ML20196H198

Nuclear Regulatory Commission Issuances for September 1998. Pages 119-182

ML20196H198
Person / Time
Issue date:	11/30/1998
From:	NRC
To:
References
NUREG-0750, NUREG-0750-V48-N03, NUREG-750, NUREG-750-V48-N3, NUDOCS 9812090008
Download: ML20196H198 (70)

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A year's subscription consists of 12 softbound issues, l

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

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Single copies of this publication are available from National Technical Information Service Springfield, VA 22161 l

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Office of the Chief Information Officer U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301-415-6844) l m

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NUREG-0750 Vol. 48, No. 3 Pages 119-182 4

NUCLEAR REGULATORY COMMISSION ISSUANCES i

September 1998 4

This report includes the issuances received during the specified period from the Commission (CU), the Atomic Safety and Licensing a

Boards (LBP), the Administrative Law Judges (ALJ), the Directors' Decisions (DD), and the Decisions on Petitions for Rulemaking j

(DPRM) l The summaries and headnotes preceding the opinions reported l

herein are not to be deemed a part of those opinions or have any independent legal significance.

1 i

U S. NUCLEAR REGULATORY COMMISSION 4

1 J

j Prepared by the i

Office of the Chief Information Officer i

U.S. Nuclear Regulatory Commission i

Washington, DC 20555-0001 j

(301-415-6844) i l

l

I COMMISSIONERS Shirley A. Jackson, Chairman Nils J. Diaz Edward McGafhgan, Jr.

B B. Paul Cotter. Jr., Chief Administrative Judge, Atomic Safety & Ucensing Board Panel 09,, y i,_

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CONTENTS l.

Issuances of the Nuclear Regulatory Commission BALTIMORE GAS & ELECTRIC COMPANY l

- (Calvert Cliffs Nuclear Power Plant, Units 1 and 2) l Dockets 50-317-LR,50-318-LR l

MEMORANDUM AND ORDER, CLI-98-19, September 17, 1998...

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DUKE ENERGY CORPORATION

' (Oconee Nuclear Str.cion, Units 1,2, and 3) ~

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Dockets 50-269, SS270,50-287 (License Renewal)

ORDER, CLI-98-17, September 15,1998.................... 123

. HYDRO RESOURCES, INC.

p (2929 Coors Road, Suite 101. Albuquerque, NM 87120)

Docket 40-8968-ML MEMORANDUM AND ORDER, CLI-98-16, September 15, 1998..

119

- NORTH ATLANTIC ENERGY SERVICE CORPORATION l

(Seabrook Station, Unit 1)

Docket 50-443-LA ORDER, CLI-98-18 September 17,1998....................

129 Issuances of the Atomic Safety and Licensing Boards INTERNATIONAL URANIUM (USA) CORPORATION (Receipt of Material from Tonawanda, New York)

Docket 40-8681-MLA-4 (ASLBP No. 98-748-03-MLA)

. (Re: Materials License Amendment) l.

MEMORANDUM AND ORDER, LBP-98-21, September 1,1998..

137

' NORTH ATLANTIC ENERGY SERVICE CORPORATION (Seabrook Station, Unit 1)

Docket 50-443-LA (ASLBP No. 98-746-05-LA)

L MEMORANDUM AND ORDER, LBP-98-23, September 3,1998... 157 L

L NORTHEAST NUCLEAR ENERGY COMPANY l

(Millstone Nuclear Power Station, Unit 3)

Docket No. 50-423-LA-2 (ASLBP No. 98-743-03-LA) l MEMORANDUM AND ORDER, LBP-98-22, September 2,1998... 149 ill L

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Issuance of Director's Decision ENVIROCARE OF UTAH, INC.

(Salt Lake City, Utah)

Docket 40-8989 (License No. SUA-1559)

DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206, DD-98-9, September 14,1998...............

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Commission issuances i

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Cite as 48 NRC 119 (1998)

CLl-98-16 l

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UNITED STATES OF AMERICA j

i NUCLEAR REGULATORY COMMISSION l

l COMMISSIONERS:

Shirley Ann Jackson, Chairman l

Nils J. Diaz Edward McGaffigan, Jr.

In thie Matter of Docket No. 40-8968-ML HYDRO RESOURCES, INC.

(2929 Coors Road, Suite 101, Albuquerque, NM 87120)

September 15,1998

'Ihe Commission exercises its inherent supervisory authority over the conduct of adjudicatory proceedings to reverse the Presiding Officer's ruling in LBP ;-

9, 47 NRC 281 (1998), to admit an area of concern on the Navajo nation's L

permitting.

NUCLEAR REGULATORY COMMISSION: PERMITTLNG BY OTHER REGULATORY AUTHORITIES Whether non-NRC permits are required is the responsibility of bodies that issue such permits, such as the Federal Environmental Protection Agency, the

- Navajo nation, or state and local authorities. To find otherwise would result in duplicate regulation.

NUCLEAR REGULATORY COMMISSION: PERMITTING BY OTHER REGULATORY AUTHORITIES Pursuant to 10 C.F.R. 5 20.2007, an applicant may not rely on its license f:om the NRC as a waiver of its obligation to obtain permits required by other agencies. However, section 20.2007 is " advisory and is not intended to imply that the NRC will take enforcement action for violations of other environmental

. protection regulations issued under statutes other than the Atomic Energy Act."

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Standards for Protection Against Radiation: Final Rule, 56 Fed. Reg. 23,360, 23,382 (May 21,1991).

l MEMORANDUM AND ORDER In this proceeding, various intervenors challenge Hydro Resources, Inc.'s NRC license to conduct an in situ leach mining project in McKinley County, New Mexico. The Commission already has issued two decisions in this pro-2 ceeding and is continuing to monitor it to " ensure that agency proceedings are conducted efficiently and focus on issues germane to the proposed actions under consideration." See Statement of Policy on Conduct ofAdjudicatory Pro-ceedings, CL1-98-12,48 NRC 18 (1998); 63 Fed. Reg,41,872 (Aug. 5,1998).

We have identified one area that requires immediate Commission guidance. In issuing this guidance, the Commission is exercising its inherent supervisory au-thority over the conduct of adjudicatory proceedings. See Baltimore Gas &

Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-15,48 NRC 45,52-53 (1998).

In LBP-98-9, the Presiding Officer admitted as an area of concern " failure to obtain proper permits from the Navajo nation." 47 NRC 261,281 (1998). The Presiding Officer gave only the following explanation for admitting this area

"[p] roper local permi s must be obtained. 10 C.F.R. 6 20.2007; of concern:

t Materials License 5 9.14."

For the reasons discussed below, we find that neither section 20.2007 nor condition 9.14 supports admissibility of an area of concern on the Navajo nation's permitting authority and we reverse the Presiding Officer's decision in LBP-98-9 to admit it.

Whether non-NRC permits are required is the responsibility of bodies that j

issue such permits, such as the Federal Environmental Protection Agency, the i

Navajo nation, or state and local. uthorities. To find otherwise would result in duplicate regulation as both the NRC and the permitting authority would be resolving the same question, i.e., whether a permit is required. Such a regulatory scheme runs the risk of Commission interference or oversight in areas outside its domain. Nothing in our statute or rules contemplates such a role for the Commission.

Interpreting section 20.2007 to require the Commission to ensure that NRC licensees obtain required permits from other agencies goes well beyond that provision's plain meaning. Section 20.2007 states:

I C1198 4,47 NRC 111 (1998); CLI.98-8. 47 NRC 314 (1998).

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l Notning in this subpart relieves the licensee from complying with other applicable Tideral, State, and local regidations governing any otiar toxic or hazardous properties of mateials that snay be disposed of under this subpart.

'Ihe statement that "nothing in this subpart relieves the licensee from com-plying with other... regulations" cannot be reasonably interpreted to mean that the Commission intended to take affirmative action to determine whether other agencies' permits are required or to enforce other agencies' requirements.

Instead, the language in our rule suggests only that an applicant may not rely on its license from the NRC as a waiver of its obligation to obtain permits required by other agencies. This reading of section 20.2007 is consistent with the Commission's discussion of this provision in the Statement of Considera-tion accompanying the rule. There, the Commission stated that section 20.2007 is " advisory and is not intended to imply that the NRC will take enforcement action for violations of other environmental protection regulations issued under statmes other than the Atomic Energy Act." Standards for Protection Against i

Radiation: Final Rule,56 Fed. Reg. 23,360,23,382 (May 21,1991).

)

Condition 9.14 of the license at issue here also does not contemplate NRC enforcement of permitting requirements established and administered by other regulatory bodies. The condition states that "[p]rior to injection of lixiviant, the licensee shall obtain all necessary permits and licenses from the appropriate regulatory authorities." In our view, the condition serves simply to reinforce the basic principle underlying section 20.2007 - namely, that an NRC license does not preempt other environmental agencies' regulatory jurisdiction. Notably, condition 9.14 does not suggest that the NRC will determine what permits are "necessary" or what regulatory authorities are " appropriate." Congress granted us authority merely to regulate radiological and related environmental concerns.

It gave our agency no roving mandate to determine other agencies' permit

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authority. Our regulation and our license condition show due respect to our sister agencies' responsibilities but do not add to our own regulatory jurisdiction.

In short, we do not think it necessary or proper to decide in an NRC j

adjudication whether Hydio Resources must obtain a permit from the Navajo nation or from any other body.2 In view of our understanding of 10 C.F.R. 5 20.2007 and condition 9.14, we direct the Presiding Officer not to adjudicate

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questions of Navajo, EPA, or state and local regulatory jurisdiction. Those bodies are responsible for determining whether to require a permit under their own law and for initiating appropriate enforcement action. As for other areas of concern that the Presiding Officer found admissible in LBP-98-9, the Apparendy, Hydro Resources is planning to file for an Underground Injection Control permit "to cooperate 2

fuHy with EPA and to insnre that the cuntnt jurisdictional dispute [over the Nava> nation's authority] does not

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frustrate its [ Hydro's] development plans." See HRTs [ Hydro's] Response to Petitions to Intervene at 37 (ftb.

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19. 1998).'

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I Presiding Officer should narrowly construe their scope to avoid where possible the litigation ofissues that are the primary responsibility of other agencies and s

whose resolution is not necessary to meet our statutory responsibilities.2 In conclusion, the Commission determines that the Presiding Officer erred in admitting as an area of concern " failure to obtain proper permits from the Navajo nation." Accordingly, we reverse the finding in LBP-98-9 on that issue.

IT IS SO ORDERED.

For the Commission JOHN C. HOYLE Secretary of the Commission Dated at Rockville, Maryland; this 15th day of September 1998.

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i 3(7. Tennessee Valley Authorny (Yellow Creek Nuclear Plant. Umts I and 2), ALAB.515,8 NRC 702 (1978).

We add a cautionary note. Our decision today is a narrcry one and addresses one area of concern. We inumate no views on any other issue in the case. In eddition, our decision ought not be understood to rxan that environmental or other permits issued by other reguktory bodies have no bearing on NRC licensing decisions. See, e.g 10 Cf.R. I 51.45(d) 0icemee environmental report required to list other required approvals and status of compliance),

We hold simply that our adjudicatory nibunalis not the proper forum for litiganon and resolution of controversies about other agencies' y.xnutting authority.

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l Cite as 48 NRC 123 (1998)

CLl-9817 1

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UNITED STATES OF AMERICA i

NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

l Shirley Ann Jackson, Chairman Nils J. Diaz Edward McGaffigan, Jr.

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In the Matter of Docket Nos. 50-269 50-270 50-287 (License Renewal) l DUKE ENERGY CORPORATION (Oconee Nuclear Station, Units 1,2, and 3)

September 15,1998*

'Ihe Commission refers to the Atomic Safety and Licensing Board panel, for assignment of a Licensing Board to rule on, a petition to intervene and a request for hearing filed in the matter of the Licensee's application for renewal of its operating licenses for Oconee Nuclear Station, Units 1, 2, and 3. The Commission provides the Licensing Board with guidance for the conduct of the proceeding if a hearing is granted, and suggested schedule for any such proccefing.

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l RULES OF PRACTICE: SCOPE OF PROCEEDING 1

OPERATING LICENSE RENEWAL i

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The scope of a proceeding on an operatmg license renewal is limited to a review of the plant structures and components that will require an aging management review for the period of extended operation and the plant's systems, i

structures, and components that are subject to an evaluation of time-limited aging analyses. See 10 C.F.R. Il 54.21(a) and (c),54.4.

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• original!y served September t5, but re-served September 16.1998, because page 6 was replaced.

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f RULES OF PRACTICE: SCOPE OF PROCEEDING OPERATING LICENSE RENEWAL Review of environmental issues in a licensing renewal proceeding is limited in accordance with 10 C.F.R. il51.71(d) and 51.95(c).

ORDER REFERRING PETITION FOR INTERVENTION AND i

REQUEST FOR HEARING TO.

i ATOMIC SAFETY AND LICENSING BOARD PANEL 1

I.

INTRODUCTION On July 6,1998, Duke Energy Corporation ("the Applicant") submitted an

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application to renew the operating licenses for its Oconee Nuclear Station, Units 1,2, and 3, located in Oconee County, South Carolina. The notice of receipt of application was published in the Federal Register on July 14,1998. Duke L

Energy Corporation; Oconee Nuclear Station Units 1,2, & 3; Notice of Receipt L

of Application for Renewal of Facility Operating Licenses Nos. DPR-38, DPR-47, and DPR-55 for an Additional 20-Year Period,63 Rd. Reg. 37,909 (1998).

A notice of acceptance for docketing of the application for renewal of the facility operating licenses was published in the Federal Register on August 11, 1998.

Duke Energy Corporation; Oconee Nuclear Station Units 1,2, and 3; Notice of Acceptance for Docketing of the Application for Renewal of Facility Operating Licenses Nos. DPR-38, DPR-47, and DPR-55 for an Additional 20-Year Period, I

63 Rd. Reg. 42,8b5 (1998). On August 11, 1998, the Staff of the Nuclear Regulatory Commission (Staff) issued a Notice of Opportunity for a Hearing, 63 Rd. Reg. 42,885 (1998).

On September 10,1998, three individuals who are members of the Chattooga River Watershed Coalition filed a " Petition to Intervene and Request for Hearing"

(" Petition") in accordance with 10 C.F.R. 6 2.714, on behalf of themselves and their organization. This Order refers the petition to the Chief Administrative i

Judge of the Atomic Safety and Licensing Board Panel for assignment of an Atomic Safety and Licensing Board to rule on this and any additional requests for a hearing and petitions for leave to intervene and, if a hearing is granted, to conduct the proceeding. We also provide the Licensing Board with guidance for the conduct of any proceeding if a hearing is granted, and a suggested schedule for any such proceeding.

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IL COMMISSION GUIDANCE

'A.

Scope of Proceeding The scope of this proceeding is limited to a review of the plant structures and components that will require an aging management review for the period of extended operation and the plant's systems, structures and components that are subject to an evaluation of time-limited aging analyses. - See 10 C.F.R. 1654.21(a) and (c), 54.4; Nuclear Power Plant License Renewal; Revisions, Final Rule, 60 lhi Reg. 22,461 (1995). In addition, review of environmental issues is limited in accordance with 10 C.F.R. Il51.71(d) and 51.95(c). See NUREG-1437, " Generic Environmental Impact Statement (GEIS) for License Renewal of Plant;" Environmental Review for Renewal of Nuclear Power Plant l

. Operating Licenses, Final Rule, 61 Fed. Reg. 28,467 (1996), amended by l'

61 Fed. Reg. 66,537 (19 % ). The Licensing Board shall be guided by these l

regulations in determining whether proffered contentions meet the standard in 10 C.F.R. 5 2.714(b)(2)(iii). It is the responsibility of the Petitioner to provide the necessary information to satisfy the basis requi ement for the admission of

,i its contentions and demonstrate that a genuine dispute exists within the scope I

of this proceeding. If rulings on the admission of contentions or the admitted contentions themselves raise novel legal or policy questions, the Licensing Board should readily refer or certify such rulings or questions to the Commission on an interlocutory basis. The Commission itself is amenable to such early involvement and will evaluate any matter put before it to ensure that substantive interlocutory review is warranted.

The Commission expects that matters within the scope of this proceeding but not put into controversy will be considered by the Licensing Board only where 0 : Licensing Board finds that a serious safety, environmental, or common defense and security matter exists. Such consideration should be exercised only in extraordinary circumstances. If the Licensing Board decides to raise a matter on its own initiative, a copy of its ruling, setting forth in general terms its reasons, must be transmitted to the Commission and General Counsel. The Licensing Board should not proceed to consider such sua sponte issues unless the Commission approves the Licensing Board's proposal to do so.

B.

Discovery Management Similar to the practice under current Rule 26 of the Federal Rules of Civil Procedure, if a hearing is granted, the Licensing Board should order the parties to provide certain information to the other parties without waiting for discovery i

requests. This information will include the names and addresses of individuals likely to have discoverable information relevant to the admitted contentions, the 125

names of individuals likely to be witnesses in this proceeding, the identification and production of documents (not already publicly available) that will likely contain discoverable information, and any other information relevant to the admitted contentions that the Licensing Board may require in its discretion.

Within 30 days of any Licensing Board order granting a request for a hearing, the Staff shall file in the docket, present to the Licensing Board, and make available a case file to the Applicant and any other party to the proceeding.

He Staff will have a continuing obligation to keep the case file up to date, as documents become available. The case file will consist of the application and any amendments thereto, the Final Environmental Impact Statement (in the form of a plant-specific supplement to the GEIS), any Staff safety evaluation reports relevant to the application, and any correspondence between the Applicant and the NRC that is relevant to the application. Formal discovery against the Staff, pursuant to 10 C.F.R. El 2.720(h),2.740,2.742, and 2.744, regarding the Safety Evaluation Report (SER) and the Final Supplemental Environmental Impact Statement (FES) will be suspended until after issuance of these documents.1 The Licensing Board, consistent with fairness to all parties, should narrow the issues requiring discovery and limit discovery to no more than one round each for original and late-filed contentions.

C.

Proposed Schedule The Commission directs the Licensing Board to set a schedule for any hearing granted in this proceeding that establishes as a goal the issuance of a Commission decision on the pending application in about 2V2 years from the date that the application was received. In addition, if the Licensing Board grants a hearing, once the Licensing Board has ruled on any petition for intervention and request for a hearing, formal discovery against the Staff should be suspended until after the Staff completes its final SER and FES, subject to the discretion of the Licensing Board to proceed with discovery on either the FES or final SER as discussed in note 1, supra. The evidentiary hearing should not commence until after completion of the final SER and FES.

The Commission believes that the goal of issuing a decision on the pending application in about 2 V2 years may be reasonably achieved under the current rules of practice and the enhancements directed by this Order and by our understanding of the Staff's current schedule for review of the application. We do not expect the Licensing Boar:1 to sacrifice fairness and sound decisionmaking to expedite I The above discussion as based on the staff's review schedule for the Duke application, which indicates that the anal sER and rES sill be issued fairly close in tirne. If this is not the case, the Board, in its discretion, may anow the commencement of discovery against the Staff on safety issues if the anal SER is issued before the FES or on environmental issues if the FES is issued before the Anal SER.

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any hearing granted on this application. We do expect, however, the Licensing Board to use the techniques specified in this Order and in the Commission's policy statement on the conduct of adjudicatory proceedings to ensure prompt and efficient resolution of contested issues. See Statement ofPolicy on Conduct ofAdjudicatory Proceedings, CL1-98-12,48 NRC 18 (1998). See also Statement

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ofPolicy on Conduct ofLicensing Proceedings, CLI-81-8,13 NRC 452 (1981).

If a hearing is granted, in developing a schedule, the Licensing Board should adopt the following milestones for conclusion of significant steps in the j

adjudicatory proceeding:

i e Within 90 days of the date of Decision on intervention petitions and this Order:

contentions. Start of discovery on admit-ted contentions, except against the Staff.

i e Within 30 days of the issuance Completion of discovery against the Staff of SER and FES:

on admitted contentions. Late-filed con-tentions to be filed.

. Within 40 days of the issuance Responses to late-filed contentions to be of SER and FES:

filed.

. Within 50 days of the issuance ASLB decision on late-filed contentions.

of SER and FES:

e Within 80 days of the issuance Completion of discovery on late-filed of SER and FES:

contentions.

• Within 90 days of the issuance Prefiled testimony to be submitted.

of SER and FES:

e Within 125 days of the issuance Completion of evidentiary hearing.

of SER and FES:

e Within 220 days of the issuance ASLB initial decision on application.

of SER and FES:

To meet these milestones, the Licensing Board should direct the participants to serve all filings by electronic mail (in order to be considered time'y, such filings must be received by the Licensing Board and parties no later than midnight Eastern Time on the date due, unless otherwise designated by the Licensing Board), followed by conforming hard copies that may be sent by regular mail. If participants do not have access to electronic mail, the Licensing Board should adopt other expedited methods of service, such as express mail, which would ensure receipt on the due date ("in-hand"). If pleadings are filed by electronic mail, or other expedited methods of service that would ensure receipt on the due date, the additional period provided in our regulations for 127

responding to filings served by first-class mail or express delivery shall not be applicable. See 10 C.F.R. 5 2.710. In addition, to avoid unnecessary delays in the proceeding, the Licensing Board should not grant requests for extensions of time absent unavoidable and extreme circumstances. The Licensing Board shall not entertain motions for summary disposition under 10 C.F.R. 5 2.749, unless the Licensing Board finds that such motions are likely to substantially narrow the issues for which an evidentiary hearing is necessary or will otherwise expedite the proceeding. Unless otherwisejustified, the Licensing Board shall provide for the simultaneous filing of answers to proposed contentions, responsive pleadings, proposed findings of fact, and other similar submittals.

In addition, parties are obligated in their filings before the Licensing Board and the Commission to ensure that their arguments and assertions are supported by appropriate and accurate references to legal authority and factual basis, including, as appropriate, citation to the record. Failure to do so may result in material being stricken from the record or, in extreme circumstances, in a party being dismissed.

If a hearing is granted on this application, the Commission directs the Licendng Board to promptly inform the Commission, in writing, if the Licensing Board determines that any single milestone could be missed by more than 30 days. The Licensing Board should include an explanation of why the milestone cannot be met and the measures the Licensing Board will take to mitigate the failure to achieve the milestone and restore the proceeding to the overall schedule.

IIL CONCLUSION The Commission directs the Licensing Board to conduct this proceeding in acccedance with the guidance specified in this Order. As in any proceeding, the Commission retains its inherent supervisory authority over the proceeding to provide additional guidance to the Licensing Board and participants and to resolve any matter in controversy itself.

It is so ORDERED.

For the Commission JOHN C. H0YLE Secretary of the Commission Dated at Rockville, Maryland, this 15th day of September 1998.

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CLI-98-18 j

UNITED STATES OF AMERICA l

NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Shirley Ann Jackson, Chairman Nils J. Diaz Edward McGaffigan, Jr.

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in the Matter of Docket No. 50-443-LA NORTH ATLANTIC ENERGY SERVICE CORPORATION (Seabrook Station, Unit 1)

September 17,1998 1

The Commission exercises its inherent supervisory authority over the conduct of proceedings to take sua sponte review of the Atomic Safety and Licensing Board's Memorandum and Order, LBP-98-23, 48 NRC 157 (1998), in this proceeding' on an application by North Atlantic Energy Service Corporation to amend its operating license for the Seabrook Station, Unit I nuclear reactor.

The Board granted intervention to the Seacoast Anti-Pollution League (SAPL),

denied intervention to the New England Coalition on Nuclear Pollution, and addressed SAPL's argument against " segmentation," i.e., that license applicants should not be permitted to effectuate a major operational change requiring several license amendments through separate amendment requests rather than through a single request.

ORDER The Atomic Safety and Licensing Board recently ruled on two petitions to intervene in this proceeding on an application by North Atlantic Energy Service Corporation (NAESCO) to amend its operating license for the Seabrook Station, Unit I nuclear reactor. LBP-98-23,48 NRC 157 (1998). The Board granted intervention to the Seacoast Anti-Pollution League (SAPL) and denied intervention to the New England Coalition on Nuclear Pollution (NECNP).

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The Board's order also requested the parties to provide further information on SAPL's argument against " segmentation," i.e., that license applicants should not be permitted to effectuate a major operational change requiring several license amendments through separate amendment requests rather than through a single request. SAPL reasons that, without reviewing the change as a whole, the NRC may be unable to accurately assess the actual safety implications of the overall change. 48 NRC at 168.

He " segmentation" issue is novel and has broad implications for this and other proceedings. It is the type of issue that we discussed in our Statement of Policy on Conduct of Adjudicatory Proceedings that "could benefit from early Commission review." CLI-98-12, 48 NRC 18, 23 (1998). Therefore, we exercise Our inherent supervisory authority over the conduct of proceedings to take sua sponte review of the " segmentation" issue. See Baltimore Gas &

Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-15, 48 NRC 45,52-53 (1998). Our decision to take review overtakes the Board's request in LBP-98-23 for the parties to provide it additional information on the segmentation issue. See LBP-98-23,48 NRC at 169-70. We direct the Board to halt all proceedings before it pending further Commission order. Additionally, in the interest of expedition and economy of effort, rather than await any appeal of the Board's rulings granting and denying intervention pursuant to 10 C.F.R. 9 2.714a, the Commission also takes sua sponte review of the Board's intervention rulings. In sum, the parties are free to file briefs supporting or opposing any aspect of the Board's ruling in LBP-98-23, and to address, as they deem necessary, any of the questions posed by the Board on pp.169-70 of its order.

In addition to any issue of concern to the parties, their briefs should address the following Board statements:

1.

"Except perhaps for egregious pleading defects, it is not good policy to dismiss contentions merely for procedural reasons, especially where, as here, the challenged activities potentially could affect public health and safety." LBP-98-23. 48 NRC at 166.

2.

'Rderal agencies should not allow an applicant to present licensing actions separately if such separate actions are part of a common action that has greater adverse consequences when viewed as a whole." LBP-98-23,48 NRC at 169.

To expedite our review, we have decided to order simultaneous ratherlthan sequential briefs. All briefs filed before the Commission in accordance with this Order shall be served in a manner to ensure receipt by midnight Eastern Time, on their due date. The Commission sets the following briefing schedule:

1.

All parties, including NECNP (if it desires), may file a brief no later than October 7,1998. The briefs shall not exceed 30 pages.

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Each party, including NECNP, may file a single responsive brief ad-l dressing all issues in the other parties' briefs on which it wishes to be heard, no later than October 14, 1998. The responses may not exceed 20 pages.

I After receiving these responses, the Commission may schedule oral argument to discuss these issues if it deems such argument necessary.

IT IS SO ORDERED.

For the Commission i

JOHN C. HOYLE Secretary of the Commission Dated at Rockville, Maryland, this 17th day of September 1998.

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CLI-98-19 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

[

COMMISSIONERS:

Shirley Ann Jackson, Chairman Nils J. Diaz Edward McGaffigan, Jr.

In the Matter of Docket Nos. 50-317-LR ~

50-318-LR BALTIMORE GAS & ELECTRIC COMPANY (Calvert Cliffs Nuclear Power Plant, Units 1 and 2)

September 17,1998 The Commission grants the National Whistleblower Center's petition for discretionary interlocutory review and gives Petitioner additional time, until September 30,1998, to file contentions in this proceeding.

t RULES OF PRACTICE: EXTENSIONS OF TIME INTERVENTION: REQUEST FOR ADDITIONAL TIME RULES OF PRACTICE: DISCRETIONARY INTERLOCUTORY REVIEW; INTERLOCUTORY APPEALS The Commission does not ordinarily review interlocutory Board orders denying extensions of time.

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NRC: ADJUDICATORY RESPONSIBILITIES; SUPERVISORY AUTHORITY RULES OF PRACTICE: COSISIISSION DISCRETION TO DIRECT PUBLIC PROCEEDINGS; DISCRETIONARY INTERLOCUTORY REVIEW; INTERLOCUTORY APPEALS T

The Commission may review interlocutory orders pursuant to its general supervisory jurisdiction over agency adjudications.

RULES OF PRACTICE: ADMISSIBILITY OF CONTENTIONS To be admissible, contentions must satisfy the standards set forth in 10 C.F.R.

I 2.714.

i LICENSING BOARDS: AUTHORITY; DISCRETION IN MANAGING PROCEEDINGS; EXPEDITION ADJUDICATORY BOARDS: CONDUCT OF PROCEEDINGS ADMINISTRATIVE TRIBUNALS: AUTHORITY RULES OF PRACTICE: EXPEDITED PROCEEDINGS; LICENSING BOARDS; SCHEDULING The Licensing Board possesses considerable authority to modify the general deadlines set out in the Commission's rules, and the Commission expects it to continue to exercise that authority when appropriate.

MEMORANDUM AND ORDER This proceeding involves an application by Baltimore Gas & Electric Com-pany ("BG&E") to renew its operating license for both units of its Calvert Cliffs Nuclear Power Plant - an action opposed by the National Whistleblower Center

("NWC"). On August 19,1998, the Commission issued CLI-98-14,48 NRC 39, referring NWC's petition for intervention and hearing to the Atomic Safety and Licensing Board and setting out a suggested expedited procedural schedule for i

the case. On August 20th, the Board issued a Memorandum and Order (unpub-lished) scheduling further filings in this proceeding. In that order, the Board established a September lith deadline for the filing of contentions (slip op, at 3). On August 21st, NWC asked the Board for an enlargement of time until December 1st within which to file its contentions. On August 27th, the Licens-l 133 l

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l ing Board issued an order (unpublished) denying NWC's request. NWC failed l

to submit contentions by September lith. Instead, it filed with the Commission

- a petition for review of the Board's August 27th order.

I

- We ordinarily do not review interlocutory Board orders denying extensions' of time, but we do so here as an exercise of our general supervisory jurisdiction over agency adjudications. On consideration of NWC's petition for review, we conclude that at the time it requested 'a hearing in early August, it might not have anticipated that the Board would set a date as early as September j'

lith as the deadline for filing contentions, perhaps in part because the agency's Notice of an Opportunity for a Hearing stated, somewhat ambiguously, that a petitioner had to file contentions "not later than" 15 days prior to the first i

prehearing conference (63 Fed.' Reg. 36,966 (July 8,1998)). In addition, NWC l

has represented that its experts were unable to ' complete their review of the I

l Calvert Cliffs application by the September lith deadline. To ensure that NWC l

has an adequate opportunity to introduce matters of safety or environmental l.

concern into the Calvert Cliffs proceeding, we have decided to grant NWC until September 30th to file contentions. However, NWC's contentions, to be admissible, must satisfy the Commission's standards for acceptability of 1

contentions' set forth in 10 C.F.R. 6 2.714 and, after September 30th, our late-

' filed criteria will come into play. The Board should be prepared to terminate

- j the adjudication promptly should NWC submit no admissible contentions.5 We recognize that our grant of an extension of time to NWC may require

(

the Board to postpone, by two weeks or so, the issuance of its initial decision l

on standing and on the admissibility of contentions. Given the threshold I

- stage of this proceeding, however, this short delay will not compromise the Commission's ultimate goal to resolve all license renewal issues within 30 months of our initial hearing noti,ce.

.Our decision today to relax the Board's September 11 deadline by no

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means suggests any dissatisfaction with the Board's handling of the matter.

The Board acted entirely reasonably both in establishing the September 11 deadline and, in the absence of Commission guidance, in refusing to extend it, particularly in refusing to extend it until November, as NWC originally requested., We urge the Board to continue its effort to move this proceeding j

forward expeditiously. Our decision today also reflects no agreement with i

NWC's position that the Commission's initial decision to expedite this case and

. to provide the Board scheduling milestones is somehow unlawful. We recently 1

3 we now that, by Septernber Xith, NWC will have had 134 days since the NRC published its May 19.1998 notice of acceptance for docketing of BO&E's application (63 M Reg. 27,601),112 days since the NRC announced the beginning of the public scoping process under the National Environmental Policy Act (63 Fed. Reg. 31.813 (June i

.- 10.1998)) and 84 days smce the NRC pubbshed the Notice of Opportunity for Hearing (63 M Reg 36.966 (July 8.1998)). Both the dodeted application and detailed informanon about the license renewal process have i

been available publicly since at least the May 19th notice.

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I set out the Commission't views on these matters in CLI-98-15,48 NRC 45 (1998), and reaffirm them here. Finally, for the reasons given by the Board itself in its August 27th order, it possesses considerable authority to modify general deadlines set out in our rules and we expect it to continue to exercise that authority when appropriate.

For the foregoing reasons, we grant NWC's petition for review and give NWC additional time, until September 30,1998, to file contentions in this proceeding.

IT IS SO ORDERED.

For the Commission JOHN C. HOYLE Secretary of the Commission Dated at Rockville, Maryland, this 17th day of September 1998.

135

Atomic Sa"ety and Licensing Boarcs issuances ATOMIC SAFETY AND LICENSING BOARD PANEL B. Paul Cotter, Jr.,* Chief Administrative Judge Vacant,* Deputy Chief Administrative Judge (Executive)

Frederick J. Shon,* Deputy Chief Administrative Judge (Technical) 4 Members Dr. George C. Anderson Dr. Harry Foreman Thomas S. Moore

• Charles Bechhoefer*

Dr. David L. Hetrick Thomas D. Murphy

• Peter B. Bloch*

Dr. Frank E Hooper Dr. Richard R. Parizek G. Paul Bollwerk Ill*

Dr. Charles N. Kelber*

Dr. Harry Rein Dr. Robin Brett Dr. Jerry R. Kline*

Lester S. Rubenstein Dr. James H. Carpenter Dr. Peter S. Lam Dr. David R. Schink a

Dr. Richard E Cole

• Dr. James C. Lamb lli Dr. George E Tidey Dr. Thomas S. Elleman Dr. Linda W. Little

• Perrnanentpanelmembers

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LBP-98 21 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l'

ATOMIC SAFETY AND LICENSING BOARD PANEL' i

Before Administrative Judges:

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Peter B. Bloch, Presiding Officer Richard F. Cole, Special Assistant In the Matter of Docket No. 40-8881-MLA 4 (ASLBP No. 98 748-03-MLA)

)

(Re: Materials License Amendment)

INTERNATIONAL URANIUM (USA)

CORPORATION (Receipt of Material from Tonewanda, i

New York)

September 1,1998 i

A state may protect the interests of its citizens or its lands, waters, wildlife,

. and other natural resources, providing that it demonstrates that the proposed licensing action will cause its citizens or natural resources to be hkely to suffer injury that is " distinct and palpable, particular and concrete, as opposed to being l

conjectural or hypothetical." Applying this standard, a state may have standing i

to challenge whether the NRC has improperly granted a license amendmeat-to allow the receipt and processing of uranium-bearing material that allegedly contains hazardous waste.

RULES OF PRACTICE: SUBPART L; SETTLEMENT l

The Presiding Officer will attempt to facilitate negotiations between parties l

when they are seeking to resolve some or all of the pending issues.

l RULES OF PRACTICE: SUBPART L; STANDING Once a party is detrnnined to have standing, it may raise any concern that is 1

l found to be germane to the proceeding.

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MEMORANDUM AND ORDER (Grant of Petition for a IIearing)

On July 23,1998, the State of Utah petitioned for leave to intervene in the proceeding concerning a license amendment (License No. SUA-1358) issued on that same day, July 23, to International Uranium (USA) Corporation ("IUSA")

to allow the receipt and processing of uranium-baring material (i.e., alternate feed material - material other than natural uranium ore) at its White Mesa Mill near F% ding, Utah.3 IUSA initially opposed the petition.2 In a subsequent response, IUSA conceded that the State has standing to litigate "the limited issue of whether or not and to what extent the State may have jurisdiction over whether or not the Ashland 2 materials contain listed hazardous wastes that are regulated under the Resource Conservation and Recovery Act (" RCRA").8 See Final Position and Guidance on the Use of Uranium Mill Ited Material Other Than Natural Ores, 60 lid. Reg. 49,296 (Sept. 22,1995).

IUSA emphasizes in its pleading that it has "no interest whatsoever in ac-cepting any materials that contain listed hazardous wastes."'IUSA acknowledges that it agrees with the State of Utah that it should not receive hazardous wastes and it states its willingness "to negotiate with the State to develop reasonable procedures to ensure that the Ashland 2 materials to be processed at the Mill do not contain any listed hazardous wastes."

The Pesiding Officer is encouraged by IUSA's willingness to negotiate and is willing to support negotiations, which may result in a complete or a partial resolution of pending issues or, at least, an agreement on an efficient way to proceed with this case. IUSA 2nd Response at 2-3. I encourage the Staff, which is participating as a party in this case, to seek to facilitate this negotiation process, and I am personally willing to facilitate the process, either in public discussions or (with explicit advance approval from the Commission) in private sessions.10 C.F.R. 6 2.1241.

I Previously,IUSA had subnutted a March 3,1998 application to amend its license by adding a performance-based licensing condition that would allow it to accept alernate feed material at the White Mesa Man, subject to operating procedures approved by the NRC, without pnor NRC approval on a case-by-case basts. A "Nouce of Receipt of License Anendment Apphcanon; Nouce of Opporturuty for Heanng"(" Notice") was pubbshed in the Fedcrol Argarter concermng that separate apphcanon, which is not the subject of this proceeding. Set 63 Rd.

Reg.18.236 (Apr.14.1998). No request for heanng has been fded in response to that notice and the period for a unely beanng requeu on that acnon expired on May 14,1998. This amendment application is sell pending before ate NRC.

2 opposition of [IUSAl to State of Utah's request for Hearing, dated August 3,1998 (IUsA Response).

3 Response to State of Utah's Arnended Request for a Heanng and peution for trave to Intervene, August 25.

1998, at 2-3 (IUSA 2nd Response).

• 1 USA 2nd Response at 3.

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i-l L CONCLUSIONS CONCERNING LEGAL REQUIREMENTS L

FOR STANDING AND PARTICIPATION i

i A.

Standing 1.

Timeliness Since the State of Utah filed its petition on the same day as the amendment l

was issued to IUSA, it appcars to be timely. The State's application does not l

indicate when the State first became aware ("got actual notice") of the pending application; howev r, neither of the parties has challenged its standing on this l

basis so I have decided not to raise the matter on my cwn.

I Pursuant to 10 C.F.R. 6 2.1205, interested persons may request a hearing on the grant of an amendment to a source or byproduct materials license under the Commission's informal hearing procedures set forth in 10 C.F.R. Part 2, Subpart L. If a Federal Register notice providing an opportunity for hearing has I

not been published, an intervention petition must be filed the earliest of(a) 30 days after the requester receives actual notice of a pending application, (b) 30 days after the requester receives actual notice of an agency action granting the i

application in whole or in part, or (c) 180 days after agency action granting an application in whole or in part. (Emphasis added.) 10 C.F.R. 5 2.1205(d).

I 2.

Substantive Standing Requirements Any person who wishes to request a hearing or to intervene in a Commission proceeding must demonstrate the standing to do so. Section 189a(1) of the l

Atomic Energy Act ("AEA"),42 U.S.C. 6 2239(a), provides that:

In any proceeding under this Act, for the granting, suspendmg, revoking, or amending of any license.., the Commission shall grant a hearing upon the request of any person whose j

' interest may be afected by the proneding. and shalt admit any such person as a party to j

such proceeding.3 i

'/d. (Emphasis added.)

In addition, pursuant to 10 C.F.R. 92.1205(e), where a request for hearing is filed by any person other than the applicant in connection with a materials licensing action under 10 C.F.R. Part 2, Subpart L, the request for hearing must describe in detail:

5 Standing is granted for a proceeding. once a pany is gramed standing, the paty generally may litigate any l.

areas of concern that are germane to the proceedmg.

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(1) W interest of the requestor in the proceeding; (2) How Ithat] interest may be atfected by the results of the proceeding, including the j

reasons wh, the requestor should be permitted a hearing, with particular reference to the factors set out in [I 2.1205(h)];

(3) The requestor's area [] of concern about the licensing activity tlmt is the subject matter of the proceeding; and (4) The circumstances establishing that the request for a hearing is timely in accordance with [i 2.1205(d)].

Pursuant to 10 C.F.R. 9 2.1205(h), in ruling on any request for hearing filed under 10 C.F.R. 6 2.1205(d), the presiding officer is to determine "titat the specified areas of concern are germane to the subject matter of the proceeding and that the petition is timely." The rule further provides as follows:

The presiding officer also shall determine that the requestor meets the judicial standards for standing and shall consider, among other factors -

(1) The nature of the requestor's right under the [AEA) to be made a party to the proceeding; (2) The nature and extent of the squestor's property, financial, or other interest in the proceeding; and (3) The possible effect of any order that may be entered in the proceeding upon the l

requestor's interest.

In order to determine whether a petitioner has met these standards and is entitled to a hearing as a matter of right under section 189a of the Act, the Commission applies contemporaneous judicial concepts of standing. See, e.g.,

Portland Genera' Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2),

CLI-76-27,4 NRC 610,613-14 (1976); Georgia histitute of Technology (Geor-gia Tech Research Reactor, Atlanta, Georgia), CLI-95-12, 42 NRC 111,115 (1995); Sxramento Municipal Utility District (Rancho Seco Nuclear Generat-ing Station), CLI-92-2,35 NRC 47,56 (1992), review denied sub nom. Envi-ronmental & Resources Conservation Organi:.ation v. NRC,996 F.2d 1224 (9th Cir.1993); Metropolitan Eaison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25,18 NRC 327,332 (1983); Envirocare of Utah. Inc., LBP-92-8, 35 NRC 167,172 (1992).=

The United States Supreme Court has recently said that the " irreducible constitutional minimum" requirements for standing are that the litigant suffer an i

" injury-in-fact" that is " concrete and particularized and.., actual or imminent, not conjectural or hypothetical," that there is a causal connection between the alleged injury and the action complained of, and that the injury will be redressed by a favorable decision. Bennett v. Spear,520 U.S. _,117 S. Ct.1154,1163 (1997). See also Lujan v. Defenders of Wildltfe, 504 U.S. 555 (1991). In addition to this constitutional aspect of standing, there are " prudential" (i.e., judicially imposed) standing requiremerts, one of which is that the litigant's asserted i

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interests must arguably fall within the " zone of interests" of the governing law.

See Bennett,117 S. Ct. at 1167. 5, e also Port of Astoria v. Hodel, 595 F.2d 467,474 (9th Cir,1979).

j The Commission applies constitutional anri prudential aspects of the standing doctrine. See, e.g., Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 l

and 2) CLh93-16,38 NRC 25,32 (1993) (to show an interest in the proceeding sufficient to establish clanding, a petitkwer must show that the proposed action will cause " injury in fact" to its interest and that its interest is arguably within the

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" zone of interests" protected by the statutes governing the proceeding); Public Service Co. ofNew Hampshire (Seabrook Station, Unit 1), CL1-91-14, 34 NRC 261, 266 (1991) (citing Three Mile Island, supra,18 NRC at 332).

I Requirements for standing have been applied to requests for hearing in numerous informal Comnission proceedings held under Subpart L. See, e.g.,

Quivira Mining Co. (Ambrosia Lake Facility, Grants, New Mexico), CLI-98-11, 48 NRC 1 (1998); Sequoyah fuels Corp. (Gore, Oklahoma Site Decontamination and Decommissioning Funding), LBP-94-5,39 NRC 54,66-67 (1994); Babcock I

and Wilcox Co. (Pennsylvania Nuclear Services Operations, Parks Township, Pennsylvania), LBP-94-4,39 NRC 47,49 (1994); Babcock and Wilcox (Apollo, Pennsylvania Fuel Pabrication Facility), LBP-93-4, 37 NRC 72, 80-81 (1993);

UMETCO Minerals Corp, LBP 92-20, 36 NRC 112,115 (1992); Sequoyah fuels Corp., LBP-91-5, ?3 NRC 163,164-65 (1991); Nonhern States Power i

Co. (Pathfinder Atomic Plant), LDP-89-30,30 NRC 311,312-13 (1989).

]

Further, it has been held that in order to establish standing, the Petitioner must establish (a) that he has suffered or will suffer a " distinct and palpable" harm that constitutes injury in fact; (b) that the injury can fairly be traced to the challenged action; and (c) that the injury is likely to be ndressed by a favorable decision in the proceeding.' Dellums v. NRC, 863 F.2d 968, 971 (D.C. Cir.

1988); Vogtle, supra, 38 NRC at 32; Babcock and Wilcox, supra, LBP-93-4,37 NRC at 81; Envirocare, supra, 35 NRC at 173.

A petitioner must have a "real stake" in the outcome of the proceeding I

to establish injury in fact for standing. Houston Lighting and Power Co.

(South Texas Project. Units I and 2). LBP-79-10,9 NRC 439,447-48, ag'd, ALAB-549, 9 NRC 644 (1979). While the petitioner's stake need not be a

" substantial" one, it must be " actual," " direct," or " genuine." Id. at 448. A mere academic interest in the outcome of a proceeding or an interest in the litigation is insufficient to confer standing; the requester must allege some injury that will occur as a result of the action taken. Puget Sound Power and Light Co. (Skagit/Hanford Nuclear Power Project Units 1 and 2), LBP-82-74,16 NRC 981,983 (1982), citing Allied-General Nuclear Services (Barnwell Fuel j

' A presiding of6cer has the authority to approve, deny. or condinon any licenssng action dud cones under his or herjurindaction. See, eg Sequoya4 Fuelt Corp LBP-96-12,43 NRC 290,306 (1996).

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Receiving and Storage Station), ALAB-328,3 NRC 420,422 (1976); id., LBP-i 82-26,15 NRC 742,743 (1982). Similarly, an abstract, hypothetical injury is insufficient to establish standing to intervene. Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1), LBP-91-38, 34 NRC 229, 252 (1991), aff'd in part on other grounds, CLI-92-11, 36 NRC 47 (1992).

In ruling on affidavits with respect to standing, a decisionmaker should " avoid

'the familiar trap of confusing the standinF determination with the assessment of petitioner's case on the merits,'" Sequoyah Fuels Corp., supra, 39 NRC at 68, citing City ofLos Angeles v. NationalHighway Trapic Safety Administration, 912 F.2d 478, 491 9.C. Cir.1990) (citations omitted), aff'd, CLI-94-12, 40 NRC 64 (1994); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-93-21,38 NRC 87,95 n.10 (1993) (standing requires more than general interests in the cultural, historical, hnd economic resources of a geographic area),

citing Sier a Club v. Morton,405 U.S. 727,734-35 (1912).

In cases without obvious offsite implications, a petitioner must allege some specific " injury in fact" resulting from the action taken. Florida Power & Light Co. (St. Lucie Nuclear Power P! ant, Units 1 and 2), CLI-89-21,30 NRC 325, 329-30 (1989). However, petitioners need not set forth all of their concerns until they have been given access to a hearing file. Babcock & Wilcox, 39 NRC at$2.

a.

Areas of Concern Pursuant to 10 C.F.R. 5 2.1205(h), areas of concern identified by a petitioner must be " germane to the subject n.atter of the proceeding."7 The threshold showing at the intervention stage of a Subpart L proceeding is low. An area of concern must be specific enough to allow the presiding officer to ascertain whether or not the matter sought to be litigated is relevant to the subject matter of the proceeding. Sequoyah fuels Corp., LBP-94-39,40 NRC 314,316 (1994);

Informal Hearing Procedures for Materials Licensing Adjudication,54 Fed. Reg. 8269, 8273 (Feb. 28,1989) (inequitable to require intervenor to file written presentations setting forth all of its concerns without access to the hearing file).8 7 A simple reference to a large number of documents is not enough to put the parues on notice as to the basis for intervemion; rather, a petitioner must clearly identify and summanze the facts being relied on the specific portions of the documents cited. see Public sarwce Co. of New Hampshire (seabrook Station. Units I and 2), CU.89-3, 29 NRC 234,24o-41(1989); Tennessee Valley Authonry (Browns krry Nuclear Plant. Units I and 2). LBP.7610.

3 NRC 209,216 (1976) (no incorporation of amusive, document by refe4ence as basis far or a statement of.

t contentions); Commomvealth Edison Co. (Braidwood Nuclear Nwer Station, Units 1 av N LBP.85 20. 21 NRC 1732.1741 (1985) (must identify, summarize, and append specific portions of documemas, rev'd and remanded on other grounds, CLI-8f>8,23 NRC 241 (1986).

8 Pursuant to 10 C.F.R. I 2.1233(c), after a hearing is granted and the hearing Ble is made available in accordance with ser% n 2.1231. written presemations by interveners ausst describe in detail any deAciency or omission in I

the liceo.,flicadon, why any particular portion is de8icient or why the omission is matenat, and what relief is sought.

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Only those concerns that fall within the scope cf the proposed action set forth in the Federal Register notice of opportunity for hearing may be admitted for hearing. See, e.g., Commonwealth Edison Co. (Zion Station, Units 1 and 2),

ALAB-616,12 NRC 419,426 (1980).'

When proffering concerns to be admitted in a proceeding, an intervention petitioner may rely on Staff guidance to allege that an application is deficient,.

ut guidance cannot prescribe requirements. See Louisiana Energy Services, LP. (Claiborne Enrichment Center), LBP-95-41, 34 NRC 332, 338-39, 347, 354 (1991); Curators of the University of Missouri, CLI-95-1, 41 NRC 71, 98, 100 (1995). In addition, because licensing boa *xis and presiding officers have no authority to direct the Staff in the performance of its safety reviews, Carolina Power and Light Co (Shearon Harris Nuclear Power Plant, Units 1,2, 3, and 4), CLI-80-12,11 NRC 514,516 (1980); Rockwell International Corp.

(Rocketdyne Division), ALAB-925,30 NRC 709,72111 (1989), ag'd, CLI-90-5,31 NRC 337 (1990), and the Applicant / Licensee has the burden of proof in this poceeding, the adequacy of the Staff's review is not determinative of whether an action should be approved. Curators of the University ofMissouri, CLI-95-1, supra,41 NRC at 121.

b.

Scope of the Proposed / Authorized Materials Licensing Action

' Before addressing the intervention petition, a brief summary of the proposed project is helpful to place the claims made in context.

Operation of the White Mesa Mill is authorized by an NRC source material license issued under 10 C.F.R. Part 40, which allows IUSA to process natural uranium ore and certain materials other than that for their uranium content, and to possess the waste generated from such milling operations. The NRC originally issued the license for the White Mesa Mill in 1979, ar.d renewed this license in 1985 and again in 1997.5

'In FMtadelpMa Electric Ca (Peach Bouom Aronuc Power Stanon. Units 2 and 3). ALAB.216. 8 AEC 13, 20 21 (1974), it was held that a concention must be rejected where:

(!)it consututes an attack on applicable statutory requirements; (2) it cha!!coges the basic structure of the Commission's regulatory process or is an attack on the regulanons; 0)it nottung more than a generahzation regarding the petitioner's view of what apphcable policies ought to be; (4) It seeks to raise an issue which is not proper for adjudication in the proceedmg or does not apply to the facihty in questioc;or (5)it socks to raise an issue which is not concrete or htigable.

A merits determination is not required at the pleuchng stage. Id. at 20.

mixact form R. Scarano, NRC, to R. Adams. Energy Fuels Nuclear, Inc dated August 7.1979 (transnutung Source Materials License SUA-1358); leirer from R. Smith NRC. to UMETCO Mmerals Corporation. dated September 26.1985; tetter from J. Holonich. NRC. to H. Roberts, IUSA. dated March 14.19W.

143

Wastes generated by operations at the White Mesa Mill are disposed on-site in impoundments that are designed and constructed to minimize seepage of tailing fluids into the subsurface soil, surface water, and groundwater. These impoundment designs incorporate natural and synthetic liners and a leak de-tection system that is monitored daily. Environmental Assessment for Renewal of Source Material License No. SUA-1358, Energy Fuels Nuclear, Inc., White Mesa Uranium Mill, dated February 1997 (Renewal EA), at 15,18 (attached).

The amendment at issue in this proceeding authorizes IUSA to receive and process uranium-bearing material from the Ashland 2 FUSRAP (Formerly Utilized Sites Remedial Action Program) site near Tonawanda, New York.

The Staff reviewed the request using the guidance entitled Final Position and-Guidance on the Use of Uranium Mill Feed Material Other Than Naural Ores, 60 Fed, Reg. 49,296 (Sept. 22,1995)." In addition to determining wnether the processing of alternate feed material complies with Appendix A of 10 C.F.R. Part 40,82 the Staff has determined that the material proposed for processing as ore does not contain hazardous waste and that it is being processed primarily for its source material content. 60 Fed. Reg. 49,296-97." " Feed material exhibiting only a characteristic of hazardous waste (ignitable, corrosive, reactive, toxic) i would not be regulated as hazardous waste and could therefore be approved for recycling aad extraction of source material." Id. at 49,297.

In its

• Technical Evaluation Report: Request to Receive and Process Ash-land 2 FUSRAP Material" (TER). the Staff concluded that (1) the feed material u With the passage of the Uranium Mill Tailings Radiation Control Act of 1978. 42 U.S C. 6 7901 er aq.

(UMTRCA), de AEA was amended to pnnide an additional de iaition of byproduct matenal (lle(2)) to include r

" tailings or wastes produced by the extraction or concentration of uramum or thorium from any are processed pnmardy for its source maienal content" i

12 Appendtx A to Part 40," Criteria Relating to the operation of Uranium Mdis and the Disposition of Taihng of Wastes Produced by the Extraction or Concentration of Source Material from ores Processed Primarily for

- Their Source Material Content," sets forth technical, $nancial, ownership, and long-term site surveillance cnteria relating to the siting operation and decontamination, decommissioning, and reclamation of mills and tailings or waste systems and sites at which such mills and systems are looted.

"The guidance was intended to present an capanded intetpretation of the term " ore" as used in the section lis(2) of the AEA. thus pernatting feed material other than natural are to be used by licensed mills to extract source material, avoiding possible dual reguladon by the Environnental Protection Agency (EPA) and enabling transfer of other material to the Departnrnt of Energy. See "Uramurn Mill Facilities, Request for Public Comments on Revised Guidance on Disposal of Non-Atomic Energy Act of 1954, Section lle.(2) Byproduct Material in Tailings Impoundments and Position und Guidance on the Use of Uranium Mill Red Materials other Than Natural Orca" $7 Rd. Reg. '30,525,20,530-31 (May 13.1992) (Draft Omdance).

The State previously challenged application of om Drah Guidance with respect to an amenfiment authorizmg l

the testing of a process to be used to extract uranium from feed material at the Wlute Mesa Mill. See generally UMETCo Mineral: Corp.,1.BP-93-7,37 NRC 267. 268-69 (1993).1he State claimed (1) the new defmition of

-~ "cre" was too broad. (2) the NRC had unduly rehed on the certification that the material contained no hazardous waste, and (3) the licensee's certtfacauon as to the pnmary purpose for receipt of the material was suspect due to the payment for receipt of the material and the potential unprofitability of processing the uramum. Id at 270 71. The Commission did not object to the UMETCo amendment, proviued that the critena had been net and the amendment was issued. Id at 269. In the instam proceeding. the State does not dispute that the Ashland l.

2 material falls wnh the NRC's defmition of are but again disputes whether matenal is being processed for its source snaterial content and whether it contains hazardous waste. See State Petioon ar 17.

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qualified as " ore"; (2) Department of Energy (DOE) remedial investigations have 1

not identifed any hazardous waste on the Ashland 2 property and confirmatory measures would be taken to guard against the presence of listed hazardous waste prior to shipment to, and upon receipt at, the White Mesa Mill; and (3) the Li-censee had provided an adequate certification that the uranium-bearing material is being processed primarily for recovery of uranium. TER at 4-6."

ne Staff further concluded that processing of the material will not result in (1) a significant change or increase in the types or amounts of effluents that may be released offsite, (2) a significant increase in individual or cumulative occupational exposures, (3) a significant construction impact, or (4) a significant increase in the potential for or consequences from radiological accidents. TER at 6.; The bases for these conclusions include that (a) the ammal yellowcake production limit would not be exceeded, (b) tailings from the processed material would be disposed of onsite in an existing impoundment (Cell 3), (c) disposal of the tailings would increase the total amount of tailings in the cell by only 1% and (d) the Ashland 2 material is similar in composition to mill tailings currently in the Cell 3 impoundment. TER at 6-7.

3.

==

Conclusion:==

The State Has Shown Standing to Intervene

' Application of the standards for intervention to the request for hearing leads me to conclude that the State has shown cognizable interests and standing to request a hearing in this matter.

The State may protect the interests of its citizens or its lands, waters, wildlife, and other natural resources. See Amended State Petition at 5; State Petition at 9-

13. The State has previously been afforded standing to intervene' with respect to a similar amendment at White Mesa. See UMETCO Minerals Corp.,36 NRC at 115, However, such standing should not be automatic in this proceeding as the State, like any other intervener, must demonstrate that, as a result of the amendment, its citizens or natural resources will likely suffer injury that is

" distinct and palpable, particular and concrete, as opposed to being conjectural or hypothetical." International Uranium (USA) Corp. (White Mesa Uranium Mill), CL1-98-6,47 NRC 116,117 (1998), citing Steel Co. v. Citizens for a Better Environment,118 S. Ct.1003,1016 (1998); Wanh v. Seldin, 422 U.S.

490,501,508,509 (1975); Sequoyah fuels Corp. (Gore, Oklahoma Site), CLI-

.94-12, 40 NRC 64, 72 (1994). Harm should be distinct and apart from that H in addition, the Staff noted that the doe had deernuned that the Ashland 2 material art the dc6nition of

- lle(2) material rm!st the AEA and thus the material could be disposed at direcdy la the White Mesa tailings impoundnwnts. The ultimate transfer of the material to the doe la required by section 54 of the AEA. 42 U.S C.

62113(aX2k (bX2x 145

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caused by the initial licensing and continued operation of the facility. See Energy fuels Nuclear, Inc., LBP-94-33,40 NRC 151,153-54 (1994).

)

He need to show injury in fact is particularly important where the action has no obvious potential for offsite impacts, given that the amount of material to be processed and disposed of onsite is only a small fraction of that already authorized at the site. See TER at 6. He State merely alleges, without pointing to specific citizens or describing a mechanism of injury, that the amendment I

will harm citizens who live, work, or travel near the milling facility and tailings impoundment or who depend on groundwater and surface water for drinking, j

irrigation, and watering oflivestock. See State Petition at 12-13; Amended State l

Petition at 5.

He State claims (1) that the Ashland 2 material may contain listed hazardous wastes and that excavation, storage, processing, and disposal of the material could violate applicable law and NRC guidance, Amended Petition at 6-9; and (2) that the material potentially included listed hazardous wastes and " releases from [IUSA's] tailings" could harm its wildlife and natural resources, including ground and surface water, Amended Petition at 9-15. Appended to the Amended Petition is the " Affidavit of Loren Morton," dated August 18,1998 (Morton Affidavit).

The bare assertion that its stay filings demonstrate the likelihood that Ashland 2 material contains listed hazardous waste, Amended Petition at 6-7, without I

textual discussion, does not provide evidentiary support for the State's claim that its citizenry and natural resources would be harmed. Nevertheless, I conclude that the State's challenge to the adequacy of testing for hazardous waste is an adequate basis for standing. The State asserts that inadequate testing could lead to the transport and disposal of hazardous waste, contrary to federal and state requirements. This assertion of an area of concern is sufficient to show i

standing. Under NRC practice, standing is gennd and permits a party to raise i

other concerns that are germane to the proceed The State is concerned (1) that the composiwa of the Ashland 2 material is dissimilar to material already at White Mesa, (2) that there is a potential that 1

material authorized by the amendment may leak from the White Mesa tailings impoundment, and (3) that the amendment may be contrary to hazardous waste laws and NRC guidance on alternate feed materials. See Amended Petition at 15-17. These concerns generally are germane to this proceeding because they raise issues that have a nexus to the subject amendment. These concerns also j

i do not appear to have been decided in prior litigation brought by the State i

of Utah. Although both IUSA and the Staff have attempted to show that the l,

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State's concerns are without merit,28 he merits of these concerns are not within t

my jurisdiction at this point in the proceeding.

The State's assertion that the amendment is contrary to laws governing transportation and disposal of hazardous wastes under the Resource Consen'ation and Re:overy Act program that the U.S. Environmental Protection Agency delegated to the State of Utah, see, e.g., Petition at 6, establishes its standing to challenge whether applicable regulatory requirements or guidance have been met See UMETCO Minerals Corp., 36 NRC at 115 (standing where, among other things, a state asserts jurisdiction over the materials involved); Energy j

Fuels Nuclear, Inc. (White Mesa Uranium Mill), LBP-97-10,45 NRC 429,431 (1997) (injury may be presumed if it can be shown that the action is contrary to law).

I understand that these challenges to the adequacy of the testing of the Ashland 2 material for listed hazardous wastes are limited to hazardous waste already present when this material is brought to the White Mesa site.16 Since i

this proceeding involves an amendment permitting the use of the Ashland 2 materials, the State of Utah will need to raise doubts concerning the safety or environmental effects of utilizing these parti,:ular materials.

II. ORDER For all the foregoing seasons and upon consideration of the entire record in this matter, it is, this first day of September 1998, ORDERED that:

1.

The parties shall inform the Presiding Officer within I week concerning j

the status of settlement negotiations and any agreements that they may reach.

2. ' Unless the Presiding Officer determines that serious settlement negotia-tions require delay, a prehearing conference will be held by telephone at 2:00 p.m. EDT precisely 28 working days after the Hearing File is made available.

The parties are required to notify the Presiding Officer in advance of the tele-phone number to use in reaching them and they are required to attend. At this conference the parties shall present proposed schedules for filings, leading to a fair and efficient resolution of this case pursuant to 10 C.F.R. Subpart L.

3.

Rulings on Areas of Concern, set forth beginning on p.146, are adopted.

4.

The Staff shall meke the Hearing File available pursuant to 10 C.F.R.

I 2.1231(a).

f 15 ! USA's 2nd Response at 4-7; Staff Response at 15-16 a 16; see olio p.143 (nunts not to be decided by Presiding Offtect).

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1n stating dus wbcowr the confornuty of the arnendrnent with Staff guidance is a gernuine concern, the Staff does not concede dur the State has properly characterized the contents of such guidance in its fihngs.

147

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Within 10 days of the service of this Order, appeals may be filed by parties that objwt to the granting of a petition to intervene pursuant to 10 C.F.R. 152.1205(o).

Peter B. Bloch, Presiding Officer ADMINISTRATIVE JUDGE Rockville, Maryland 1

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Cite as 48 NRC 149 (1998)

LBP-98-22 i

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD j

Before Administrative Judges:

J Thomas S. Moore, Chairman Dr. Richard F. Cole Dr. Charles N. Kelber

)

1 in the Matter of Docket No. 50-423-LA-2 (ASLBP No. 98-743-03-LA)

)

NORTHEAST NUCLEAR ENERGY 1

COMPANY (Millstone Nuclear Power Station, Unit 3)

September 2,1998 In this proceeding on the license amendment application of Northeast Nuclear Energy Company to add a new sump pump subsystem at Millstone Unit 3, the Licensing Board concludes that the Petitioner, Citizens Regulatory Commission, lacks standing to intervene.

- RULES OF PRACTICE: STANDING TO INTERVENE In determining whether a petitioner has set forth a sufficient " interest" within the meaning of the Atomic Energy Act and the agency's regulations to intervene as of right in an NRC licensing proceeding, the Commission long ago held that contemporaneous judicial concepts of standing are to be used. Portland General Electric Co. (Pebble Sprmgs Nuclear Plant, Units 1 and 2), CLI-76-27,4 NRC 610, 613-14 (1976).

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RULES OF PRACTICE: STANDING TO INTERVENE To establish standing, the petitioner must assert an actual or threatened, concrete and particularized injury, i.e., an injury in fact, that is fairly traceable to the challenged action and likely to be addressed by a favorable decision. Quivira Mining Co. (Ambrosia Lake Facility, Grants, New Mexico), CLI-98-11,48 NRC 1, 6 (1998); Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia), CLI-95-12,42 NRC 111,115 (1995); Sequoyah fuels Corp.

(Gore, Oklahoma Site), CLI-94-12,40 NRC 64,71-72 (1994).

RULES OF PRACTICE: ' STANDING TO INTERVENE

'Ihe injury also must be to an interest arguably within the zone of interests protected by the statute governing NRC proceedings, the Atomic Energy Act and the National Environmental Policy Act of 1969, Quivira, CLI-98-11,48

- NRC at 6; Perry, CLI-93-21,38 NRC at 92.

RULES OF PRACTICE: STANDING TO INTERVENE I

When a membership organization requests intervention as the representative of its members, the organization must show that an individual member has standing to participate ard has authorized the organization to represent him.

Private fuel Storage, LL.C. (Independent Spent Fuel Storage Installation), CLI-98-13,48 NRC at 26,30-31 W?8).

RULES OF PRACTICE: STANDING TO INTERVENE An organization also must demonstrate that the interests it seeks to protect are germane to the purpose of the organization and neither the claim alleged nor the relief sought necessitate the participation of an individual member in the

- proceeding. Private fuel Storage, CLI-98-13,48 NRC at 30-31.

i RULES OF PRACTICE: STANDING TO INTERVENE la order for a petitioner to avail itself of the presumption found in agency precedents that nearby residence to a nuclear power plant confers standing, the l

license amendment at issue in the proceeding must present an " obvious potential l

fm offsite consequences." Florida Power & Light Co. (St. Lucie Nuclear Power l

Plant, Units 1 and 2), CLI-89-21,30 NRC 325,330 (1989).

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RULES OF PRACTICE: STANDING TO INTERVENE The determination whether a petitioner's asserted injury is fairly traceable to the proposed action "is not dependent on whether the cause of the injury flows directly from the challenged action, but whether the chain of causation is plausible." Sequoyah fuels, CLI-94-12,40 NRC at 75.

MEMORANDUM' AND ORDER (Resolving Standing Issue)

. In response to the Commission's hearing notice, the Peutioner, Citizens Reg-ulatory Commission (" CRC"), filed an intervention petition to oppose the appli-cation of Northeast Nuclear Energy Company (" Applicant"), for an operating license amendment for Millstone Unit 3 to " add a new sump pump subsystem to address groundwater inleakage through the containment basement," 63 Fed. Reg.

19,974 (1998). The Applicant and the NRC Staff challenge CRC's standing to intervene.

The same Petitioner previously filed another intervention petition in response to an earlier hearing notice regarding the Applicant's amendment request for a

. design change to the recirculation spray system ("RSS") at the same facility. In LBP-98-20,48 NRC 87,92-95 (1998), we found CRC had standing to intervene in that license amendment proceeding. CRC's intervention petition in the instant proceeding is essentially identical to its earlier petition even though the current proceeding involves a completely different license amendment. For the reasons set forth below, we conclude that CRC has failed to establish its standing to

- intervene in this proceeding.

L BACKGROUND As explained in the. Applicant's no significant hazard analysis set out in the hearing notice and in the license amendment application, the Millstone

- containment substructure is encased within a waterproof rubber membrane that is connected to sumps located in the building housing the Engineered

. Safety Features ("ESF"). The original plant design relied upon the waterproof membrane to ensure that groundwater inleakage was minimal and would not j

impact safety-related structures and components. Millstene, therefore, had only nonsafety-related sump pumps to pump groundwater from the sumps in the ESF l

building. As nonsafety-related equipment, the sump putnps were not powered from the emergency busses and were not accessible to plant personnel during a I

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design basis loss of coolant accident. Thus, the pumps could not be assumed to be available for mitigating such a design basis accident.

According to the amendment application, a recent restart review revealed that the waterproof membrane has degraded, allowing groundwater inleakage.

The leakage has the potential to flood the ESF building sumps if the existing nonsafety-related sump pumps fail to operate. Further, if the sumps are not pumped out, the groundwater leakage eventually could affect both trains of the RSS. In a filing providing supplemental information to the amendment application, the Applicant indicates mat RSS pump operability could be affected in 138 days from ESF building sump overflow. Because the existing nonsafety-related sump pumps cannot be credited to operate during accident and post-accident conditions, the Applicant has installed two independent, safety-related, air driven sump pumps in the ESF building to eliminate the potential for groundwater inleakage that could affect the RSS pumps. Each air driven motor pump is powered by a portable nonsafety-related air compressor using permanent connections located outside the ESF building so the connections are accessible dunng post-accident conditions. The compressors are housed in designated locations, maintained and periodically tested to ensure their availability, and will be connected subsequent to an accident when sump pump operation is required.

The current license amendment seeks to revise the Millstone Unit 3 licensing basis to add to the existing sump pump system this new sump pump subsystem in the Final Safety Ant. lysis Report.

As in the case of the earlier intervention petition in LBP-98-20,48 NRC at 90, CRC's petition here reiterates that it is an organization of citizens residing in~ southeastern Connecticut whose members are concerned about the safety of Millstone. Along with a supplement to the intervention petition containing its contentions, CRC filed another affidavit of its member Joseph H. Besade, who has authorized CRC to represent him in this proceeding. According to the affidavit, the affiant lives with his family about 2 miles from the Applicant's facility within the area where the Applicant is required to provide protective actions in the event cf an accident with offsite consequences. The affidavit' states 4-t the affiant could be impacted directly by such an accident.

1 In its petition, CRC once again asserts that the instant license amendment involves issues that are critical to the safe operation of Millstone Unit 3 and, therefo e, directly impact the health and safety of its members. It repeats that the RSS at Millstone is a critical safety system and that the failure of the RSS could be catastrophic. CRC also restates its claim that for the past 2 years the Applicant regularly has permitted the use of faulty calculations with respect to systems at Millstone and that the Applicant has used inadequate procedures, methods, and analyses of safety systems. The petition again claims that the Applicant has long been aware of problems associated with the Millstone RSS and that the i

NRC has acknowledged that the facility has been permitted to operate with an 152

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inoperable RSS. CRC's petition recounts as well that the failure of the Applicant and the NRC to ensure complete operability of the Millstone RSS in the past j

has jeopardized the health, safety, and welfare of the organization's members.

The instant CRC petition repeats the account from its earlier petition of the I

March 1998 test by the Applicant of a modification to the RSS that resulted in serious damage to the system's pumps because of the poor design and review of the planned modification. Finally, the petition reprints the same claims from t

its previous petition that over the past 2 years the Applicant has compromised

[

safety at the facility in the interest of schedule driven efforts to obtain restart approval and that the Applicant continues to harass and intimidate as well as

{

retaliate and discriminate against employees raising safety concerns.

CRC draws the same conclusion from the recited circumstances in the instant petition as it did from those in its earlier petition in LBP-98-20,47 NRC at 90, except here CRC substitutes the words " Engineered Safety Features" in place of "RSS." Thus, CRC assens that it has no confidence that the Applicant i

has properly and adequately analyzed the ESF at Millstone and, therefore, approval of the license amendment will adversely impact the health and safety of its members. In support of this claim, the affidavit of the CRC member i

accompanying the CRC intervention filings states that the proposed license amendment involves modifications crucial to the operation of the safety critical RSS as well as modifications that concern the integrity of the containment basemat. The affiant asserts that the appropriateness and sufficiency of these modifications has not been fully determined so that approval of the amendment, without adequate and appropriate analysis, will have the effect of reducing safety margins. He claims, therefore, that the amendment will impact him in the event an accident results from the reduced safety margins.

II. ANALYSIS Pursuant to section 189a of the Atomic Energy Act and section 2.714(a)(1) of the NRC's regulations, the Commission must grant a hearing in a proceeding -

to amend a reactor i.,perating license upon the request of any person "vchose interest may be affected." 42 U.S.C. 6 2239(a)(1)(A); 16 C.F.R. 5 2.714(a)(1).

The Commission's regulations further provide that an intervention petition "shall set forth with particularity the interest of the petitioner in the proceeding

[and] how that interest may.be affected by the results of the proceeding, l

including the reasons why petitioner should be permitted to intervene." 10 C.F.R. 5 2.714(a)(2). In determining whether a petitioner ha set forth a sufficient " interest" within the meaning of the Atomic Energy Act and the agency's regulation to intervene as of right in an NRC licensing proceeding, the Commission long ago held that contemporaneous judicial concepts of standing 153

are to be used. Portland General Electric Co. (Pebble Spring Nuclear Plant, Units 1 and 2), CLI-76-27,4 NRC 610,613-14 (1976).

To establish standing, the petitioner must assert an actual or threatened, concrete and particularized injury, i.e., an injury in fact, that is fairly traceable to the challenged action and likely to be redressed by a fcvorable decision.

Quivira Mining Co. (Ambrosia Lake Facility, Grants, New Mexico), CLI-98-11, 48 NRC 1, 6 (1995); Georgia Institute of Technology (Georgia Tech Researth Reactor, Atlanta, Georgia), CLI-95-12, 42 NRC 111,115 (1995);

Sequoyah Fuels Corp. (Gore, Oklahoma Site), CLI-94-12,40 NRC 64,7172 (1994); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-93-21,38 NRC 87,92 (1993). The injury also must be to an interest arguably within the zone of interests protected by the statutes governing NRC proceedings, the Atomic Energy Act and the National Environmental Policy Act of 1969. Quivira, CLI-98-11, 48 NRC at 6; Perry, CLI-93-21, 38 NRC at 92. This same showing is required to demonstrate standing regardless of whether the petitioner is an individual or a membership organization seeking to intervene in its own right. Georgia Tech, CLI-95-12,42 NRC at 115. But when a membership organization requests intervention as the representative of its members, the organization must show that an individual member has standing to participate and has authorized the organization to represent him. Private Fuel Storage, LLC. (Independent Spent Fuel Storage Installation), CLI-98-13,48 NRC 26,30-31 (1998); Georgia Tech, CLI-95-12,42 NRC at 115. Further, the organization must demonstrate that the interests it seeks to protect are germane to the purpose of the or;anization and neither the claim alleged nor the relief sought necessitate the participation of an individual member in the proceeding.

Private Fuel Storage, CLI-93-13,48 NRC at 30-31.

As in its intervention filing in LBP-98-20, 48 NRC at 92, CRC does not

. seek to intervene in the instant proceeding in its own right but only as the representative of its members. CRC, therefore, has proffered the affidavit of one of its members authorizing it to represent him in this proceeding. In challenging CRC's standing to intervene, the Applicant and the Staff argue that the organization has failed to demonstrate any harm or injury to any CRC member resulting from the license amendment at issue. Further, they argue that CRC may not rely upon the presumption that the residence of one of its members la close proximity to the Millstora facility confers standing upon the organization because the challenged license amendment in this proceeding presents no obvious potential for offsite consequences to the environment and CRC has made no showing to the contrary.

'Ibe Applicant and the Staff are correct that CRC's assertion regarding l

the residence of one of its members in the immediate vicinity of Millstone l

is insufficient, by itself, to confer standing on the organization. In order j

for a petitioner to avail itself of the presumption found in agency precedents l

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that nearby residence to a nuclear power plant confers standing, the license amendment at issue i.n the proceeding must present an " obvious potential for offsite consequences." Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21,30 NRC 325,330 (1989). See Perry, CLI 21,38 NRC at 95. Here, even assuming the instant amendment to add a safety-related sump pump subsystem to the existing sump pump system in the ESF building at Millstone somehow presents the potential for offsite environmental consequences, that potential is anything but obvious.

Because the residence presumption is unavailable to CRC to establish its standing, CRC must " allege some specific ' injury in fact' that will result from the action taken." St. Lucie, CLI-89 21,30 NRC at 330. Even construing CRC's intervention petition in a light most favorable to the petitioner as Commission precedent directs, Georgia Tech, CLI-95-12,42 NRC at 115 CRC has failed

- to demonstrate how the injury it asserts is caused by the license amendment at issue. As in its earlier petition in LBP-98-20,48 NRC at 92, CRC alleges harm in the event of an accident with offsite consequences to the health and safety of its members residing near the Applicant's facility. And, as in the case af its earlier petition, an injury to the health and safety of its members is an adequate allegation of harm to meet the injury in fact element of the test for standing. But the assertion of an injury without also establishing the causal link to the challenged license amendment is insufficient to establish CRC's standing to intervene.

As the Commission has stated, the determination whether a petitioner's asserted injury is fairly traceable to the proposed action "is not dependent on whether the cause of the injury flows directly from the challenged action, but whether the chain of causation is plausible." Sequoyah fuels, CLI-94-12,40 NRC at 75. Here, CRC has asserted no plausible link between its member's health and safety and the challenged amendment. CRC has made no showing of an offsite injury that plausibly results from the installation of new safety-related sump pumps in the ESF building sumps. Rather, the instant CRC petition, because it merely repeats the contents of CRC's earlier petition, is aimed primarily at the Millstone recirculation spray system, the subject of the license amer.:Iment in LBP-90-20,48 NRC at 90. The CRC petition is not focused, as it should be, on the sump pump subsystem that is the subject of the license amendment in this proceeding.

The recitation in CRC's petition of the Applicant's general lack of man-agement and engineering competence and unsatisfactory past history in dealing with the Millstone RSS is insufficient to demonstrate that an accident with off-site consequences is likely to be caused by the installation of a safety-related sump pump subsystem at Millstone. Similarly, the claims in the affidavit of i

Joseph H. Besade that the license amendment involves modifications critical to the operation of the RSS as well as modifications regarding the integrity of the 155 hG'

containment basemat that have not been analyzed adequately does not demon-strate, without a great deal more, how an accident with offsite consequences results from the installation of a new sump pump subsystem designed to prevent any failure of the RSS. At a bare minimum, CRC must show how the installation of the new safety-related sump pump subsystem fails to address or improperly addresses the problem of groundwater inleakage and how that deficiency will lead to offsite consequences. CRC's intervention filings make no sud. showing.

III, CONCLUSION For the foregoing reasons, we find that Petitioner, CRC, lacks sufficient interest within the meaning of section 189a of the Atomic Energy Act, 42 U.S.C. 0 2239(a)(1)(A), and section 2.714(a) of the Commission's regulations, 10 C.F.R. 62.714(a), to intervene in this license amendment proceeding. Ac-cordingly, CRC's intervention petition is denied and the proceeding is termi-nated.

Pursuant to 10 C.F.R. 5 2.714a, the Petitioner, within 10 days of service of this Memorandam and Order, may appeal the Order to the Commission by filing a notice of appeal and accompanying brief.

It is so ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD Thomas S. Moore, Chairman ADMINISTRATIVE JUDGE Dr. Richard F. Cole ADMINISTRATIVE JUDGE Dr, Charles N. Kelber ADMINISTRATIVE JUDGE Rockville, Maryland September 2,1998 156 i

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f-t Cite as 48 NRC 157 (1998)

LBP-98-23 I

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

B. Paul Cotter, Jr., Chairman Dr. Charles N. Kelber Dr. Linda W. Little I

In the Matter of Docket No. 50-443-LA (ASLBP No. 98-746-05-LA)

NORTH ATLANTIC ENERGY SERVICE CORPORATION (Seabrook Station, Unit 1)

September 3,1998 la this Decision, the Licensing Board grants a petition to intervene and request for a hearing by the Seacoast Anti-Pollution League (SAPL) and rejects the petition of New England Coalition on Nuclear Pollution (NECNP) for failure to establish standing. SAPL's Contention I regarding potential risk due to steam generator tube failure is accepted. A decision on SAPL's other three proposed contemions is postponed pending receipt of additional informe. ion from the parties.

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. STANDING: INJURY IN FACT Commission case law establishes that potential injury sufficient to confer

'l standing to people residing near a nuclear facility occurs when a licensing action has obvious potential for offsite consequences.

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2 STANDING: PROOF NECESSARY TO ESTABLISH STANDING A full-blown analysis is not required to demonstrate standing since petitioners are not required to establish the existence of potential injury with certainty "at the threshold [ standing phase]." Moreover, at this threshold standing stage, petitioners

• arguments will be viewed in their favor, and even the potential for minor radiological exposure will be enough to create the requisite injury in fact.

SIGNIFICANT HAZARDS CONSIDERATIONS Licensing boards have no jurisdiction to determine whether license amend-ments should be made immediately effective since Commission rules make clear that these decisions can only be made by Staff.

PLEADING DEFECTS Except perhaps for egregious pleading defects, it is not good policy to dismiss contentions merely for procedural reasons, especially where the challenged activities potentially could affect public health and safety.

SEGMENTATION OF LICENSING ACTIONS Federal agencies arguably should not allow an applicant to present licensing actions separately if such separate actions are part of a common action that has greater adverse consequences when viewed as a whole.

MEMORANDUM AND ORDER

.(Ruling on Petitions to Intervene)

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.L INTRODUCTION The Seacoast Anti-Pollution League (SAPL) and the New England Coalition on Nuclear Pollution (NECNP) have petitioned to intervene in Nath Atlantic Energy Service Corporation's (NAESCO) application to amend its operating i

license for the Seabrook Station, Unit I nuclear reactor. The amendment authorizes NAESCO to change the surveillance requirements for Seabrook's steam generator tube inspections from 18 to 24 months. SAPL and NECNP j

oppose the amendment on the basis that it would cause increased risk of an l

accident that could have adverse offsite consequences to persons within the 10-l mile Seabrook emergency planning zone. Both Petitioners additionally argue I

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that the NRC Staff's determination that the request involves "no significant hazards" is inconsistent with the requirements of 10 C.F.R. 5 50.92(c) (1998).

SAPL and NECNP subsequently submitted four contentions as issues to be litigated in this proceeding.

For the reasons stated herein, SAPL's petition to intervene is granted and NECNP's petition is denied. SAPL's Contention 1 is accepted for litigation in this proceeding. A ruling on Contentions 2,3, and 4 is deferred pending receipt of additionalinformation from the parties.

IL REQUIREMENTS FOR INTERVENTION As a threshold matter, before Petitioners may be granted a hearing and allowed to intervene in NRC proceedings, they must satisfy this agency's requirements for intervention set forth at 10 C.F.R. 5 2.714(a)(1)-(2). 'Ihese inclade the requirements that petitioners have standing to intervene and that their intervention requests are timely. Petitions that are filed out of time will not be entertained absent a determination that the Petitioners meet the balancing test set out in 10 C.F.R. 52.714 (a)(1). Factors included in this test are: (1) good cause, if any, for failure to file on time; (2) the availability of other means whereby the petitioner's interest will be protected; (3) the extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record; (4) the extent to which the petitioner's interest will be represented by existing parties; and (5) the extent to which the petitioner's participation will broaden the issues or delay the proceeding.

Judicial tests to establish standing are applied in NRC proceedings to deter-mine whether a petitioner has a sufficient interest to be entitled to intervene.

These tests require a petitioner to show that: (1) the proposed action will cause

" injury in fact" to the petitioner; (2) the injury is arguably within the zone of interests to be protected by the statutes governing the proceeding; and (3) the asserted injury must be capable of redress in the instant proceeding. Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-1,43 NRC 1,6 (1996); Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2),

CLI-93-16,38 NRC 25 (1993).

Organizations as well as individuals may intervene in NRC proceedings.

An organization may attempt to show standing through one of its individual members, but to do so the organization must provide some " concrete indication" j

l that the member wishes to be represented by the organization and that he or she will be in close enough physical proximity to the action in question to be adversely affccted. See Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-87-7,25 NRC 116,118 (1987); Pacific Gas and

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Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-92-27, 36 NRC 196,199 (1992).

IIL THE SAPL AND NECNP INTERVENTION in determining whether SAPL and NECNP have established their right to intervene, we first analyze whether their petitions were timely filed. SAPL's petition is timely because it was filed on June 5,1998, the last day permitted by the Federal Register to request a hearing for the Seabrook proceeding. 63 Fed. Reg. 25,101,25.113 (May 6,1998). See also June 5,1998 Letter from Robert A. Backus to Chairman Shirley Jackson. NECNP, on the other hand, did not submit a timely request. The June 5,1998 hearing request by SAPL said nothing about NECNP participation. NECNP's intent to intervene first became known on June 18,1998 - 13 days after the intervention period had expired

- when SAPL, joined by NECNP, filed an amended, supplemental petition to intervene. Supplemental and Amended Petition for Institution of Proceeding and for Intervention Pursuant to 10 C.F.R. 2.714 on Behalf of the Seacoast Anti-Pollution League and the New England Coalition on Nuclear Pollution (June 18,1998) (hereinafter referred to as "SAPL and NECNP June 18,1998 Supplemental Petition"). In a July 9,1998 filing, NECNP subsequently argued that its petition is not untimely because it is merelyjoining the earlier petition of SAPL which it asserts it is entitled to do under Rule 20 of the Federal Rules of Civil Procedure (FRCP). NECNP asserts joinder is appropriate in this instance since "NECNP is not raising any new contentions, bringing forth any matters not addressed in the June 5th filing, or using separate counsel." They also argue that the Federal Rules apply here since the NRC has no rules on joinder.

See Cover Letter to a SAPUNECNP July 9,1998 joint document submittal furnishing affidavits and contentions (hereinafter referred to as the "SAPL July 9,1998 Submittal").

Putting aside the question of whether the NRC is obliged to follow the Federal Rules of Civil Procedure,' we do not agree that those rules allow nontimely petitioners to intervene in NRC proceedings. To obtain intervention, NECNP relies on FRCP Rule 20 which allows joinder of plaintiffs with causes of action arising from occurrences with common questions of law or fact.

However, NECNP's reliance is misplaced sin:e the issue here is not whether joinder of parties or causes of action at the NRC is permissible, but whether out-of-time requests by potential parties (whether or not they involve joinder 3 The federal Rules of Civil Procedure may serve as guidance in applymg NRC rules of procedure, but they are not required to be used in NRC proceedings. Cmcirmati Gas and Electric Co. (Williarn H Zimmer Nuclear Power stauon, Umt 1). LBP-82-47,15 NRC 1538.1542 (1982); rublic Scrwce Co. of oklahoma (Black Fox Stanon, Units I and 2). ALAB-573,10 NRC 775. 780 a.18 (1979).

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i requests) should be allowed. Both the NRC rules of practice and the Federal Rules of Civil Procedure make clear that petitioners seeking intervention in a federal agency proceeding must adhere to time requirements set down by "the agency. The NRC requirements in 10 C.F.R. 6 2.714(a)(1) set out above requim late petitioners to demonstrate that their participation is justified or be excluded from the proceeding. To allow otherwise, could result in delayed proceedings and unfair prejudice to other panies. He Federal Rules are in agreement with this requirement since FRCP 24(a) and (b) specifically require that intervention in federal judicial proceedings will be allowed only upon timely application." NECNP has not attempted to furnish information required by 10 C.F.R. ( 2.714(a)(1), and, having failed to do so, its petition to intervene is denied.

Because SAPL's petitio ; was timely filed, we now turn to whether SAPL has standing to intervene. The first test in determining SAPL's standing is whether SAPL has standing in its own right to intervene as an organization in this proceeding or whether it obtains this right through potential injury to one of its members. SAPL has elected to obtain standing through its individual members by fur tishir.g affidavits from four members stating that SAPL is authorized to represent them. Based on these affidavits, the Board is satisfied that SAPL is duly authorized to represent these members. Neither NAESCO nor Staff attempts to contradict this authorization.

The next question regarding SAPL's standing is whether at least one of these four SAPL m.:mbers comes within close enough contact with the Seabrook reactor to be potentially adversely affected by the contested license amendment.

. Reir affidavits establish that one resides less than 2 miles from the facility, one resides less than 3 miles, and two reside less than 10 miles. In additic i, one of j

them, Kristie Conrad, has a daughter who attends school less than 2 miles from the facility. See SAPL July 9,1998 Submittal. SAPL contends that the risk of en I

accident at Seabrook with offsite consequences affecting these members could be increased should the amendment be allowed because a 24-month instead of an 18-month fuel cycle will result in: (1) increased risk of steam generator j

tube failure (by failing to detect and remedy early failure) that will increase the risk that radiation will bypass the containment and enter the atmosphe e; (2) increased stress to the fuel cladding, the first of three primary barriers against radioactive release at Seabrook due to required use of more highly enriched fuel (with higher fuel burnap); (3) increased use of online maintenance (a procedure requiring the intentional disablement of systems, structures, and components important to safety) that will increase the danger that an accident will not be mitigated as planned; and (4) decreased opportunity for timely inspection of valves or other control components in the high-radiation area that will increase potential for offsite consequences if a transient is initiated. See SAPL and NECNP June 18,1998 Supplemental and Amended Petition.

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'Ihe NRC Staff takes the position that SAPL's steam generator tubes alle-gation, item 1, above, represents sufficient potential injury to establish SAPL's standing because steam generator tube inspections, if not performed adequately, j

can lead to release of radioactivity with " obvious potential for offsite con-sequences." NRC Staff's Response to July 9,1998 Submittal by Seacoast Anti-Pollution League and New England Coalition on Nuclear Pollution (July i

27,1998) (hereinafter referred to as Staff's July 27, 1998 Response) at 6-7.

NAESCO, on the other hand, disagrees that SAPL has established standing, arguing that SAPL has not identified what safety margins are impacted by the amendment, how those margins will be reduced, or how any such reductions i

could lead to offsite releases of radioactivity. NAESCO further argues that SAPL can only derive standing from the steam generator issue and not the three other issues i: has listed (i.e., fuel cladding, online maintenance, and surveil-lance) since the steam generator tube issue is the only matter relating to the license amendment giving rise to SAPL's petition to intervene. North Atlantic Energy Service Corporations's Supplemental Answer RE: Standing Issues (July l

27,1998) (hereinafter referred to as NAESCO's July 27, 1998 Supplemental Answer) at 5-7.

We agree with Staff that SAPL's allegation of potential injury stemming from reduced generator tube surveillance establishes SAPL's standing in this case. Commission case law establishes that potential injury sufficient to confer standing to people residing near a nuclear facility occurs when a licensing action has obvious potential for offsite consequences. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-93-21,38 NRC 87, 95 (1993); Sequoyah Fuels Corp. (Gore, Oklahoma Site), CLI-94-12,40 NRC 64,15 n.22 (1994); Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia), CLI-95-12,42 NRC 111,116 (1995). A full-blown analysis is not required to demonstrate standing since Petitioners are not required to establish the existence of potential inju:y with certainty "at the threshold

[ standing] phase" (Sequoyah fuels, 40 NRC at 74; Perry, 38 NRC at 95-96).

Moreover, at the threshold standing stage of a proceeding, Petitioners' arguments will be viewed in their favor. Georgia Tech Research Reactor, 42 NRC at 115.2 Relative to a threshold standing determination, even minor radiological exposures resulting from a proposed activity can be enough to create the requisite injury in fact. General Public Utilities Nuclear Corp. (Oyster Creek Nuclear Generating Station), LBP-96-23,44 NRC 143,158 (1996).

2 1n this regard. in Kelly v. Selm. 42 F3d 1501.15e8 (1995)(a ca:,e clmlienging the NRC's dry cask storage segulanons for the Palisades facihty), the Sixth Circuit Court of Appeals went so far as to state that for purposes of desertnining whether peuuoners have standing,it will not only construe the complaint in favor of the complasning party. but it also will " accept as true all material allegauons of the complaint

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To establish potential offsite consequences caused by decreased steam gener-ator tube inspection, SAPL asserts that generator tubes are much more likely to fail and go undetected if the interval between inspections is increased by 25%

as will occur under the new license amendment. These failed tubes, according to SAPL, will allow radioactive materials to bypass the containment and escape into the environment from the tubes. SAPL and NECNP June 18,1998 Supple-mental Petition and SAPL's July 8,1998 Contention Submittal at 1. Although these SAPL claims are subject to challenge at a hearing, the Board fmds that the scenario presented by SAPL, at this threshold stage of the proceeding, has obvious potential for offsite consequences. Moreover, the potential for SAPL's scenario is enhanced by the fact that the NRC's Standard Review Plan con-templates the danger of radiation exposure from failed generator tubes. See Standard Review Plan, NUREG-0800 (Rev. 2,1981). Compare the holdings in the Oyster Creek and two Millstone spent fuel cases where boards found in each case a clear potential for offsite consequences. Oyster Creek, 44 NRC at 157-58; Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 2), LBP-92-28, 36 NRC 20E 212-13 (1992) and Northeast Nuclear Energy Co.

(Millstone Nuclear Power Station, Unit 1), LBP-96-1,43 NRC 19,26 (1996).

l The potential here for offsite consequences appears significant!y greater.

Under these circumstances, we conclude that sufficient potential injury in fact to SAPL members has been amply established in this case to establish SAPL standing. It is also clear that the potential injury alleged by SAPL is within the zone of interests protected by the Atomic Energy Act. Thus, SAPL should be allowed intervention subject to the submission of one acceptable contention for hugation.

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i IV. SAPL'S CONTENTIONS To be admitted as a party in this proceeding, SAPL must not only establish standing, but also must proffer at least one admissible contention. The standards for admissible contentions are set out in 10 C.F.R. 9 2.174(b)(2) and (d)(2)

(1998). These regulations require that SAPL's contentions include a specific statement of the issue of law or fact to be raised or controverted, a brief explanation of the bases for the contention, and a concise statement of the alleged facts or expert opinion that support the contention, together with references to those specific sources and documents on which the petitioner intends to rely to prove the contention. See Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CL1-96-7, 43 NRC 235, 248-49 (1996). In addition, section 2.714(b)(2)(iii) requires that SAPL present sufficient information to show that a genuine dispute exists on a material issue of law or fact. A contention that fails to meet these standards must be dismissed, as must a contention that, even 163

i if proven, would be of no consequence because it would not entitle a petitioner

- to any relief.10 C.F.R. 5 2.714(d)(2).

SAPL's four contentions for litigation in this proceeding set out in SAPL's July 9,1998 Contention Submittal at 1-17, are as follows:

Contention I he staff erred in its May 6 finding of no significant hazards consideration in regard to the request of NAESCO to change the Technical Specifications for Seabrook Station to acconunodate f"el cycles of up to 24 months with respect to the allowed tirne between steam generator in service inspections.

Contrary to the staff's conclusion, the proposed changes may cause a significant increase in the probability or consequences of an accident previously evaluated, and may involve a significant reduction in the margin of safety, contrary to the requirements of 10 CFR 50.92.

i Contention 2 The staff erred in its May 6 finding of no significant hazards consideration In regard to the request to change the Technical Specification for Seabrook Station to accommodate a 24 month fuel cycle because the staff failed to analyze the impact of a 25% longer operational run on fuel rod failure, and because the result of a longer run will be to increase fuel rod failure, thereby breaching the first hne of defense against offsite radioactive releases. Therefere, the fmding is contrary to the requirements of 10 Cf.R.

50.92 in that analyzed consequences of an increased risk of fuel failure would involve a significant increase in the probabitity or consequences of a previously analyzed accident and involves a significant reduction in the uargin of safety.

i Contention 3 The staff erred in its May 6 finding of no significant hazards consideration i

in regard to the request of NAESCO request (sic) to change the Technical Specifications for Seabrook Station to accommodate a 24 month fuel cycle because the staff failed to analyze the effect ofincreasing the operational run by 25% with a resulting requuement for an increased reliance on on line maintenance, which may cause an increase in the probability or consequences of an accident previously analyzed, or may cause an accident j

net previously analyzed, and which may cause a significant reduction in j

the margin of safety, contrary to the requirements of 50.92.

Contention 4 The staff erred in its May 6 finding of no sigmficant hazards consideration in regard to the request of NAESCO to change the Technical Spectfications for Seabrook Station to accommodate fuel cycles up to 24 months because the decreased opportumty to conduct surveillance within the areas of the plant inaccessible during normal operations may create an increased hazard as the result of the failure to timely detect abnormal or improper conditio.ls

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(such as misaligned or mispositioned valves), which may result in an increased probability of a previously analyzed accident and which may result in a significant reduction in the margin of safety, contrary to the requirements of 10 Cf.R. 50.92.

Staff and NAESCO oppose the admission of all four contentions. Both assert that the contentions are invalid because they contest the Staff's proposed no significant hazards consideration determination. Staff's August 10,1998 Answer 164

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to Contentions at 4 and NAESCO's August 10,1998 Response to Contentions at 10-11. Staff and NAESCO also oppose Contentions 2,3, and 4 (addressing fuel, on-line maintenance practices, and other surveillance) because the contested i

license amendment only pertains to steam generator surveillance schedules.

Staff's August 10,1998 Answer to Contentions at 4-6 and NAESCO's August 10,1998 Response to Contenticns at 11-14. NAESCO also claims Contention I lacks adequate basis. Id. at 7-9.

A.

NAESCO's and Staff's Immediate Effectiveness Argument Staff and NAESCO take the position that because Contentions 1-4 are a challenge to Staff's no significant hazards consideration, these contentions must be rejected since immediate effectiveness is not a matter that is properly before this Board and is not a permissible issue for litigation in any hearing that might be held on the proposed license amendment. SAPL later contended in response to these arguments that it is not seeking a hearing prior to any issuance or effectiveness of the license amendment, but only a hearing on the underlying safety concerns presented by the four contentions. SAP 11NECNP August 1,

)

1998 Reply to Staff Answer to Contentions at 3 and SAP 11NECNP August 19, 1998 Reply to NAESCO Response to Proposed Contentions at 1-2.

In considering Staff and NAESCO's no significant hazard arguments, we acknowledge that this Board has no jurisdiction to determine whether the Seabrook license amendment should be made immediately effective. The

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Commission's rules make clear that immediate effectiveness decisions can only be made at the discretion of Staff, following Staff's determination that there are no significant hazards considerations involved. See 10 C.F.R. 5 50.58(b)(6) and Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),

LBP-90-6,31 NRC 85,91 (1990). Nevertheless, we do not agree that SAPL's contentions should be totally rejected because SAPL may have mistakenly believed it could have a hearing before this Board regarding the immediate effectiveness process. SAPL arguably may have been misled by the May 6,1998 Federal Register Notice for this proceeding which offers both an opportunity for a hearing and an opportunity to comment on the Staff's immediate effectiveness

. determination. The language in the immediate effectiveness portion of the notice includes a statement that:

The final determination lon immediate effectiveness) will consider all public and State comments received befom action is taken. Should the Commission take this acuon it will publish in the federalRegister a notice of issuance and provide for opponunity for a hcanng after issuance.

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t 63 Fed. Reg. at 25.101. Although subject to different interpretations, this statement could be understood to mean that a hearing will be offered to contest immediate effectiveness. That interpretation is reirforced in the next -

paragraph where the x>tice offers a hearing opportunity for those petitioning by June 15,1998. The fact that the hearing opportunity immediately follows the immediate effectiveness section encourages the assumption that this opportunity refers to the immediate effectiveness of the license amendment. Significantly, no clarifying statement is found in either paragraph that hearings to contest immediate effectiveness aie not permissible.

However, even if SAPL was not misled by the language in the Federal Register Notice, we do not find that this technical defect in its pleading should result in SAPL*s expulsion from this proceeding. It is clear that SAPL opposes the immediate effectiveness of the license amendment, but it is also obvious that SAPL wants a hearing to oppose the amendment regardless of the immediate effectiveness determination. See SAPI1NECNP Reply to NAESCO Response to Proposed Contentions (August 18,1998) at 1-2. Except perhaps for egregious pleading defects, it is not good policy to dismiss contentions merely for procedural reasons, especially where, as here, the challenged activities potentially could affect public health and safety. As noted in Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), ALAB-549,9 NRC 644, 649 (1979):

It is neither Congressional nor Commission policy to exclude parties because the niceties of pleading were imperfectly observed. Sounder practice is to decide issues on their merits, not to avoid them on technicalities.

See also Sequoyah fuels Corp. (Gore, Oklahoma Site Decontamination and Decommissioning Funding), LBP-94-8,39 NRC 116,119-29 (1994).

For all these reasons, we conclude that SAPL's pleading defect with respect to immediate effectiveness is not fatal to its intervention. Accordingly, SAPL's opposition to the immediate effectiveness ofissuing the license amendment shall be deleted from its petition requesting a hearing in this proceeding.

B.

Analysis of Contention 1 SAPL's claim in this contention is that changing the surveillance requirements i

for Seabrook's steam generator tube inspections from 18 to 24 months will cause

. increased risk of an accident. SAPL offers four bases for Contention 1:

1.

That steam generator tubes develop cracks and other defects during service, and, if the tube becomes thin enough, they are likely to rupture. This event provides a pathway for radioactive material in the primary coolant to escape into the environment, bypassing containment.

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According to SAPL, a wall loss of 40% or more defines a defective tube.

hbes are inspected at regular intervals, and tubes that have defects that l

might lead to a 75% reduction in tube wall during the next interval are

~ ither taken out of service (plugged) or repaired.

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That increasing the interval between mspections increases the likelihood j

that a defect will grow deep enough to lead tia steam generator tube rupture (SG'IR). It makes two major arguments to support this claim.

L lts first argument is that the number of defects expected in the Seabrook j

L steam generator tubes is expected to grow with increasing length of l

service of the steam generator. It bases this theory on NRC Inspection

' Report 97-03 which states that thirty-six tubes had been plugged at j

the date of that report. The report also states that "[m]ost steam t

generator degradation problems have been found only after longer [than i

_. 7 years] periods of operation." This leads SAPL to hypothesize that the

. population of defects will increase in the years to come.

Its second argument is that SGTR events show no statistical trend

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toward lesser frequency over past years. It bases this argument on a i

conclusion drawn in INEUEXT-98-00401, " Rates of Initiating Events E

at U.S. Commercial Nuclear Power Plants - 1987 through 1995" (Draft dated April 1998), that "further trend analysis of SGTR frequency using the 1985 through 1997 operating experience showed no statistical evidence of a de -9 trend in the frequency of SGTR."

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(a) Dat a Licensee letter dated Tune 18,1997 entitled " Steam Generator j

hbes Plur,ged During the Fifth In-Service Inspection," discloses that, of the thateen tubes plugged, one had a wall loss indication of 45%, one of 55%, and one of 56%;

(b) that the Seabrook Individual Plant Examination (IPE) uses noncon-i servative data consisting of generic SGTR data; i

(c) that NAESCO has "apparently redefined ' defective tube'...";

'l (d) that an NRC Differing Professional Opinion states that the use of j

eddy current voltage signals to predict failure lacks sufficient field data i

to be considered valid; and

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.4.. That the Staff's proposal to offset the decreased frequency of mspec-J tion by tightening the allowed leakage rate from 500 gallons per day to 100 gallons per day lacks an explicit rationale it further contends that the detection of leakage of primary coolant into secondary coolant is a.

standard form of on-line protection against major tube ruptures and that there is a lack of showing by Staff that the suggested measure coun-terbalances the increase in risk from lengthening the interval between inspections.

We find these bases adequate to satisfy the contention requirements for this proceeding. SAPL, of course, is not obliged to prove its entine case at this time.

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In its opposition to Contention 1, NAESCO argues that "there is simply nothing in the proposed amendment tnat would redefine the present criteria for steam generator tube repairs." NAESCO also argues that there is no merit to SAPL's argument that increased risk of tube rupture will result from increased intervals of service since, regardless of the length of the next planned cycle, tubes exhibiting less than 40% wall loss at a surveillance (and that are not plugged) will have been demonstrated to be sufficient to meet the 75% through-wall structurallimit for the duration of the next operating cycle. Although there may be merit to these NAESCO arguments, they cannot, on their face, defeat SAPL's contention because a petitioner is not required to try the factital merits of its case at this preliminary stage of the proceeding. Moreover, NAESCO arguments, among other things, involve factual disputes regarding Inspection Report 97-03; IN"L/ EXT-98-00401 (draft dated April 1998); and a Licensee letter dated June d,1997, titled " Steam Generator Tubes Plugged During Fifth In-Service Inspection" which should not be resolved at this preliminary pleading stage.

C.

Analysis of Contentions 2,3, and 4 These three contentions concern SAPL's allegation that there will be in-creased risk of offsite radiation exposure caused by fuel cladding rupture (Con-tention 2), increased online maintenance (Contention 3), and decreased inspec-tion in high radiation areas (Contention 4) if the Seabrook fuel cycle is changed from 18 to 24 months. Both NAESCO and Staff oppose all three on the ba-sis that they do not pertain to the license amendment application for generator tube inspection that is the subject matter of this proceeding. Both also con-tend that they are all inadmissible since NRC case law requires that proposed contentions must fall within the scope of the issues set forth in the notice of hearing. NAESCO's Augu:t 10,1998 Response to Contentions at 5-6,11-12, and Staff's August 10,1998 Answer to Contentions at 4-6.

SAPL responds that Contention 2, 3, and 4 should be admitted since, like the steam generator tube contention, they deal with changing Seabrook's modes of operation to accommodate increasing the fuel cycle from 18 to 24 months.

SAPL contends that Itjo permit the ticensee to do this in small incremental requests, without ever affordmg the NRC an opportunity to evaluate the overall change from 18 month to 24 month fueling would be a classic example of segmentation, and would impair the NRC's ability (and to avoid responsibility) to provide necessary safety analysis and review of a major operational

change, 168

SAPL claims that this type of " segmentation" of licensing actions to accom-modate a 24-month fuel cycle is contrary to a series of NEPA cases holding that a federal agency may not avoid an overall review of a project by dealing with the project in " segments." See Memorandum of Law Submitted by SAPL and NECNP in Support of Jointly Filed Contentions 2 Through 4 (July 9,1998) and SAPUNECNP Reply to NAESCO Response to Proposed Contentions (August 19, 1998).

SAPL's " segmentation" argument may have merit. Federal agencies should not allow an applicant to present licensing actions separately if such separate actions are part of a common action that has greater adverse consequences when viewed as a whole. Federal courts have recognized this principle in a number of cases involving the National Environmental Policy Act (NEPA). See City of Rochester v. United States Postal Service, 541 F.2d 967, 972 (2d Cir.1976);

Fritioson v. Alexander, 772 F.2d 122512421243 (5th Cir.1985). Although this proceeding involves safety issues under the Atomic Energy Act (AEA) rather than environmental issues under NEPA, arguably the principle of" segmentation" should be equally applicable to AEA safety-related cases since protection of public health and safety can be considered as at least as important as protection of the environment.

However, before we decide this question, we request that the parties brief this issue in greater detail, and specifically address the public policy questions:

(1) why the " segmentation" theory should not equally apply to the AEA; and (2) if the answer to question (1) is "yes," why the notice of hearing for this proceeding should not be interpreted as including all safety-significant activities that are affected by the increased duration of the fuel cycle. The parties also should address SAPL*s recent offer to file a NEPA contention that " Staff not only failed to perform the necessary safety analysis under the AEA; they also offered no environmental assessment under NEPA." See SAPL/NECNP August 18,1998 Reply to Staff Answer to Contentions at 5.

In addition, the parties should: (a) identify whether the changes required by the increased fuel cycle for Contentions 2, 3, and 4 will require license amendments for which hearing opportunities will be offered; and (b) comment on whether this licensing Board has jurisdiction to consider regulatory issues that are not subject to hearings. This response should include answers to the following questions:

1.

With respect to Conten' ions 2 through 4:

Why is NAESCG asking for a permanent change to a 24-month a.

cycle if it is going to return to an 18-month cycle?

b.

If NAESCO intends to return to an 18-month cycle from a 24-month fuel cycle, when will this occur and will further license amendments be needed to authorize that action?

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2.

With respect to Contention 2:

a.

Will a license amendment be required for Seabrook fuel rods if Seabrook goes to a 24-month fuel cycle? If so, when will this occur?

3.

With respect to Contention 3:

Will changes to on-line maintenance require license amendments?

a.

If so, when will this occur?

b.

What are the more significant examples of increased unavailability of redundant or diverse safety systems removed from service for on-line maintenanec7 How does this unavailability differ between an 18-month and a 24-month fuel cycle?

4.

With respect to Contention 4:

a. ' Does decreasing the opportunity for surveillance described in Contention 4 require license amendments?

b.

Is Con'ention 4 covered by license amendment matters discussed in Mr. Robert Backus' letter of August 18,1998 or will there also be additional license amendments required for surveillance?'

After receiving these responses, the Board may schedule a prehearing con-ference to discuss these issues if it deems one is necessary.

V.

CONCLUSION For the reasons set forth above, we find that SAPL has established standing to intervene and has set forth at least one litigable contention so as to be entitled to be admitted as a party in this proceeding. NECNP's petition to intervene is

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rejected for failure to establish standing.

SAPL's Contention I regarding potential risk due to steam generator tube i

failure is accepted. A decision on SAPL proposed Contentions 2, 3, and 4 is postponed pending receipt of additional information from the parties. This information should be received by the Board on or before October 7,1998.

i 3 Mr. Backus also has stated in this letter that SAPL and NECNP request that this letter be considered a new request for a heanng as to the changes specified in t5e aarndment request in the August 12,1998 federal Register Nonce. Pursuant to this request. the Board is forwardmg a copy of this letter to the office of the secretary for i

appropnate dispoution 170 i

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VI. DISCOVERY AND SCllEDULING Discovery with respect to SAPL's Contention i shall begin immediately. The parties shall commence discussions concerning appropriate trial schedules and file a joint report with a suggested scheduling 15 days following the Board's

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decision on SAPL's Contentions 2,3, and 4.

THE ATOMIC SAFETY AND LICENSING BOARD B. Paul Cotter, Jr., Chairman ADMINISTRATIVE JUDGE i

Dr. Charles N. Kelber ADMINISTRATIVE JUDGE A

Dr. Linda W. Little ADMINISTRATIVE JUDGE Rockville, Maryland September 3,1998

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i Directors' Decisions Under 10 CFR 2.206 i

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Cite as 48 NRC 173 (1998)

DD-96-9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS

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i Carl J. Paperiello, Director I

in the Matter of Docket No. 40-8989 (License No. SUA-1559)

ENVIROCARE OF UTAH, INC.

(Salt 1. eke City, Utah)

September 14,1998 The Director of the Office of Nuclear Material Safety and Safeguards denies a petition dated December 12,1997, filed with the Nuclear Regulatory Commission (NRC) by Dr. Thomas B. Cochran on behalf of the National Resources Defense Courcil (NRDC), and supplemented on May 6,1998 (petition). 'Ihe NRDC requested that the NRC immediately suspend all licenses held by Envirocare of Utah, Inc. (Envirocare). Specifically, NRDC requested that the NRC (1) conduct an immediate investigation of issues raised in the petition and immediately suspend Envirocare's NRC license; (2) conduct an investigation of possible l

. criminal violations of section 223 of the Atomic Energy Act of 1954, as amended (the Act); (3) immediately suspend Envirocare's license with the State of Utah, under section 274j(2) of the Act; (4) investigate the adequac/ of the State of Utah agreement state program to protect whistleblowers; (5) contact each current and former Envirocare employee personally on a confidential basis, to advise them of their rights to inform the NRC of unsafe practices and violations, to inform them of the protections available to them, and to ask them if they have any information that they wish to disclose, on a confidential basis or otherwise; and (6) order a special independent review of Envirocare's relationships with its employees, along the lines of the review ordered by the NRC for the Millstone I

site.

l On May 6,1998, NRDC supplemented the petition and requested that the j

NRC (1) suspend all licenses Envirocare has with the NRC; (2) request the State of Utah to suspend all licenses that Envirocare holds with the State of Utah under the purview of the Utah Division of Radiation Control; (3) the license suspensions indicated in (1) and (2) above are to be enforced until such l

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time as NRC and 'the State of Utah have completed the actions under (4) and (5) below; (4) undertake a program, in cooperation with the State of Utah and i

the Environmental Protection Agency (EPA) to contact each and evety current and past employee on an individual basis and obtain a sworn statement from -

each, indicating (i) whether they were intimidated by the unlawful Envi.ucare -

Employee Agreement, (ii) whether they withheld or altered any health, safety, or environmental information in any Envirocare report, or in any written or oral communication with any official of the State of Utah, EPA or NRC, and (iii) whether they failed to report any health,' safety, or environmental information to appropriate authorities, and.in cases where there was information withheld, altered, or ne reported, identify fully what the information said; and-(5) investigate the extent to which such information, revealed under (4) above, has affected existing and past licenses held by Envirocare issued by NRC or the State of Utah, under the purview of the Utah Division of Radiation Control.

After an evaluation of the petition, the Director concludes that the Petitioner did not raise any issues that would warrant granting the requested actions.

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

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INTRODUCTION On December 12,1997, and May 6,1998, Dr. "Ihomas B. Cochran, Director of Nuclear Programs, Natural Resources Defense Council (NRDC), filed peti-tions with the U.S. Nuclear Regulatory Conunission (NRC) pursuant to Title 10 of the Code of Federal Regulations, section 2.206 (10 C.F.R. 5 2.206). In these petitions, NRDC requested that NRC take action to immediately suspend all licenses held by Envirocare of Utah, Inc. (Envirocare). Specifically, NRDC requested that NRC take the following actions:

Petition of December 12,1997 (t) Conduct an inunediate investigation of issues raised in the petition and inunediately suspend Envirocare's NRC license.

(2) Conduct an investigation of possible criminal violations of section 223 of the Atomic Energy Act of 1954. as amended (the Act).

(3) Immediately suspend Envirocarc's license with the State of Utah. under section 274)(2) of the Act.

(4) Invesugate the adequacy of the State of Utah agreement state program to protect whistleblowers.

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(5) Contact each cunent and former Envirocare employee personally, on a confidenti.al basis, to advise them of their rights to inferm the NRC of unsafe practices and violations, to inform tlem of the protections available to them, and to ask them if they have any information which they wish to disclose, on a confidential basis or otherwise.

(6) Order a special independent review of Envirocare's relationships with its employees, along the lines of the review ordered by the NRC for the Millstone site.

i NRDC asserts, as basis for the December 12,1997 request, that Envirocare's employee-related practices and contractual provisions constitute a violation of 42 U.S.C. 5 5851 (section 211 (" Employee Protection") of the Energy Reorgani-zation Act of 1974 (ERA)) and the NRC's whistleblower protection regulations under Parts 19 and 40 of Title 10 of the Code of Federal Regulations (i.e.,10 C.F.R. 5019.16,19.20, and 40.7). Specifically, NRDC asserts that current and former Envirocare employees, who have provided to governmental authorities information adverse to Envirocare's interests, fear for their lives and the lives of their families should their identities become known to Envirocare. NRDC also i

states that certain provisions in Envirocare's standard employment contract pre-vent its employees from disclosing to the NRC information concermng unsafe

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practices and violations under the NRC license and threaten them with severe financial penalties in the event of a disclosure. By letter dated January 16,1998, I acknowledged receipt of NRDC's December 12,1997 petition.

1 Petition of May 6,1998

- 1 (1) Suspend alllicenses Envirocare has with the NRC.

l (2) Request the State of Utah to suspend alllicenses that Envirocare holds with the State of Utah under the purview of the Utah Division of Radiation Control.

(3) The license suspensions indicated in (1) and (2) above are to be enferced until such time as NRC and the State of Utah have completed the actions under (4) and (5) below.

(4) Undertake a program,in cooperation with the State of Utat and the Environmental Protection Agency (EPA), to contac.t e,xh and every current and past employee on an individual basis and obtain a sworn statement from each, indicating: (i) whether they were intimidated by the unlawful Envirocare Employee Agreement; (ii) whether they withheld or altered any health, safety, or environmental information in any Envirocare report, or in any written or oral communication with any official of the State of Utah, EPA or NRC; and, (iife whether they failed to report any health, safery, or environmental information to appropriate authorities; and in cases where there was information withheld, altered, or not reported, identify fully what the information I

was.

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(5) Investigate the extent to which such informanon, revealed unde * (4) above, has affected existing and past licenses held by Envirocare issued by NRC or the State of Utah, under the purview of the Utah Division of Radiation Control.

i in support of NRDC's request in this petition, NRDC asserted that NRC now has before it new informerion that it did not have at the time that NRDC's earlier petition, dated January 8 1997, requesting enforcement action against Envirocare that was denied by NRC on February 5,1997. NRDC's petition dated January 8,1997, was addressed in DD-97-2,45 NRC 63 (1997). NRDC stated that this new informr. son consists of NRC's letter of December 8,1997, to Charles A. Judd, indkating that Envirocare's employee protection policies were in violation of NRC's whistleblower protection regulations.

NRC's lette; dated June 9,1998, acknowledged receipt of the May 6,1998 petition and indicated that, because of the similarity of requested actions with those.of the December 12, 1997 petition, the May 6,1998 petition would be considered as a supplement to the December 12,1997 petition.

As was indicated in the NRC's acknowledgment letters dated January 16s 1998, and June 9,1998, NRDC's requests for action concerning Envirocare's license with the State of Utah and the Utah Agreement State Programs concern matters that do not fall within the scope of matters ordinarily considered under j

section 2.206. As indicated in the June 9,1998 acknowledgmem letter, these matters were addressed by Richard L. Bangart Director of the Office of State Programs, in his Ibbruary 18,1998 letter to NRDC. Accordingly, this Director's l

Decision will only address the NRDC requests for action that relate to the license to receive, store, and dispose of cenain byproduct material issued to Envirocare i

by NRC, pursuant to Section Ile(2) of the Act.' Allegations of possible criminal violations of section 223 of the Act have been referred to the Federal Bureau of Investigation (FBI). Although matters of federal criminal violation clearly i

fall under the jurisdiction of the FBI, the NRC Staff has, in the course of its investigations into NRC-related matters, reviewed and examined documents bearing on these matters. NRC's evaluation of this information, which has been i

acquired either directly or examined under condition of confidentiality, will be discussed briefly, to the extent possible, in Section III of this Decision.

I in its petition of May 6,1998 NRDC sequests the NRC to suspend all licenses Envirocare has with NRC.

The only license that has been issued to Envirocare by the NE.C is the NRC license to receive, store, and dispose of uranium and thorium byproduct matenal, issued Novmber 19,1993, pursuam to section lle(2) of the Act j

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i II. BACKGROUND Envirocare operates a radioactive waste disposal facility in Clive Utah, j

128 kilometers (80 miles) west of S11t Lake City in western Tooele County.

Radioactive wastes are disposed of by modified shallow land bsial techniques.

Envirocare submitted its license application to the NRC in November 1989 for commercial disposal of byproduct material, as defined in section 11e(2) of the Act (11e(2) byproduct material). On November 19,1993, NBC completed its licensing review and issued Envirocare an NRC license to receive, store, and dispose of uranium and thorium byproduct material. Emirocare began receiving 11e(2) byproduct material in September 1994 and has been in continuous operation since.

To ensure that the facility is operated safely and in compliance with NRC requirements, the Staff conducts routine, announced inspections of the site.

Areas examined during the inspections include management organization and controls, operations review, radiation protection, radioactive weste management, transportation, construction work, groundwater activities, and environmental monitoring. The NRC has conducted ten inspections of the Envirocare facilities i

between April 14, 1994, and June 25, 1998, in conjunction with the 11e(2) byproduct material license and has cited the licensee for ten violations. None of the violations are related to concerns raised in the NRDC petitions. All l

violations were categorized in accordance with the guidance in NUREG-1600, i

" General Statement of Policy and Procedures for NRC Enforcement Actions" (Enforcement Policy) at a Severity Level IV.2 The most recent inspection, conducted June 22-25,1998, resulted in the issuance of two citations. The first violation relates to failure to follow procedures; the second violation results from failure to perform confirmatory groundwater sampling. De results of the June 1998 inspection are documented in Inspection Report 40-8989/98-01 which was issued on July 24,1998.

In addition to the routine, announced site inspections described above, the Staff has, since January 1997, conducted many investigations, interviews, and telephone conversatiotis with numerous individuals into aspects of Envirocare's operations, including matters relating to concerns raised in NRDC's section 2.2% petitions. The Staff's investigations included interviews with former Envirocare employees.

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2 As explained in section IV of die Enforcement Policy, violauons are normally categanzed in terms of four levels of severity (Seventy Level I being the most significant1 A Seventy tevelIV violation is defined as a 1

violation of more than rmnar concern which. if left uncorrected. could lead to a more serious concern.

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III. DISCUSSION NRDC assens two bases in suppon of its requested actions: (1) Envirocare's employment contract nondisclosure covenant threatens the financial well being of employees who want to provide information regarding Envirocare operations, j

and (2) current and former Envirocare employees fear for their lives and lives of their families. NRDC stater that it is apparent from sworn affidavits, compiled in the State of Utah Legidative Auditor General Investigation of Envirocare, that current and former employees of Envirocare fear for their lives and for the lives of their families. NRDC further states that Envisocare has required employees to enter into an employment agreement with onerous provisions that impose significant monetary penalties for disclosing safety-related information.

NRDC, furthermore, asserts that such threatening practices constitute a violation of section 211 of the ERA,10 C.F.R. Il 19.16,19.20, and 40.7. 'Ihe NRC has evaluated these matters and found no basis to take the requested actions.

As an initial matter, NRDC requests that the NRC immediately suspend Envirocare's NRC licenses. The NRC's Enforcement Policy ksenbes the various enforcement sanctions available to the Commission once it determines that a violation of its requirements has occurred. In accordance with the guidance of Section VI.C.2 of the Enforcement Policy, Suspension Ordert may be used:

(a) to remove a threat to the public health and safety, commen defense and security, or the environment; (b) to stop facility construction when (t) further work could preclude or significantly hinder the identification or correction of an improperly constructed safety-related system or component or (ii) the licensee's quality assurance program implementation is not adequate to provide confidence that construction activities are being properly carried out; (c) when j

the licensee has not responded adequately to other enforcement action; (d) when the licensee interferes with the conduct of an inspection or investigation; or (e) for any reason not mentioned above for which license revocation is legally l

authorized. Furthermore, in accordance with the guidance in Section VI.C.3. of the Enforcement Policy, Revocation Orders may be used: (a) when a licensee is unable or unwilling to comply with NRC requirements; (b) when a licensee refuses to correct a violation; (c) when a licensee does not respond to a Notice i

of Violation where a response was required; (d) when a licensee refuses to pay an application fee under the Commission's regulations; or (e) for any other reason for which revocation is authorized under section 186 of the Act (e.g.,

any condition that would warrant refusal of a license on an original application).

Pursuant to 10 C.F.R. 5 2.202(aX5), the Commission may issue an immediately effective order to modify, suspend, or revoke a license if the Commission finds J

that the public health, safety, or interest so requires or that the violation or conduct causing the violation was willful.

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l In this case the NRDC has not provided the NRC with substantiated infor-mation supporting the existence of circumstances that would provide a basis i

for immediate suspension of the Envirocare license. Furthermore, neither the investigations conducted uy the NRC nor by the FBI have revealed evidence providing a basis for suspension of the license.

Aasertion 1: Envirocare's Employment Contract Nondisclosure

. Covenant Threatens Financial Well Being of Employees Who Want to Provide Information Regarding Envirocare Operations Prior to the filing'of NRDC's petition dated December 12, 1997, the NRC c

reviewed Envirocare's Whistleblower Protection Policy; its Emironmental Com-pliance Progrun; and its Employment Agreement. By letter dated December 8, 1997 (the letter referenced by NRDC in support of its May 6,1998 petition),

the NRC notified Envirocare that its written company policies were inconsistent with section 211 of the ERA,42 U.S.C.15851, and 10 C.F.R. 640.7. More specifically, the NRC Staff found that while Envirocare's Whistleblower Pro-tection Policy and Environmental Compliance Program encouraged employees to report suspected legal violations of state or federal environmental laws and violations of the ERA and the Act, they did not incorporate all of the protections afforded in section 211 of the ERA and 10 CS.R. 6 40.7. Further, the policies established an incorrect standard with respect to the nature of safety hazards that would trigger employees' reports to appropriate governmental authorities.

In addition, the NRC notified Envirocare that its Employment Agreement could be interpreted to preclude the disclosure to the NRC or another government agency of data in support of a nuclear safety concern.

As a result of its review, the NRC requested Envirocare to modify its Whistle-blower Protection Policy, Environmental Compliance Program, and Employment Agreement to ensure compliance with NRC requirements..By correspondence dated January 21,1998. Envirocare responded to the NRC's December 8,1997 letter. Among other things Envirocare amended its Whistleblower Protection Policy, Environmental Compliance Program, and Employment Agrectuent in an effort to bring those documents into compliance with NRC requirements. NRC reviewed Envirocare's modifications to its corporate policies and employment agreement and concluded that they satisfied NRC requirements. By letter dated

. February 9,1998, the NRC Staff informed Envirocare that it found the modifi-cations acceptable.

Moreover, by letter dated December 31,1997, the NRC required Envirocare to respond to the allegations raised in the December 12,1997 petition. That letter requested Envirocare to indicate whether it intended to enforce its Employment Agreement against current and former employees who have engaged, or do

. engage, in protected activities cognizable under section 211 of the ERA and 10 179

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C.F.R. 540.7. It also requested that Envirocare indicate what actions it would take to notify current and former employees that the Employment Agreement will not be applied to protected activities. In its January 21, 1998 response, Envirocare asserted that it has not in the past, nor does it intend to claim er assert in the future, that any current or former employee who has engaged in protected activities is in violation of Envirocare's Employment Agreement.

Additionally, Envirocare has made reasonable efforts to notify by letter all

. current and former employees that the Employment Agreement in effect nt the time of their employment does not prevent them from raising nuclear safety concerns or otherwise discourage them from engaging in protected activities.

With respect to asserted violations by Envirocare of section 211 of the ERA i

and 10 C.F.R. 6 40.7 against its employees, the NRC has investigated these and other Envirocare-related matters extensively over a period of approximately 19 months (January 1997 through August 1998). These investigations included: (1) conversations and interviews (both in person and telephonically), (2) acquisition of and evaluation of many documents acquired from several sources during the course of the investigation, and (3) frequent contact with the FBI. The conversations and interviews were conducted with many individuals, including many present and former employees of Envirocare as well as present employees of the State of Utah. Additionally, NRC's investigations included interviews

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and meetings with individuals including representatives of the organizations (law firms and the State of Utah, Office of Legislative Research and General Counsel) identified in NRDC's letter of January 21, 1998.3 It was suggested by NRDC that the individuals identified in its January 21, 1998 letter may possess information relating to the asserted violations of NRC's whistleblower regulations by Envirocare. The FBI, although focusing on alleged criminal activities (bribery and extortion) associated with Envirocare's then-President i

Khosrow Semnani, did, in the course of these investigations, also acquire information bearing on the above NRC-related matters. This information was investigated by the NRC and revealed no evidence that any current or former Envirocare employee has received threats of financial harm or has felt threatened by Envirocare's employment nondisclosure covenant.

8 In its acknowledgment letter dated January 16.1998, de NRC requested the NRDC to provide the NRC the numes of "unidenu6ed individuals (and anendant background informanon) referenced in the peution." indicatmg that confidennality consistent with the NRC allegation program would be provided Tte NRDC's letter of January 21.1998 responded to that request, 180 t

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M Assertion 2: Current and Former Envirocare Employees Fear for Their Lives and Lives of Their Families Allegations of possible criminal violations of the Act had been referred to the FBI as indicated in my letter of January 16, 1998. Nonetheless, in the course ofits various investigations, the NRC Staff acquired information bearing on the matter of death threats. The scope of NRC's investigations conducted for Assertion 2 was identical to that conducted for Assertion I and is described above.

In addition, the Utah Attorney General's Office had initiated a criminal inves-tigation in early 1997 into the matter of the relationship (alleged bribery /extor-tion) between Mr. Larry F. Anderson, former Director of the Utah Division of Radiation Control and Mr. Khosrow B. Semnami, former President of Envi-rocare. This alleged bribery / extortion investigation was later assumed by the FBI. The FBI's investigation into this matter has resulted in a July 22,1998 filing of a Cooperation Agreement between Mr. Semnani and the U.S. Attor-ney's Office. No information surfaced during the FBI investigation indicating that death threats had been made against either present or former employees by Mr. Semnani or other officers of Envirocare.

Based on the investigations of Envirocare that have been conducted by the NRC and the FBI, there has been no evidence uncovered indicating that any 4

current or former Envirocare employee: (1) has received threats of financial harm or has felt threatened by Envirocare's employment contract nondisclosure covenant, or (2) fears for his/her life or the lives of his/her family as a result of threats received, either directly or indirectly, from any officer of Envirocare.

IV. CONCLUSION On the basis of the above assessment, I have concluded that no substan-tial health and safety issues have been raised regarding Envirocare that would require initiation of the action requested by the NRDC. As explained above, the NRDC has not provided any specific information that would provide a basis

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for suspension of the Envirocare license. Furthermore, neither the investigations 1

conducted independently by the NRC nor by the FBI have revealed the existence i

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of circumstances that would warrant irrunediate suspension of the Envirocare

. license. Accordingly, the Petitioner's request for action is denied.

FOR THE NUCLEAR REGULATORY COMMISSION Carl L Paperiello, Director Office of Nuclear Material Safety and Safeguards j

Dated at Rockville, Maryland, i

t this 14th day of September 1998.

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