provide adequate assurance that safety related concerns are being reported; (2) the proposed addidonal regulatiot. would not substantially increase the werall protection of the public health and safety; and (3) the need for the proposed rule is not otherwise demonstrated by the informadon provided. he Petidoner requested that NRC require all utilities involved in a nuclear program to (1) report all identified concerns relating to wrongdoing activities to the L! ce of Investigadon and (2) maintain a nationwide employee c:mcern program. Wrongdoing activities are not speciacally deaned by the Petitlener but are assumed to be criminal type activities. Examples might include use of drugs I or alcohol on the job and the falsiacadon of documents or records. De NRC has carefully considered the is ues ra! sed in the petition and has taken them into l account in reaching a decision on the areas that fall within its jurisdiction. f i NRC: RULEMAKING AUTHORITY In contemplating the addidon of new reguladons, NRC must ask if the new reguladons are required to provide adequate protection of the public health and safety. The next Icvel of questioning is: Will the proposed rule result in enhanced health and safety or an improved plant operation? Finally, what is the cost of the new reguladon versus the benents to be derived? Dis applies to the licensee as wil as NRC. Before considering the implementation of a 61

v mandatory program on a!! nuclear power plants in the United States, a de6nidve basis should be estaotished to show that such a requiremeld is in fact needed. PERSONNELt NUCLEAR POWER PLANT (F11 NESS FOR JUTY) The objective of the proposed 6tness for duty rule is in p. ovide for the public health and safety by eliminating access to proter. %sas at nuclear pour plants by personnel who are judged to be un6L for duty Personnel considered un6L for duty are thoes who are under the irdluence of any substance, legal or illegal. or mentally or physically impaired from any cause that in any way affects their ability to safely and competendy perform their dudes. Employee assistance programs would be available for rehabilitation. SAFETY.RELATED MATTERS: REPORTING REQUIREMENTS Although there are no regulations curnndy in effect regarding speci6c reporting of idend6ed concerns related to wrongdoing activities (assumed to be criminal activides such as use of drugs or alcohol on the job and fabrication of documents or records) there are several regulations in effect concerning the reporting of safety.related matters. These regulations are found in: 10 CSA Part 21 (reporting of defecu and noncompliance); 10 CSA 550.55(e); 10 CIA 9 50.7; 10 CEA $50.72; 10 CIA 150.73; Appendix B to 10 CSA Part 50, criteria 15 and 16; 10 CSA $ 70.52; and 10 CSA 973.71. l SAFETY.RELATED MATTERS: REPORTING REQUIREMENTS The reguladons concerning the reporting of selety.related matters have l been promulgated by NRC with the intendon of identifying de6ciencies and noncompliances that either reduce or have the potential to reduce the degree i of protection afforded to peblic hea!Lh and safety or the environment. It is not NRC's intendon to receive all employee nonsafe.y related concerns. The management of the utilities has certain responsibilides reladve to employee concerns and as long as the concerns do not affect safety, they should remain the responsibility of utility management, if the utility management is not responsive or if there is concern with retaliation, there are adequate alternadve means to bring matters of health and safety concern to the NRC for resolution. SAFETY.RFLATED MATTERS: REPORTING REQUIREMENTS The preJent regulations set up a rather extensive system of reporting require. ments that licensees are required to follow. The regu'atory system is designed 62

6' ~ O a to provide a framework to ensure that events that are signiacant to the safe operation of nuclear power plants are reponed to NRC so that the appropri-ate corrective action can be taken. In cases where employee concerns have not been resolved to the employee's satisfaction, there are means available for [ discussing their concerns with NRC ~o date, nonsafety related concerns have essendally been the responsibility of licensee management. If 'Jcensee manage. ment demonstrates that it is unwilling or unable to handle such concerns, and NRC determines that these concerns are a problem at more than a few isolated plants, then NRC can consider taking a more direct action. Until then, licensee rnanagement should be given the opportunity to address the laatter. LICENSEE EMPLOYEES: INVESTIGATION AND CORRECT 10N OF CONCERNS Good management practices by the utilldes and the existing regulatory stnwture together provide reasonable assurance that valid problems identiAed by employees wiu be invesdgated and corrected. LICENSEE EMPLOYEES: IDENTIFICATION AND RESOLUTION OF CONCERNS Employees who wish to provide informadon or who have concerns have two options available to them. They may discuss the particular concern with their supervisor or plant management. If they cannot obtain sausfactory resolution j or if they do not desire to use this avenue, they can take the concern directly l to the NRC. NRC has maintained a policy that allows licensee employees to i bring concerns to its attention. This can be done either verbally or in writing and can be done through the resident inspector, regional personnel, or NRC Headquarters personnel. This opdon may afford the individual conadentiality. a LICENSEE EMPLOYEESt IDENTIF1 CATION AND RESOLimON l OF CONCERNS The main purpos: of an employee concern program is to provide a forum in which to resolve employee concerns about the sdety of a nuclear plant. Several udlities have established such programs, on a voluntary basis, some at a considerable expenditure of resources to assure that all employee concerns j are investigated and resolved. Many of these programs have continued into the 3 operation phases of a plant's existence. There is no questica that these programs can and will identify employee concerns. Such concerns might surface through 63 i

some other mechanism such as a good quality assurance program, the norma! e,nployer employee wrking reladonship, or by reporting to the NRC. DENIAL OF PETITION FOR RULEMAKING L THE PETITION In a leuer dated October 27.1986, Mr. Owen L. Thero, President of Quality Technology Company (QTC) Sled with the NRC a pedtion for rulemaking. The Petidoner requested that NRC expand the scope of lu regulations so that all utilldes involved in c. nuclear program (1) report allidentlSed concerns relating to wrongdoing activitics to the Of6ce of Investigadon, much along the same lines as is required to rtport nuclear. safety related issues, and (2) maintain a nadonwide employee concern program incorporadng the applicable faceu of the Employee Response Team recendy conducted at the Tennessee Valley Authority Watts Bar facility. II. BASIS FOR REQUEST The Petidoner (QTC) bases the petition on 1s experience gained from invcit ement in employee concern programs at senral utilities, most recently the TVA Watts Bar facility. This involvement included the collection, collation, and investigation of safety corwerns. As a resut of this experience, the Petitioner states that it had been in the unique position to observe the program's effectiveness from both the perspective of manageme:J and the perspective of the employee. The Pedtioner contends that because of this unique vantage point - and experience, it has observed that employees engaged in the construction or operation of a nuclear facility have the most accurate and insightful information about safety.related issues. The Petitioner claims that several thousand nuclear. safety related concerns and several hundred wrongdoing activities have been identi6ed through the efforts of the employee concern programs conducted by QTC at Watts Bar ar.d other facilities, which otherwise would not have surfaced. QTC believes that without resolution of employee.identi6ed safety related concerns, the potendal exists for costly hardware failures or potendal danger to the employees of nuclear facilities or the general public. The Petitioner further believes that the disposidon of wrongdoing activities by the licensee is not clear, and in its experience the licensee has not allowed QTC to investigate reported wTongdoing issues nor has the licensee willingly reported such activities to the NRC or to the Department of Justice. QTC also claims 64

I l 1 that licensees have no effecdvs correcdvs acdon mechadsm to investigate or resolve wrongdoing issuosi therefore, a correcdvs action mechanism is needed. 1he Petitioner concludes that the sheer number of Idaneland concerns along l i 1 i with the very high raas of substantladon (greater than 50%) anore than justi6es the need for a nadonwide employee concern program to be authorised and deaned by law. IE. PUBLIC COMMENTS ON THE PE11110N A nodce of Aling of the pedtion for rulemaking was published in the Federal s 1 e Aspswr on January 12,1987 (52 Fed. Reg.1200) and included the Mi text of l the propoest. Interested persons were invited to submit wriaen comments. The comment period was subsequently extended 60 days to provide suf5cient dme for i p:blic comments. In espome to the invitation in the Federal Aepster solicidng I comments on the peddon for rulemaking, a total of thiny four letters was me.Ved. These neuers came from individuals, law arms, public interest smups, udlides, and other companies that manage nuclear plants. Five comments t l favored the petition and twenty.six cornments were opposed to the petiden. One conunent requested an extension of the comment period to allow more time to respond. One comment favored the thrust of the proposal, but recommended l that k be held in abeyance pending congressional action on some proposed ] Inspector General bills. The romalning tornment by a Congrusman favored the Arst part of the pedtion (i.e., report all idend$ed concerns related to wrongdoing i activides) but could not support the second part (establish an employee concern j prograrn) if there were not amendant requirements as to how the program would l be operated in order to guarantes its integrity. For the purpose of summarising, i this split comment was considered as a favorable response. Hence, there wem l seven comments (21%) favoring the petition and twenty six comments (79%) l opposed. The seven comments favoring the petition came from two sources. j Three comments were ham individual citizens, three troen public interest smups, and one hem a t'4 -ir --- A surninary of the signiacant comments in favor ut the proposal are highligheed below. A rule promulgated in response to the pension would: Provide a safe, aa=AAanstal means for information to be volunteered ) by employees with no fear of sprisal. Be conducive to the identiacation of personnel who are using drugs or alcohol. De6ne wrongdoing activides to include nonnuclear and nonudlity baalamaa, e.g., drug sales and bookmaldng. 4 a d a l ~ 1 \\ 2 ^

4 - @ licenesN WW1 holdNs of consmmtimt pNinits W rp AUG. gadons of managermat wrongdoing or evidence bearing on the ther. l acter and/or suitability of management. l 1he twenty six comments opposed to the pedtion included twenty 4our Dom [ udlities or companies that ma udlities, one horn a company (SYNDECO) that is a subsidiary of Detroit Edison Company, and the remaining comment was Acm the Atomic Industrial Porun. A summary of the signi8 cant ea==aan opposing the peddon are highlighted below: - The pedtion may be motivated by self. interest on the part of the Petitioner (not considered), r Current regulations are adequate to ensus that safety probieras are reponed. i j Utilldes' experience with employee concern programs does not sup. j port the Pedtioner'r, claim that the rate of substandation is greater J than 50% i -- No evidence was presentea to show that public safety would be signincantly enhanced as a result af the proposed rule. Various udlities indicated that they were not aware of any industry 1 problems regarding licenses treatment of employee concerns. Several employee concern programs voluntarily set up by utilities curready exist. No factual need was provided for the proposed rule. Mandatory employee concern programs could reduce the effective. 1 ness of industry's voluntary programs by reducing management Sea. ibility, and safety-related matters could go unreponed. I Current udlity experience does notjusdfy the imposition of addidonal j j regulatory reponing requirements. One of the public comments raised aa issue that wsis M raised by the f 1 Petitioner. The issue is: Provide a safe, con 8dential means for infortnation L I to be provided by employees with no fear of reprisal. Employees who wish to prwide information or who have concerns have two options available to i them. They may discuss the particular concern with their supervisor or plant l J management. If they cannot obtain sansfactory resolution or if they do not i desire to use this aveme, they can take the concern direcdy to the NRC. NRC i has maintained a policy that allows licensee eenployees to bring concerns to its attentbn. This can be done either verbally or in wridag and can be done through the resident inspector, regional personnel, or NRC Headquanm personnel This option may afford the individual con 8dendality. l \\ e l L i j N i 1 I 2_ _

~ l L IV. STAFF ACTION ON THF PETTTION The proposed petidon was published la the Federal Regisser in January e 1987. The comment period was salended (thru mid.May) la order e provide + sufScient time for public commerds. The resumpdon of acdon on the podth was delayed for approalmately 6 months because of the NRC reorganiandon and d ine subsequent realignment of daies and responsibilldes, and the pr6cridandon of ongoing work. Acdon on the petition resumed in mid Novesnber of 1987. I Y. REASONS FOR DENIAL i i The NRC has considend the peddon, the public comments received, and the current agulatory structure. After consideradon of the above, NRC has i ) concluded that the Petitioner's request should be denied. The discussion that follows addresses the various allegations contained in the peddon and the NRC l ll response e each of these allegadons. ] 1. Allegedon 4 Several thousand nuclear. safety.rclated concerns and several hundred wrong-doing actives have been identiScd through the efforts of the employos concern programs that QTC has either conducted or been associated with at several nu-clear facilities, which otherwise would not have surfaced.

Response

The main purpose of an employee concern prograrn is to provide a ferum in w ich to resolve employee concerns about the safety of a nuclear 'M Several utilities have established such programs, on a voluntary basis, sras at a considerable expenditure of resurces to ensure that all employee crJncerns l are investigated and resolved. Many of theos programs have condnaed into the operational phases of a plant's existence. There is no question $at these programs can and will identify employee concerns, sut no evWence s v presented that these ccacerns would not have surfaced through soar l c mechanism such as a good quality assurance progreen, the norm! empto3 3 j employee working sladonship, or by reporting to the NRC Ahhough a large number of specisc concern anos froen watts sar an in the posstalen of NRC, d the information contained in these Ales is very crypic and gerarally does not 4 contain specl8c technical detail e support the assertions by the Pensioner. Additionally, no spectAc documentadon concerning the rete of shMwn l 67 1 j i

't a at Waus Bar or other units has been provided by the petitioner a support the l assertions. [

v 2.

ANegeden I i Unasolved nuclear safety.related concerns could have swfaced through a so-rios of cosdy hardware failures andMr potendal endangerment of ths =, - and the general public if allowed to go into operadon uncertected, i 1 i Regenst In response to this assertion, one of the commenters (an engineering trin) 1 felt soongly that there are very few engineering dacisions made that are totally conclusive. Instead, conslosamble empenise and judgment go Ireo ths l' determinadon of most requirements of this type. '!hs commenter sented that management makes decisions based on analysis and epinions. Emperience has 3 shown that very few, if any, employee concerns actually require hardware changes and very few of the hardware changes materially improve safety. No i documented evidence of any type has been provided by the Petitioner to support j this assertion. I i 3. Aueteden The disposidon of wrongdoing activities by licensee is not clear, in our l 1 ] esperience, the licensee has not allowed us to investigate wrongdoing issues reported. Neither has k been wiuing to repon these activities to the NRC or to l the r+,ar

of Jusuce. It has no effecdve corrective action mechanism to investisses or resolve wrongdoing issues. These issues fall into a black hole."

i Remonse la contempladng the addition of new reguladons NRC must ask if the new j j reguladons are required to provide adequais protection of the pubuc haakh and safety. The neat level of qwiaaks is: Will the proposed runs result in t enhanced haakh and safety or an improved plant operation? Finally, what is the ] cost of the new reguladon versus the beneits to be derived? This appues to the licenses as well as NRC. The present reguladons set g a rather ensomsive systeen of repeting reqairements that licensees are required to follow. The j regulatory system is designed to provide a framework to answo that events that are signiacant to the safe operadon of nuclear power plants are reponed to NRC l so that the appropriate corvoedve aedon can be taken. In cases where employes 1 1 1 I i 1 1 l

e O l l concerns have not been resolved to the employees' 'Misfaction, there are means available for discussing their concerns with NRC. To date, nonsafety related concerns have essendally been the respunsibility of licenses management. If Ikensee management demonstrates thu it is unwilling or unable to handle such concerns, and NRC determines that these concerns are a problem at more than a few isolated plants, then NRC can consider tandng a more direct action. Und! then, licensee management should be given the opportunity to address the matter. The Petitioner has not provided any factual evidence to show that a problem saists at any plant as alleged in the proposal. 4. Allegedon The sheer numbers of correrns identi6ed along with the very high rate of substaneinelari (greater than 50%) more than justi6es the need for a nationwide employee concern program to be authorized and de6ned by law. l

Response

The Petilloner's assertion appears to be based on experience gained primarily at TVA's Watu Bar facility. Before considering the implementation of a mandatory program on all nuclear power planu in the United States, a dednitive ] basis should be established to show that such a requirement is in fact needed. ) As noted in reason el on page 9, the Peddoner has provided no evidence or speci6c documentation other than iu stated experience at one facility to support its assertion. With respect to experience with substandation rates, three of the commenters stated that their experience does not support a substantiation rate in excess of 50%. In fact, their expenence re6ects a substaatiadon rate that is signi6 candy less than 50%. The information provided is not suf8cient to establish that a problem exists in the "industry" and thN a rulemaking is needed to solve the problem. in addition to reviewing the assertions of the Petitioner and the comments from the public, the petition was also examined in light of the existing regulatory structure. Although there are no regulations currendy in effect regarding speci$c reporting ofidenti6ed concerns related so wrcngdoir.g activities as raised by the Peutioner, there are several regulations in effect concerning the repersing of safety related matters. These regulations are briefly listed below. Part 21 of 10 C.F.R. requires reporting of defecu and noncompliance. Section 5035(e) requires holders of construction permits to notify i ) NRC regarding de6ciencies in design or construction, whkh could 1 adversely affect safety. 69 i i N

e ~, - Secdon 50.7 pmhibits Ikonsees flrom discriminating against employ-ses engaging in consin protected activities including providing in. formadon to the Commission agarding violations. - Secdon 50.72 squires the modacadon of NRC togsrding various classes of emergency and nonemergency events. - Secdon 50.73 requires the nodacadon of NRC raf speciac events reponable via the Licensee Event Report program. - Appendix B to 10 C.F.R. Part 50, criteria 15 and 16, seguires the licensees to document defects and take the appropriate corrective action including defocu brought to the auention of the licenses by employees. - Section 70J2 require the licensees to report on accidenth! criticality or loss or theA of special nuclear material. l - Section 73.71 require the licer. sees to repart on unaccounted.for ship, i ments, suspected thens, unlawful diversion, radiological sabotage, or other events that signi6 candy threaten safeguards. In addition to the above seguladons, the NRC is presency p

• paring a proposed rule concerning atness for duty at nuclear power plants which is l

expected to be published Ibr public comment in June ce July 1988. The obyctive l of the Smess.for. duty rule is to pmvide for the public health and safety by eliminadng access to protected areas M nuclear power plants by personnel who are judged to be unAt for duty personnel considered unat for duty are those l who are under the inAuence of ariy substance, legal or illegal, or mentally or physically impaired from any cause that in any way affecu their ability to safely and competendy perform their dut!ss. Employee assistance programs would be available for rehabilitation. The regulations ci:ed above have been promulgated by NRC win the intention of identifying desciencies and noncompliances that either adoce or have the potential to reduce the drg se of protection afforded to public health and safety or the environment. It is not NRC's intention to receive t!! employes nonsafety. related concerns. The management of the unliies has certain responsibilities t relative to employee concerns, and as long as the concerns do not affect safety, I they should remain the Ep:"i*y of unlity management. If the udlity management is not responsive or if there is concern with retaliation, there are adequate abernadvs means 9 bring matters of health and safety concern to the NRC for resolution, as discussed la this notice. It appears that good matagement practices by the utilities and the exist ng i regulaton' structure together provkts a reasonable assurance that valid problems idendAed by employees will be investigated and corrected. In light of the above, no addiuonal acdon is required at this time.

( 4 Because each of the issues raised in the pedtion has been substandally addressed and resolved, the NRC has denied the petition. Pur the Nuclear Regulatory Commission F Victor Stallo, Jr. Executive Director for Operadons Dated at Rockville, Maryland. this lith day of July 1988. l 1 l l l l l I f l 71

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