ML20199B165
| ML20199B165 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 06/13/1986 |
| From: | Bright G, Carpenter J, Kelley J Atomic Safety and Licensing Board Panel |
| To: | CONSERVATION COUNCIL OF NORTH CAROLINA, EDDLEMAN, W. |
| References | |
| CON-#286-600 82-472-03-OL, 82-472-3-OL, OL, NUDOCS 8606170049 | |
| Download: ML20199B165 (12) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY C0feISSION
- /' f' $3$W f Before Administrative Judges:
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LSOI:n i
". 6C James L. Kelley, Chainnan Dr. James H. Carpenter Glenn 0. Bright p'
Mw Jui9 f3 gg In the Matter of Docket No. 50-400-OL
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CAROLINA POWER & LIGHT COMPANY
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(ASLBP No. 82-472-03OL) and
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NORTH CAROLINA EASTERN MUNICIPAL POWER AGENCY June 13, 1986 (Shearon Harris Nuclear Plant)
MEMORANDUM AND ORDER (Rejecting Late Proposed Contention Concerning Alleged Falsification of Radiation Exposure Records)
Introduction On April 22, 1986, less than a week before we issued our Final Decision and long after the record had been closed on safety contentions in this case, Intervenors Conservation Council of North Carolina (CCNC) and Wells Eddleman filed a joint motion for admission of a new contention styled "WB [for Whistleblower] -4", concerning alleged falsification of radiation exposure records. The Applicant and the NRC Staff filed responsive pleadings urging rejection of the contention primarily under the "five factors" balancing test and for failure to meet the standards applicable to motions to reopen a record. At the Board's direction, Mr. Eddleman filed a reply to those responses, particularly addressing the " good cause" factor for late filing. Mr.
Runkle, Counsel for CCNC, advised the Board Chairman by telephone on May l$ f occk $I000 00 PDR G
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'b 27, 1986, that he joined, and was content to rest on, Mr. Eddleman's reply.
Because this proposed contention was filed before our Final Decision issued, this Licensing Board has jurisdiction to rule on it, notwithstanding the fact that jurisdiction over the remainder of the case has passed to the Appeal Board. Philadelphia Electric Co.
(Limerick Generating Station), 17 NRC 755 (1983). Under that same precedent, the pending motion is to be treated as a motion to reopen the record. Furthermore, since the proffer of this contention is almost four years late within the meaning of the Commission's Catawba decision,I the "five factors" listed in 10 C.F.R. 9 2.714 must be applied to it and balanced. We turn to that balancing test first.
The "Five Factors" Good Cause for Late Filing. CCNC and Mr. Eddleman state that they had no specific basis for formulating a contention about worker radiation exposure records until they received an affidavit on the subject from Ms. Patty Miriello the week before their contention was filed. However, all the facts on which this contention is assertedly based occurred before the Fall of 1985 when Ms. Miriello, Mr. Runkle and Mr. Eddleman participated in the drug use hearing. One would expect I
Duke Power Co. (Catawba Nuclear Station), 17 NRC 1041 (1983). The initial deadline for filing contentions was May 14, 1982. Order of April 2,1982 at 2.
0 that Intervenors opposing operation of a nuclear plant on any available ground (like CCNC and Mr. Eddleman) could and would seek from a "whistleblower"-(as they style Ms. Miriello) as soon as possible any detrimental information about the plant. That is not what happened. On the contrary, by Mr. Eddleman's account he and CCNC did not make any real effort to obtain Ms. Miriello radiation exposure allegations between Fall 1985 and April 1986, when Ms. Miriello delivered her affidavit to Mr. Eddleman on her own initiative.
In that regard, Mr.
Eddlemar. states that:
"I have no control over what Ms. Miriello does.
I cannot make her produce information." Eddleman Response, p. 4.
In other words, according to Mr. Eddleman, Intervenors can maintain a passive posture toward a whistleblower and, as the Applicants aptly put it, "[ wait] for the information to fall into their laps." Applicants' l
Response, p. 12.
Such a passive posture is not permissible. An Intervenor has an obligation to tender a late contention at the earliest practicable time.
l This necessarily means that an Intervenor will exercise due diligence in obtaining information necessary for formulation of a contention.
In the circumstances of this case, CCNC and Mr. Eddleman probably should.have i
discovered the basis for Ms. Miriello's allegations about worker radiation exposure records -- and any other allegations about the Shearon Harris facility -- in the Fall of 1985.
In any event, when Mr.
1 Runkle made specific reference to "" falsification of records" and l
" questionable practices related to health physics" in his January 21, l
1986 pleading concerning Ms. Miriello's January 1,1986 g parte letter l
l
. to the Chairman, a clear obligation arose that any contention in that area be tendered promptly. None was.
Mr. Eddleman's quoted statements may be read to imply that Ms.
Miriello was being less than totally cooperative with the Intervenors.
Apart from those statements, there is nothing in the record of this case to suggest that CCNC, Mr. Eddleman and Ms. Miriello have not held the shared objective of opposition to the Shearon Harris plant and have not cooperated to that end. Assuming, however, for the sake of argument that Ms. Miriello may have been less than fully cooperative on the present subject, there remains, we repeat, an obligation on the Intervenor to use his best efforts to obtain relevant information in a timely manner. Specifically, such best efforts should include an explanation to the whistleblower that information which might form the basis of a contention must be disclosed promptly or its consideration by the Board may be barred altogether.
If that were not the rule, the door would be open for the whistleblower (possibly with the Intervenor's l
collusion) to sabotage the licensing process by withholding some allegations until the eleventh hour -- an interpretation of events to which the pending motion is open.
We conclude that proposed Contention WB-4 probably should have been filed in the Fall of 1985 and definitely should have been filed by February 1,1986. Its filing on April 22, 1986, at the conclusion of i
k this proceeding, was inexcusably late. That being so, the Interv'enors must make a " compelling" showing on the other four factors.2 Contribution to the Proceeding. The Intervenor's showing on this factor is very weak. As to what is required, the Commission's recent Braidwood decision (see footnote 2) quotes with approval the following Appeal ~ Board standard:
"When a petitioner addresses this criterion it should set out with as much particularity as possible the" precise issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony." Mississippi Power &
Light Co. (Grand Gulf Nuclear Station, Units 1 and 2),
ALAB-704, 16 NRC 1725, 1730 (1982).
CCNC and Mr. Eddleman have failed to do any of these things, beyond implying that Ms. Miriello would be a witness. This Board heard testimony from Ms. Miriello on the drug use contention. We concluded in our Final Decision of April 28, 1986 that, for a variety of reasons, her testimony was entitled to "very little weight." Slip op. at 48.
2 i
As the Commission has only recently reiterated:
i It is well established in our case law that this [ good cause]
factor is a crucial element in the analysis of whether a late-filed centention should be admitted.
If the proponent of a contention fails to satisfy this element of the test, it must make a " compelling" showing with respect to the other four factors. Cincinnati Gas and electric Co.
(William H.
i Zimmer Nuclear Power Station, Unit 1), LBP-83-58,18 NRC 640, 66 (1983); Mississippi Power and Light Co.
(Grand Gulf i
Nuclear Station, Units 1 and 2), ALAB-704,16 NRC 1725 (1982).
Coninonwealth Edison Co. (Braidwood Station), CLI 86-08, April 24, 1985.
1
<N Nothing in the papers presently before us suggests that another appearance by Ms. Miriello as a witness in this case will make a positive contribution to the record. The Intervenors refer to "other workers" as possible witnesses, but these unnamed persons "have not yet been contacted." The Intervenors have not demonstrated any expertise in radiation monitoring and recordkeeping. Mr. Eddleman did not participate in the litigation of Joint Contention IV concerning thermoluminiscent dosimeters.
In sum, the Intervenors' showing on the contribution factor is close to zero.
Broadening the Issues, Delaying the Proceeding. Admission of the j
proposed contention would necessarily broaden the issues in this case because all of the admitted issues have been resolved.
If the Board were to admit and litigate the proposed contention, it would certainly delay the proceeding, which is otherwise complete now.
j The more important question is whether such admission would delay fuel loading, low-power testing and operation-of the plant. See Statement of Policy on Conduct of Licensing Proceedings, 13 NRC 452, 453 (1982).
Fuel loading is now planned for late July. Assuming some slippage in that projection, it nevertheless seems likely that fuel loading and initial criticality will occur by early Fall. A contention concerning alleged falsification of radiation records would have to be resolved, if not before fuel loading, then at least prior to criticality. Should it be necessary to litigate the contention on the merits following discovery and summary disposition motions, the hearing -- even on an
( accelerated schedule -- might not be completed until sometime in September. Following proposed findings, a Board decision might issue by early November.
It therefore appears that admission of this contention could delay fueling and operation of the plant for weeks or months, even if the Applicants were to prevail on it. Thus the delay factor weighs against the contention.
Other Lateness Factors. As the Applicants point out (Response at 14), the two remaining lateness factors -- (ii) (availability of other means to protect petitioners' interest) and (iv) (the extent to which other parties will represent petitioners' interest) -- are accorded less weight, under established Comission precedent, than the three factors just discussed. Braidwood, supra, CLI-86-8, slip op at 4; South Carolina electric & Gas Co. (Virgil C. Sumer Nuclear Station, Unit 1),
ALAB-642, 13 NRC 881, 895 (1981).
The Staff and the Applicants concede factor (iv) to the Intervenors, as they must, for their " interest" in radiation exposure i
records would not otherwise be pursued in this case.
Application of factor (ii) -- availability of "other means" -- to the proposed contention presents the only close question in this balancing exercise. We agree with the Intervenors that the availability of an administrative remedy to Ms. Miriello as a former worker under 10 C.F.R. 919.16(a) is not the equivalent of "other means" to protect the Intervenors' interest. Furthermore, the availability of a petition under 10 C.F.R. 5 2.206 is not normally deemed "other means" equivalent
t to a right to litigate a contention. Washington Public Power Supply System (WPPSS Nuclear Project',, 18 NRC 1167, 1175-1177 (1983). However, a recent Appeal Board decistor, suggests that a Section 2.206 petition might be considered adequate in some circumstances "for policing the scores of detailed filings routinely submitted pursuant to staff-enforced regulatory requirements." Philadelphia Electric Co.
(Limerick Generating Station), 23 NRC 13, 22 (1986).
In the present case, if no more is involved than an honest mistake on one among thousands of radiation records and the mistake was corrected, as the Applicants contend, the level of Staff review that would be triggered by a Section 2.206 petition might be sufficient.
If that review were to produce indications of broad record falsification in the worker radiation exposure program, such indications could lead to an adjudicatory hearing. Whether the section 2.206 remedy is adequate in these circumstances is debatable.
In any event, we conclude that factor (iv) tips in favor of the Intervenors.
Conclusion. As shown by the foregoing discussion, the overall balancing of the five lateness factors is decisively against admission of the proposed contention. The three most important factors point clearly in that direction. The remaining factors just discussed do not significantly affect the balance. Proposed Contention WB-4 is rejected on that basis.
1
~
1 t
t Reopening the Record Having decided that the prdposed late contention fails the five factors test, we are 'not required.to address fully whether the standards for reopening a closed rec'ord have been met. See Louisiana Power &
Light Co. (Waterford Steam E'lectric Station) 25 NRC 1. (1986). We have already determined that the proffer of the proposed' contention was not timely. We have also considered whether the information presented appears to raise a significant safety concern. We find that it does 1
not.
The basic allegation presented by proposed Contention WB 4 is that
" radiation exposure records have been systematically falsified to reflect lower doses to workers...." We are then asked to interpret this as questioning "[the] moral character of the Applicants and their ability to operate the Harris plant without endangering the health and safety of the public...."
The entire basis for the contention is an affidavit offered by Ms.
Miriello, a former CP&L employee who had worked at CP&L's Brunswick and Shearon Harris facilities as a health physics technician.
In her affidavit Ms. Miriello alleges a number of actions by CP&L employees, including sexual harassment and attempts to get her to sign a false radiation exposure record.
If true, such actions are reprehensible and l
the latter allegation should be investigated for possible safety significance. As to the basic thrust of the contention, however, the j
salient points are these:
(1) that Ms. Miriello's self-reading pocket dosimeter (SRPD) reading for one exposure period at Brunswick was l
. arbitrarily reduced, and (2) that several thermoluminescent dosimeter (TLD) readings were not entered in her recorn.
As to the SRPD matter, it appears that u ere was a difference in the doses recorded by the TLD and the SP.PD whica were being carried by Ms. Miriello. According to the responding affidavit of Stephen H.
Browne, a CP&L Health-Physicist, this is not surprising, since SRPDs are often guilty of incorrect readings; their readings are almost invariably on the high side. Ms. Miriello's TLD was read, and the registered dose was entered as the dose of record. Browne Affidavit, pp. 4-5.
The Board does not consider this to involve falsification of the record.
Ms. Miriello's charge that not all her readings were properly recorded was true, according to the record she submitted with her affidavit. However, the discrepancy which she points out was due to the reporting method used and an inadvertent clerical error. The correct record was sent to Ms. Miriello on September 10, 1985, which she fails to mention. Browne Affidavit, pp. 6-7.
On its face, Mr. Browne's explanation of the points in question is more plausible than Ms. Miriello's allegations concerning those events.
Furthermore, we heard Mr. Browne as a witness for CP&L on Joint l
Contention IV, found him to be credible, and relied on portions of his testimony. We also heard Ms. Miriello as a witness on another contention. We were skeptical of her testimony and did not rely on it.
Although the issues involved were different, our first-hand assessments of Browne and Miriello as witnesses have a legitimate bearing on the
issue now before us.
In conclusion, the Board finds no persuasive evidence of deliberate falsification of records and hence no significant safety concerns.
Harassment Allegations. We stated in our Memorandum and Order of May C2,1986, that the Board would give no further consideration to harassment allegations as discussed therein unless a party obtained the written consent of the confidential alleger to disclosure of identity, at least to the parties, such consent to be in the Board's hands by June 6, 1986. No such consent was received by that date or, for that matter, by the date of this Order. Therefore, that matter is now closed. Mr.
Eddleman's attempt to muddy the matter in his letter to the Board of June 6, 1986 is unavailing.
In that regard, suffice it to note that the alleger's asserted desire to review the 01 Report before providing consent to its disclosure is not legitimate. Because, as we have said, the Report finds an absence of safety concerns, we would expect the allegar to have disagreements with it. But the alleger's only legitimate concern in this context is with the disclosure of identity, not the substance of the Report. Should the matter have progressed to a j
hearing, the alleger would have had an opportunity to rebut the Report.
The alleger has now effectively chosen to foreclose that opportunity.
l Service of Documents.
In our Memorandum and Order of September 22, 1982 (16 NRC 2069), we directed the Applicants to serve copies of all relevant documents they generate for review by the NRC Staff in
i
> connection with this proceeding. A principal purpose of that directive was to assist the Intervenors in developing additional contentions based on new information. With this Order, the jurisdiction of this Board will terminate. Therefore, the obligations of the Applicants (arising solely from our Memorandum and Order) to serve documents as described above is also terminated.
THE ATOMIC SAFETY AND LICENSING BOARD W-
[pnes L. Kelley, ghairman ADMINISTRATIVE JUDGE w$
James H. Clrpenter MINISTRATIVE JUDGE f w $.
Glenn O. Bright
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ADMINISTRATIVE JUDGE Bethesda, Maryland
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