ML20202E212
| ML20202E212 | |
| Person / Time | |
|---|---|
| Issue date: | 01/31/1998 |
| From: | NRC |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V46-N03, NUREG-750, NUREG-750-V46-N3, NUDOCS 9802180098 | |
| Download: ML20202E212 (151) | |
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. A year's subscription consists of 12 softbound issues, 4 Indexes, and 2-4 hardbound editions for this publication.
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Errors in this publication may be reported to the Office of the Chief Information Gificer U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301-415-6844)
4 4
i NUREC-0750 j Vol. 48, No. 3
- Pages49-193 NUCLEAR REGJLATORY COMMISSION ISSUANCES 1
September 1997 This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judges (ALJ), the Directors' Decisions (DD), and the Decisions on Petitions for Rulemaking (DPRM,'
The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or have any independent legal significance.
U S. NUCLEAR REGULATORY COMMISSION Prepared by the Office of the Chief information Officer U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301-415-6844) i
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- COMMISSIONERS Shirley A. Jackson, Chairman
, Greta J. Dieus Nils J. Diaz Edward McGaffigan, Jr.
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B. Paul Cotter, Jr., Chief Administrative Judge, Atomic Safety & Ucerising Board Panel
CONTENTS Issuances of the Noelear Regulatory Commisalon 1
LOUISIANA ENERGY SERVICES, L.P.
(Claiborne Errichment Center)
Docket 70-3070 ML ORDER, CLI 97.l l, September 3,1997 . . . . . . . . . . . . . . . . . . . . . . . . . 49 LOUISIANA ENEROY SERVICES, LP.
(Claiborne Enrichment Center)
Dochet 743070-ML ORDER, CLI 9712 September 19,1997 ........................ 52 lesusences of the Atonde Safety and Lleenslag Boards AHARON BEN HAIM, Ph.D.-
(Upper Montclair, New Jersey)
Docket IA 97-068 (ASLBP No. 97 731-01-EA)
( (Order Superseding Order Prohibiting Involvement in NRC-Licensed Activities, Effective immediately)
PREHEARING CONFERENCE ORDER, LBP-9715, September 25, 199 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 60 FRANK J. CALABRESE JR.
(Denial of Senior Reactor Operator License)
Docket No. 55-61425-SP (ASI.BP No. 97 725-02-SP)
INITIAL DECISION, LBP-9716, September 26,1997 ...,,........ 66 INTERNATIONAL URANIUM (USA) CORPORATION (White Mesa Uranium Mill) .
Docket 40-8681-MLA (ASLBP No. 97-726-03-MLA)
(Re: License Amendment) (Alternate Feed Material)
MEMORANDUM AND ORDER, LBP-9714, September 4,1997 . . . . 55 til 1 .
e Issuances of Directors' Decisions CONNECrlCUT YANKEE A*IDMIC POWTR COMPANY (lickiam Neck Plant)
Drket 50-213 pal TIAL DIRECTOR'S DECISION UNDER 10 C.ER. I 2.206, DA9719, September 3,1997 ............ .................. 91 l
l FLORIDA Pow?R & LIGiff COMPANY (St. Lucie Nucit.v Power Plant, Units I and 2; Turkey Point Nuclear Generating Plant, Units 3 arxl 4)
Dockets 50-250,50-251,50-335,50-389 DIRECIDR'S DECISION UNDER 10 C.ER. 6 2.206, DD-97 20, September 8, 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 NA110NAL INSTIRTIES OF llEALTH (Bethesda, Maryland)
Docket 030-01786 (License No. 194)0296-10)
DIRECIOR'S DECISION UNDER 10 C.ER. 6 2.206, DD-97 22, September 17,1997... . .............. ......... 130 NORTHEAST UTILITIES l (Millstone Nuclear Power Station, Units 1,2, and 3:
! Iladjam Neck Plant) l Dockets 50-245,50-336. 50-423,50-213 (License Nos. DPR-21, DPR-65, NPF-49, DPR-6i)
PA.RTIAL DIRECTOR'S DECISIGN UNDER 10 C.ER. 5 2.206, DD-97 21, September 12,1997. .......... .. ........... 108 NORTHERN STATES POWER COMPANY (Goodhue County Independent Spent Fuel Storage Facility)
Docket 72-10 DIRECIOR'S DECISION UNDriR 10 C.ER. 5 2.206, DD-97-24, September 26,1997.... . ....... .. . .. . .. . 189 SOlJrHERN CALIFORNIA EDISON COMPANY, et al (San Onofn: Nuclear Generating Station. Units 2 and 3)
DIRECIOR'S DECISION UNDER 10 C.ER. 5 2.206, DD-97 23, September 19,1997... .......... ... . ... . . 168 iv
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Cito es 46 PRC 49 (1997) CU 0711 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i
COMMISSIONERS:
Shirley Ann Jackson, Chairmen =
Grote J. Dicue Nile J. Dier Edeverd McGefflgen, Jr.
In the Mener of Docist No. 70 307HR.
LOUISlANA ENERGY SERVICES, LP.
(Claibome Enrh Center) September 3,1997 De Commission remands to the Atomic Safety and Licensing Board one issue for clarification, before taking action on three pending petitions for review of the Atomic Safety and Licensing Board's Partial Initial Decision, LBP 97-3,45 NRC 99 (1997), resolving decommissioning funding matters. He remanded issue concerns the Board's finding that the NRC Stafi's calculation 4 of dose impacts
- from deep-mine disposal of waste to be produced at the Claiborne Enrichment Center was reasonable.
ORDER In this proceeding for a combined construction permit and operatmg license,
- the Commission is considering together three petitions for review, two by Citizens Against Nuclear Trash (CANT) and one by Louisiana Energy Services (LES). All three petitions concem waste disposal and decommissioning funding at LES's proposed uranium enrichment facility. Before taking action on the pending ' i petitions, the Commission requires clarification of one issue decided by the Atomic Safety and Licensing Board in LBP 97 3,45 NRC 99 (1997). As explained below, we remand one issue to the Board for further explanation.
He issue that concerns us is the portion of LES's decommissioning funding estimate allocated for disposal of triuranium octaoxide (U 3 0,). He Board found 49
LES's estimate reasonable. LDP-97 3, 45 NRC at i13. he Board-approved disposal estimate assumes that deep-mine disposal of U3 0, is a plausible strategy that will provide adequate protection to the public and the environment. In its Final Environmental Impact Statement (FEIS) the Staff analyzed the estimated dose impacts from disposal of U 30, in a hypothetical deep-disposal site and found them to be within regulatT limits. NUREG-1484, Vol.1, at 4-66 to -68 (August 1994).
De migration of U 0, 3 from a deep-mine disposal site depends critically on the characteristics of groundwater at the site. As part of its analysis, the Stati used groundwater characteristics from an actual near-surface site to calculate solubiliti.
and migration of waste radionuclides from twa hypothetical deep-disposal sites.
Based on these results, the Staff then estimated potential dose impacts from the deep disposal of U30, via radiological exposure pathways (e.g., drinking water, irrigated crops, and fish), and found them within regulatory limits.
CANT argues that "the FEIS is seriously deficient in its analysis of the likely dose calculations resulting from deeper-than-surface disposal, thereby failing to provide an adequate basis for ti,e NRC staffs conclusion that deeper-than-surface disposal is safe. , , ." CANT Petition for Partial Review of LBP-97-3 at 5 (May 8,1997). According to CANT, to support the plausibility of deep-mine disposal, the NRC Staff used a "very r. arrow mix of settings, and then picked and chose data that were not representative of the range of potential conditions [in deep mine cavities]." See id at 6.
%c Board rejected CANT's effort to discredit the feasibility of deep-mine disporal. See LDP-97-3,45 NRC at i19 23. he Board noted that no particular mine has been selected or identified as a potential deep-disposal site so that exact chnacteristics of groundwater in a potentially acceptable deep-disposal facility are not available for analysis. He St ff cited data that establish the range of potential vshics likely to be found for each sensitive parameter in deep groundwater at the hypothetical geological settings. The Board found it reasonable that the Staff calculated dose impacts using only a single set of values taken from near-surface data for sensitive parameters, given that the near-surfxe values fell within the expected range for deep groundwater parameters.
However, it is not clear if the Board found it plausible that a deep mine with the exact near-surface values chosen for each sensitive parameter used by the Stali would be available, or if the Board simply found it plausible that there is a mine in the U.S. with characteristics falling within the expected range. It may be unrealistic to assume that a mine exists with the exact groundwater characteristics used by the Staff in calculating dose impacts.
If, as the Commission believes likely, the Board relied only on the plausibility of the existence of a mine with characteristics lying within the potential range, the Board needs to discuss why it found that the Staffs dose impact calculations can be taken as representative of dispmal in mines with groundwater characteristics 50
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o that differ from the Staffs single set of values, ne Board has not identi6ed the effect, if any, that varying the values within the expected range would haw on dose impacts It enay well be that varying th values of the sensitive i .aa. even using values at the limits of the range, would not result in done impacts above the
. regulasory limit, in light of the significantly low done impacts estimated using the selected values within the range, See FEIS at A 14 to 15, But the Board cited no analysis that would provide assurance that this is correct. De Commission remands
- this issue to the Board for clarification. "In Commission pr etice the Licensing Board, rather than die Commission itself, traditionally develops the factual record in the first instance," Georgia Infriture of Technology (Georgia 'Ibch Research
, Reactor, Atlanta, Georgia), CLI-9510, 42 NRC 1, 2 (1995). Accord Ralph L Tetrict (Denial of Application for Reactor Operator Liccuse), CLI-97 5,45 NRC 355, 356 (1997),
his limited remand should not unduly delay the ultimate resolution of the adju.
dacation, in view of the substantial issues already pending before the Commission on other appeals, De Commission expects that the Board will be able to decide the remanded issue by November 17, 1997. De Board is free to solicit further affidavits or other pleadings from the parties, If the Board cannot resolve this -
matter by November 17,1997, it should advise the Commission and parties of an alternative, reasonable schedule,'
TF IS SO ORDERED For the Comrmssion2 JOHN C, HOYLE Secretary of the Commission Dated at Rockville, Maryland, this 3d day of September 1997, I
The Comnsasen acently receiwd a leuer from counsel for TIS, daard August 20,1997, and wrwd ce the 1E3 servks bit, that asks the Comnuesson in view as to when decismns can be expected k is not te Commasuon's practice so announce in advance a Arm scheshde for tu appenses decamans. To do so in dus case nouki be pamcularly intensible la view of the complexity of the renmining Issues, the incornplete autus of the appellese record (6nal bnefs 1 em the pending appeals am act scheduled to be Bled until laser dus monthi and compeang demnada on the erne of the Conumanion and hs Stafr. The Comasasion already is giving pnarity anennon to all pending appellase innaars in .
this case, and as evinced by its remand decision hase, is askmg the Ljcenung Board to do de sans for any decassoas it is called upon to enahe owr the next seural months, the Cornmissma espects to issue a serws of decisions, of '
which ens is the Brit, that together will resolve all cuneady pending appellsee immes,
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.- Diaa was not anilable for the al5rmounn of this order. Had he been present, he wouki have afHreed the order. '
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Cite as 46 NRC 52 (1997) CLl-9712 UNITED STATES OF AMERICA NUCLEAR REGUI.ATORY COMMISSION -
COMMISSIONERS:
Shirley Arm Jackson, Chairman
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Grote J. Dicus i Nils J. Dies i Edward McGeffigsn, Jr.
In the Metter of Docket No 70 3070 ML i 1
LOUIStANA ENERGY SERVICES, LP. l (Claibome Erta,;.;ca Center) September 19,1997 he Commission denies Citizens Against Nucle:.r 'IYash's motion for recon-sideration of CLI-9711, 46 NRC 49 (1997). In CLI 9711, the Ccmmission re-manded for clarification one issue decided by the Atomic Safety and Licensing Board in its decision on waste disposal and decommissioning funding. LBP-97-3, 45 NRC 99 (1997). ne remanded issue involves the Board's finding that the NRC Staf!'s calculations of dose impacts fmm deep-mine disposal of waste to be produced at the Claiborne Enrichment .: enter is reasonable.
ORDER l Citizens Against Nuclear Trash (CANT) has filed a motion for reconsideration of CLI-97-II,46 NRC 49 (1997). In CL197-II, we remanded for clarification one issue decided by the Atomic Safety and Licensing Board in its decision on waste disposal and decommissioning funding, LBP-97-3, 45 NRC 99 (1997).
For the reasons discussed bc')w, the Commission denies CANT's motion for reconsideration of CLI-9711.
..Our remand order asked the Board to clarify its explanation of why deep-mine disposal is a plausible strategy for handling depleted uranium waste. CANT believes that because its petition for review challenged the Board's explanation, the Commission is cc..,pelled by its own regulations to grant plenary review rather 52
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U lh i j - than order a scenand for clarificahon,' We dassgree, 'Ihe section of our ;gek;kms to which CANT refas,' 10 C.F.R.12.786, describes considershons under which the Counmission "may" grant a petition for review but does not mandase any circumstance under which the Commission must take review Commission review under secdon 2.786 estabhshes a certiorari-like process that leaves full discretion to the Commission. Nothing in the rule prevents a remand to the Board prior to a Commission decision on whether to grant plenary review
'!he Commission considers an imn=Anw remand of the deep-mine disposal issue the most emeient way to deal with what we view as an unclear Board' .
discussion of the issue. . 'Ihe Board, as the Commission's primary adjudicatory
. fact-finder, is well equipped to handle the ia- as. aid maner, Oiving the Board an opportunity to clarify the deep-mine disposal issue leaves the t'--W free to -
focus its nuention on other pendmg issues in th5 psucceding.8 -
CANT is not prejudiced by a romand, .'Ihe Commission expects that the deep-
- Inine disposal issue will be fully aired by tic Board and that CANT will have s sumcient opportunity to have its concerns addressed.- Moreover, when the Board c issues its supplemental decision, CANT will be free to supplement its petitions for Commission review if CANT remains dissatisfied with the Board's treatment of the issue. The Commission has neither granted nor denied the petitions for review and would give appropriate consideration to any supplemental petition. -
In sum, the Commission sees no reason to reconsider its decision to remand the deep-mine disposal issue to the Board. Acconiingly, reconsideration is denied.
For the Commission JOHN C. HOYLE Secretary of the Commission
' Desed at Rockville, Maryland, . '
this 19th day _of September 1997, 3Recnatly, on Seperminar ll,1997, the IJcenang Board issued a procedura' orthr that, among other things, reposend the partmas' views ca the "been fw the IJceaang Board's )sisection to proceed" ca lhe stanaded issue, Tlus acord inquary may seem hnm Comanasion precedsat 6vesong the Board orjuris6coom over maasts pen 6ag as
- appuoi or on a psauce for mvuw. Stv, eg PheadrW EJrceric Ca (tjaurick oessaang Station, Uma 1 and 2k ALAILs23,22 NRC 773 (19:51 But that general pecace, whste sensible la neost cassa, does not apply whose, as la -
this case, the Convaisslan sapressly icones juriseceos and orders a teamed rat Board considerseca of a particular issue. See gaaereiry Conav=wnaM EAton Ca (Byron Nuclamr Power Seedon, Units I and 2) ALAB-770,19
. NRC 1163, lies, list s2 (19s4) la these cucumsenacer, "[wje see so vahd purpose to be seriod by an exaraded nuesphysical Ascussson of when junshcaos . , passes" horn one adpadesory body to anothee. See Pk&adelpMa Elecoic & (tJmerick ommerating Stenoa, Uniu I and 2h ALAS 726,17 NRC 735,757 (19s3).
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Boards issuances i
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- ATOMIC SAFETY AND UCENSING BOARD PANEL B. Paul Cotter, Jr.,* Chief Administrative Judge l James R Gleason,* Deputy Chief Administrative Judge (Executive)
Frederick J. Shon,* Deputy Chief Administrathe Judge (Technical) l Members ,
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l Dr. George C. Ar.derson Dr. Richard F. Foster Dr.Kenneth A.McCollom j Charles Bechhoefer* Dr. David L. Hetrick Marshall E. Miller
- Peter B. Bloch* Emest E. Hill Thomas S. Moore
- 1 G. Paul Bollwerk ill* Dr. Frank F. Hoope.- Dr. Peter A. Morris Dr. A. Dixon Callihan Dr. Charles N. Kelber* Thomas D, Murphy
- f Dr. James H. Carpenter Dr. Jerry R. Kline* Dr. Richard R Partzok l Dr. Richard F. Cole
- Dr. Peter S. Lam
- Dr. Harry Rein l Dr. Thomas E. Elleman Dr. James C. Lamb lll Lester S. Rubenstein l [ , George A. Ferguson Dr. Unda W. Uttle Dr. David R. Schink
, Dr. Harry Foreman Dr.Emmeth A.Luebke Dr. George F.Tidey l
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Cite as 46 NRC 55 (1997) LSP-9714 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL 1
i Before Adminletrative Judges: i Peter B. Bloch, Presiding Officer Charles N. Kolber, Special Assistant in the Matter o' Docket No. 40-8681-MLA (ASL8P No. 97 726-0348LA)
(Re: Liconee Amendment)
(Altemate Food Material)
CORPORATION (White Mesa Uranium Mill) September 4,1997 Petitioners' motion for reconsideration is denied because they have not provided any information, beyond conjecture, that the tailings of which they complain represent an increased health or safety hazard Petitioners still have not met the prerequisite for standing that they show that they are injured by the proposed action. In this amendment case, Petitioners must show that the amendment may injure them or someone they are authorized to represent. They have not done that. llence, the motion for reconsideration is denied for failure to show that the Presiding Officer has made a material error of law or fact.
The motion to reopen the record also is denied. No additional evidence has been presented for admission into the record and there was no showing that the motion was timely.10 C.F.R. 6 2.734.
MEMORANDUM AND ORDER
- (Motions for Reconsideration, To Reopen the Record)
Pursuant to CLI-97-9,46 NRC 23 (1997), th6. pleading faxed to the Com-mission by Native American Petitioners (Petitioners) on July 30,1997, is now 55
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pending before me, it shall be considered a Petition for Reconsideration of LBP-9712 (Petition at 11) and a Motion to Reopen the Record (ibid.) (Peti-tieners' Motion).
Petitioners' Motion is carefully drafted, well written, and impassioned. De answers of the International Uranium (USA) Corporatioa (IUS A Answer) and of the Staff of the Nuclear Regulatory Commission (Staff Answer) were carefully written and provide excellent legal analyses of the issues that I am required by law to determine.'
If the Native American Petitioners had documented the basis for their con-cerns, they would have been granted a hearing. However, the legal requirements for standing have not been met and a hearing is not appropriate.
What allegations of the Petitioners might have made a difference, if appro-priately documented? Petitioners' Motion, at 1. states, about the material that is proposed to be proccased at White Mesa: "Ihe track history of Cotter Concen-trate alone verifies our claims of injury in fact." Then, at 2. Petitioners' Motion states: "The radioactivity and hazardous constituent wastes of the Concentrates have caused health problems in Lincoln Park, Colorado, instigating a number of lawsuits." Petitioners' pleadings have, however, failed to provide a basis for either of those claims.
let me agree with Petitioner's Motion, at 2, that the Depanment of Energy (DOE) had at one time considered the Cotter Concentrates to be mix-d wastes.
At the time, the DOE did not appreciate the feasibility of removing yellowcake from the Cotter Concentrates, as IUSA has now proposed to do. Under the IUSA proposal, the radioactivity of the Cotter Concentrates, which will be used as feedsvk, will have little impact on the surrounding communities. Most of that radic4uvity will be recovered as yellowcake and shipped off site. The relevant question for standing purposes is the composition of the " tailings" or waste material after the Cotter Concentrates have been processed. Since the disposal of tailings is already authorized under an existing license, the goestion of possible injury to the Petitioners is whether the tailings from the milling authorized by this amendment will be more hazardous than tailings already outhorized under the license. Petitioners have not provided any information, beyond conjecture, that the tailings represent an increased health or safety hazard.
The Petitioners also argue that the milling operation is not profitable and should be treated as waste disposal rather than uranium milling. Petitioners' Motion at 5. I note that there is no documentation that would support the allegation that a subsidy is being paid to IUSA to support this project. Energy Ibels Nuclear, Inc. (EFN), predecessor in interest to IUSA, alleged on page 8 of its application that recovery of uranium would be profitable. Petitioners' Motion I
The " Answer or Internaconal Unruum (US A) Corporation , ." was Bled August 20.1997 OUSA Amwer);
ard the "NitC Staff's Response to lhtioners' Monon .
- was Aled on August 22.1997 (stan Auwer).
56
does not provide a basis to doubt this statement, bioreover. even if the Motion did provide a basis for doubting that statement, it toes not address why it would be improper to operate an unprofitable milling op ration that reduced the cost I of venste disposal by recovering valuable yellowcake, I. ORGANIZATIONAL STANDING: AUTHORIZATIONS Petitioners' Motion, at 7. draws attention to the following sta* aments made in filings before me:
1 (Norman Begay) hold the paitions of 99% of the Native Arneticans of San Juan County opposing this action.
Included in Nation Navajo's initial inhas was a resolution from Westwater Community teprenoming 100% Navajo peoples rpposition to the Cotter Proposal la addnion, Mr. Begay and Ms F.atso, on behalf of all Utah Navajo Nation Qiapters holds signed petitions and official rest autions representing 99% of the Navajo Nation pyulation of the affected Navajo popularon of the county of San Juan in opposition to the Coner Amendment.
Ibr an organization to have standing, Petitioners must show whom they are authorized to represent.21 accept their representation that the sentiment against the amendment is very strong - though I have not seen the petitions, 'Ihere is, however, nothing in the record of this case showing that these organizations were authorized to represent anyone other than the people signing the documents 3 Not even Avikan, a nonprofit organization, stated the maruier in which the organization authorh.ed its representative to panicipate in this case, II. INJURY IN FACT o
f One prerequisite for standing is whether there has been " injury in fact " The rationale for this requirement is that individuals are permitted to intervene in
- cases only when they can show that they are injured by the proposed action,
% nea un organnanon relms on rnenters' interest to confer standing on h, the organization muu show that at les a one member who would possess starmbng in tus own right has authanaed the organization to represent tum Noarkm Ushnas and Pm.vr Ca (south Texas Project Units I armt 2k ALAB-549,9 NRC 644,646-47 (1979k qf W. LDP 79-10,9 NRC 439,44748 (1979); Hourson Ughting and Pomer Ca (Allens Creek Nuclear oenermune ; station, Unit I), ALAB-535,9 NRC 377,393-94,3% (19791 Wien an trukvidual Ales a request for hearing on behalf of an organiaauon, he must show he is authorued. Darreir Ediron ca (Eartco Termi Atomic Power Plant, Ue 2K t.BP-7s-37,8 NRC 575,583 (1778k I
lf the Petitioners conunue to fear for the safety of the people who signed the petinon, then that portma of the peution couki haw twen orrutted However, we note that Petitioners have already revealed the idenoty of the signers by staung that almnet everyone signed.
57
In this amendment case, Petitioners must show that the amendment may injure them or someone they are authorized to represent. I explained that a party that can show a plausible mechanism by which they may be injured is emitted to standing, it is not enough, in a license amendment case, to allege generally that materials may seep into tl.c water supply, it must be shown that the taillags from the Cotter Concentrates represent an increased risk over already licensed activities.
Petitioners' Motion does not show that LilP-9712 had an error of law or frct. See 10 C.F.R. 5 2.771(b). In particular, they have not shown any error in the following statement about the Staff's Technical Evaluation Report (TER): 4 h is my conclusion, aner reviewing the last section of the TER, that this amendment makes very little substantive change in milling or tailing <lisposal operations. making it difncult for petitioners to show " injury in fact." 1he Staff found, at 3-4 of the TER, that:
[T]he processing of this material will not result in (1) a signincant change or increase in the types of amounts of efDuants that may be teleased ofralte;(2) a signincant increase in individual or cumulative occupaticcal radiation exposure; (3) a signincant consituction impact; or (4) a signincant increase in the potential for or consequences frorn radiological accidents. This conclusion is based on the following information:
- a. Processing of this material will not result in the currently approved annual yellowcake production limit of 4380 tons being exceeded.
b, No physical changes to the mill circuit are required to process this material.
- c. Processing this material will not require EFN lor IUSA] t' enlarge its talhngs' disposal facihties,
- d. Trucks transporting the mmerial to the mill site will be surveyed and decontam-inated, as necessary, in accordance with EFN [OR IUSAl's procedures, before leaving this site,
- c. Employees involved in handling the material will be provided with personal protective equipment.
Here is no information showing that these conclusions were incorrect. Accord-ingly, Petitioners' Motion failed to establish grounds for reconsidering the prior decision denying that they had standing.
The Staff has documented an error in my earlier decision. I mistakenly stated that information about the composition of the Cotter Concentrates was not publicly available. Dere was information, not in the record of this case, that was made available to the public since May 1997. Staff Response at 18, including note 13. Hence, Petitioners did have an opportunity to examine the 4
LDP 9712,46 NRC I,7 (199')
58
. - - - .. . _ - - . . - - - . .. -. ... _ - . ..-.-- . . ..-. .~...-. -
,, _1 4
public record and to explain why the materials might pose a risk to them or to
- the environment.
'!he motion for reconsideration is denied for failure to show that the Presiding -
Officer has made a material error' of law or fact.- 10 C.F.R. 6 2.734: Clevelam.
Electric illuminasing Co. (Perry Nuclear Pow Plant, Units I and 2), CLI 86- -
- _ 7,23 NRC 233,235 (1986); louisiana Power & Light Co. (Waterford Steam i Electric Station, Unit 3), CLI 861,23 NRC 1. 6 (1986). 'Ihc motion to reopen the record is denied because no additional evidence has been presented for- ;
admission into the record and there was no showing that the motion was timely,
- 10 C.F.R. 6 2.734.
, Peter B. Bloch, Presiding Officer
- ADMINISTRATIVE JUDGE -
j 1
- - Rockville, Mc yland 1 i'
t i
4 3
4 s
4 59 l
3 a
.- ..,F.
,.- 3 .r._ - g. .-y,,. - u -. s
Cite as 46 NRC 60 (1997) LBP-9715 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Mndnistrative Judges:
Charles Bechhoofer, Chairman Dr. Jerry R. Kline Dr. Peter S. Lam in the Watter of Docket No. IA 97468 (ASLBP No. 97 731-01.EA)
(Order Superseding Order Prohibiting involvement in NRC-Licensed Activities, Effective immediately) l AHARCW BEN-HAIM, Ph.D.
(Upper Montclair, New Jersey) September 25,1997 l
'The Atomic Safety and Licensing Board issues a Memorandum and Order that confirms an oral ruling at a prehearing conference denying. pursuant to 10 C.F.R. I 2.202(c)(2)(i), a request for rescission of an immediately efre :ive order issued by the NRC Staff.
ENFORCEMENT ACTIONS: IMMEDIATELY EFFECTIVE ORDERS RUtn OF PRACTICE: IMMEDIATE-EFFECTIVENCSS REVIEW An immediately effective enforcement order issued by the NRC Staff may be challenged pursuant to 10 C.F.R. 9 2.202(c)(2)(i).
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i ENFORCEMENT ACTIO.1S: STANDARD FOR IMMEDIATE .I EFFECTIVENESS !
An immediately effective order may be challenged as not based on adequate evidence, which the Commission has equated to " probable cause."
RULES OF PRACTICEt BURDEN OF GOING FORWARD AND OF PERSUASION ne movant challenging an immediately effective Staff enforcement order bears the burden of going forward to demonstrate that the Staff's order is not founded on adequate evider.ce, but the Staff has the t.ltimate burden of persuasion on whether the requisite standard has been satisfied.
RULES OF PRACTICE: IMMEDIATE EFFECTIVENESS REVIEW Claims of a movant under 10 C.F.R. 6 2.202(c)(2)(i) may properly euggest j the existence of factual disputes, but they may not be sufficient to demonstrate '
lack of probable cause for a Staff immediately effective order.
PREHEARING CONFERENCE ORDER (Denying Rescission and Establishing Schedules)
I. BACKGROUND Dis proceeding concerns the NRC Staff's Order Superseding Order Pro-hibiting involvement in NRC-Licensed Activities (Effective Immediately), dated August 27,- 1997, published at 52 Fed. P.cg. 47,224 (Sept. 8,1997)(hereina rter,
' Superseding Order). His Atomic Safety and Licensing Board has been des-ignated to conduct any hearing arising from this Order, which superseded an earlier order dated July 31,1997 ' The Superseding Order prohibits Dr. Aharon Ben-llaim from serving as a consultant or otherwise becoming involved in NRC-licensed relivities for a period of 5 Sears, running from July 31,1997, the ef-fective date of the earlier order.
.In his answer to the initial order, dated August 19. 1997, Dr. Ben Haim requested a hearing and also sought rescission of the immediate effectiveness of the order. The hearing request in summary form outlined Dr. Ben-Haim's answer to many (although not all) of the assertions of the initial order. By filing ine ueeniins nonni . estabushed on Ausus 25.1997. s,,62 red. Res. 46.ast (sepi. 2.1997).
61
dated September 8,1997, supported by four affidavits, the NRC responded to the answer of Dr. Ben liaim (treating the August 19 answer as applicable to the Superseding Order as well as to the itiitial order).
The Licensing Board, through its Memorandum and Order (Granting Request for ilearing and Scheduling Prehearing Conference), dated Septembee 11,1997, treated the August 19,19W hearing reqoest as applicable to the Superseding Or-der (which had replaced the initial ord r in its entirety), granted Dr. Den-Haim's request for a bearing and scheduled a prehearing conference for September 18, 1997, in Newark, New Jersey, to hear oral argumera on the rescission of imme-diate effectiveness and to establish certain hearing-related schedules.
At the conference, the Board ruled orally (Tr. 36) that it would not rescind the immediate effectiveness of the Superseding Order, leaving the detailed reasons for this determination to be explained in a written order. We now provide those reasons.
II. RESCISSION REQUEST Our authority to consider Dr. Den-Haim's rescission request is set forth in 10 C.F.R. 6 2.202(c)(2)(i), which reads, in pertinent part:
The. , person to whom the Commission has issued an immediately effective order may, in addition to demandmg a heartng, at the time the answer is (ded or sooner, move the presiding ofhccr to set aside the immediate effectiveness of the order on the ground that the order, includmg the needfor inunedsate efectiveness, is not based on adequate evidense but em mere suspscson. unfounded alleganims, or errut. The motion must state with particularity the reasons why the order is not based on adequate evidence and must be accompanied by aHidavits or other evidence rehed on. The nulon must be decided by the presidmg ofacer expeditiously. During the pendency of the motion or at any other time, the presidmg officer tray not stay the inunediate effectiveness of the order, either on its own motion, l or upon motion of the laffected) persor.. The presidmg officer will uphold the immediate effecuveness of the order if it finds that there is adequate evidence to support imnediate cffectiveness. An order upholdmg immediate efectneness wal consature the[snal agency action um immednate efectneness. An order setting aside immeduste efectinness wal be referred promptly to the Commission itself and wal not be efectne pendmg further order of the Crvnissum. IEmphasis supphed.]
Thus, to uphold the immediate effectiveness of the Superseding Order against Dr. Den-Haim's challenge, we must find that the Staff's immediate-effectiveness determination was based on " adequate evidence." In that connection, the Statement of Considerations accompanying the enactment of the foregoing rule explained adequacy in terms of"the existence of facts and circumstances within the staff's knowledge, of which it has reasonably trustworthy information, sufficient to cause a person of reason:.a'le caution to believe that the order is properly founded." 57 Fed. Reg. 20,194 (May 12,1992). The Commission went 62 l
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on to compare the adequate evidence test to " probable cause" necessary for an anest, a search warrant, or a preliminary hearing "less than must be shown at the trial but , , , more than uncorroborated suspicion or occusation." 57 fed.
Reg, at 20,196, citing 1/orne Brothers, Inc. v. leird, 463 F.2d 1268,1271 (D.C.
Cir,1972). See additional discussion in Eastern Triting and Inspection, Inc.,
LBP-96-9,43 NRC 211,21516 (1996).
As set forth in Eastern Trsfing, supra, at 216, the movant enallenging the Staff's immediate-effectiveness order (here, Dr. Ben-Haim) bears the burden of going forward to demonstrate that the Staff's order is not founded on adequate evidence, but the Staff has the ultimate burden of persuasion on whether the requisite standard has been satisfied. To meet his burden, Dr. Ben Haim relied primarily on his letter of August 19,1997, supplemented by additional remarks of counsel at the prehearing conference. He did not present any affidavits.2 for its part, the Staff presented four affidavits from investigators, inspectors, and superusory personnel participating with respect to the Superseding Order, together with background documentar, evidence. 'they described, inter alia, the sources of information relied on by the Staff for its immediate-effeeiveness determinations, together with policy reasons motivating such determinations.
Dr. Ben Haim's August 19, 1997 letter attacks the Staff's initial order for relying on allegedly !norrect information furnished by a named informant, Dr.
Gerard W. Moskowitz. Dr. Ben Haim attacks Dr. Moskowitz' credibility, not that of the inspectors or investigator to whom Dr. Moskowitz provided his information, We have some question whether these statements of Dr. P;n-Haim make the evidence provided to the Staff inspectors and investigators by Dr. Moskowitt unreliable.
However, even asu.iming (for purposes of argument) the unreliability of Dr.
Moskowitz, the Staff treats those statements as merely developing background information and not at the heart of the most serious charges nWnst Dr. Den-Ilaim (Tr,16). According to the Staff, the most serious of the charges against Dr. Den-Haim arise as a result of his " deliberate misconduct" in allegedly acting as a Radiation Safety Officer (RSO) a . . Authorized User witt.out being qualified or certified to do so (Tr.18),2 A Senior Special Agent of the Office of Investigations (01), Region I, filed an affidavit declaring that, during an 01 interview, Dr. Ben-Haire admitted snat he acted as the "de facto RSO" 3
Dr. Ben-Haim's failun to subnut afadavits was explamed as based on " advice of counsel because of possible enminal penaines"(Tr. 61 Akhough w could consibly deny Dr. Ben-H.um's rescinion motion on the basis of lack of afndavics, we eN not to do so. We interpret the "other evidence rehed on" referenced in 10 C.F.R.
6 2.202(cK2XI) as arguably covering motions rif this sort. Cf ss, /oreph Aaf=4u Asrocsares lac., t.BP.92 34, 36 NRC 317 (1992).
3 Acconhng to the Staff, the Commission's govermng regulations do not recosture "irnohcit authoriry" as suggested by Dr. Ben-H.unt see 10 C.F.R. Il 33 25. 35 32. Based on wt+t Dr Ben-Ham has provided thus far.
we cannot say uus Staff interpretanon is " erroneous."
63
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for Newark Medical Associates and authorized dose orders of Tc 99, without receiving delegated authority from the RSO. Dr. Ben-Haim's counsel made no ;
attempt to demor. strate that this 01 affidavit was unreliable evidence (Tr.12),
although he suggested that the piece of paper written by Dr. Den-liaim and relied upon by 01 as evidence of Dr. Ben Haim's unauthorized action was not in fact properly characterized as a prescription (Tr. 31).
He claims of Dr. Ben-Haim may properly suggest the existence of factual disputes, but they are not sufficient to demonstrate that there is not probable cause for the Staff's charges. Furthermore, the circumstance that Dr. Ben.
Haim has never been charged with violations with respect to other consulting arrangements with different facilities (Tr. 3132) does not undercut the Staff's allegations with respect to his action at this facility, although it may have a bearmg on the appropriateness of any perticular sanction imposed. In these circumstances, the record compels us to deny the rescission motion and uphold the immediately effective order pending further adjudication.
III. SCHEDULES ne Board recognized that the immediately effective Superseding Order placed Dr. Ben-liaim under some hardship, and it urged that an expedited discovery and hearing schedule be adopted (Tr. 36-37, 51). In response to Board suggestions that the parties submit a joint proposed discovery and hearing schedule, the parties responded that they wished to review Dr. Ben-Haim's formal answer to the Superseding Order before considering appropriate schedules. The formal answer was scheduled (by prior agreement) to be filed by September 19,1997 (and it was in fact filed by that date). De parties agreed to submit a proposed schedole by wesday, September 30,1997, and the Board approved that agreement (Tr. 43).
eeo Based on the foregoing, it is, this 25th day of September 1997, ORDERED:
- 1. Dr. Ben-Haim's motion to rescind the Staff's immediate-effectiveness order in this proceeding is hereby denied.
- 2. His denial constitutes final agency action on this matter and is not subject to Commission appeal.
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- 3. The perues rie directed jointly to submit a proposed discovery and hearing schedule by no later than September 30,1997, e
TMB ATOMIC SAFETY AND -
LICENSING BOARD Charles Bechhoefer. Chairman ADMINISTRATIVE JUDGB t
Dr. Jerry R. Kline - ,
ADMINISTRADVE JUDG8 Dr. Peter S. Lam ADMINISTRABVE JUDGE Rockville, Maryland +
September 25,1991 4
65
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Cite es 46 NRC 66 (1997) LBP-9716 UNITED STATES OF AMERICA NUCLEAR REGULAMY COMMISS8ON j
{
ATOMIC SAFETY AND LICENSING BOARD PANEL Before Adminletrative Judges:
G. Paul Bollwerk, Ill, Proeidmg Offmer Thomas D. Murphy, Special Assistant in the Metter of Docket No. 56 61425-SP (ASLDP No. 97 725-02-SP)
FRANK J CALABRESE JR.
(Denial of Senior Reactor Operator Lloonee) September 26,1997 '
in this informal proceeding concerning a challenge by Rank J, Calabrese Jr. to the NRC Staff's proposed denial of his application for a senior reactor operator (SRO) license, the Presiding Officer concludes the Staff's action should be affirmed and the application denied because the applicant did not follow
- facility procedures regarding rapid depressurization during the simulator portion of his SRO .:xamination operating test.
RULES OF PRACTICE: WITNESSES (CREDIBILITY); INIORMAL HEARINGS (CREDIBILITY OF AFFIANTS)
When the credibility of various affiants is at the center of the parties' dispute, the presiding officer would have to convene an oral presentation session to receive testimony, See 10 C.F.R. Q 2.1235.
REGULATORY GUIDES: APPLICATION; STATUS Documents bearing the NUREO designation generally do not establish reg-ulatory requirements. See, e.g., General Public Utilities Nuclear Corp. (Oyster 66 i'
l-l I
_ Creek Nuclear Generating Station), LBP 971, 4' NRC 7, 25 (1997) (citing cases).
REACTOR OPERATOR LICENSE: ~ EXAMINER GUIDELINES (APPLICATION)
While heedful of the discretion afforded the Staff in making its reactor operator examination determinations, a presiding officer properly can look to NUREG 1021 as an important source in assessing whether the Staff has strayed too far afield of its statcJ twin goals of " equitable and consistent" examination administration. Cf Ralph L Tetrick (Denial of Application for Reactor Operator Ceense), CLI 97 10, 46 NRC 26, 31 32 (1997) (because agency practice is one indicator of how agency interprets regulations, consistently held Staff view on operator testing policy matter will not be disturbed).
REACTOR OPERATOR LICENSE: EXAMINATION (SIMULATOR PORTION OF OPERATING TEST)
- Given the " snapshot" nature of the simulator portion of the operating test process, the quality of an applicant's critical decisionmaking during a crucial test interval, no matter how brief in relation to the rest of the test, was an appropriate yardstick for taking the measure of the applicant's performance.
REACTOR OPERATOR LICENSE: EXAMINATION (SIMULATOR PORTION OF OPERATING TEST)
Although there may well be a difference between the Staff's assessment of the safety significance of " actual" and " potential" events at a functioning facility, in the simulator portion of the operator test process in which the Staff is assessing whether it should permit an applicant to be placed as a reactor operator at such a facility when his action (or inaction) can cause such an actual" event, the distinction between " potential" and " actual" events is one that has significantly less resonance, particularly if the consequences of the
' applicant's activities ultimately can result in serious reactor core damage.
TECHNICAL LSSUE DISCUSSED
'Ihe following technical issue is discussed: Reactor operator testing.
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INITIAL DECISION This 10 C.F.R. Part 2, Subpart L informal adjudication was convened at the behest of Itank J. Calabrese Jr., who requested a hearing to challenge the NRC Staff's action denying his application for a senior reactor operator (SRO) license.
Specifically, he seeks to have overturned the Staff's fmding that during one of the simulator scenasios in th6 operating test portion of his SRO examination, he failed properly to use an emergency operating procedure (EOP) in responding to I
a major transient event, thereby meriting a score that is below the level needed i
to pass the examination.
For the reasons set forth below, the Presiding Officer concludes that applicant Calabrese has failed to meet his burden of showing that the Staff incorrectly l
scored the operating test portion of his SRO examination. See 10 C.F.R.
6 2.1237(b). Accordingly, the Staff's determination that he did not pass the operating portion of the examination is affirmed and his application for an SRO license is denied.
L BACKGROUND A. Calabrese License Application and llearing Request Applicant Calabrese currently is employed by Pennsylvania Power and Light Company (P"&L) at its Susquehanna Steam Electric Station (SSES), which 1
has two 3300 megawatt General Electric Mark 11 boiling water reactors. By application dated September 30,1996, Mr. Calabrese requested an upgrade of his existing reactor operator (RO) license to an SRO license.' See Hearing File (May l
8,1997), item I, at 2 (U.S. Nuclear Regulatory Commission (NRC), t'ersonnel Qualification Statement-Licensee, Ibrm 396) (hr.reinafter Hearing File]. An SRO examination, which consists of a written examination and an operating test, was administered to him over a 4 day period in late-October 1996. Initially, l NRC examiners found applicant Calabrese failed both the written examination and operating test portions of the SRO examination and proposed denying his SRO license application. See id., item 8, at 1 (Letter from Glenn W. Meyer, Chief, Operator Licensing and 11uman Performance Branch, Division of Reactor Safety, NRC Region I, to liank J. Calabrese Jr. (Dec. 2,19%)). Later, as a result of an informal review of his examination requested by applicant Calabrese, the Staff concluded he had passed the written portion of the examination. As I
As a heenwd Ro Mr. Calabrew is pud.oriad to mampuhste dw reactor controls at the sSES facihty. As an SRo. Mr. Calabrese also would be authorized to direct the beenwd activines of odwr Rot Set 10 C F.R. I 55 4 (de6 muons of " operator" and " armor operator *1 68
part of that same review, however, the Staff reaffirmed its finding that Mr.
Calabrese had failed the operating test portion of the examination, in particular Competency 4, entitled 'rompliance With and Use of Procedures." Sec Id, item 13, encl. at 4 5 (Letter from Bruce A. Boger, Director, Division of Reactor Controls and 'fuman Factors, NRC Office of Nuclear Reactor Regulation, to Rank J. Calabrese Jr. (Mar,3,1997)). As a result, the Staff sustained its earlier proposed denial of his SRO license applicaticc 2 j Applicant Calabrese then filed a time!y request for an adjudicatory hearing regarding the Staff's determination. See id, item 14, at I (Letter from FJ.
Calabrese Jr. to NRC Secretary (Mar. 14, 1997)). His hearing petition was assigned to this Presiding Officer. who granted his request on April D,1997.
Ser 62 Fed. Reg. 15,542,15,542 (1997); 62 Id. i8,155,18,156 (1997). In accordance with 10 C.F.R. 5 2.1231, on May 54,1997, the Staff submitted the hearing file concerning its action on Mr. Calabrese's application. Hereafter, both applicant Calabrese and the Staff filed their written presentations setting forth their positions on why the Staff's denial action was, or was not, appropriate.
See Presentation on Behalf of Rank J. Calabrese Jr. (Inne 4,1997) [ hereinafter Calabrese Written Presentation); NRC Statf Presentation in Support of Denial of [SRO) License for Frank J. Calabrese Jr. (June 30,1997) [ hereinafter Staff Written Presentation]. In addition, in accordance with section 3.1233(a),
Mr. Calabrese was afforded an opportunity to respond to the Staff's written presentation. See Reply Presentation on Behalf of Frank J. Calabrese Jr. (July 16,1997) [ hereinafter Calabrese Reply Presentation].
Finally, as part of the informal hearing process, the Presiding Officer asker' for and received responses to a series of written questions directed to the Staff.
See Presiding Officer Memorandum and Order (Presiding Officer Questions)
(July 23,1997)[ hereinafter Presiding Officer Questions); NRC Staff Response to Presiding Officer's Questions (Aug. 4,1997) [ hereinafter Staff Questions Response). Applicant Calabrese was, in turn, provided with an opportunity to address the Staff's response.2 See Response on Behalf of Rank J. Calabrese
, Jr. to NRC Staff Answers (Aug. 18,1997) [ hereinafter Calabrese Questior.s Response].
De filings and documents described above constitute the record upon which this determination is based.
3 Ahhough appheant Calabrese also sought Staff review or a parece of tus score on Competency 7. " Direct shin operations." the Stafr &d not consider that request because he received an overan passtag grade tegarang that competency. Jn Heanng File. 6 tem D. enct at 5.
3
. As 6s described more funy bekw, in responding to the Staff's answers appheant Calabrese provided an af1 davit from a fornwr NRC employee with esperience in the agency's operator heensing progrant The Staff was given an opportunity to respond to that af$ davit, whkb it dechned to do. $n letter from Chales A. Barth. Stafr Counset e
to hesiding ofiicer (Aug. 28, 1997),
69
H. The Operating Test Portion of the Examination As described in NUPEG 1021 the agenc 's operator licensing examiner standards manual. agency regulations mandate that the operating test portion of an SRO examination require that an applicant demonstrate he or she understands and can perform those actions needed to accoinplish a representative sampling of thirteen qtalification items.1 hose items, which are specified in 10 C.I'.R.
I $$.45(a), include perforrning prestartup procedures, identifying and responding to annunciator and condition indicating signals, and demonstrating knowledge of significant radiation hazards and emergency plan procedures. See Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Operator Licensing Examiner Standards NUREG 1021. Exe. miner Standard (ES)-301, at 2 of 26 (rev. 7 Jan.1993 & Supp. I June 1994) ihereinafter NUREG 1021).*
And relative to there items, the operating test incorp9tates two formats - a facility walk through and performance in a simulator.
The facility walk through, ;n turn, is divided irto two categories - admin-istrative topics and control room and facility walk through. The former is de-signed to cor h hnowledge and abilities needed for administra'ive control of the plant in pei a och as daily operations condu-t, equipment management, ra-diatkui protection, and eme' ericy plan executior.1hc latter, on the other hand, dLiermihes if the applicant's Loowledge of plant system design is a('tquate and if he et she is able to operate those systetas safely. Both walk through cate-gories are administered in a one on-one, facility walk through lormat. Sec /d.
at 3-4 of 26.
The simulator portion . ( the operating test, which is the most performance-based operating test category, is intended to evaluate the applicant s ability to operate the plant's systems safely under dynamic conditions. It is administered in a team format with as many as three applicants (or surrogates) filling the RO and SRO licensed positions on an operating crew. This enables the exarniners tc, evaluate each ahlicant's ability to function as a member of the control room team in the apprupriate position. Each team must contend with one or more scenarios, which are an integrated group of events that simulate a set of plant malfunctions and evolutions. These scenarics are designed to allow the examiners to evaluate cach applicant individually on a range of applicable competencies. Sec id. at 1, $ of 26.
4 one secuna or NURIX).1021,1.S 303 man included as 6 tem 21 in the Heanes ble At de Preudmg otheer's request, as an situhment to its June 30, 1997 imtien presentapoi the stafr prov6Jed a compkw copy of av January 199) version, as suppleterned to Jutw 19M, that eas la effect at tiw Mme or appbcant Calatwese's etanuantmn 3ee Staff wroten hetent.auon at $ The Presiding othcet han rehed upon stus January 1991 versson or NURIO.8021 as er unradum to the hearing hie, 70
p _._..___ .__ _ _. ._ _ _ _ _... _ _ _ . _. . . _ _--_ _ _ . _ _ _ _ _ _ _ . _
)
i SRO candidates are evaluated on as many as eight competency categories,8 I 1
exh of which is broken down into three or four speific rating factors. Appli.
j cants are assigned weighted numer! cal grades under each of the particular rating factors that classity the applicant's performance under that factor. *lhe assigned i
scores for each rating factor must result in a total score foi cach competency i sufficient to demonstrate proficiency on his or her license level, whic!. com.
, monly is a score of greater than 1.8 out of a possible total of 3.0. Examinefs !
generally can deny the operator license application of any individual Ao fails to demonstrate proficiency in every single competency.' See id. ES 303, at 5 of 27,
.in this in6tance, applicant Calabrese's problems arose in connection with the fourth competency category " Compliance With and Use of Procedures." As
' set fe'th in the pertinent part of the examination repott, applicant Calabrene's i scores on this " Procedures" competency were as follows:
~
C. SENMMt REACTOst OPERATOIt kdTEGRATED PIANT OFFJLATIONS (NIMUIATOR TEST) GRADING NUMMARY Cesapeteneton/
MaWas Pt.esers Welsht 3.4 1.4 1.0 Total ...
- 4. l*OCl2)URES ..
A. Reference 0 25 0 75 0.50 g ..
II, Conect Une C. Crew Implenetaatton OJO l.50 1.00 m ..
0 25 Q.?.3 0 50 0.25 , tL3) .
licating File, item 2 at 3 of 8 (NRC Operator License Examination Report Ibrm ES.3031 for Frank J. Calabrese (Nov. 26,1996) (underscoring denotes original handwritten marking.
C. 1he Operating Test Scenario at laeue from the discussion in applicant Calabrese's written presentation, it is apparent that the portion of the operating test now in controsersy is the sixth and final event of simulator scenario two, which was one of the two scenarios upon which he was tested. The summary of that scenario event prepared by the SSES 'liaining Center states:
8 one comprwncy area,
- Control Isoned operanons? in opuanal for $Ro upgrade apphcants bks Mr. Calatwese.
If it is evaluawd, howent, that comgewacy must te factored into the apphcant's saal grade. See NURr01021.
11303, at 5 or 27. Mr Cataturne was, in fact. graded la this area See Hestas Ik twm 2 at 3 or s.
- A candedme can receiw a score or less than I s on Correewncy 6. *Commusucahons and crew inwractions
- and sull pass the operaung wat if he re she has a secte or at least 10 on the compewacy and kital grades for all other ecmgewncks the are 2 0 or greater. See NUnin1021. f1303, ei S er 21.
71 t
r
, . . - .---e.,.--- , - ,y- , , , ,r.m y . . ., -
+
Event Sit. A steam line tweak in de common RCIC [(reador core twtation cooling)l and flPlc [(h6gh prenure coolant injecticell pre routing area occurs requiring entry into Enl00Ll04, Secondary Cornainment Control. The crew wl!! attempt to teol.te RCIC but de outboard valve wiu not close. The crew will manually scrarn the reactcv as tengieratures amtinue to rise towards maximum amfe values The crew will implenent 10100102, RPV
((reactac pressure vessel)1 C<warot, and nanually scram the reador. Seven ccmtrol rods will fall to insert requiring entry into 00104113, tevet%wer Control. The CRD [(coritrol rod drive)] nrvth areas and remote shutdown genel area will rise stee 10 R/hr [(rads per ho,,r)),
requinng the crew to enter 1D100112, Rapid Ikpressuritation. The crew will rapidly depressurtre the reactar. Both ICOs ((reactcv operators)) and the US [(unit supesvisor)1 will te actsvely involved in this seq /pe transient and two cosipementfa#wres.
llearing File, item 5, at 3 of 21 (PP&l SSES 'Daining Center, Simulator Scenario No. 2. Ilow Comparator Failure of APRM Upscale Trip, RCIC Pump Operability, Loss of reedwater lleating, Loss of !!!246, Unisolable RCIC Steam Line Ilreak (rev,1 Oct, 8,19%)). Moreover, the scenario indicates that during event sin the SRO position occupied by Mr. Calabrese (also referred to as the Unit Supervisor or US) is to perform the following activities:
Enter and direct actions of EO-100'104, Secondary Corsainners Cosarol Directs starting emergency servke water (ESW) and room coolers Directs enanual scram of reacttu on approaching masimus, safe temperature Enters and daracts E0100,113, L4vetT.wer Control Enter and directs actions of EO-100 II2, Rapid ikpressunration Dareds preventing injeason of low pressure systems Directs opening autornatic depressurti.ation system (ADS) safety relief valves (SRVs)
See id. at 20 of 21,
- 1. Applicant Calabrese's Recounting of the Scenario Applicant Calabrese described event six in his affidavit accompanying his written presentation, see Calabrese Written Presentation, Statement of Frank J.
Calabiese Jr. (May 30,1997) at 5 9 [ hereinafter Calabrese Statement), and in a supplemental affidavit filed with his response to the Staff's written presentation, see Calabrese Reply Presentation, Supplemental Statement of rtank J Calabrese Jr. (July 11,1997) at 15, it began when the reactor operator (also referred to as the Plant Control Operator-Ur or PCOU)- a role being played by RO applicant Arnold J. Avery - reported a high radiation level in the RCIC area.
Recognizing this as an unexplained area radiation level above masimum normal t
72
1 level, applicant Calabrese declared an emergency, directed reactor building evacuation, and entered EO-1(4104. Secondary Containment Control.
Implementing this emergency operating procedure, he directed efforts to have all systems discharging into the RCIC area isolated. He then declared a site area emergency and, because the isolation valve would not close, antered into EO-100102, RPV Control, ibilowing that procedure, he then attempted to shutdown or scram the reactor. Seven control rods remained partially withdrawn, however.
Recognizing this as an anticipated transient without scram (ATWS), he then entered EO 100 Il3 and followed its alternate control rod insertion directions.
'This resulted in the control rods inserting further, although not completely, so that reactor power dropped to less than five percent.
At this point, applicant Calabrese recalled that the PCOU reported a high radiation level in the main steam line. Applicant Calabrese states he told the PCOU to continue to rnonitor radiation levels and he would back up the PCOO on level monitoring because the PCOU had other responsibilities, including reading secondary containment temperatures on a back panel that would require the PCOU to step behind and out of sight of the control room consoles.
Applicant Calabrese also continued the EO-100-Il 3 steps required for attempting to insert the seven still-partially withdrawn control rods.
While applicant Calabrese was doing this, the PCOU reported radiation levels that exceeded maxirnum safe lesels in two areas. Under EO-100-1(M.
this required implementation of EO-100-ll2, Rapid Depressurization, by which radioactive steam from the reactor core is directed into a suppression pool beneath the core to reduce reactor pressure and thereby minimize public radiation exposures. According to applicant Calabrese, the EOPs like EO 100-112, which are in the form of logic tree diagrams directing the operators to certain courses of action depending on plant conditions, are printed on thick boards stacked on edge in a rack in the control room, in this instance, he asserted he looked in the rack where EO 100-112 should have been but was unable to find it. Concerned about the importance of prompt depressuritation in avoiding public exposures, he decided to depressurire immediately relying on his memory of what EO-100-112 required.
Toward that end, he called the IV'OU and the balance of plant (BOP) operator (also referred to as the Plant Control Operator-Extra or PCOX) -
a role being played by SRO candidate Gordon E. Robinson - for a "tailboard" conference. During this discussion, he informed them he planned to enter rapid depressuritation and discussed their duties, including the PCOX's assignment to open the automatic depressuritation system (ADS) and prevent low pressure emergency core cooling system (ECCS) injection. Thereafter, the PCOU and PCOX returned to their stations and applicant Calabrese went back to looking for EO-100 ll2, but was still unable to lind it.
73
Applic ant Calabrese then directed the PCOX to open the ADS valves to start i
depressurization. The PCOX ncknowledged this direction and asked if he should prevent low pressure injection. Applicant Calabrese stated that he conf rmed low ,
pressure injection should be prevented.
After giving this direction, however, applicant Calabrese located the EO.
, 100-112 board, which he previously overlooked because it was pushed to the back of the rack. According to Mr. Calabrese, he then quickly reviewed the procedure and saw its direction that, absent a determination the reactor will remain shutdown under all conditions without the addition of boron, all reactor pressure vessel injection must be stopped and prevented before opening the ADS valves. Recognizing this direction is to preve;t a fuel-damaging power increase resulting from a reactivity insertion by the injection of cold water into
= the reactor, he checked the reactor pressure gauge to see if it had fallen below a level at which low pressure injection would occur. *Ihe pressure was at 350 pounds per square inch and falling. He then look'ed to see if low pessure '
injection was prevented, and found it was not because one residual heat removal (RHR) pump was still running. He directed the PCOX to turn off that pump, which the PCOX did promptly.
The PCOX then informed applicant Calabrese there may have been some injection. Mr. Calabrese stated he asked the PCOU to check the reactor power and water levels and the PCOU reported there was no change. The scenario then ended, applicant Calabrese declared, eithout cold water injection or a depressurir.ation-related power excursion or fuel damage, i
- 2. Orker Examination 1%rtichmnts' Descriptions of the Scenario '
As part of his reply to the Staff's written presentation, applicant Calabrese -
provided the affidavits of PCOX Gordon Robinson and PCOU Arnold Avery.
See Calabrese Reply Presentation, Statement of Oordon Robinson (July 11, 1997) at 13t Id. Statement of Arnold Avery (July ll,1997) at 1.
- a. Alr. Robinson
'According to Mr. Robinson, near the end of the scenario Mr, Avery reported l radiation exceeded the maximum safe levels in two areas. He recalled that Mr. Calabrese then told both operators that he wanted to hold a tailboard discussion. During this discussion, applicant Calabrese said that rapid reactor .
depressurization was necessary and Mr. Robinson would need to open the six ADS valves. Mr. Robinson also declared that they discussed the need to prevent low pressure injection, but did not discuss w hether low pressure injection should be prevented before op ning the ADS valves. Mr. Robinson also recollected 74
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)
that applicant Calabrese told Mr. Avery he would have certain duties during l depressurization, but cannot remember what those were.
Mr. Robinson further declared that after the tailboard discussion, Mr. Cal.
attese gave him the direction to open the sin ADS valves, which he echoed and added "and inhibit low pressure ECCS " Mr. Calabrese then repeated what l Mr. Robinson had said. Although Mr. Robinson stated he knew that the ECCS pumps should be inhibited before depressurization, he declared he understood Mr. Calabrese's recitation to be a direction that the ADS va!ves be opened first.
lie then complied with this direction without questioning Mr. Calabrese about the order of the two actions because of his concern about not infrinEi ng on the pretest directive that the applicants not prompt each other during the test.
Thereafter, according to Mr. Robinson, he placed the ADS hand switches in the open position, looked at the control board indicator to confirm the valves were open, and looked at the reactor pressure indicator to verify pressure was decreasing, lie recalled noticing the reactor pressure was about 700 pounds per square inch and decreasing. lie reported the ADS valves open status and the decreasing pressure to applicant Calabrese. Mr. Robinson then told Mr. Calabrese he was starting ECCS pump inhibition, which Mr, Calabrese confirmed he should.
Prior to ECCS pump inhibition, Mr. Robinson, stated, the "A"leop Residual lleat Removal (RllR) pump was running in alignment for suppression pool cooling, which sends the pump flow into the pool rather then the reactor, Just before Mr. Robinson turned off the "A" RilR, which was the last pump running, applicant Calabrese directed him "msistently and urgently" to turn that pump off. When he shut it off, he looked at the flow indication for that loop and saw what appeared to be a small" bounce" from zero to approximately 2500 gallons per minute and then back to zero. Mr. Robinson reported to Mr. Calabrese that all low pressure ECCS was inhibited and there might have been some injection based on that flow indication, which Mr. Robinson now believes was a minor simulator response rather than a real flow indicator.
Mr. Robinson also recalled a discussion among all three epplicants that took place after completing this scenario and leaving the simulator in which Mr.
Avery indicated he had been monitoring the water and power level change indicators when Mr. Robinson was preventing the low pressure ECCS injection and had seen no change in either one. Mr. Robinson also recollected that during this discussion Mr. Calabrese stated that prior to the depressurization sequence he had tried and failed to find the procedure board, but did find it while Mr.
Robinson was opening the ADS valves and marked it up to catch up to where they were in the procedure.
75
- b. Mr. Avery As the PCOU, Mr. Avery recalled that during the test he was monitoring rising radiation levels that were approaching maximum safe levels. After gning behind the main control panels to perform a back panel task, he returned to find radiation levels had risen above maximum safe levels, lic repofted this to Mr.
Calabrese. 'Ihereafter, Mr. Calabrese held a tailboard discussion during which he told Mr. Avery and Mr. Robinson he was going to initiate rapid depressurization.
Mr. Avery remembered monitoring reactor power and water levels while this was happening and, although he does not remember any specific details, he recalled he did not see any significant change in either level.
- 3. Stqff Description of the Scenario
'Ihe Staff has a somewhat different recollection of the circumstances sur.
rounding event six of the second scenario, which it provided in an affidavit filed with the Staff's written presentation. See Staff Written Presentation Staff Re-sponse to Mr. Calabrese's Written Presentation in the Ibrm of an Affidavit by Siegfried Quenther, John G. Caruso,'Ilracy E. Walker, and Carl E. Sisco (June 19,1997) at 13-16 [ hereinafter Staff Written Presentation Affidavit).
Staff license examiners John G. Caruso and Tracy E. Walker, both of whom were present during the scenario and observed it,' stated that Mr. Calabrese failed to refer to or comply with the procedures in EO 100 Il2. Neither examiner recalled, nor do their notes reflect, any attempt by Mr. Calabrese to locate the procedure before Mr. Robinson mentioned the low pressure ECCS pumps after Mr. Calabrese gave the order to r pen the ADS valves. According to the affidavits, Mr. Caruso, who was monitoring Mr. Calabrese during the scenario, did not note that Mr. Calabrese was having any problems locating this procedure.
'Ihese Staff affidavits also declared that Mr. Calabrese made no mention of a problem with kicating the procedure either when Mr. Caruso questioned him about the scenario after the examination or in any of his submissions during his informal Staff appeal. 'Ihe Staff examiners further stated they have no recollection of a formal tailboard discussion nor do their notes reflect such a discussion taking place. Both, however, did note Mr. Robinson's observation T
The other pnncipal staff afhant, sensor teacha trigtnrer segfned ovenrher is an enanures fanwhn with or agency's *etandnanon procedures and espectatson regading operata performance." staff Questions Response.
staff Responas to preshbag or6cer Quespons 6n the hrm of an Af6 davit by swgfned Ouent!wr. John O Caruso, and Tracy li Walker (Aug. 4.1997) at 2 (hereinaner staft Quesuons Response Affidaviti He did not, homewr, tecome involved with Mr. Calabrese's apphcanon unal he was given the task or aseenthng dw heanog fde fiw this a4u.bcanon. Ahhough he asserts he 'has am reason to dout( the truthfulness and accura y or Ow slarr's Jure 30 otsteen presentauen. 6J at 3. he appaently has no direct knomledge or what happened dunng de swaano. Ihs
" support
- of alxue paruons at the stalt's arkdavits that deserthe events dunng dw sceneno at issue thus provides bnic, tr any, corts*nrahon for the staft's wrsion of what transpired.
76
that the "A" loop RilR pump had begun to iniect water in the RPV before that activity was overridden.
II. TIIE PARTIES' POSITIONS As the description above makes apparent, applicant Calabrese and the Staff have outlined some serious disagreements about the sequence and significance of events that occurred during event sin of scenario two of the simulator portion of his operating test. Not unexpectedly, each party also ast.erts that events during this portion of scenario two support its position that Mr. Calabrese's application should or should not be granted.
A. Parties' Written Presentations
- 1. Applicant Calabrese's Position Mr. Calabrese emphasizes that he received fully satisfactory ratings on twenty three of the twenty seven individual rating factors under the eight compe-tencies that were evaluated in the two simulator scenarios, lie declares, however, that his " uniformly" good perforraance was overshadowed by the unsatisfactory rating value of "l" he was assigned under rating factor 4.11, which concerns the correct use of procedures, llecause of his score on this rating factor, which is one of the three rating factors under Competency 4," Compliance With and Use of Procedures," he received an overall score of 1.5 on that competency.'
lie observes that if he were given a fully satisfactory rating value of "3" or a middle range, marginal score of "2" on rating factor 4.11, he would have a total score above 1.8 for that competency and so would have qualified for an SRO license. See Calabrese Written Presentation at 6-7.
According to applicant Calabtw, each deficiency in an applicant's perfor-mance on a simulator test must be judged in light of the total knowledge and ability uemonstrated by that applicant during the entire test. Asserting agency examiners found nothing in his performance to criticire other than taking one step in EO 100-Il2 out of order, he explains that he did look, albeit unsuccess-fully, for that procedure. This, along with the fact his failure to refer to the procedure before ordering the ADS valves opened was prompted by his con-8 tnically. Mr Calatwew also nouste a 1%ueng Officer deteenunauon regar&ng de efhcacy of etw staft's scswing of anodes of Gw duee reung facttws under Cornpetency 4 - raung factor 4 A concerning reference to procedures As part of his August 18.1997 responw to de Staffs answers to a netws or quesuona pined t'y du Preu&ng Otheer to the staff. Mr. Calabrew included de sworn statenrat of firner NRC ernpksyce Robert J.
Paw See Calateese Quesuons Responw. Statenrat of Robert J Pete (Aug 14.1997) la stud staarnent. Mr. l%w dr(lared tw agreed with de susfr's possoon on de scoring of dus raung factur See id at unintenbered p 2, As a conwyuenat. Mr Calabrese widntrew tus challenge to itw staff s scoring on raung factor 4 A. See Calabrese Quesuuns Response as $4 77
l cern about radioactive leaks, should not be considered to reflect adversely on his ability to understand and uw procedures. Applicant Calabrese also asserts that, as the substance of the tailboard discussion makes apparent (and contrary to the Staff's assertion during his informal appeal), he was aware of the need to prevent low pressure injection in conjunction with opening the ADS valves.
Ifis action ordering the Rl(R pump turned off thus was not simply the result of prompting by Mr. Rob;nson. Nor did he misunderstand or ignore the procedural requirements, but rather " proceeded" when he should have " referred." Src id.
at 18 & n.9; see aho Calabrese Reply Presentation at 9.
Mr. Calabrese also contends he demonstrated the necessary attributes for an SRO when, after authorizing ADS valve opening and RPV injection prevention, upon finding EO 100-ll2, he recognited the need to perform the latter before the former and took prompt action to prevent injection before reactor pressure dropped below the low pressure ECCS pumps' shutoff head. Because the grading worksheet indicates an applicant who makes minor errors and timely corrections should be considered marginally satisfactory, his action once he found EO.100112 to verify the status oflow pressure injection prevention and to shut down the "A" kiop RilR pump shows that he knows how to use procedures properly. Src Calabrese Written Presentation at 1819; src also Calabrese Reply Prer,entation at 10.
At the same time, applicant Calabrese maintains, by taking this action, no significant error occurred that led to plant degradation warranting an unsatisfac.
tory rating in the use of procedures. Acknowledging the Staff's assertion his actions resulted in low pressure injection that could have caused a power spike and core damage, he explains this claim is based on hir. Robinson's statement after the PCOX turned off the "A" loop RilR pump. lie declares. however, that by reason of hit. Avery's checks on reactor power and water levels, hir. Robin.
son subsequently was shown to be incorrect. There was, therefore, no injection or resulting power spike or fuel damage. hir. Calabrese thus concludes his per. -
formance on this scenario does not merit an unsatisfactory rating on the use of procedures. Src Calabrese Written Presentation at 19 20; src aho Calabrese Reply Presentation at 11 13,
- 2. Ihr Stqlf's l'osition According to the Staff, its decision t.ot to pass applicant Calabrese based on his performance in event six of scenario two is rooted in his failure to comply with several different regulatory and facility requirements. The Staff notes that under items (6), (8), and (13) in 10 C.F.R. 5 55.45(a), an applicant is to be able to "[plerform control manipulations reqaired to obtain desired operating results during normal, abnormal, and emergency situations,""[slafely operate the facility's auxiliary and emergency systems, including operation of 78
those controls associated with plant equipment that could affect reactivity or the release of radioactive materials to the environment," and demonstrate the
" ability to function within the control room team as appropriate lo the assigned position, in such a way that the facility licensee's procedures are adhered to and that the limitations in its license and amendments are not violated."
Moreover, in connection with the Staff developed competencies for evaluating an applicant's performance in simulator operating tests, under Competency 4 SRO applicus are expected to "USB PROCEDURES CORRECTLY, including following procedural steps in correct sequence land) abiding by procedural cautions and limitations," and "[e]nsure the safe, efficient IMPLEMENTATION
, of procedures BY 'INE CREW," NUREG 1021. ES 303, at 23 of 27 (Ibrm ES-
! 303-4). There is also, according to the Staff, the specific requirement in each -
operator license that the holder " observe the operating procedures and other conditions specified in the facility license authorizing operation of the facility."
See Staff Written Presentation, Staff Written Presentation Affidavit at 8 9.
So too, the Staff makes note of the provisions of PPAL's operating proce-dures for the SSES facility. See (d. at 9-10. It points out that under the heading
" Procedure Compliance," the licensee's procedural directives state "[p)tocedures represent Management's expectations and bounds of authorization to operate plant systems and equipment. Procedures form the basis (from) which indi-vidual operator actions will be evaluated and judged for adequacy. Procedure compliance is our star.dard to operate the plant safely and efficiently." llearing File, item 16, at 30 of 75 (PPAL, Nuclear Department Procedure OP AD-001, 16.18.1 (rev. 9 Jan. 29,1997).' In addition, the facility operating procedures declare that an "EOP flowchart shall be present and continuously referred to while being executed." Id. at 34 of 75 (16.18.6.f).
Concerning the specifics of event six of scenario two, the Staff asserts there were three EOPs of potential importance to Mr. Calabrese's successful comple-tion of that portion of the simulation. EO 100104, " Secondary Containment i
Control," indicates in Step SC/R 6 that if rapid depressurization becomes nec-essary, which it did under this scenario, then the operator must look to BO 100-113. " Level / Power Control." According to the Staff, using EO-100.ll3 would have provided Mr. Calabrese with the proper procedural steps in two ways.
One, upon which the Staff placed principal reliance in its proposed license denial action, is that under EO-100 Il3 in the circumstances that existed in event six of scenario two, the operator must to look at Step RD-3 of EO-100-112. " Rapid Depressurization." See Hearing File, item 15 at unnumbered
'la Iefemas to eus $51.S operaung procedure. de Sinff bas indwaied that le has attenveed to etamo frora the bceanee the eersion la effect at the one or Mr Calatwese's enananahon, but has been aanble to do so, See staff Wrinen Pmwnianos at s, Mr. Calahrene has tint sought to show there la any enseertal difference between this version and the one in eneet at the Due or the saanumanon.
79 l
p.1 (SSES Emergency Opt rating Procedure EO 100-113, Level / Power Control).
'Ihis step in EO-100 Il2 then requires the operator to determine whether the reactor will remain shutdown under all conditions without boron. See id at d unnumbered p. 2 (SSES Eraergency Operating Procedure EO 100 Il2, Rapid Depressuriration). According to the basis document on this procedure prepared by the facility licensee, such a determination is necessary because, if reactor shutdown cannot be assured, injection of large volumes of cold, unborated water into the RPV during rapid depressurization could result in serious core damage." )
l lhe basis document also states that reactor shutdown confirmation can best be obtained by observing that all control rods are fully inserted, which did not happen in event six. See /d., item 19, at 3 of 15 (PP&L, Nuclear Department Procedure EO 100-Il2, Rapid Depressurization (rev. 6 hiny 16,1994)). And if, as was the case in this simulator exercise, that d-termination cannot be made, the basis document indicates that precautionary steps must be taken to control RPV injection, Those actions are mandated by Step RD-5, which refers the operatoi to either Step LQ/1-19 in E0-100-113 or Step RF 13 in EO-100-Il4, 1
both of which direct the operator to continue with rapid depressuritation only after it is confirmed all RPV injection is stopped and prevented. See id. at 5 of 15.
According to the Staff, contiary to Step 6.18.6.f of PP&L Nuclear Department i
Procedure OP AD-001 quoted above, hit. Calabrese did not keep the EO-100-112 flowchart present or refer to it continuously while it was being executed.
Further, the Staff asserts, nothing provided by hir. Calabrese adequately explains his clear failure to follow the required procedures. At the end of scenario two, when NRC examiner Caruso specifically questioned hit. Calabrese regarding his use of EO-100-Il2, hit. Calabrese acknowledged he did not take the procedure out and start marking it up until after he had given the order to terminate and prevent low pressure ECCS injection. The examiner also did not note, and hit.
Calabrese did not mention, any problem with locating the flowchart nor did the examiners recall any tailboard discussion at which issue of preventing low pressure injection was discussed. Yet, both hir. Caruso and his. Taylor, the chief examiner, did note hit. Robinson's observation that the "A" loop RIIR pump has begun to inject water into the RPV before it was overridden. See Staff Written Presentation, Staff Written Presentation Affidavit at 11 16.
- As it is more s;wcahcally dracribed in the haus skrunent. 6r injecuan is put povemed an RPV pesswe decnames w c.d bckw stw shutoft head met pants or the km pensure 1cC5 inyecuan synem punes, tiene pumps may inject larp quannhes of cold, unhwated water into ttw RPV that would quickly dilute in-core tnron eturentrauon ami educe core wgson water waterature. T1us, la turn, may resuu to de sukhuna or pouove naeuvity suffment to te;hice a tractor powet encurame large enough to damage the core arvesely See Heaneg file, item t9, at 5 or l$ d' PAL, Nuclear Departown Procedure to104112. kapd IVpessuruauce ovv 6 May 16,1994)t 80
1 1
l he other EO l(Gil3 avenue referted to by the Staff is under Step LQ/L-9 of that procedure. According to the Staff, this procedure, which Mr. Calabrese entered when he determined the reactor would not remain shutdown under ;
all conditions without boron, directs the operator to Step LQ/1-19 if rapid depressurization is required. And, as was noted above, this step, which is the same one referred to in Step RD 5 of EO-l(ol 12, directs the operator to prevent low pressure injection into the RpV before initiating rapid depressurization. De Staff, however, did not mention this alleged failure during its review process on the proposed denial of Mr. Calabrese's license application. See id. at 18.
In light of these alleged procedural missteps, the Staff does not agree with Mr. Calabrese's assertions that he deserved a higher grade under rating factor 4.B regarding use C procedures. A higher grade under this rating factor was inappropriate because the consequences of the error - severe core damage -
rose above the level of what could reasonably be classified as " minor" De fact he performed well during most of the simulator exercise, the Staff asserts, is not sufficient to outweigh the safety significant procedural error for which he was responsible in what was clearly the most critical portion of his operating test. Ilis failure to comply with both EO 1(Gil2 and EO-1(nll3 provides adequate justification for his low score on rating factor 4.D. See id. at 2123.
Moreover, rewgniring applicant Calabrese's assertions that proper grading of rat ng factor 4.B should take into account the fact he subsequently found and used the procedure to make timely corrections to prevent RPV injection, the Staff asserts that neither the examiner's notes not their recollection of events support the notion Mr. Calabrese made any attempt to locate the procedure until Mr. Robinson prompted him concerning preventing injection after Mr. Robinson was given the order to open the ADS valves. Further, the Staff declares that the fact no reactor power or water level increases were detected does not negate Mr.
Robinson's observation that the RIIR injection valves opened and some injection occurred given such increases could have been masked by the increased reactor water level and might not have caused a measurable power increase. Because there is no way to anticipate or control the pressure rate decrease once the ADS valve is opened, the Staff maintains it is " imperative" the low pressure ECCS pumps be disabled by preventing their injection before rapid depressurization begins. Sec id. at 24 25.
Finally, according to the Staff, although the agency's simulator operating test grading procedure in ES 303 of NUREG 1021 is competency rather than task based, successful reactor depressuritation without reactor fuel damage does not necessarily mean an applicant has mastered the eight SRO competencies. Testing necessarily uses scenarios containing a cross section of events that the Staff evaluates to draw inferences regarding an applicant's ability and compliance with facility procedures and license conditions, he Staff concludes that because of the significance of Mr. Calabrese's errors, it is not confident of his ability 81 A
i to comply with those procedures in other emergency situations. As a result, the Staff concludes that its denial of his license should be sustained. Sec kl. at 25 26.
II. Partles' Responses to Presiding Offkir's Questions AN O,ing the parties' written presentations, pursuet to 10 C.F.R.
9 2.I'd3(a), the Presiding Officer posed a series of written questions a 'he Staff regarding, among other things, its information retention policies relative to the October 1996 operating test and the issues of whether (1) a tailboard discussion was held, and (2) low pr,ssure injection took place." Ibrther, in connection with the tailboard and irghetion issues, the Staff was asked to explain the impact, if any, on Mr. Calabrese's score if it is assumed the raatter at issue was found to be as Mr. Calabrese presented it. See Presiding Officer Questions at 2 7. The Staff's responses, and Mr. Calabrese replies to the Staff's responses, were as follows:
- 1. Tailboard Ulscussion in respcmse to a Presiding Officer question on whether Staff examiners listen in on tailboard discussions, the Staff states that they do. The Staff also declares that if such a discussion between Mr. Calabrese, Mr. Robinson, and Mr. Averv is assumed to have taken p;, ice as described in those individuals' affidavits, Staff knowledge of that discussion would not have affected Mr. Calabrese's score. Ilis score on rating fa: tor 4.11, the Staff asserts, was based on the Staff's analysis that his performance most closely matched the description of a grade "1" on the three point rating scale in ES 303 in Aat the consequence of his error -
possible severe core darnage - rose above the level of what could reasonably be classified as " minor" under the higher grade "2." See Staff Questions Response, Staff Questions Response Affidavit at 6-7.10-11.
Relative to rating factor 4.II, the Staff again maintains applicant Calabrese failed to comply with Step RD-5 of EO 100-Il2 and Step LQ/L 19 of EO-100-113. As another ground for asserting noncompliance with Step LQ/L 19, the Staff relies on Mr. Avery's failure in his affidavit to indicate Mr. Calabrese ever directed him to take action to prevent further injection from the condensate system or confirm that injection was prevented as that step requires. The Staff H
The Premang of6cer also anked s questmn resveng Mr Calahrene's purgmrted erhcvhy locaung sie Lo-Intki12 procedure teard 3rr Preueng othces Quentums at 2411 was in responeng to tte stalt's answer to this question Mr. Calateese dalared, based on the segmane la tua cea witness' afhdavit, thai tw man aban& ming tlw issue or the staft's acunng or stether he prgerly "rererves' to procedures under inong tactar 4 A 3,e sapre note s 82
also declares that even if Mr. Calabrese stated to Mr. Robinson it would be necessary to prevent low pressure injection during any discussion Mr. Calabrer.e nonetheless failed to direct that action be performed in the proper sequence.
Finally, the Stalf declares that if it had taken issue with Mr. Calabrese's conduct of the tailboard discussion, this would have been reflected in connection with the scoring of Competency 6 " Communicate and Interact with the Crew and Other Personnel," or Competency 7, ** Direct Shift Operations." In both, however, Mr.
Calabrese had overall scores that were satisfactory. See id. at 1213.
In response to the Staff's answer to this question, Mr. Calabrese declares the tailboard discuulon was important to the scoring of his exam because it showed he was aware of the need to inhibit low pressure injection. Italso is evidence that, contrary to the Staff's assertions during the informal review _
process, his order directing Mr. Robinson to inhibit low pressure injection was not the result of " prompting" by Mr. Robinson. Ibrther, on the issue of the need to prevent condensate injection, Mr. Calabrese provkles another affidavit from Mr. Avery, who explains that his silence on this point in his first affid.vit was no indication that this subject was or was not discussed. Mr. Calabrese also declares in his own affidavit that there was no indication in the examiners' notes or in a followup question that there was a problem with condensate injection.
Mr. Calabrese also provides an affidavit in which he asserts that no direction to Mr. Avery was required because he could have verified there was no risk of an uncontrolled condensate injection by looking at the control board. See Calabrese Questions Response at 11 12.
- 2. Eftlection
. Jiscussing the Presiding Officer's question whether Mr. Calabrese's score would have been different if it is assumed that low pressure injection did not occur," the Staff maintains that a significant fact has not been a#ressed by Mr. Calabrese: the effect of Mr. Robinson depressing the initiation buttons for the RilR systems, According to the Staff, pressing these buttons also sends a message to open the RIIR RpV injection valves. 'Ihereafter, injection can occur as soon as reactor pressure drops below the RIIR pump shutoff head discharge pressure. Ilecause there is no way to anticipate or control the rate of pressure decrease once the ADS valves were opened, it was imperative the low pressure
!!CCS pumps be disabled by initiating the systems and then preventing injection before rapid depressurir.ation was begun. See Staff Questions Response, Staff Questions Response Affidavit at 1617.
U ta respe.hng to than quesuon, however, the Staff sow stairs duit ti bel,ews kir. a - ris suggenuon that the change la RHR ne in heatina may have twen a emustator naponae "Im nent t sonunces 36th the
[$taff) vaanuoess' nna $tatt Quesuons Rememne, starr Questman Response Affutai - 1 83
'lhe Staff also addresses a related Presiding Officer inquiry regarding the applicabihty of a statement in ES 303, which concerns the Category 11 " Control Roorn Systems / Facility Wai&through" portion of the operating test part of the cammination. 'Ihis examiner standard declares that "[ljf the applicant missed a critical step but later performed it correctly and accomplished the task starvlard without degrading the condition of the system or the plant, the applicant's performance on that [ Job performance measure UpM)) should be graded as satisfactory " NUREG.1021. ES 303, at 4 of 27. According to the Staff, this guidance applies to situations in which an applicant corrects an error that does not represent an unsafe practice, such as starting or stopping the wrong i equipment component when the mistake has little consequence and is not en unsafe practice, in Mr. Calabrese's case, however, his error in not consulting and following the proper procedure represented an unsafe practice and thus could not have been graded as satisfactory. Sec Staff Questions Response, Staff '
Quelas Response Affidavit at 1718.
esponding to this Staff answer, applicant Calabrese points out that the Suff's position that the occurrence of injection is irrelevant to his score is inconsistent with its reliance throughout the Staff scoring and appeal process on the fact that injection did occur. In addition, its position that his error in failing to '
follow the appropriate procedure merits an unsatisfactory score, notwithstanding the fact that no injection took place, is inconsistent with longstanding Staff practice. See Calabrese Questions Response at 14-17. In support of this point, Mr. Calabrese relies upon the affidavit of Robett J. Pate, a former agency employee who for some six years in the late 1980s was involved with the agency's operator licensing program. In his affidavit, Mr. Pate declares:
I reviewed the failure of Mr. Calabrese to perform the hxiout of the LP. IICCS pumps in the proper sequence against the andor staterrents of E5 303 Rating Factor 4 it I concluded that the performance of Mr. Calabrese nost eksely matdes the descriphon of a grade of
- 2" on the 3 point ruting scale Ahhough tie term " minor error" does not fit well, it is a better desenpuun than a grade of "l" because de action was not a sigmficant ermt the impeded or slowed recovery or sigmfkantly degraded tie plant unnecessarily. Tu was minor degradation of the plani over a two minute period and there w as no safety signifnano; as long as the LP. ECCS pumps were kxted out in tmw to prevent injection.
. . Over the 21 years that I was employed by the NRC, an actual event was consistently considered much nuwe safety signtlicant than a potential event, in this case, tf there was no injection, wtuch from tlw record appears to be the most prehable case, there is no potential damage to the core. If tirre was an injection, there was a potential for core damage. If the failure to follow pna!ures had resulted in an injection. I would agrie with the Start that there was a signancant degradation niul Mr. Calahreae's performance should be graded appropriately.
84
--w>, # W
14., Statement of Robert L Pate (Aug. 14,1997) at unnumbered pp. 4 5
[ hereinafter Pate Statement].
Admitting he made a " procedural misstep" by not locating EO 100 ll2 and then transposing the procedurc's steps relative to depressuriration and inhibiting injectim, Mr. Calabrese nonetheless declares that by continuing to loc.k for the procedure, finding it, and properly usmg it, he took the immediate actions necessary to rectify his error in a timely manner that prevented significant plant degradation. Decause there was no core injection and so no damage to the reactor fuel, he declares he demonstrated he understood the situatior, and possessed the requisite skill to prevent any ngative consequences. As a consequence, he argues he should be given a grade of "2" on rating factor 4.D. which would result in his passing the examination. See Calabrese Questions Response 61 17 18.
III. ANALYSIS i As the recitation above makes apparent, the dispute between Mr. Calabrese and the Staff over his application has come down to the question whether his score on rating factor 4.B under Competency 4 " Compliance With and Use of 1 Procedures," was appropriate. Relati,e to this dispute, it is clear the parties are in agreement that Mr. Calabrese u'id not follow procedure EO 100.ll2 when he allowed the PCOX to initiate depressurization before inhibiting low pressure system injection. See Calabrese Written Presentation, Calabrese Statement at 8, 9; Calabrese Questions Response, Second Supplemental Statement of liank J.
Calabrese Jr. (Aug. 12,1997) at 4. It is equally apparent, based on the affidavits and other information submitted by both parties, that the applicant and the Staff have various other disagreements about what transpired during event six of scenario two of the simulator test. Principal among these are whether applicant Calabrese and the other two cendidates involved in the exam held a tailboard discussion and whether low pressure system injection occurred Because the credibility of various of the affiants appears to be at the center of these dispdes, if it is necessary to resolve these discrepancies to decide the rating factor 4.D issue, the Presiding Officer would have to convene an oral presentation session to receive testimony. Set 10 C.F.R. 6 2.1235. This is not necessary, however, because the Presiding Officer has decided that, regardless of the outcome of these disputes, the existing record establishes the Staff's 85
E determination to award the lowest score on rating factor 4.B was justified and should be sustained."
As both parties have emphasired, in resolving this matter a focal point is NUREG 1021s Foim ES 303-4s the wofksheet uved by the Staff for grading the competency of SRO candidates in the simulator postion of their test. Of course, the materials in documents bearing the NURBO designation, such as NUREO.
1021s generally do not establish regulatory requirements. Sre, e.g., General Public Utilities Nuclear Corp. (Oyster Creek Nuclear Generating Station), LDP.
97 la 45 NRC 7,25 (1997)(citing cases). NUREG 1021 itself echoes this theme, declaring the examiner standards it contains are intended to " provide policy and guidance to NRC examiners and establish the procedures end practices for examining licensees and applicants for [RO) and [SROJ licenses at power reactor faciFries pursuant to [10 C.F.R. Part $$)." NUREG 1021s at lii,
'Ihe document, howevers goes on to state it la intended to " assist NRC ex.
aminers and facility licensees to better understand the initial and requalification examination ptocesses and to ensure the equitable and consistent administf ation of examinations to all applicants." Id. What this suggests is that, while heedful of the discretion afforded the Staff in making its examination determinations, a presiding officer properly can look to NUREG 1021 r,s an important source in assessing whether the Staff has strayed too far afield of the stated twin goals of " equitable and consistent" examination administration. Cf. Ralph L Tetrick (Denial of Application for Rector Operator License), CLI.9710,46 NRC 26, 3132 (1997)(because agency practice is one indicator of how agency interprets regulations, consistently held Staff view on operator testing policy natter will not be disturbed).
U i
1he Iwsuhng Ofhrst's conclusion that le is side to nach a decision is due caw based on de eatsung wntwa record (kes not genuy de f act. as de parues' wraiwa prewniauons and de premang office 's followup wntien quesuons have rewaned, see Pres 6&og offwer Quescons a 2. : 6, thas la sewral cucumstances putentially relevant enfarmauon was not available tecause de Staff abd eat retaan teruun esanunnuon-retmed snatenals ,
its lostame, one of de dree staff esanoners who observed the simulmw scenario la rentrowrey destroyed his notes wtule this matter was soll pen &ng befurs the staff He did dus, he anwris, becauw tw was only responsible tw traung one of the other appbcnnts the passed de esaminauun and sia issued a hcrasa, so due tus action was consisters with the policy guktaru la NURiol021, E.tS01, at 2 or 24, that atmes "loince de I inensing doosions are complete, de enanumers should escard any inarked rp skwumentation or rough mecs far diune apphcants mvlving bcenwa , , ? See staf! Questums Resporue, kesponw of CarlIL sisco to Pres 6&ng Ofhcar Quest 6an Dated luly 21.1997 (July 24,1997) at 1. In urugher instante, wiudi was noted by a three-nemter appeal panel acting as part of de staft's informal wwww process, we Hearing lade, Hem 12, attacit a 4-5, staff enanuners did not ask facihry offletals to relata smulsor chan reemdsags cotuereing de scenario thst could have estabhshed wtwther injectua thd w did not occur, note :hst nang gwdance te NURIG1021,11X12, al 3 of 11 In&caung that "lplarameter reAhngs should be collected at hearungful truervals , , land tlhe chsel esanumer shneid wtala the recce&ngs as bAkup documentmion to sognent de notes taken by the esanoners dunng de samulatos ten" 3ee staff Questions Responw. staff Quesuons Response Affidavit at 14-l$
Giwa de possilde srgauve inference the can be apphed to nasung or destroyed evidence, we 2 Janen H Wignuwe, Evedeswe $ 291 (3d ed 1940), askhuomal staff evww of dese pohcies and tirir apphcapon in de contest of unadmor tests involving nuluple apphcants scene wamanted.
86
With the above in mind, the Presiding Officer turns to Ibrm ES.303-4, which relative to rating factor 4.D provides:
- 4. COMitlANCE WITil AND USE OF PROGDUR13 L DID111B APitlCANT:
(b) U$E PROCT.DURt3 CURRECTIN, including following prmedural steps in ctarect acquence, abiding by procedural cautions and linutations, sele-ting c<mes paths on decisitvis telocks. and conectly tranniuoning terwwn procedures?
3 2 i Accurately Miruv ernus, Sigruricant and prornptly but trale emus ingeded caeruted necessary tw slowed procedural cone 416ons in recovery or steps a timely degraded plant far.hion unnecessarily NUREG 1021. ES403, at 23 of 27 (IPm ES 303-4, at 4). Duause the award of an integral rating value of "2" would give Mr. Calabrese a passing score on the SRO examination, the parties' dispute comes down to the question whether the
" behavioral anchor" under that value or integral rating value "I" more accurately reflects Mr. Calabrese's performance.
As they are set forth above, neither rating value appears to be a perfect fit as a measure of Mr. Calabrese's performance. As the Staff argues, the error Mr. Calabrese admits he made - not following a clear procedure when failure to do 50 could have resulted in serious damage to the fuel in the reactor core - can hardly be described as " minor" under rat;ng value "2." When Mr. Calabrese ordered depressuritatic.i before inhibiting low pressure system injection in violation of a specific facility procedure, as well as NRC and facility requirements that this procedure (and others) must be followed,H the Staff is correct in its assertion he placed the facility at significant risk. On the other hand, assuming (as Mr. Calabrese has argued) that his mistake did not cause injection to occur or result in fuel damage, the degree to which Mr. Calabrese's error " impeded or slowed recovery or degraded [the] plant unnecessarily" under rating value "l" is problematic if that rating value is intended to reflect only
" actual" plant impedance or degradation.
'lhe Presiding Officer concludes that, even accepting Mr. Calabrese's asser.
tions about the tailboard discussion and the lack of injection, the Staff's judg-ment applying rating value "1" was correct. By any objective measure, event H
la t!us orgard. PPat. pnxtdures also state Ltw *16}r na ethting procede aMresses the evoluuon to be performed and the cunent circunutsaces, ste prwedure shall be used* Heanns line, item 16 at 31 or 75 (16 II 3 at 87
i l
i six of scenario two was intended to test the ability of each applicant, and in particular the SRO candidate, to deal with a significant emergency situation,"
This portion of the scenario, albeit brief, provided a vital opportunity for the Staff tojudge how the candidates scacted when faced with a high-stress situation requiring the exercise of critical decisionmaking skills to reach a safe shutdown of the facility. When faced with this situation, notwithstanding explicit agency and facility requiremarits that emergency operating procedures be referred to and followed, responding from memory based on an apparently mistaken telief about the time sersitivity of his actions, Mr. Calabrese failed to follow crucial procedure EO 100.ll2 and thereby unnecessarily put the facility at substantial risk." Not surprisingly, the Staff responded with a score in the lowest range under the rating factor intended to measufe such procedure-related activides, Mr. Calabrese's attempt to downplay the significance of his error by empha-siting his overall performance is not convincing. While the several minutes in which the scenario event at issue occurred were propoftionately a small part of the entire operating test, they loomed large in terms of the operator skills and abilities that the examination was designed to test. Given the " snapshot" nature of the operating test process, the quality of Mr. Calabrese's critical decision-making duri ng this crucial intersal, no matter how bilef in relation to the rest of his test, was an appropriate yardstick for taking the measure of his performance.
At the same time, even accepting Mr. Calabrese's contention that his admitted error did not result in injection or actually impede recovery at or degrade the facility, tht: Presiding Officer finds equally unpersuasile his argument, which Mr. Pate's aflidavit emphasires, that there is a distinction between " actual" and
" potential" events in terms of safety significance that was not reflected in the "11e $tafr otwerves in its tengene to de Preuding othceri July 23 queshoes the event sin was added to scenario two with de intent of creating a enore severe event- This was done at de behest or Staff operats hernw esaminre Tracy, who was chwf esanuner for Mr Calatwese's october 1996 enanunauna. She apparently kmk this step a, a ecrollary to a Apil 1996 staff inspecuon sepwt in which she enucized the sSt.s facthey's sermlatur esananaions fm not havmg a control tod insert falure that would enandate operatur acuens teyond those generally hemg required unutet the ATws scenanos being aned for 55L5 operator beenung appheams See Staff Quesuons Resporus, $iaff Quesuons Respnnw Afhdadt at 9.
'*la his initial wrmen prewtuanon Mr Calahrene declared that the teanos he &d not conunw to hunt (w the luunit ecumsuing pecedure !O 100 el2 was his deurs to nunmuse puhhc radiation esposure. See Calahrene Wrmen INenentauun, Catalvene Statement as L la its August 4.19'n responw to 114: Presiding othect's quesuons, de Staff a.serts, without being conera&ceed by Mr. Calatwese la tus August 18 n ply, that delaying depessunaabon by another nunues to 6nd the leerd would not have maar a significara &fference in reestmn levels because the masimum safe levels in two areas aircady had been esceeded See Staff Quesuons Response, starr Quesuons Respmer Athdava at 4, see alsa Calateese Quesuons Respanse, pase $tatenrnt w unnumbered p. 2 (Mr. calatwew stumid have known ternunaung renraars does not demrad incuon in terms of nunutes ce pnarity attennon over esecuuos of emergency procedures) pryAs was desented eartier. the stafr also asnens Mr. Calatme violated puedure futulk113 by tus acuons See supru pp Bl. V2 81 les echance on ihme purportrd nusinen fa de hrst tmr tefore de Preuding of6ces rasses Hw troubbng quesans of de enar64 to wtuch, le drfcaeng 6tn acuans before a preueng oftect, de Staff for the hrst tiene may tely os grounds that it arguably could ha 4 annetwd, but did not, as a bassa fu its own decision to deny an operant license spidecauon Gaves Mr. Cabinese's clear adtrusuon that he 6d om follow LD10ikill, de INess&ng offint need not reach dus L e, howewr-88
. ~. ._. _ - - - - - - - . - - -- - - -.
i Staff's decision to give Mr. Calabrese the lowest score on rating factor 4.11, Mr. Pate may well be correct there is such a difference in terms of the Staff's assessment of " actual" events that take p! ace at a functioning facility, liere, however, what the Staff is assessing is whether it should permit an applicant like Mt. Calabrese to be plxed in the position of resp (msibility at such a facility as a senior teacts operater when his action (or inaction) can be the e use of such an " actual" event. In the context of this testing frocess, the l
tsenction between "poterdal* and " actual" events is one that has significantly 1
%s teenaance, particularly who, as with event six, the consequences ultimately can mult on serious core damage.
Under thee circums'arreA the %ff *e decision to assign the lowest rating factor was an es4 ruvwele racrcise ofits decisionmaking authorty in such examination sew 6g stottatt 5,g1, in any event, not arbitrary or an abuse of the discretion afforded it in su4 matters. 'Ihe Presiding Officer thus concludes t:c Staff acted appropri.tdy in proposing to der,y Mr. Calabrese's senior operator license application a.,d, affirming that decision, concludes his application tr'ust be denimi.
IV, CONCLUSION When viewed against the backdrop of the extensive SRO testing regime, Mr.
Calabrese's decision to proced 11 depressurir.ation without first obtaining and reviewing procedure EO 1(Xbl42 may, at first blush, seem a rather harmless deviation, particularly if one assumes (as the Presiding Officer has done for the purposes of deciding this case) that no direct harm could be attributed to the facility as a result of his admitted misstep. Nonetheless, as both the agency's and the licensee's requirements make cleu, in undertaking the crucial responsibility of operating, and directirg others in the operation of, a nuclear power reactor, individuals like Mr. Calabrese are expected to follow the procedures that have been established to ensure the safe operation of the facility. Ilased on Mr.
Calabrese's failure to follow a crucial procedure during his simulator test, the Staff acted properly in assigning him an integral rating value of "1" on rating fac or 11 of competency category four, " Compliance With and Use of Procedures."
With this score as an appropriate measure of his performance in that cotr pctency category, Mr. Calabrese's grade on the operating portion of the SRO examination falls below the level needed to pass. Accordingly, his application for an SRO license must be denied.
For the foregoing reasons, it is this 26th day of September 1997 ORDERED that:
89
I, lhe Staff's proposed denial of the September 30,1996 application of Rank J. Calabrese Jr., for an SRO license is q$rmed and his SRO license application is denied.
- 2. Pursuant to 10 C.F.R. 6 2.1251(a), this initial decision shall constitute fmal action of the Commission 30 days from the date on which it is issued, or on Monday, October 27,1997, unless a party petitions for Commission review in accordance with sections 2.786 and 2.1253, or the Commission directs otherwise.
- 3. In accordance with 10 C.F.R. 66 2.786, 2.1253, within 15 days after service of this initial decision, or on or before nursday, October 16, 1997, any party may file a petition for review with the Comtnission on the grounds sprified in section 2.786(b)(4). The filing of a petition for review is mandatory in order for a party to have exhausted its administrative remedies before seeking judicial review. Within 10 days after service of a petition for review, any party to the proceeding may file an answer supporting or opposing Commission review.
The petition for review and any answers shall conform to the requirements of section 2.786(b)(2)-(3).
G. Paul Bollwerk,11!
ADMINISTRA11VE JUDGE Rockville, Maryland September 26,1997 90
)
is uuq Directors' Decisions Under 10 CFR 2.206 l
l
Cne as 46 NRC 91 (1997) DD 9719 UNITED STATES OF AMERICA NUCLEAR REQU'.ATORY
. COMMISSION OFFICE OF NUCLEAM MEACTOM MEGULATION Samuel J. Colline Director in the Metter of Docket No. 90 213 CONNECTICUT YANKEE ATOMIC POWER COMPANY (Neddam Nook Plant) ?:7:i: 3,1997 By letter dated March 11,1997, Ms. Rosemary Hassilakis submitted a petition on behalf of the Citizens Awareness Network and the Nuclear Information and Resource Service (Petitioners) pursuant to 10 C.F.R. l 2.206, requesting that the NRC(l) issue a large civil penalty against the Connecticut Yankee Atomic Power Company (CY) to ensure its compliance with safety based radiological control routines; (2) modify CY's license for the lladdam Neck facility to prohibit any decommissioning activity at the heility until a 6-month period passes without any contamination events occurring; and (3) place the lladdam Neck facility on j the NRC Watch List.
' In a Director's Decision dated September 3,1997, the Director of Nuclear Reactor Regulation respectively deferred and denied Petitioners' requests. The Director concluded that it would be premature at this time to rule on lYtitioners' first request, as the NRC is currently considering enforcement action with .cgard to failed radiation program controls at the lladdam Neck facility. Petitioners' second request was denied on the basis of past environmental and exposure reports, as well as the presence of an onsite NRC Senior Resident inspector and certain measures memorialized in a Confirmatory Action Letter. Similarly, the Director denied Ittitioners' third request, due both to the lladdrn Neck facility being permanently shut down as well as other actions taken in response to identified deficiencies at the facility.
91
PARTIAI, DIRECTOR'S DECISION UNDER 10 C.F.R. I 2.206 I. INTRODUCT10N On March II, IP97. Ms. Rosemary Bassilakis submitted a petition pursuant to 11tle 10 of the Code of rederal Regulatfor 4
- on 2.106 (10 C.F.R. I 2.206) on behalf of the Citirens Awareness Nett id the Nuclear Information and Resource Service (Petitioners) request. Aat the NRC (1) commence enforcement action against the Connecticut 1rankee Atomic Power Company (CY) by means of a large civil penalty to ensure compliance with saferpbased radiological control routines; (2) modify CY's license for the Hddam Neck Plant, pursuar.t to 10 C.F.R. 2.202, to prohibit any decom.misskning activity, which would include decontamination or dismantling, until CY manages to conduct routine meintenance at the facility without any conts.nination events occurring for at least 6 months; and (3) place the Haddam Nxk Plant on the NRC Watch List.
l In support of their requests, the Petitioners claimed that of particular concern 1
was Northeast Utilities' inability to maintain proper radiological controls at the l Connecticut Yankee (lladdam Neck) nuclear reactor. The Petitioness quoted an NRC press release describing continuing problems at the Haddam Neck facility, and stated that in their view the facility's management was making empty verbal assurances to the NRC that contamination problems were being properly controlled. The Petitioners also alleged that the N11C Confirmatory Action Letter (CAL) of March 4,1997, discussing radiological controls at the lladdam Neck Plant, is clearly insufficient.
- 11. IIACKGROUND The NRC Staff shares the Petitioners' concerns regarding the failures of the lladdam Neck radiological controls program and has detailed these concerns in inspection Reports 50 213/96-12 (Dec.19,1996) and 50 213/97-02 (Mar. 21, 1997), and in the aforementioned CAL (discussed in more detail below). In summary, these failures resulted in the unplanned exposure of two individuals, longstanding discrepancies in the calibration of several radiation monitors that are used to monitor and control radiological effluent releases, and the inade-quate control of radioactive material that resulted in the undetected release of contaminated equipment to a nonlicensed vendor.
in response, the NRC has taken comprehensive and significant actions to resolve its concerns in the area of radiological controls, including the aforemen-tioned CAL, a required Licensee response to the finoings in Inspection Reports 92
l B
9612 and 97 02, a management meeting with the former CY management held at the NRC Region I office, and a second management meeting with the new
, CY management held on May 28,1997, in the NRC Region I offices on these same issues. His second management meeting gave NRC regional and lead-quarters staff an opportunity to meet the new Iladdam Neck management and confirm their commitment to resolve the abovc problems. De rnectings were open to public observation. As indicated by the CAL, arnther meeting between the Region i Administrator and CY management will be held before any NRC determination that the issues noted in the CAL have been resolved. Meanwhile, under the CAL, the Licensee has agreed not to perform any radiological work except that required to maintain the plant in a safe configuration.
De CAL identifica four significant activities to which the Licensee has committed to bring its management and implementation of radiation control programs up to a standard acceptable to the NRC, as follows:
(1) Identify, in writing, specific compensatory neasures that CY will put in place to ensure sufficient management control and oversight of ongoing or planned activities that require radiological controls.
(2) liire an independent assessor to assess the quality and performance of the CY radiological control programs and their implementation.
(3) Ily May 30,1997, on the basis of the results of the independent as-sessment, (a) identify problems, determine n>ot causes, and develop broad based and specific corrective actionst (b) identify performance measures that may be used to detennine the effectiveness of radio-
- logical control programs; and (c) submit a plan and schedule to the Regional Administrator, NRC Region I, for implementing improve-ments in the radiological control programs.
(4) !!cfore eliminating any interim compensatory measures (as committed to in t!.. response to item I, above), meet with the Region i Administrator to describe program implernentation and performance improvements achieved or planned.
With regard to CAL ltem I, above, the Licensee has identified and imple-mented compensatory measures (a) by limiting work in radiologically controlled areas to only work that is considered necessary, (b) requiring specific radiation work permits (RWPs) for more limited ranges of radiological work, and (c) placing additiona' controls on v ork requiring a rpecific RWP. CY also hired an independent assessor, Millennium Services incorporated, to perform the required assessments, therefore completing CAL ltem 2. De Licensee has most recently submitted a response in accordance with CAL ltem 3, regarding improvempts to its radiation protection piogram.
De primary objective of the Licensee's Raciation Protection Improvement Plan is to institute near and long-term permanent improvements to the site Radiation Protection Program by establishing processes to:
93 i
l
e identify problems, root causes, improvement itemVinitiatives and asso-clated corrective actions using site programs and processes; e establish responsibility for conective action implementation; e prioritize and implement corrective actions using a logic scheine based on potential risk and/or critical facility decommissioning milestones (e.g.,
reactor coolant system decontamination, major component removal);
e track, trend, and report corrective action implementation using si;c programs and procenes; e verify corrective action adecuacy and completeness in addrening the initial improvement initiative through monitoring and feedback; e verify that completion of one or more identified corrective actions resolves the identified root cause; and e document problem ter.olution, from identification through corrective action closure, using site programs and process.
%e Licensee has scheduled completion of its plan to occur by the end of 1997.
A meeting with the Regional Administrator (CAL ltem 4) is expected to occur before the end of 1997, 111. DISCUSSION OF PETITIONERS' REQUEST 5 De first request was for a large civil penalty to ensure compliance with safety based radiological control routines.
De NRC is currently considering enforcei.ient action in re r to failed l.
radiation program controls at the lladdam Neck Plant. Herefore, this request is deferred pending a decision on NRC action in this area.' After the NRC resolves these issues, the Petitioners will be informed through a future Director's Decision, ne Petitioners also requested that the NRC impose a 6 month moratorium on any decommissioning activities at lladdam Neck until the Licer,see demonstrates its competence in avoiding contamination events while conducting necessary maintenance, his request is denied for the following reasons. Although contamination events may occur in the future, there is no reason to believe, based on previous semiannual environmental reports and annual exposure reports of plant workers, that to C.F.R. Part 20 dose limits will be exceeded at the lladdam Neck Plant. Additionally, an NRC Senior Resident inspector is currently on site Ila e tener dated May 12,1997, the NRC proposed a $6% nan civil penalty agannt CY ([A%001 et al) fM vlotauona found dunng itinrecuans ensuhuted betwen Novesnber 21,1u93, and Nuvemhet 22,1996, tte thennee paid tlw csvtl penalty on June 11. 1997. Ahtmgh ttw v6ntaanna on wtuch stue civil penalty wie based &n not tavulve tethological conicott. Llw May 12 ktson clearly demonstrswa the NRC's tesolve to impose ugmhcant civil penaltws on a hcew wtwo appropnau.
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to monitor and inspect the Licensee's day to-day perfonnance. Furthermore, the CAL addresses the radiation protection program at fladdam Neck by focusing on the needed improvements in the Licensee's radiation control program and by ensuring NRC approval before any of the interim measures in item I of the CAL are withdrawn.
'Ihe petitioner's third request was that the NRC place lladdam Neck on the NRC Watch List. As a general policy, an operating plant is placed on the Watch List when a licensee's perfctmance warrants NRC monitoring beyond that normally required by the NRC inspection program. In this case, the lladdam Neck Plant is permanently shut dowt, and will not be returning to operation.
Additionally, the NRC's inspection program has led to several actions being taken to respond to the deficiencies identified at lladdam Neck. As described above, these actions include the CAL, meetings with Licensee management to emphasire NRC expectations, a requirement to improve the radiation protectioh program, and retention of an onsite sector inspector to monitor Licensee performance. The NRC believes that, under these circumstances, the actions taken adequately protect public health and safety and that the current inspcetion program can appropriately monitor Licentee pe fonnance. Therefore, this request is denied.
IV. DECISION For the reasons stated above, the petition is deferred in part and denied in part. 'Ile Decision and the documents cited in the Decision are available for public inspection and copying in the Commission's Public Document Room, the Gelman Duilding,2210 L Street NW, Washington, DC.
In accordance with 10 C.F.R. 6 2.206(c), a copy of the Decision will be filed with the Secretary of the Commission for the Commission's review. As provided by this reguiation, the Decision will constitute the final action of the Commission 25 days after issuance, unless the Commission, on its own motion, institutes a review of the Decision within that time.
Fort Tile NUCLEAR REGULATORY COMMISSION f Samuel J. Collins, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 3d day of September 1997.
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4 Cite es ^4 NRC 96 (1997) DD8730 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REOULATION Samuel J. Colline, Director in the Matter of Docket Nos. 50 360 50 281
- -60 335 >
50 300 FLORIDA POWER & LIGHT COMPANY (St. Luole Nuclear Power Plant,
. Units 1 and 3; Turkey Point Nuclear Generating Plant, Unite 3 and 4) Septemm 8,1997 4
He Director of the Office of Nuclear Reactor Regulation has granted in part and denied in part a petition filed by Thomas J. Saporito, Jr., on behalf of himself and the National Litigation Consultants. The Petitioners requested that the NRC take certain actions with regard to Florida Power & Light Company (FPL), including taking escalated enforcement action against FPL and certain of its employees, granting the Petitioners an interview, and taking various other actions, As grounds for their request, the IYtitioners asserted that the NRC's failure to take enforcement action against FPL on the basis of a Secretary of Labor's finding that FPL violated the Energy Reorganizatien Act (ERA)
- when it retaliated against Mr. Saporito for raising nuclear safety concerns has
, resulted in a " chilling effect" and continued discrimination against other FPL employees, that FPL and its managens are liable for creating a hostile work 3 environment at FPL's 'Ibrkey Point facility and have failed to stop harassment of and discrimination against Mr. Saporito, and that the record in this case shows the direct participation of Mr. Saporito's " chain of command"in the retaliation against Mr. Saporito. With regard to the Petitioners' request for an interview, this has been granted; in all other respects the petition is denied.
f ENERGY REORGANIZATION ACT: PROTECTED ACTIVITY An employee may not be discriminated against by an employer fot coming directly to the NRC with safety concerns. Nonetheless, an employee may also be required by the employer to bring these same cocerns to the en.ployee's management. Whether an employee must bring issues to licensee manapment is dependent on the facts of each specific ca.4.
- DIRECTOR'S DECISION UNDER 10 C.F.R. 62.206
- 1. INTRODUCTION By petition dated April 23,1997 (as supplemented May 11 and May 17, 1997), pursuant to secdon 2.206 of Title 10 of the Code of Federal Regulations (10 C.F.R. 6 2.206), Thomas J. Saporito,' Jr., on behalf of himself and the Na-tional Litigation Consultants (Petitioners), requested that the Nuclear Regulatory Commission (Commission or NRC) take action with regard to operations at the Florida Power & Light Company's (FPL's or Licensee's) *1brkey Point Station, Units 3 and 4, and St. Lucie Plant, Units 1 and 2. Specifically, the Petitioners requested that the Commission: (1) take enforcement action to modify, suspend, or revoke FPL's operating licenses for these facilities until FPL can sufficiently demotistrate that employees at FPL nuclear facilities are exposed to a work en-vironment that encourages employees to freely raise safety concerns directly to the NRC withont being required to first identify their safety concerns to the Licensee; (2) take escalated enforcement action in accordance with 10 C.F.R.
6 2.202, because of discriminatory practices of the Licensee in violation of 10 C.F.R. 6 50.7 and/or other NRC regulations, and that the enforcement acticn be retroactive to the initial occurrence of the violation by the Licensee; (3) conduc a public hearing through the Atomic Safety and Licensing Board and permit Petitioners leave to intervene to perfect an evidentiary record in consideration of whether the Licensee has violated NRC requirements and/or regulations; (4) require the Licensee to post a written notice alongside each NRC Fonn 3 cur-rently posted at the Licensee's nucleat facilitie: that alerts employees that they can directly contact the NRC about nuclear safety concerns without first identi-fying the safety concerns to the Licensee; (5) require the Licensee to provide a copy of the posteel communication to all employees and ensure that all employ-ces are made aware of those communications through the Licensee's General Employee 'liaining Program; and (6) require the Licensee to provide the NRC with written documents authored by Licensee officers under affirmation that the requirements described in items 4 and 5 have been fully complied with.
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in the supplement of May 11,1997, the Petitioners requested the imposition of a civil penalty in the amount of $100,000 against each of three former FPL managers and that the NRC refer the matter of the conduct of these onanagers to the U.S. Department of Justice (DOJ) for consideration of invoking criminal proceedings.
In the supplement of May 17,1997, the Petitioners r quested impcsition of a civil penalty in the amount of $100,000 against each of sin FPL employees and restriction of the licensed activities of these employees and revocation of their unescorted access to nuclear facilities; the imposition of a civil pena!'y in the amount of $100,000 against the international Brotherhood of Electrical Workers (IBEW), and that the IDEW be required to inform its members in writing that they have the right to report safety concerns furectly to the NRC without fear of retribution and that the IBEW encourages and supports such action at the discretion of its members; and the imposition of a civil penalty in the amount of $100,000 against two named individuals characterized in the petition as Licensee agents or representativw of the Licensee. 'Ihe Petitioners also requested investigations of " willful falsification" of a company business record and the cause of " transcripts found missing" in a Department of Labor (DOL) proceeding, and the referral of the matter of the conduct of the individuals '
and " entities" to the DCJ so that it can consider invoking criminal proceedings.
1 Finally, it was requested that the NRC conduct an ir2crview with the Petitioners regarding the substance of their section 2.206 petition.
By letter dated June 14, 1997, 1 informed the Petitioners that, pursuant to section 2.206 of the Commission's regulations, the petition, as supplemented, had been referred to me and that action on their requests would be taken in a reasonable amount of time. I further informed the Petitioners that, with regard to their request for a n.eeting with the NRC Staff, they could call to arrange a t
suitable day and time for such a meeting.
I On May 27,1997. FPL responded to the petition. In its response, the Licensee maintained that it was strongly committed to maintaining a work environment in which employees are free to raise nuclear safety concems directly to the NRC and that the petition lacked any factual basis and should be denied, in response to the Petitioners' request for an " interview" regarding their pe-tition, the NRC Staff held a public meeting with Mr. Saporito on July 14,1997.
During the meeting, Mr. Saporito elaborated upon the bases for the petition and stated his conce as about reporting nuclear safety issues at the St. Lucie plant should the DOL Administrative Law Judge (ALI) order his reinstatement 98
as an employee of FPL.' During the meeting, Mr. Saporito also raised what he asserted were certain improprieties that occurred during the DOL hearing and specifically requested that the NRC investigate an additional concern that the Licensee or its attorneys may have " whited out" a page of a document he had requested during the DOL proceeding. Mr. Saporito stated that he was adding this request to the petition.
On August 13,1997, FPL submitted an additional response to the petition. In this response. FPL stated that it was responding in opposition to the supplemental petitions filed by the Petitioters dated May 11 and May 17,1997, and to assertions made by Mr. Saporito during the July 14,1997 public meeting.
IL BACKGROUND As a basis for the requests described above, the Petitioners asserted in their Petition of April 23, 1997, that the NRC's failure to take enforcement actior, against the Licensee on the basis of the Secretary of Labor's finding that FPL violated the Energy Reorganization Act (ERA) when it discharged an employee (i.e., Mr. Saporito) for raising safety concerns has resulted in a " chilling effect" at FPL and continued discrimination against employees by FPL in violation of section 50.7.2 in addition, in the petitioners' Supplement of May 11,1997, to their petition, they asserted that Mr. Saporito's " Damages Brief" in the DOL proceeding mentioned above established that the Licensee and its managers are liable for creating a hostile work environment at Turkey Point and have failed to l
la response to tius concern, .he Starr referred Mr. Saponto to 10 C F R.15o7 and vanous NRC pohey a + Jnwnts and other docunwnts that desenbe the pmtection to la&vsduals who raw nuclear safety concerns to the NRC or to their employers, and offered to provide Mr. Saporito copies of relevant documents. The Staff provided Mr. Saponto tiene docunwats by letter daed July 28.1997.
3 This procee&ng, Dot Case 89-ERA 7 and 89-ERA 17 Oiereaner 89-ERA 7/17), involved two congleints by Mr. Saponto in which he alleged. respectively, that he was esciplined and harassed ta tetaliacon for engaging in protected activity and that he was discharged for engaging in protected activity. on June 30,1989, a Dol AlJ issued a Recornnended Decision and order Denying Complaint, which danmissed both cases. Among other ilungs, the Al) found that FPL had legiumarely ternunated Mr. Sgorito for acts of tasubordination, which included Mr.
Saponto's refusal to reveal safety concerns to the LJecnwe and his insamence that he raise them to the NRC insacad. la a Decision and Remand order issued June 3.1994, the Secretary held that an employee who refuses to reveal his safety concerns to managernent and asserts his right to bypass the " chain of command" to speak &rectly with the NRC is engaging in protected acurty sad remanded the case to the A!J to review the record in hght of this decluon and submar a new recorrurundanon to the Secretary as to whether FPL would have &scharged Mr.
Saponto for unprotected aspects of his conduct. By letter to the Secretary of Labor from then NRC Chairman Ivan Sehn, the NRC espressed concern about the Secretary's broad siatement, noung that licensees. not the NRC, are in the beat pomuon to deal effecovely with safety concerns. In a subsequent order issued February 16,1995, denying reconsideranon of lus June 3 decision, the Secretary clanned lut June ; decision by stating that it would ant be accurate to inserpret the decision as providing an engloyee an " absolute right" to r= fuse to report safety concerns to the plant operator. Ratl.er, the Secretary staaed that the right of an ernployee to protection for bnnging informauan directly to the NRC and has duty to inform management of safety concerns are independent and do not confhet but that the employer's rnativsuon should be revwwed on a case by-case baus, pursuant to a " dual-motive" analysis, to ensure that the employer would have takes the same action regardless of wlether an employee losisted on his rigtw to speak nrst to tlw NRC. The Secretwy specihcally noted that his June 3 order had not decided the ultimate quescon argarding the apprepnare outconw of the dual-mouve analysis to Ibn facts of tius case.
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stop harassment and discrimination against Mr. Saporito. He Petitioners further stated that the record in this case contains evidence showing direct participation of Mr. Saporito's " chain of command" in the retaliatory actions taken against Mr. Saporito.
In their Supplement of May 17,1997, to the petition, the Petitioners asserted that certain pleadings and transcripts in this DOL proceeding set out a chronol.
ogy of events surrounding missing record transcripts and the falsification of a Licensee company business record and establish that Licensee employees and union members played a role in discriminating against Mr. Saporito. De Peti-tioners further stated that additional evidence exists that necessitated a meeting between the NRC and the Petitioners.
III, DISCUSSION Because of the numerous requests and interrelated nature of the issues raised and the bases provided by the Petitioners, the requests in the petition and supplements previously described have been considered together and are categorized as follows: (1) NRC should take escalated enforcement action against the Licensee and certain individuals employed by the Licensee and refer this matter to the DOJ: (2) NRC should take escalated enforcement and other action against the IDEW; (3) NRC should initiate investigations into matters regarding the DOL proceeding, including willful falsification of a company business record, willful falsification of the DOL transcript, and alleged " whiting out" of a page of a document by the Licensee's attorneys; and (4) miscellaneous requests.
- 1. Petitionen* Requestfor Ertforcement Action Against the Licensee and Certain Employees of the Licensee As previously stated, the Petitioners request that the NRC take enforcement
{ action to modify, suspend, or revoke FPL's operating licenses until FPL can l sufficiently demonstrate that employees at FPL's nuclear facilities are " exposed to a work environment" that encourages these employees to freely raise safety concerns directly to the NRC without being required to first identify their safety concerns to the Licensee. In addition, the Petitioners request that the NRC take escalated enforcement action against the Licensee because of the Licensee's discriminatory practices in violation of section 50.7 and that this enforcement action be retroactive to the initial occurrence of the violation by the Licensee.
As a basis for this request, the Petitioners assert that the Secretary of Labor found in SbERA-7/17 that FPL violated the ERA when it discharged Mr, Saporito but that the NRC failed to take any enforcement action against the l
100
Licensee for this violation, and that as a direct result of the NRC's failure to take such action, a " chilling effect" was instilled at the Licensee's facilities that continues to dissuade employees from raising safety concerns. He Petitioners cite numerous cases in support of their assertion that the Licensee has continued to discriminate against employees who engage in protected activity.
His request is similar to a request made by Mr. Saporito in an earlier petition, which was addressed in a Director's Decision issued on May 11,1995 (DD-95 7,41 NRC 339). As previously described herein, and as explained in DD-95 7, contrary to the Petitioners' assertion, the Secretary of Labor has not yet mad (
a finding on the merits in 89-ERA'7/17 as to whether the Licensee violated the ERA in discharging Mr Sapacito. Rather, in an order issued on June 3,1994, the Secretary directed the ALJ to submit a new recommendation on whether FPL would have discharged Mr. Saporito absent his engaging in protected activities.
Therefore, the Order of June 3,1994, does not constitute a final decision by the Secretary of Labor, and because there is no DOL finding of discrimination, there is no basis to justify enforcement action by the NRC at this time.3 As further explained in that Director's Decision, the NRC will monitor the DOL proceeding and determine on the basis of further DOL findings and rulings whether enforcement action against the Licensee is warranted.
With regard to the Petitioners' assertion that the NRC's failure to take enforcement action has resulted in a " chilling effect" at the Licensee's facilities, the Petitioners have offered no evidence to substantiate this claim. Over the past 2 years (July 1995-June 1997), eighty nine allegations from FPL employees or contractors have been submitted to the NRC, of which six have been allegations related to discrimination. Of these allegations, the Staff was unable i to evaluate two allegations because the alleger would not reveal his or her identity. With regard to the remaining allegations, in two cases, discrimination was not substantiated. The remaining two allegations are still being evaluated.
Should these allegations be substantiated, the NRC will determine at that time whether enforcement action against the Licensee is warranted. Nonetheless, even if these allegations are substantiated, there is presently no indication that
( there has been a " chilling effect" at the Licensee's facilities. De NRC Staff has conducted inspections of FPL's Nuclear Safety Speakout Program (Employees Concerns Program) and has examined the safety conscious work environment at FPL's nuclear facilities. The results of the last two inspections, conducted in April-May 1996 and June 1997,4 indicate that the Speakout Program has been effective in handling and resolving individuals' concerns. The Speakout 3
As of this date, the AlJ has not issued a new Recommendr4 Decision.
"NRC Inspection Reports 50 250%05 %251N05, %335407, and %389M6 07. dated M.iy 31.1996, and 54335 974 and 54389874, dated July 16.1997.
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Program has been readily accessible, and employees are familiar with the various avenues available by which to express their conce:ns. )
I The Petitioners have relied upon 89 ERA 7/17 and eight additional cases to demonstrate both widespread discrimination by FPL against its employees and a lack of NRC enforcement action to deal with this alleged discrimination.8 With regard to 89-ERA 7/17, as previously stated, no final determination that discrimination occurred has yet been made by DOL A close examination of the remaining cases does not support Petitioners' assertion that the NRC's
" lax attitude" caused a pattern and practice of discrimination at FPL's nuclear facilities. All of the cases cited by the Petitioners, except for two cases (Pillow
- v. #cchiel, 87 ERA 35, and Diaz-Robainaf v. FFA 92-ERA 10), were either settled, voluntarily dismissed at the request of the complainant, or otherwise dismissed by DOL before a final determination was made by the Secretary of Labor. Two of the cases relied upon by the Petitioners did not involve FPL, but other companies (and one of these cases did not involve matters under NRC 5
The other eight cases and their esposition are as follows:
(t) Pillow v. Sec4=t 87 ERA-35; The secretary found that disennusauon by Bechtel had occurred and udend cargensanon for damages.1he NRC issued Notices of Violation on rettuary II,1994, to Fit and Bechtel, for vmlations that occurred in 1957 and that were based on both 87 ERA.35 and 87 ERA-44 (EA 93-199 and EA 91-200).
(2) Dur-aohnemas v. FPL 92 ERA 40- Ahhough the Secretary of labor found that dancrinunation occurred, he remanded the caw to the AU for a deternunanon of the appropriate remedy, so that the Secretary's decisma was not a 6nal decision by DOL 1he case settled before the AU issued his decuion.
The NRC imued a Nouce of %olation and Pmposed Civil Penalty of $100,000 against FPL for the violation, wiuch occurred in 1992 (EA 96-05tk The Licensee paid the civil penalty on tkccmber 3, 1996.
(3) PUpps v FPL 95-ERA 51 The DOL Wage and Hour Anistant Area DLmeter concluded that Mr Plupps' engaging in protected actmues was a factor in PL's decimon to protubit tum from working during plant cutages. Ht appealed the decision, and a heanog was scheduled befon a DOL AU Refore the heanng, the parties entered into a settlement agreement. A Baal DOL order, dated Februiry 21,1996,
&snussed the case with preju&ce on the basis of a voluntary stipulation by the parties.1here was no
' Ba&ng for disenninauon by DOL (4) Dyrert v. FPL 92-FRA 26: The DOL wage and Hour Area Dtrector desernined that there ens no &actmunation. The complainant appealed, but then requested that the caw be &strassed pric to a desernunance by an AU as to whether enceinination occurred A 6aal order animung the dannus of the complaint was lasued by the $ccretary on June 2s,1991 (5) Klaunan v. FPL. 91 ERA.50- The DOL Wage and Hour Area Director determined that them was no &sennunanon. The complainant appealed, but then requested that the cane be disnuued pnor to a deternunation by an AlJ as en whether 4senmination occurred A Anal order afGrnung the dismissal of the complaint was lasued by the Secretary on rebruary 21,1992.
(A) Young v, FPL 91 ERA 30- The DOL Wage and Hour Area Director deternuned that there was no dintnunauon. The complatoant appealed, but then requeserd that the case be &snussed pnar to a determ imuon by an AU as to whether &sennunanon occurred. A 6aal order aftmung the &suussal of the cor rplaint was lasued by the Secretary on July 13,1995
(.s Dy v. Slumac Conrrructum rubrics. Inc., 96-sTA 7. This case did not invohe FPL or any NRC licernec, &d not involve the raising of nuclear safety concerns or any other matters under NRC juris&ccon, and &d not anse under the Energy Reorganizauon Act, but under the surface Transportation Act.
(8) Cethar v. FPL 91 ERA-47 (actually Collms v. TPC): The Secretary of labor inued an order on May 15,1995, $nding that no esennunation occurred. In addioon, the respondent in this case was actually Horida Powe Corporacon, not FPL 102
-4
= jurisdiction). With regard to Pillow, the discrimination that was the subject of this case occurred before the case involving Mr. Saporito. Derefore, such discrimination is neither indicative of FPL's cunent performance nor could it have resulted from the lack of NRC's enforcement action in the present case.'
he only additional cases cited by the Petitioners in which any finding was made by DOL that discrimination occarred were Phipps v. FPI, 95 ERA 53, and Diaz Robainas. In Phipps, the DOL Wage and Hour Assistant Area Director concluded that Mr. Phipps' engaging in protected activities was a factor in FPL's decision to prohibit him from working during plant outages. FPL appealed the decision; however, the case was dismissed on.the basis of a voluntary stipulation by the parties prior to a hearing before an AU. De NRC Office of Investigations investigated this case and did not substantiate that discrimination -
had occurred. In the Diaz-Robainas case, the Secretary of Labor did determine that discrimination had occurred. His one example, however, for which the
~NRC took appropriate enforcement action,' does not support the Petitioners
- assertion that the NRC has a '1ax attitude" which has caused a pattern or practice of discrimination at FPL's facilities, Ibr all of these reasons, the Petitioners have not set forth a sufficient basis that would warrant that the NRC take escalated enforcement action against the Licensee at this time. Derefore, this request by the Petitioners is denied.
De Petitioners also request that the NRC impose a civil penalty in the amount of $100,000 against each of three former FPL managers; a civil penalty in the amount of $100,000 against six current FPL employees and restriction of the licensed activities of these employees and revocation of their unescorted' access to nuclear facilities; and a civil penalty in the amount of $100,000 against two named individuals characterized in the petition as Licensee " agents" or
" representatives." As a basis for this request, the Petitioners allege that these individuals were involved in the discrimination against Mr. Saporito, which is the subject of DOL Case 89-ERA-7/17. Because a final determination has not been made by DOL or NRC that discrimination occurred against Mr. Saporito,
(
the requested enforcement action against these individuals is not warranted at this time.
In addition, the Petitioners request that the NRC refer the matter of the con-
. duct of various FPL managers and other individuals and " entities" (i.e., the Licensee and the IBEW) to the DOJ so that it can consider invoking criminal ela a&Erion, the NRC has then enforcement action in the hilow case, see now 5.
I As ansed in acte $, the NRC issued a Notice of Violation and Propowd Ovil Penalty of s100.000 to FPL, for this violasion.
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proceedings against these persons and crieities.' As discussed in this section, DOL has not made a final determination in this case as to wiether discrimination occurred. Derefore, the Petitioners' request is denied pending a final decision
. by DOL as to whether discrimination occurred in DOL Case 89-ERA 7/17 De NRC will monitor the DOL proceeding on remand to the AU and determine 'on the basis of further DOL findings and rulings in this case whether a violation of NRC requirements has occurred, whether enforcement action against the Licensee or its employees is warranted, and whether this matter warrants referral to the DOJ,
- 2. Petitioners
- Requestfor Action Against th IBEW
%e Ittitioners request that the NRC impose a civil penalty in the amount of $100,000 against the IBEW and that the IBEW be required to inform its members in writing that they have the right to report safety concerns directly to the NRC without fear of retribution and that the IBEW encourages and supports such action at the discretion of its members.
De Petitioners request that the NRC take such action because they allege that IBEW officials conspired with FPL management to have Mr. Saporito's site 1
access revoked at %rkey Point Station. %c basis for this request was clarified at the meeting between Mr. Saporito and the NRC Staff on July 14, 1997.
During that meeting, Mr. Saporito stated that two Licensee officials testified during the DOL hearing that a comment was made by union officials to Licensee management that Mr. Saporito could potentially sabotage the plant, and that, as a result of that comment, his access to the site was revaked.
De testimony of these Licensee officials is a part of the record that is currently before the DOL AU. As previously stated, the NRC will monitor the DOL proceeding on remand to the ALI and determine on the basis of further DOL findings and rulings in this case whether any violation of NRC requirements has occurred that would warrant enforcement action by the NRC.
Ibr this reason, this request by the Petitioners is denied.
.1. Petitioners
- Request for initiation of NRC Investigations ne Petitioners request that the NRC investigate the " willful falsification" of a company business record and the cause of " transcripts found missing" in the a The Maioners assert as a basis fur their request that enforcement acnon be taken aganst IJcensee employees and union othcials that certaa pleadings they have Aled la the DOL case. as well as transenpt tecords. provide evidrace of setalmuon by these indmduals. It should be noted that the pleadings and transcripts in a DOL proceeabag are act by themselves, conclusive that disenrmnation occurred.
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,A4-I DOL proceeding.' During the meeting held with the NRC on July 14,1997, Mr.
Saporito also raised what he asserted were certain improprieties that occurred during the DOL hearing and specifically requested that the NRC investigate an additional concern that the Licensee or its attorneys may have whited out" a page of a document he had requested during the DOL proceeding. Mr. Saporito stated that he was adding this request to his petition.
His matter relates solely to the conduct of a DOL proceeding. The NRC Staff has, therefore, referred these issues to DOL. He Petitioners' request that the NRC investigate these matters is denied.
- 4. Other Petition issues De Petitioners request that the NRC require the Licensee to post a written notice alongside each NRC Form 3 currently posted at the Licensee's nuclear facilities that alerts employees that they can directly contact the NRC about nuclear safety concerns without first identifying the safety cancerns to the Licensee. In addition, the Petitioners request that the NRC require the Licensee to provide a copy of this posted communication to all employees and ensure that all employees are made aware of those communications through the Licensee's General Employee Training Program. Finally, the Petitioners request that the NRC require the Licensee to provide the Commission with documents authored by an officer of the Licensee under affirmation affirming that the Licensee has complied with these requests.
His request is similar to a request made by Mr. Saporito in a petition filed on March 8,1995, and responded to in a Director's Decision issued on May 25, 1995 (DD-95 8,41 NRC 346 (1995)). In that petition, Mr. Saporito requested that each Licensee be required to report to the Commission under oath or affirmation that it had completed a review of its station operating procedures to determine whether those procedures included restrictions that would prevent an employee from bringing safety concerns directly to the NRC and that it had communicated to its employees that they were free to bring concerns directiv to the NRC without following the normal chain of command. As explained in that Director's Decision, the Secretary of Labor did not hold in his Decision of June 3,1994, that employees have an " absolute right" to refuse to inform licensee management of public health and safety concerns and to bypass the licensee's
'Mr. Saportto elaborated on them aneged falsincanons al the nreung held on July 14.197L SpeciAcany, Mr.
Saponto assered. with regard to the ansing transcnpt pages, that 20 pages contaning lesumony by the tJcensee's vice prendent were missing from the iniual copy of the transcnpt that he was provided (ahhough the record was ewntually amen &d to contain these page:1 With regard to the falai6 canon of a business record, he asserted that rmoutes of a meeung held between tum and t)cenwe efficials did not accurately reRect the real reason that his site access was being revoked, that is, that usuon ofhcials had told (Jcertwo management oftcials that he might sabotage the plant 105
management in order to bring safety concerns directly to the NRC. Although an employee may not be discriminated against by the employer for coming directly to the NRC with safety concerns, an employee may also be required by the employer to bring these same concerns to the employee's management.
Whether an employee must bring issues to licensee management is dependent on the facts of each specific case.
As further explained in DD.95-8, the NRC requires in 10 C.F.R. I 19.ll(c) that all licensees and applicants for a specific license post NRC Ibrm 3. "No-tice to Employees," which describes employee rights and protections. In addi-tion, section 50.7 and associated regulations were amended in 1990 to prohibit agreements and/or conditions of employment that would restrict, prohibit, or otherwise discourage employees from engaging in protected activity. Finally, in November 1996, the NRC issued 6 brochure, " Reporting Safety Concerns to the NRC"(NUREG/BR 0240), which provided information to nuclear workers on how to report safety concerns to the NRC, the degree of protection that was afforded the worker's identity, and the NRC process for handling a worker's al-legations of discrimination. Rese measures are sufficient to (1) alert employees in the nuclear industry that they may take their concerns to the NRC and (2) alert licensees that they shall not take adverse action against an employee who exercises the right to take concerns directly to the NRC.
De NRC Staff believes that these existing requirements for posting and making other inforqation available to workers are adequate. De Petitioners have not provided a sufficient basis for requiring their suggested additional measures. Herefore, Petitioners' requests related to a supplemental posting are denied.
As previously stated, a public meeting was held with Mr. Saporito enabling him to fully present information regarding the issues raised in the petition. In addition, the NRC will monitor the DOL proceeding referenced in the petition to determine whether there has been a violation of NRC regulations. In view of these facts, there is no basis to hold any hearing at this time. Herefore, the Petitioners' requests related to a public hearing are denied.
111. CONCLUSION l
ihr the reasons discussed above, no basis exists for taking the enforcement actions requested in the petition and its supplements. Nonetheless, as previously described, on July 14, 1997, a public meeting was held between Mr. Saporito and representatives of the NRC Staff, the purpose of which was to provide Mr.
Saporito with the opportunity to provide additional information regarding the substance of this petition. Herefore, to the extent that the Petitioners have requested that the NRC conduct an interview with the Petitioners regarding the 106 l
1
.r substance of their section 2.206 petition, the petition has been granted. With
' regard to all other aspects of the petition, the petition has been denied.
A copy of this Decision will be filed with the Secretary of the Commission -
- for the Commission to review in accordance with 10 C.F.Rc 9 2.206(c). As provided by that regulation, the Decision will constitute the final action of the Commission 25 days after issuance, unless the Commission, on its own motion, institutes a review of the Decision within that time.
POR 'IEE NUCLEAR -
REGULA'IORY COMMISSION Samuel J. Collins, Director Office of Nuclear Reactor Regulation
- Dated at Rockville, Maryland, this 8th day of September 1997.
107 1
Cite as 46 NRC 108 (1997) DD 97 21 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Samuel J. Collins, Director in the Metter of Docket Nos. 50 245 50-336 50 423 50 213 (Ucense Nos. DPR-21 DPR45 NPF-49 DPR41)
NORTHEAST UTIUTIES (Millstone Nuclear Power Station, Units 1,2, and 3; l
Heddam Neck Plant) September 12,1997 he Director Office of Nuclear Reactor Regulation, issues a Partial Director's Decision, responding to a variety of requests made in a petition filed by the Citizens Awareness Network (CAN) and the Nuclear Information and Resource Service (NIBS), hereinafter referred to as Petitioners. Petitioners' requests were directed at Northeast Utilities (NU) and specifically its operation of its nuclear facilities in Connecticut. Petitioners' requests for relief iacluded immediate suspension or revocation of NU's licenses, continued shutdown of NU facilities, continued listing of NU facilities on the NRC's Watch List, limitations on precommissioning or decommissioning of any NU facility, and investigations by the NRC into asserted wrongdoing on the part of NU.
He Director deferred Petitioners' requests concerning asserted NU wrongdo-ing until NRC Staff consideration of this issue in completed. A Final Director's Decision will then be issued. With regard to Petitioners' remaining requests, those requests were granted or denied in whole or in part as set forth in the Partial Director's Decision.
108
PARTIAL DIRECTOR'S DECISION i1NDER 10 C.F.R. I 2.206 I. INTRODUCTION On November 25, 1996, as amended on December 23, 1996, Ms. Deborah Katz and Mr. Paul Gunter filed a petition on behalf of the Citizens Awareness Network (CAN) and the Nuclear Information and Resource Service (NIRS),
hereafter referred to as Petitioners. Dese two submittals will hereafter be referred to as the petition. De petition was filed with the U.S. Nuclear Regulatory Commission (NRC) and the NRC Executive Director for Operations pursuant to section 2.206 of Title 10 of the Code of Federal Regulations (10 C.F.R. I 2.206).
De Petitioners requested that the NRC take the following actions: (1) immediate suspension or revocation of Northeast Utilities' (NU's or Licensee's) licenses to operate its nuclear facilities in Connecticut; (2) investigation of possible NU material misrepresentations to the NRC; (3) continued shutdown of the NU facilities until the Department of Justice completes its investigation and the results are reviewed by the NRC; (4) continued shutdown until the NRC evaluates and approves NU remedial actions; (5) cosainued listing of the NU facilities on the NRC's Watch List should any facility resume operation; (6) prohibitiori of any predecommissioning or decommissioning activity at any NU nuclear facility in Connecticut until NU and the NRC take certain identified steps to ensure that such activities can be safely conducted; (7) initiation of an investigation into how the NRC allowed the asserted illegal situation at NU's nuclear facilities in Connecticut to exist and continue for more than .: decade; l and (8) an immediate investigation of the need for enforcement action for allet d i
violation of 10 C.F.R. Part 50 Appendix B.8 he bases for the Petitioners' assertions are NU and NRC inspection findings and NU documents referred to in the petition and a VHS videotape, Exhibit A, which accompanied the petition. No new information regarding Licensee activities was provided by the Petitioners except for the alleged violation referred to in Request 8. The Petitioners assert, in Request 8, that NU relied partly on draft calculations in its presentation at a public predecisional enforcement conference with the NRC Staff, which included a discussion of an event at the fladdam Neck Plant. %e Petitioners further assert that the calculations had not I
Petitioners requested copees of de Ucenace's calculanons perfo. wd la response so the ewns at the Haddarn Neck Plant that resulted in de introducaon of a astrogen bubble into the reactor wasel. The calculanons requested were discussed during a predecisional enforcenwnt conference held on Decemher 4,1996. The calculations wue provided to the Peuttoners on July 21.1997.
109
4
. been revieMand approved in accordance with the requirements of Part 50, Appendix B; ..
De areas of concern identified in the petition include inadequate surveillance testing, operation outside the design as specified in the updated Final Safety Analysis Report (UPSAR), inadequate radiological controls, failed corrective action processes, and the degraded material condition of the plants. - De Petitioners also assert that this information demonstrates that there are inadequate quality assurance programs at NU's nuclear facilities in Connecticut, that NU has made material false statements regarding its Millstone units, and that safe '
decommissioning of the Haddam Neck Plant is not possible given the defective
- nature of the design and licensing bases for the facility. De videotape records an August 29,1996 Citimns Regulatory Commission televised interview of a .
former Millstone Station employee expressing his views on NU managernent.
. %e tape has been transcribed and placed on the dockets of the facilities cited.
De videotape interview included the former employee's views relating to NU's
- poor management in allowing degradation of the material condition of the plant:
poor radwaste practices resulting in potential radiation exposure to employees;
- and harassment, intimidation, and subsequent illegal termination of employees
- raising safety concerns.
On January 23, 1997, the NRC acknowledged receipt of the petition and informed the Petitioners that the petition had been assigned to the Office of Nuclear Reactor Regulation to prepare a response and that action would be taken within a reasonable time regarding the specific concerns raised in the petition.- %c Petitioners were also informed that the requests for immediate action were denied. De Petitioners were further informed that copics of the petition and videotape were sent to the NRC's Office of the Inspector General (OIG) in response to Petitioners' Request 7 and parts of Requests 5,6, and 8.
II. - DISCUSSION
- De NRC Staff his reviewed the petition and, with the exception of Request 8, has not identified any new information regarding either the Millstone or the '
Haddam Nd facilities. Both of the facilities have been the subject of close Ni'C scrutiny for several years.
1 A. - Ministone Facility With regard to the Millstone units, the NRC Staff has been concerned for the last several years about the number and duration of violations at the Millstone site in the broad programmatic areas of design and. licensing bases, testing,
- and radiological controls. Programmatic concerns in these areas, along with 110 J
concerns in other areas, were major contributors to the decline in performance at the Millstone site. In the most recent systematic assessment of licensee performance (SALP) report of August 26, 1994, the NRC Staff stated in the cover letter that it had noted several performance weaknesses, common to all three Millstone units. Among these were continuing problems with procedure quality and implementation, the informality in several maintenance and engineering programs (contributing to instances of poor performance), and the failure to resolve several longstanding problems at the site. In addition to these programmatic problems, the Licensee has had significant problems in dealing with employee concerns involving safety issues at the site.
On November 4,1995, the Licensee shut down Millstone Unit I for a scheduled refueling outage. The NRC sent a letter to the Licensee on December 13,1995, requiring the Licensee, before restarting Millstone Unit 1, to inform the NRC, pursuant to section 182a of the Atomic Energy Act of 1954, as amended (the Act), and 10 C.F.R. 550.54(f), of the actions taken to ensure that in the future the Licensee would operate that facility according to the terms and conditions of the unit's operating license, the Commission's regulations, and the unit's FSAR.
In January 1996, the NRC designated the three Millstone units as Category 2 on the NRC's Watch List. Plants on the Watch List in this category have weaknesses that warrant increased NRC attention until the licensees demonstrate improved performance for an extended period of time.
On Rbruary 20, 1996, the Licensee shut down Millstone Unit 2 when it declared both trains of the high-pressure safety injection (HPSI) system inoperable because of a design issue. There was a potential that the HPSI throttle valves could become plugged with debris when taking suction from the sump during recirculation mode.
On March 30,1996, the Licensee shut down Millstone Unit 3 after finding that containment isolation valves for the auxiliary feedwater turbine-driven pump were inoperable because the valves did not meet NRC requirements. In response to a Licensee root-cause analysis ofinaccuracies in the Millstone Unit 1 FSAR, j- identifying the potential for similar configuration control problems at Millstone Units 2 and 3 and the existing design configuration issues identified at these units, the NRC issued section 50.54(f) letters to the Licensee on Match 7 and April 4,1996. These letters required that the Licensee inform the NRC of the corrective actions taken regarding design configuration issues at Millstone Units 2 and 3 6 -%e the restart of each unit.
In Juae 1996, the NRC designated the three units at Millstone as Category 3 on the NRC's Watch List. Plants in this category have significant weaknesses that warrant maintaining them in a shutdown condition until the Licensee can demonstrate to the NRC that it has both established and implemented adequate 111
J
corrective actions to ensure substantial improvement. Dis category also requires Commission approval before operations can be resumed.
On August 14, 1996, the NRC issued a Confirmatory Order directing the Licensee to contract with a third party to implement an Independent Corrective Action Verification Program (ICAVP) to confirm the adequacy of its efforts to reestablish the design basis and configuration controls for each of the three Millstone units. He ICAVP is intended to provide additional asre ance, before a unit restart, that the Licensee has identified and corrected en%ng problems in the design and configuration control processes for that unit. ,
On April 16, 1997, the NRC issued another section 50.54(f) letter, which superseded the previously mentioned section 50.54(f) letters and consolidated its requests for information and periodic updates, he information requested included: (1) the identification of significant items needed to be accomplished before restart; (2) identification of items to be deferred until after restart; (3) NU's nrocess and rationale for deferring items; and (4) a description of the actions taken by NU to ensure that future operation will be conducted in accordance with the terms and conditions of the operating licenses, the Commission's regulations, and the PSARs. The Licensee provided the initial information requested by letter dated May 29,1997. Additionalinformation and updates will be provided in accordance with the time intervals specified in the section 50.54(f) letter, j During eight NRC inspections conducted between October 1995 and August 1996, more than sixty apparent violations of NRC requirements were identified at the Millstone site. Dese apparent violations were discussed at a public predecisional enforcement conference held at the Millstone site on December 5, 1996. During the meeting, the Licensee stated the mnagement failed to provide clear direction and oversight, performance sta, ds were low, management expectations were weak, and station priorities woe inappropriate. De NRC Staff is nearing completion of its evaluation of potential enforcement action to address these apparent violations and their overall impact on the safe operation of the Millstone units.
Additionally, the Licensee has had a chronic problem of not dealing effec-tively with employee concerns at the Millstone site. On December 12, 1995, the NRC established a resiew group to conduct an independent evaluation of the history of the Licensee's handling of employee concerns related to licensed activities at the Millstone facility, The review group determined that, in general, an unhealthy work environment, which did not tolerate dissenting views and did not welcome or promote questioning attitudes, has existed at the Millstone fa-cility for the last several years. To address this problem, the NRC Lsued an order on October 24,1996, that directed NU to devise and implement a com-nrehensive plan for handling safety concerns raised by Millstone employees and to ensure an environment free from retaliation or discrimination. In addition, 112
m _ . . _ .- _ - . _ - _ _ _ . _ . _ _ _ _ _ ._ _ - _ .- . _._ . _ _ _
the order required NU to have an independent third party oversee its employee concerns program.- De third party is responsible for providing periodic reports to NU and the NRC detailing its Andings and recommendations. De third party
. Andings and the NU h,~..= to them will be assessed by the NRC Staff for
- any restart issuosi
- De NRC regards compliance with regulations, license conditions, and Tech-i s
nical Specifications (TSs) as mandatory. However, the NRC also recognizes ;
- that plants will not operate trouble-free.8 Dis is cleuly aniculated in Crite-i rion XVI. Appendix B, Part 50," Quality Assurance Criteria for Nuclear Power Plants and Puel Reprocessing Plants." Criterion XVI states that "[m]easures
- phall be established to ensure that conditions adverse to quality, such as failures, malfunctions,' deficiencies, deviations, defective material and equipment, and nonconformances are prompdy identified wi corrected."
he appropriate response to an identified deficiency can and should. vary,
, depending on the safety significance of the deficiency. R)r example, for rapidly >
+
developing situations, when prompt action is required to ensure that plants are not in an unsafe condition, automatic safety systems are in place to shut down the e'
- reactor, in other, less time-critical situations, TSs relating to structures, systems, '
and components (SSCs) vital to the safe operation of a nuclear plant require -
j - that specific actions be taken within a predetermined time period when the SSC is determined to be inoperable. . De time period is dependent on the safety significance of the SSC, NRC Generic Letter 91.lP,"Information to Licensees Regarding Two NRC Inspection Manual Sections on Resolution of Degraded and
. Nonconforming Conditions and on Operability, provides guidance for licensees
- to determine what actions are required and when'they need to be taken for identified degraded or nonconforming conditions.
7 De conduct of NRC regulatory oversight at the Millstone site is based on the recognition that it is the Licensee's primary responsibility to demonstrate that
~ corrective actions have been ~ effectively implemented. Dus, the Licensee must y - determine that a unit is in conformance with applicable NRC regulations, its license conditions, and its FSAR and that applicable licensing commitments have 3
The NRC's appmach to proescung pubbe health and safety includes Ow philosophy of defeateda-depth. which supposts the idenhscation and cortecnon of degraded ta nonconfornung conditions discussed above Briefly stawd.
1
- ihis philosophy (1) requhes the appi, cation of conservauve codrs and standards to catabbsh substantial safety -
- naargins la the design of nuclear piesrs Q) seqiures high quahty la the design, construction. and operation of nuclear planes to reduce sie hkshhood of malfuncuons, and promoess the nie of automanc safety sysum actuance i fomeures; 0) recognises that equipment can fail and operasors can make nestakes and dierefore requires redundancy i in safety systems and components to seduce the chances that malfuncoces or nustakes willlead to accidents that 1 tenease saseos products from the fuel; and (4) recogniaes that, in sehe of these precautions. acrtons fuel damage accidents can happen and thesefore requires containment sometures and safety frasures to prevent the telsene of j snaios products in the unkkely event of an offsit assico-product releane ,enwrgency plans are la place to provide consonable assurance that protective actione can and will be taken to prosect the populanon around nuclear j' power plants. These emergency plans are coordinaard with local and stase of6cials and she finderal Emergency
. - Asency.
f 1.
113 r
M n, ,-e,. e.w. ._, , - - . . - - . - . , , . , 3 -- - .-- -,.-,,- 4 -
been met before the NRC Staff can recommend that the Cormnission approve the restart of any unit. De Licensee's conformance with NRC regulations, license conditions, and licensing commitments is fundamental to NRC's confidence in the safety of licensed activities. In short, the Licensee has the primary responsibility for the safe operation of its facilities.
In a June 20,1996 letter to the NRC, the Licensee described its Configuration Management Plan (CMP), which is its principal program to provide reasonable assurance that weaknesses at the Millstone units have been effectively corrected.
He CMP includes efforts to understand and correct the licensing and design.
bases issues that led the NRC to issue the section 50.54(f) letters and order actions to prevent recurrence of those issues. The Licensee stated that the objective of the CMP was to document and meet the licensing and design-bases requirements of each unit and to ensure that adequate programs and processes are in place to maintain control of these requirements, ne Licensee's CMP must either correct each FSAR deficiency or evaluate it to ensure that the change to the facility does not involve any unreviewed safety question or change to the facility TSs. NU has documented a large number of deficiencies, which vary in scope and safety significance for each unit. Rese lists contain sipificant deficiencies that must be corrected before restart and others that the Licensee is planning to correct after the restart. In its continuing reviews of the deficiency lists, the NRC Staff will determine whether the Licensee has appropriately scheduled sdety-significant items for completion before restart and whether those items that the Licensee vdll defer until after restart are appropriate for each unit. De results of these efforts will be documented in NRC inspection reports.
He NRC's regulatory oversight of the Licensee's corrective actions requires extensive planning and program integration. To focus more regulatory attention on G of the restart issues related to the Millstone units, the NRC has established a Special Projects Office (SPO) within the Office of Nuclear Reactor Regulation i
to oversee these activities. The SPO has developed a comprehensive and multifaceted oversight program to verify the adequacy of NU's corrective actions, programs, and processes. The breadth and significance of the problems l identified at the Millstone sito require this program. He SPO has developed a Restart Assessment Plan (Assessment Plan) for each of the Millstone units, which includes: (1) the appropriate aspects of NRC Inspection Manual, Manual Chapter (MC) 0350, " Staff Guidelines for Restart Approval"; (2) oversight of NU's ICAVP; and (3) oversight of NU's corrective actions relating to employee -
concerns involving safety issues. The activities associated with the Assessment Plan are in addition to the normal inspection and licensing activities being carried out at the Millstone site.
MC 0350 establishes the guidelines for approving the restart of a nuclear-power plant after a shutdown resulting from a significant event, a complex 114 l
hardware problem, or serious management deficiencies. De primary objective of the guidelines in MC 0350 is to ensure that NRC's restart review efforts are appropriate for the individual circumstances, are reviewed and approved by the appropriate NRC management levels, and provide objective measures of restart readiness.
De Assessment Plan for each unit includes those issues listed in MC 0350 that the NRC Staff has identified as relevant to the shutdown of the unit. Each Assessment Plan also includes additional issues determined to be applicable to the specific situation. De Assessment Plans include all actions the NRC expects NU to take before the NRC Staff recommends to the Commission that a unit be permitted to restart. Accordingly, the Staff will use the Assessment Plan for each Millstone unit to track and monitor all significant actions necessary to support a decision on restan approval of the unit.
De Assessment Plan for each Millstone unit includes the requirement to review the NU Operational Readiness Plan, the deficiency lists associated with the Assessment Plan, including restart and deferred items, the corrective action program, work planning and controls, the procedure upgrade program, the nuclear oversight function (quality assurance), outs:anding enforcement items, and a Significant Issues List (SIL), which includes isr identified by both NU and the NRC as issues requiring resolution before utart. NRC MC 93802,-
" Operational Safety Team Inspection" (OSTI), provides the framework for a team inspection to be performed during the later stages of the restart process, ne inspection will be structured to focus on the pertinent issues at each of the Millstone units, Within the SPO, a Millstone Restart Assessment Panel (RAP) has been formed in accordance with MC 0350. De RAP meets to assess the Licensee's performance and its progress in completing the designated restart activities He RAP is composed of the Director, SPO (chairman); the Deputy Directors of Licensing, Inspections, and Independent Corrective Action Verification Program Oversight; the Project Managers for the three Millstone units; the Inspection Branch Chief; the Senior Resident Inspectors for the three Millstone units; and .
the appointed Division of Reactor Safety representative. The RAP holds periodic meetings with the Licensee to discuss the Licensee's corrective actions and schedules of each Millstone unit, Dese meetings are noticed and are open to the public An additional meeting with the public is usually held that same day in the evening to summarize the meeting with the Licensee, provide an update on NRC activities, and address comments from the public, he purpose of the ICAVP, as stated in the Confirmatory Order, is to confirm that the plant's physical and functional characteristics are in conformance with its licensing and design bases, ne ICAVP audit required by the NRC is expected to provide independent verification, beyond NU's quality assurance and management oversight, that the Licensee has id mtified and sa'isfactorily resolved 115
existing nonconformances with Fe design and licensing bases; docuncutet j
and utilized the licasing and design bases to resolve nortconformanem and >
established programs, processes, and procedures for effective configuradon management in the future. NU has started programs 19 identify and understand the root causes of the licensing and desspbases issues that led to NRC issuance {
of the section 50.54(f) letters to NU and to irnplement corrective actions that will ensure that NU maintains the design confieviation and that each unit is in conformance with its licensing t> asis. NU has indicated that the scope of its corrective programs will include those systems that it has categorized as either Group I (safety related and risk significant) or Group 2 (safety-related or risk-significant). De ICAVP audit must provide insights into the effectiveness of NU's programs so that the results can be reasonably extrapolated to the structures, systems, and components that were not reviewed in the audit.
As a practical matter, the NRC cannot do a 100% verification of the Li.
censee's corrective actions, processes, and programs for each Millstone unit, llowever, a comprehensive and multifaceted oversight process has been devel-oped by the NRC Staff to provide a high level of confidence that the Licensee has implemerted required corrective actions and that all of the issues on the SILs have been resolved. He independent third-party evaluation required by the NRC will be used to enhance NRC confidence that the Licensee's corrective action programs have been effectively implemented at each unit, NRC activities (including oversight of the ICAVP) to ensure that effective corrective actions are being taken by the Licensee will provide additional assurance that the Licensee's corrective action programs have been effectively implemented, nese activities will include in-process reviews of the ICAVP contractor's activities, reviews of the ICAVP results, and additional independent reviews of compliance with the design and licensing bases of selected systems.
i ne State of Connecticut's Nuclear Energy Advisory Council has provided input to the NRC Staff for selecting the systems that will be reviewed by the ICAVP contractor and has been invited to observe the NRC Staff's ICAVP inspections.
When the restart review process has identified, corrected, and reviewed relevant issues regarding each Millstone unit, a restart authorization process will be initiated for that unit. Upon receipt of a Staff recommendation and a briefing on any ongoing investigations, the Commission will meet to assess the recommendat;on and vote on whether to allow the restart of the unit. The same process will be followed for the remaining units.
B, IInddam Neck Facility With regard to the Haddam Neck Plant, the Licensee shut down the plant on July 22, 1996, as requirei by the facility's TSs, because of concerns that the containment air recirculation fans service-water piping may exceed design 116
I loads during certain accident SNnarios he Licensee determined that these wacerns and other hardware and programmatic problems identified before and during the forced outage should be resolved before restarting the plant. Dus, the Licensee decided to begin Refueling Outage 19 on August 17,1996. On October 9,1996, the owners of the lladdam Neck Plant stated that a permanent shutdown of the plant was being considered by the Board of 'Dustees based on an economic analysis of operations, expenses, and the cost of replacement power. Subsequently, all fuel assemblies were cemoved from the reactor and placed in the spent fuel pool.
I' tom November 21, 1995, to November 22, 1996, the NRC conducted numerous inspections at the liaddam Neck Plant to review several facets of plant i performance. Dese inspections included a Special Team inspection by NRC headquarters staff focused on engineering performance, a special Augmented Inspection Team (AIT) inspection of a reactor vessel nitrogen intrusion event in late August and early September 1996 that lowered the reactor vessel water level, a special radiation protection inspection of a significant contamination event in November 1996, an emergency preparedness inspection to observe the Licensee's response during an eraergency exercise held in August 1996, and several resident inspections. Numerous violations, u well as several significant regulatory concerns, were identified during these inspections. Most of the violations were discussed at a transcribed public predecisional enforcement -
conference at the Millstone training building in Waterford, Connecticut, on {
December 4,1996. The December 4 conference was open to the public and focused on the broader programmatic deficiencies underlying the violations that contributed to the problems at fladdam Neck. A Notice of Violation and Proposed imposition of Civil Penalties in the amount of $650,000 was issued l on May 12,1997, and subsequently paid by the Licensee, he restart process described for the three Millstone units is not applicable to the 11addam Neck Plant. By letter dated December 5,1996, the Licensee certified to the NRC, pursuant to 10 C.F.R. 550.82(ahl)(i) and (ii), that it had decided to permanently cease operations at the lladdam Neck Plant and had permanently removed the fuel from the reactor, ne Licensee further noted 7 that a Post-Shutdown Decommissioning Activities Report (PSDAR) and a site-specific decommissioning cost estimate would be submitted in accordance with 10 C.F.R. I 50.82, " Termination of License."
It is important to note that the NRC continues to identify problems at both the Millstone site and the lladdam Neck Plant, as documented in inspection reports issued after this petition was filed. These fmdings indicate that the corrective actions required to restart the Millstone units have not yet been fully implemented. The NRC Staff will not recommend that the Commission allow the restart of a Millstone unit until the Commission has determined, in 117
I accordance with the Assessment Plan, that the necessary corrective actions have been effectively' implemented for the unit.
As for Haddam Neck, a Confirmatay Action Letter (CAL) was issued to the Licensee on March 4,1997, concerning radiological-control problems at the Haddam Neck Plant. *lhis CAL is an example of the type of action that the NRC_
takes to ensure that the limited activities at the site will be conducted in a safe manner and in accordance with regulatory requirements. The CAL prohibits the Licensee from performing any radiological wo.k eacept that required to maintain the plant in a safe configuration until the corrective actions identified in the CAL ~
have been implemented.
IIL NRC RP PONSE TO REQUESTED ACTIONS In summary, the Licensee's implementation of its Configuration Management Plan (CMP) for each Millstae unit, response to the elements in the NRC
. Staff's Restart Assessment Plan (Assessment Plan) for each Millstone unit, implementation of actions to improve programs to address employee concerns at the Millstone site, and the implementation of the decommissioning process specified in section 50,82 for the Haddam Neck Plant, as discussed above, are the bases for the NRC Staff's responses discussed in this Partial Director's Decision to_ the specific actions that the Petitioners requested be taken against NU. 'Ihe Petitioners' requested actions and the NRC Staff's responses are discussed below.5 -
- 1. Petitioners request that the NRC immediately suspend or revoke NU's
- license to operate Connecticut Yankee (Haddam Neck) and the Millstone Nuclear reactors due to chronic, negligent management of the reactors which, for over a decade, has endangered and continues to endanger occupational and public health and safety and the environment due to resultant and cumulative major safety problems and violation of NRC regulations.
The Petitioners base their request to suspend or revoke the operating licenses of Haddam Neck and the three Millstone units on NU reports and NRC inspection findings referred to in the petition and on a videotape in which a former Millstone Station employee expresses his views on NU management.and plant conditions, As previously noted, based on the NRC Staff review of these materials, the Petitioners have identified no new information.
With regard to the Millstone units, the units are currently in an extended ,
shutdown and significant management changes at NU have been made in the
(
)-
8 ta this Partial Director's Decision, Pentionen' nquests have been ideno6ed as Requests I through 8. These requests cornspond to Requests A.I through A.$. B, and C in the initial petition, and Request ilA in the amendment to the petioon.
118
past year. %e NRC's focus is on evaluating ir.iproved performance, hardware and programmatic upgrades, and corrective actions. Specifically, NRC review and inspection emphasis will be directed toward the results of NU's actions to corTect identified weaknesses in areas such as design controls, radiological controls, quality assurance, work control practices, corrective action processes, and the handling t,f employee concerns.
De previous discussion provides an overview of the Assessment Plans that the SPO has developed for assessing the adequacy of NU's corrective actions being taken prior to Commission approval of restart for any of the Millstone units. The NRC Staff will have to reach a determination that the corrective actions taken by NU provide reasonable assurance that future operation will be conducted in accordance with the terms and conditions of the operating license, the Commission's regulations, and the design basis, as documented in the FSAR, of each unit before recommending that the Commission approve the restart of any one of the units. Upon receipt of an NRC Staff recommendation and a briefing on ongoing investigations, the Commission will hold a meeting to assess the recommendation and then vote on whether to approve the restart of each unit, he restart process discussed for the Millstone units does not apply to Haddam Neck. De Licensee has certified to the NRC that operations at the facility have permanently ceased and that fuel has been permanently removed from the reactor.
He Petitioners' request to take immediate action was denied in the letter of January 23, 1997, which acknowledged receipt of the petition. The request to suspend or revoke the licenses for the three Millstone units is denied based on the NRC Staff's conclusion that such action is not warranted by the facts.
Programmatic and review efforts are in place. If these efforts are successful, the NRC would allow the Millstone units to resume operation. He request to suspend or revoke the license to operate the Haddam Neck Plant is moot since the Licensee has certified to the NRC that the plant has permanently ceased operation and the fuel has been permanently removed from the reactor.
- 2. De Petitioners request that the NRC investigate the possibility that NU made material misrepresentations to the NRC concerning engineering calcula-tions and other information or actions relied upon to ensure the adequacy of
, safety systems at the Haddam Neck and Millstone reactors. The Petitioners l
said NU made possible material misstatements either through lack of rigor and thoroughness or by providing intentionally misicading information.
The NRC has ongoing investigations related to alleged wrongdoing by NU personnel, The investigative results will be reviewed for possible enforcement action. Depending on the results of the ongoing evaluations of inspections and investigations, both NU as an organization and NU employees found to have en.
gaged in deliberate misconduct will be subject to appropriate enforcement action.
119
Consistent with the General Statement of Policy and Procedures for NRC En.
forcement Actions (NUREG-1600), some enforcement action is normally taken against a licensee for violations caused by significant acts of wrongdoing by its
- employees. Such action could include a civil penalty or an order, In decid-ing whether to also take action directly against the responsible employees, the NRC considers a number of factors such as the employee's level in the . rgani-zation, the employee's training and experience, the degree of supervisio, the employce's attitude, and the degree of management responsibility or culpabil-ity. A decision to take action directly against an individual is significant and normally will be taken only when the NRC is satisfied that the individual has engaged in deliberate misconduct. He action taken could include prohibiting the individual from involvement in licensed activities for a period of years.
As the NRC is currently evaluating alleged wrongdoing by NU personnel, the Petitioners' request is granted.
3, Petitioners request that the NRC revoke NU's operating licenses for the Haddam Neck and the Millstone Unit 1,2, and 3 reactors if an investigation determines that NU deliberately provided insufficient and/or false or misleading information to the NRC. If the NRC chooses not to revoke NU's licenses, the Petitioners specifically request that the reactors remain offline until a United States Department or Justice (DOJ) independent investigation is complete and the NRC reviews the conclusions and recommendations contained therein for potential consequences to the Licensee and its agents under NRC regulations.
He Petitioners note in a footaote that a DOJ report will likely produce information essential to the NRC's evaluation of NU's management problems.
The Petitioners further stated that such information should influence any NRC decision concerning NU's future operation of nuclear reactors in Connecticut.
Since the NRC investigations are ongoing, the NRC cannot respond to the first portion of the request to revoke the licenses of the three Millstone units at this time, the response to the Petitioners' Request I applies to the part of Request 3 asking that the reactors remain offline until the investigations are complete. As noted, the Commission will consider the status of all ongoing investigations, l including any referrals to DOJ, in its deliberations before voting on the restart of any of the Millstone units.
The part of the request relating to revoking the licenses of the three Millstone anits is deferred until all investigations are complete. He request that the reactors remain offline until the investigations are complete is denied.
This request does not apply to the Haddam Neck Plant, which has already permanently ceased operation.
- 4. He Petitioners request that, if NRC chooses not to revoke NU's licenses to operate the Haddam Neck Plant and the Millstone Unit 1,2, and 3 reactors and allows the reactors to return to operation, the reactors remain on the NRC's 120 l
Watch List to oversee reactor operations until NU managemerit demonstrates to the NRC that:
- a. . NU is able to fulfill NRC regulatory requirements;
- b. NU has met all prior commitments concerning the repair, modification, maintenance, and documentation of the nuclear power stations;
- c. NU has retrained all staff in the application and interpretation of NRC's regulations; and
- d. NU has removed from any positions of responsibility for operation and/or management of the reactors all persons whom DOJ, NRC, or other government investigators and/or civil or critninal prosecutions find to have made material misrepresentations to the NRC during the past decade of miscariagement.
Due to the significar.ce and programmatic nature of the concerns evolving from the various NRC reviews and inspections at the Millstone Station and the fact that each unit is shut down pending resolution of these issues, the Com-mission put the Millstone units in Category 3 of the Watch List. Accordingly, restart of any of the units is subject to Commission approval. SIL issues, which require resolution for safe operation, will have been addressed and a process will be in place to resolve any deferred items. If the Commission approves restart of any unit, that unit will be placed in Category 2 of the Watch List, where it will remain until the Licensee nas demonstrated that satisfactory operational performance can be sustained at the unit.
He restart process, as previously discussed, will ensure that the management attributes identified by the Petitioners in Requests 4.a, 4.b, and 4.c, will be adequately considered within the context of the SPO's Assessment Plans before the NRC Staff recommends that the Commission allow the restart of any unit.
Request 4.d will be considered in the restart process when the Commission is briefed regarding investigation efforts and recommendations.
He request to retain the Millstone units on the NRC's Watch List, if the Commission approves restart, is granted. Any unit permitted to restart will be placed in Category 2 of the Watch List, where it will remain until the Licensee has demonstrated that satisfactory performance can be sustained at the unit.
Requests 4.a,4.b,4.c, and 4.d will be considered as set forth above.
His request does not apply to the Haddam Neck Plant because the Haddam Neck Plant has permanently ceased operation. %e NRC will continue its oversight of the defueled facility,
- 5. Petitioners request that, as a minimum, the NRC keep Haddam Neck and the Millstone Unit 1,2, and 3 nuclear reactors offline until NU's chronic mismanagement has been analyzed, remedial management programs have been implemented, and the NRC has evaluated and approved the effectiveness of the Licensee's actions. As a minimum, NU should:
121
- a. thoroughly analyze root causes for deficiencies in NU's FSARs, its documentation of licensing and design bases, its safety analysis, its enginecting, its quality assurance, its as low as reasonably achievable (ALARA) programs, and other necessary or required documentation;
- b. ' create a complete, accurate FSAR - mere " reform" is impossible when the basic document is inadequate and inaccurate; -
c, reevaluate any of its activities initiated under (or which NU should have initiated under) section 50.59 in order to confirm the validity of such activities, particularly to determine the extent to which the PSAR does not match "as-built" configurations 'Ihis reevaluation requires more than a paper audit; it requires checking actual physical plant against the existing documentation, component by component and system by system and creating correct documentation where it is lacking and/or inadequate;
- d. institute and document an effective ALARA review of all operational and nonoperational activitics that expose workers and/or the public to radiation; e,
theroughly document the root causes of NU's chronic and systemic mis-management, including documentation of the NRC Region I inspection program's staff and management failures over the past decade to detect and deal with this problem; f, demonstrate, over a substantial period of time to the satisfaction of the NRC, NU's commitment to respect NRC regulatory requirements and consistently follow them;
- g. retrain all personnel involved in day-to day operations so that they are thoroughly conversant with NRC regulations; and
- h. update and document Plant Design Change Requests (PDCRs) to include all changes to the reactor's design, and verification by the NRC Staff of these design changes, with closecuts of PDCRs receiving the highest priority. .
As previously noted, NRC regulatory oversight programs at the Millstone Station are based on the recognition that the Licensee is primarily responsible for demonstrating that corrective actions have been effectively implemented, Before the NRC Staff can recommend that the Commission approve the restart of a Millstone unit, the Licensee must determine that the unit conforms with applicable NRC regulations, license conditions, and the FSARs and that appli-cable licensing commitments have been met The Licensee's conformance with NRC regulations, license conditions, and licensing commitments is fundamental to the NRC's confidence in the safety of licensed activities.
The significant actions that the NRC is taking to monitor the Licensee's activities have been discussed in detail earlier in this Decision. Based on that discussion, the actions requested in Requests 5.a through 5.h, with the exception 122
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of the part of 5.e relating to NRC Staif performance, will be adequately addressed within the context of the SPO's Assessment Plan for each of the Millstone units.
With regard to Request 5.e, the part of 5.c relating to the performance of the NRC Staff is beyond the scope of the 2.206 process and will not be addressed in the Direcur's Decision relating to this petition. His issue has been referred to the NRC's 010 for action as appropriate.
He request to keep the Millstone units offline until the items identified in Rem -sts 5.a through 5.h, with the exception of the part of Request 5.e relating to hdC's previous actions in dealing with the Licensee, is gnmted to the extent that the issues will be considered within the SPO's Assessment Plan for each of the units.
Ria request does not apply to the Haddam Neck facility, which has perma-nently ceased operation.
- 6. Petitioners request that, if NU decides to shut down any or all of the nuclea *wer reactors at issue herein with the intent to commence the decom.
h mission process, the NRC not permit any decommissioning or predecommis-sioning activity to take place until:
- a. all the documentation mentioned in earlier requests is available to the NRC and on site at the reactors;
- b. all personnel involved in the decommissioning process have been re-trained (or trained) in the use and in:erpretation of the applicable NRC regulations in Title 10 of the Code of federal Regulations;
- c. the NRC has appropriately evaluated and replaced personnel and has restructured the NRC Region I inspection program, its raanagement, and the supervising NRC directorate to eliminate the regulatory anarchy that plagued the Connecticut nuclear reactors during the past 10 years; and
- d. the NRC makes certain that NU does not employ any persons in management or operations who made material misrepresentations to the NRC about the status of operat;ons, repairs, modifications, or maintenance of NU's Connecticut reactors.
On October 9,1996, the owners of the Haddam Neck Plant stated that the Board of 'Itustees was considering a permanent shutdown of the plant, based on an economic analysis of operations, expenses, and the cost of replacement power. All fuel assemblies were removed from the reactor and placed in the spent fuel pool for temporary storage. By letter dated December 5.
1996, the Licensee certified to the NRC, pursuant to section 50.82(a)(1)(i) and j
(ii), that it had determined to permanently cease operations at the Haddam Neck Plant and that the fuel had been permanently removed from the reactor.
He Licensee further noted that a Post-Shutdown Decommissiom..g Activities Report (PSDAR) and the site-specific decommissioning cost estimate wouH be submitted in accordance with section 50.82, ' Termination of License." Tne 123
PSDAR wi!! be submitted to the NRC and a copy sent to the affected state (s) within 2 years after operations have permanently ceased. He report must include, among other things, a desciiption of the planned decon nissioning activities and a schedule for their implementation. No major decommissioning activities may be performed until 90 days after the NRC receives the PSDAR.
De current activities at the site include the operation, monitoring, and main-tenance of the spent fuel pool; radioactive waste management; radiological pro-tection; and fire protection. Dese activities, including any activities relating to decommissioning, must be in compliance with the current license requirements, which apply when the reactor is defueled.
He degree of regulatory oversight required during decommissioning of a nuclear power reactor is considerably less than during its operational phase.
When the reactor is operating, the fuel in the reactor core undergoes a controlled nucle.nr fission reaction that generates a high neutron flux and large amounts of heat. Safe control of the nualear reaction involves the use and operation of many complex systems, adherence to operational limits, testing of components and systems to ensure their operability, specified prccedure adterence, and operator actions. Once the fuel has been permanently removed and temporarily stored in the spent fuel pool, the fuel is still highly radioactive and generates heat caused by radioactive decay. However, no neutron flux is generated and the fuel slowly cools as its energetic decay products diminish. Since the spent fuel l is stored in a configuration that precludes the nuclear fission, no generation of l new radioactivity can occur. However, the same areas of the facility contain radioactive contamination and those areas must still be controlled to minimize l
radiation exposure to personnel and to control the spread of radioactive material.
He NRC Staff continues to be concerned about the failures of the Haddam Neck radiological controls program (which recently resulted in the unplanned exposure of two individuals), long-standing discrepancies in the calibration of several radiation monitors that are used to monitor and control radiological effluent releases, and the inadequate control of radioactive material that resulted
- p the undetected release of contaminated equipment to a nonlicensed vendor, In response, the NRC has taken comprehensive and significant actions to resolve concerns in the area of radiological controls, including the issuance of a CAL on March 4,1997, confirtring the Licensee's cornmitment to respond to the findings in Inspection Repons 50 213/96-12, dated Decemt er 19, 1996, and 50-213/97-02, dated March 21,1997. The CAL restricts the Licensee frLm performing any radiological work except that required to maintain the plant in a safe configuration. He CAL identifies four significant activities required of the Licensee to bring its management and implementation of radiation con-trol programs up to a standard acceptable to the NRC. De activities are to (1) identify, in writing, specific compensatory measures that the Licensee will establish to ensure sufficient management control and oversight of ongoing or 124
_ _a
planned activities that require radiologieri convols; (2) engage the services of an independent assessor to nuess the quality and performance of the Licensee's radiological control programs and their implementation; (3) by May 30,1997, based on the rer,ults of that independent assessment, (a) identify problems, de-termine root causes, and develop troad based and specinc corrective actions, (b) identify performance measures that may be used to determine the effective-ness of rutialogical control programs, and (c) submit a plan and schedule to the RcFi enal Administrator, NRC Region I, for implementing improvernents in the radiological control ptograms; and (4) before eliminating any interim com-pensatory measures, meet with the Region 1 Administrator to describe program implementation and performance improvements achieved or planned.
In summary, the NRC is following the decommisuoning reocess as specined in section 50.82, which tequires that no major activities may be performed until 90 days after the NRC receives the PSDAR. 'Ihe Licensee must comply with all the applicable operating license requirements in effect for the defueled reactor relating to activities currently being performed at the lladdam Neck Plant.
Ibrther, the NRC will take appropriate actions for any dciueled reactor to ensure compliance with its license and license conditions, such as the actions described above for the failure of adequate radiological controls at Haddam Neck. 'the lladdam Neck olant is the only reactor that the Licensee has determined to permanently shut down and decommission.
The request to forbid decommissioning activities or predecommissioning activity at any NU nuclear power reactor until all the requested at Liona identified in the petition, including items a, b, and d of Request 6, have been completed in denied for the reasons stated above. The NRC Staff has de' ermined that the NRC requirements that govern decommission!ng and the activities being undertaken by the Licensee in response to the CAL are sufficient to ensure that the attivities at the lladdam Nect facility are being conducted in a saft manner. Request 6e relating to 6e performance of the NRC Staff,is beyond the scope of the 2.206 process and will not be addressed in the Director's Decision 'elatig to this t petition. This issue has beer, referred to the NRC's 010.
7, lhe IVtitioners request that the NRC commence an investigation into how it allowed the illegal situation at NU's Connecticut reactors to esist and to continue over a decade. Particularly, Petitioners request that the Commission order its staff (directors of the responsible directorates, managers, and Region I management and staff) to answer the following questions, and hold these persons accountrble for their answers and actions regarding the past 10 years at NU's Connecticut nuclear power reackirs:
- a. What docunients did Region I inspectors, their supervisors, and NRC Project Directors and Project Managers review dring 10 years of NU's out cf-compliance operation?
125 i
- b. If NU provided documents that somehow deceived the Region I inspec.
tor, how does the information in these documents relate to the everyday workings and activities conducted during the otherwise undocumented decdc of operations at the Millstor,e and lladdam Neck plants?
- c. Ilow did Region 1 inspectors, their supervisors, and NRC Project Direc.
torates and Managers fmd that NU was conducting operations in a way that keeps worker and public esposures to radiation ALARA when NU was not adequately documenting either its licensing basis or the basis of reactor operations?
- d. Knowing, as Region I inspectors must have known, of excessive worker esposures (for example, due to a longstanding problem with leaking pipes as documented by an NU worker in the videotape provided with this petition Exhibit A), how did the Region I inspectors certify that operations at the Millstone and lladdam Neck plants were being conducted ALARA? Ilow did the supervisors, and those in the NRC Project Directorate, make the same certifications?
- e. During the undocumented decade, how did Region I inspectors, their supervisois, and NRC Project Directors and Managers manage to track NU's activities at the Millstone and lladdam Neck plants under section 50.597
- f. To what extent have NRC Region I inspectors, their supervisors, an.1 i
NRC Project Directors and Managers allowed the same type of problems l to deveh>p at other nuclear power reactors in New England (t.c., Maine Yankee, Pilgrim, Seabrook, Vermont Yankee, and Yankee Rowc)?
- g. Is there any connection between licensees employing Yankee Atomic Electric Company's consulting and engineering services and the serious problems with documentation and lack of compliance with the licensing and design bases at nuclear power stations in New England or in other parts of the country?
'lhis request is beyond the scope of the 2.206 process, it concerns the performance of the NRC Staff and will not be addressed in the Director's Decision relating to this petition. *lhis request has been referred to the NRC's 010,
- 8. In the amendment to the petition, the Ittitioners request that the NRC tal, the following actions to enforce its regulations against NU. As part of dre 2.2% process, the NRC shodd provide copies of fladdam Neck's nitrogen calculations to the petitioners and conduct an independent review to see if the calculations meet the requirements of Part 50, Appendix IL If Appendix 11 requirements were violated, the IYtitioners are concerned that the Licensee cannot safely decommission the Haddam Neck Plant.
Accordingly, NU's operating licenses for its Connecticut reactors should be revoked, and NU Should not be permitted to commence decommissioning 126 i s< d
until it has complied with the conditions outlined in the main body of the original petition. Finally, the Cornmission should inquire into the NRC Staff's failure to discern this situation and its continuing failure to et. force the terms and conditions of NU's license and NRC regulations.
As noted above, the assertion by the Petitioners that the calculations performed by the Licensee violated NRC requirements is a new issue not previously considered by the NRC Statf.
'Ihe subject calculations were perfxmed subsequent to an event at the lladdam Neck Plant that resulted in the formulation of a nitrogen bubble in the reactor >cssel. De results of the calculations, which were one of several snethods used to confirm the water level during the event, were discussed by the Liceru,ee during a public predecisional enforcement conference held on December 4,1996.
Ily letter dated July 3,1997, the Licensee provided information, in-cluding the requested calculations, relating to the different methods used for determining the reactor vessel water level resulting from the nitrogen intrusion event. This information has been placed in the NRC's Public Document Roorn and the Local Public Document Rooms. The IYtition.
ers were provided a copy of the calculations as an enclosure to a petition status letter dated July 21,1997, since the calculations are selevant to the Petitioners' concern, are not proprietary, and are in the public domain.
On September $,1996, while investigating the root cause of the un-detected accumulation of nitrogen gas in the reactor vessel, the Licens' >
performed a special test (ST 11.7197, " Determination of Reactor Vessel Level") to verify reactor vessel level. This test was necessary because the reactor vessel level indication system and the core exit thermocouples had been removed from service in accordance with the Licensee's refuelirig procedures. The reactor level measurement problem had been exacerbated by the nitrogen gas intrusion, which displaced water from the textor vessel into the pressuriter, resulting in an unquantified decrease in reactor vessel inventory. During the course of the event, the shift manager had requested that the worst case (lowest) reactor vessel level achieved during the event be deteanined. As noted in NRC Inspection Report No. 50-213/96-80, (
"NRC Augneted Inspection Team Review of the Undetected Introduction of Nitrogen Oas into the Reactor Vessel During Plant Shutdown," the plant staff completed a preliminary analysis on September 4,1996. It was further noted that, at the end of the onsite inspection activities, the Licensee had yet to complete a final volumetric inventory balance calculation in the Notice of Violation and Proposed imposition of Civil Penaldes in the amount of
$650,000 issued on May 12,1997, the Licensee was cited for failure to take timely corrective actions fe4 towing the nitrogen intrusion event, including 127 l
~ . .. - _ - . - -_
the failure to timely establish the actual lowest reactor vessel level resulting from the event.
Subsequently, the Licensee completed two calculations: (1) Calcula-tion 9&MDB-1515 MY, " Reactor Vessel Level Determination" prepared ,
on October 2,1996, independently reviewed on November 1,1996, and approved on November 5,1996; and (2) Calculation 96-MDU 1536-MY,
" Reactor Vessel level De ermination," prepared on October 4,1996, inde-pendently reviewed on November 22,1996, and approved on December 1 1996. nese calculations were performed consistent with the requirements of Part 50, Appendix II.
Also, during the December 4,19M predecisional enforcement confer.
ence, the Licensee prewr,ted the results of reactor vessel water level sim-ulations, which were calculated using the RELAPS/ MOD 3 code. %ese simulation results were presented by the Licensee to corroterate, with a diverse methodology, the lowest reactor vessel water level determined by Calculations 9&MDB 1515 MY and 9&MDU-1534MY, he results of the RELAP5/ MOD 3 reactor vessel water level simulations presented by the Li-censee during the predecisional enforcement conference were only used to corroborate and provide additional insight into the reactor vessel water level that had been detennined through Calculations 96 MDE 1515 MY and %-
MDE 1536-MY. Dese two calculations had been independently reviewed and performed consistent with the applicable provisions in the Licensee's Part 50, Appendix D. " Quality Assurance Program," and are considered by the NRC Staff to suffice to demonstrate the reactor vessel water level.
Under these circumstances, the RELAP5/ MOD 3 simulations were not required to have been independently verified, Thus, the assertion by the petitioners that the calculations discussed during the predecisional enforeement conference violated 10 C.F.R. Part 50, Appendix B requirements is unfounded and no further actions by the NRC are required. %e part of Request 8 relating to the performance of the NRC Staff is beyond the scope of the 2.206 process and will not be addressed in the Director's Decision relating to this petition. This part of Request 8 has been referred to the NRC's 010.
IV, CONCLUSION ne NRC Staff has determined, for the reasons provided in the above discussion, that: Request 2 is granted for both the Millstone units and the lladdam Neck Plant; Requests 4 and 5 are partially granted for the Millstone units; Request I and parts of Requests 3,4,6, and 8 are denied for the th*ce Millstone units; Requests 6 and 8 are partially denied for the lladdam Neck 128
Plant; Request 3 is partially defened for the three Millstone units; Requests
- 1. 3,4. and parts of Request 5 are not applicable to linddam Neck; and Request 7 and parts of Requests 5. 6, and 8 are beyond the scope of the 2.206 process and are not addrmed. The deferred parts of Request 3 will be addressed in a Final Direc:or's Decision after any possible wrongdoing is fully considered by the NRC Staff.
As provided for in 10 C.P.R. 9 2.206(c), a copy of this Partial Decision will be filed with the Secretary of the Commission for the Commission's review. This Partial Decision will constitute the final action of the Com-mission (for Petitioners' Requests 1. 2, $. 6, and 8) 25 days after issuance unican the Commission, on its own motion, institutes review of the Decision in that time.
IOR 111H NUCLEAR REGULA1 DRY COMMISSION l
rtank J. Miraglia Jr. Deputy Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 12th day of September 1997, 129
CNe as 46 NRC 130 (1997) DD 97 it UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEOUARDS Carl J. Papertello, Director in the Motter of Docket No. 03041788 (Lloonee No.164020610)
NATIONAL INSTITUTES OF HEALTH (Detheeds, Meryland)
September 17,1997 1
The Director of the Office of Nuclear Material Safety and Safeguards grants in part and denies in pan a petition dated October 10, 1995, submitted to the Nuclear Regulatory Comrnission (NRC) by Maryann Wenti Ma, M.D., Ph.D.,
and Hill Wenling Zheng. M.D., Ph.D (Petitioners). 'Ihe petition requests that NRC suspend or revoke the materials license of the National Institutes of Ilealth (Nill) pending resolution of the issues raised by the petition, cad that NRC take other appropriate enforcement action, including the imposition of civil penalties
' against Nill for willful and reckless violations of 10 C.P.R. Part 20. Broadly stated, the Petitioners assert that, as the direct and proximate result of Nill's (1) deliberate failure to control and secure radioactive materials in violation of 10 C.F.R. Il 20.1801 and 20.1802, (2) failure to maintain an effective bioassay program, and (3) failure to otherwise adhere to the req'Jirements of Part 20, Dr.
Ma was contuminated with phosphorus 32 (P.32), resulting in both her and her unborn fetus receiving intales of radioactive material significantly in excess of regulatory limits, additional Nill employees also being internally contaminated with P 32, and fai!ure of Nill to take proper actions to assess accurately the level of Dr. Ma's internal contamination or provide appropriate medical care and followup treatment.
The Director denies Petitioners' tequests for enforcement action against N!ll:
for the exposure of Dr. Ma beyond regulatory limits, for the exposure of Dr.
Ma's fetus, and for the contamination of the water cooler; regarding notification to Dr. Ma of her lesel of contamination; regarding Dr. Ma's declaration of pregnancy; regarding the conduct of surveys after Dr. Ma's contamination; and 130
l l
for the failure to accurately calculate Dr. Ma's occupational radiauon dose. I
'the Director denies these requests, as well as the request to suspend or revoke the NIH license, because Petitioners did not provide sufhcient bases to warrant such actions. De Director granted in part Petitioners' tequest for enforcement
- action against NIH for violations of NRC security and control requirements and for violation of NRC requirements related to radiation safety training, ordering radioacti i 'nalerials, inventory control of radioactive materials, monitoring, and j
the issuarace, use, and collection of dosimetry. He Director granted Petitioners' 4 request for NRC action to ensure adequate procedures and instructions to exposed persons for sample collection as described below.
DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206 I. INTRODUCTION Hy a petition addressed to the Director Office of Nuclear Material Safety and Safeguards (NMSS), dated October 10,1995, Maryann Wenii Ma, M.D., Ph.D.,
and Hill Wenling Zheng M.D., Ph.D. (Dr. Ma and Dr. Zheng or Petitioners) requested that the Nuclear Regulatory Commission (NRC) take action with respect to the National Institutes of Ilealth (NIH or the Licensee).
IVtitioners request that NRC suspend or revoke the materials license of Nill, NRC License No. 19 0029610, pending resolution of the issues raised by the petition, and that NRC take other appropriate enforcement action, including the imposition of civil penalties against NIH for willful and reckless violations of '
As a basis for their requests, the IVtitioners assert that Nill has willfully i and recklessly committed numerous violations of Part 20, Broadly stated, the Petitioners assert that, as the direct and proximate result of NIH's (1) deliberate failure to control and secure radioactive materials in violation of 10 C.F.R.
19 20.1801 and 20.1802. (2) failure to maintain an effective bioassay program, ,
and (3) fr.ilure to otherwise adhere to the requirements of Part 20, Dr. Ma !
was contaminated with phosphorus 32 (P 32), resulting in both her and her unborn fetus receiving intakes of radioactive material significantly in excess of regulatory limits; additional NIH employees also being internally contaminated >
with P 32; and failure of Nill to take proper actions to assess accurately the level of Dr. Ma's internal contamination or provnte appropriate medical care and followup treatment. A more detailed description of the concerns raised by 14titioners appears in Section 111, below.
-Hy letter dated October 30, 1995 Carl L Paperiello, Director, NMSS, ac-
. knowledged receipt of the petition and denied Petitioners' request for immediate i 131 l
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suspension or revocation of the Nill license because, although certain weak-nesses had been identified in the 1995 inspections of N111, these weaknesses were not sufficiently widespread or egregious as to warrant suspension or revo-cation of the license.
On November 2,1995, NRC lasued a Demand for information (11A 95 240) to Nill, requesting that NIII resp <md to the concerns raised in the petition. On December 11,1995, Nill submitted its " Response to Dernand for Information (IM 95 240)." John N. Weinstein, ht.D., ph.D. (Dr. Weinstein), submitted a response to the petition, dated December 15, 1995.
On hf arch 25,1996, petitioners supplemented their petition in 1 written reply to the Licensee's December 11,1995, "Responw to Demand for Information (IM 95 240)." In their supplemental petition, lYtitioners contend that Nill's repeated denials that it has any problem with its security over radioactive materials suggest that the Niil radioactive materials license should be suspended or revoked, because the Licensee poses a threat to public health and safety, the Licensee has not responded adequately to other enforcement actions, and is unwilling or unable to comply with NRC requirements. On July 10,1997 Petitioners submitted another supplement to their petition, requesting immediate revocation or suspension of the Nilt license on the grounds that Nill continues in its failure to implement and maintain a program to oversee licensed radioactive materials sufficiently securely to prevent another contamination incident of j the type Dr. his experienced in 1995.11y letter dated August 5,1997, the supplemental petition was acknowledged and the request for immediate action l was denied because Nill has made continuing progress in improving the security and control of licensed radioactive material since the 1995 contamination event.
Ily letter dated September 10, 1997 Nill responded to the July 10, 1997 supplement to the petition.
II. IIACKGROUND t
NRC license No. 19-00296 10 is a broad scope license that authorizes possession and use of radioactive material for medical diagnosis, therapy, and research in humans, as well as nonhuman research and development, at facilities in liethesda, Rockville, llaltimors, and poolesviye, htaryland. The Nlil main campus in llethesda 1.as 21 buildings housing nearly 3000 biomedical research laboratories. There are more than 1(00 Authorired Users and more than 5000 Supervised Users of radioactive material under Nill's licensed program. Nill's hinterials License No. 19-0029610, originally issued on December 7,1956, was renewed on June 16,1997, and will expire on June 30,2002.
'Ihe internal contamination of Dr. hia was discovered by Dr. Zheng (Dr, hia's husband) during a survey of the N!ll laboratory in which they both worked, on 132 m
the evening of June 29,1995. At $:$8 p.m., Di. Zheng reported the internal contamination of his wife to the Nill emergency number, and then to their immediate supervisor. Dr. Weinstein, who was on the premises at the time.
Dr. Weinstein notified the N!Il Radiation Safety Dranch (RSB) of Dr. hia's contamination.
Shortly after 6:00 p.m., an N!ll arnbulance with two emergency medical tech.
nicians responded to the scene, and at approximately 6:40 p.m., two personnel from the Nill RS11 respcmded to the scene. Petitioners told RSD personnel that they believed Dr. hla had been internally contaminated as a result of eating leftovers she had stored in a conference room refrigerator.1he RSil performed surveys with portable radiation detection instruments to determine whether ra.
dioactive contamination was present in the laboratory, the adjacent hallways smd corridors, and in the conference roorn. The RSD took smears of Dr. Ma's hands, neck and face to determine if any of the contamination was removable and then had Dr. Ma change out of her clothes into clean scrubs to see if her clothing was radioactive. None of the smears, clothing, or surveys of Dr. Ma showed external contamination. The RSD asked Dr. Ma to submit a urine sample. The sample was surveyed by the RSil and found to contain radioactivity (later determined to be P 32), indicating that Dr. Ma's contamination was internal. Shortly after 8:00 p.m., the N111 ambulance departed with Dr. Ma en route to lloly Cross llospital (lloly Cross).
Nill RSil staff contacted the on call physician from the Radiation Em :rgency Assistance Center /liaining Site (REAC/TS)I in Oak Ridge Tennessee, and had the REAC/r5 physician speak directly with the emergency room (ER) physician at iloly Cross. The REAC/l'S physician stated that he discussed with the lloly Cross ER physician the possibility of administering a phosphate solution for dilution and displacement of the p.32, but that the ER physician chose not to follow this suggestion. The REAC/TS physician also advised the ER physician of the need to collect 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> urine samples for determination of I
Dr. Ma's occupational radiation dose. After consultation with REACfrS and the N!ll Radiation Safety Officer (RSO), the lloly Cross ER physician ordered intravenous infusions of fluids (hydration) in order to dilute Dr. Ma's internal contamination.
The petitioners did not return to work in the Nill Laboratory of Molecular Pharmacology after the discovery of Dr. Ma's contamination, but eventually returned to work at other laboratories at Nill.
I krACfr$ is a tkpartnre or Imgy mponne annet that mentans a ra&ological ervrrgency responte team cirwatmg of physicians, nurses, health physicants and other augpat personnel 11 is ca 24 haut call to provide hrst.
hne responders with connukauve ce & rect tre& cal and ra&ohipcal samtance at the RIAC/rs reality, acddent site, w atten&ng hospetal.
133
On June 30, 1995 Nill informed an NRC inspector on site at the time that Dr. Ma had been internally contaminated with P 32. On June 30, 1995, NRC initisted an Augmented Inspection Tearn (AIT) evaluation of the event and presented its preliminary findings to N!ll on August 8,1995. During October 23 24,1995, and November 610,1995, the NRC Staff conduewd two special team inspections of Nill. On December 21,1995, NRC Inspection Report No.
030 01786/95 203 was issued describing the results of those inspections. De AIT issued a redacted version of its report on January 29, 1996, and, upon completion of NRC's investigation, issued the full, umedacted report on January 13,1997, NRC's Office of Investigations (01) began an investigation on June 30, 1995. Ad(htionally, the l'aletal 11ureau of Investigation began an investigation, as did the Department of flealth and lluman Services Office of the Inspector General, and the Nill Police Department. Dese investigative groups worked in cooperation with each other and shared their findings on an ongoing basis. On January 24,1997. NRC's 01 issued its report, " National Institutes of Ilealth:
Wrongful Administration of P 32, Case No. l.95-033." nat report and its associated exhibits are being publicly released concurrent with issuance of this Director's Decision.
Nill performed an assessment of Dr. Ma's intale of P 32, the resultant radiation esposure received by Dr. Ma, and the radiation exposure received by her fetus, in its initial notification to NRC on July 3,1995, Nill indicated that its estimated ingestion for Dr. Ma was approximately 300 microcuries (pCi) or 11,1 megabequerel (M13q) of P-32.8 On August 29,1995, Nill reassessed Dr.
Ma's dose and calculated her effective dose equivalent to be 4.17 rem (41.7 millisievert (mSv)), based upon an intake of 500 pCi (18.5 Miiq), and the dose to her fetus to be 3.2 tem (32 mSv). Most recently, on July 30,1996, Nill l revised its committed elfective dose equivalent (CEDU) estimates for Dr. Ma to between 4.7 and 7.0 rem (47 and 70 mSv), corresponding to an intake range of letween $70 and 840 pCi(21.1 and 31.1 Mllq). ne revised dose to the fetus was between 3.7 and 5.4 rem (37 and 54 mSv). Additional discussion of Nlll's dose estimates appears in Section Ill.K. below.
NRC's estimates indicate that Dr. Ma ingested between 30.3 and 48.1 Mllq (820 and 1300 pCi) of P 32. 11ased on these values, Dr. Ma's estimated internal CEDB was between 80 and 127 mSv (8.0 and 12.7 rem). De annual occupational exposure limit applicable to Dr. Ma was, however,5 mSv ($ rem) total effective dose equivalent per 10 C.F.R. b 20.120l(a)(1)(i). He estimated dose received by Dr. Ma's fetus was between 51 and 81 mSv (5.1 and 8.1 rem).
I llecause de synem or uruta enickyd by NIH and the Peuuoner's Consultant were mannetnc, the 1.nghth omt is bited brst folkwed by tu nyv6c equivalent la bradets H,mever, for those instances wtere NRC has issued a report, newts uruta are lasted first as pnr.iary units. rotkmed by the I.nghsh units se tradets which is the usual NRC style.
134
NRC estimated that of the twenty sis other Nill employees who received p.
32 contamination from a water cooler situated in a hallway near the petitioner's laboratory, including Dr. Zheng, one individual who was not an occupational radiation worker received a dose of between 1.5 and 2.5 mSv (150 and 250 millitem), in escess of the applicable dose limit of 1.0 mSv (100 millitern) for members of the public specified by 10 C F.R. 6 20.1301.
NRC issued a series of Confirmatory Action Letters (CALs) to Nill between July 21,1995, and June 7,1996, addressing various measures to be taken by Nill, such as: (1) reduction of the possibility of further ingestion of radioactive material by Nill employees; (2) determination of the full scope of the personnel contaminations at Nill;(3) further enhancement and training of Nill staff regarding security of radioactive material; (4) documentation of corrective actions with respect to enforcement of a new Nill security policy.
(5) modifications to the surveillance plan for Nill laboratories; and (6) other specific actions for inspections for NRC compliance.'
NRC continued its onsite intpection through July 28,1995. *Ihe AIT con-ducted a technical debrief whh A'lli RSD management and staff on August 3,1995, and with Nill senior management on August 8,1995. Further NRC inspection activities, including assessment of radiation dose to the esposed indi.
viduals, and evaluation of a third party independent dose assessment, continued through November 15,1995.
On August 23,1996, NRC issued a Notice of Violation (NOV) and proposed imposition of Civil penalty of $2500 (EA 96 027) to Nill for failure to physically secure licensed material or maintain surveillance over it to prevent unauthorized removal. Other violations of NRC requirements were also cited, involving: (1) workers not wearing estremity dosimetry, or returning dosimetry promptly each month, as required; (2) users obtaining rad;oactive materials wMhout providing required information regarding the identity of the intended user (s) or the signature of the authorized invertigator;(3) researchers performing licensed activities without first receiving the required training; and (4) failure to perform thyroid bioassay measurements of researchers who handled gigabequerel imillicurie (mci)) quantities of volatile iodine-125. On May 20,1997. NRC issued an Order Imposing Civil Monetary enalty p in the amount of $2500 (11A 95-027), which Nill paid on June 6,1997.
3 CAL l 95411 Ouly 28.199$h CAL l.93411, rev,1 Only 21,1993L CAL I 9541s (oct 27,1995L CAL 1,9541B, supp.1 (Now s,199$h CAL 195-01s, supp 3 (11ec. I,199$L and CAL I 9541s, supp 3 Oune 7, 1996) 135
III. DISCUSSION A. Violations of NRC Requiremenda for Security and Control of I,1 censed Material Petitioners assert that, as the direct and proximate result of Nill's deliberate failure to control and secure radioactive materials in violation of sections 20.1801 and 20.1802, and to otherwise adhere to the requirements of ParJD, Dr. Ma was contaminated with P 32, resulting in both her and her unborn fetus receiving an intake of radioactive material in excess of regulatory limits. In addition, lYtitioners state that twenty sis other N!Il employees, including Dr. Zheng, were also internally contaminated with P 32.
IYtitioners state that Nill has been un villing to cornply with NRC safety requirements in accordance with Part 20 Specifically,iYtitioners state that dur-ing the summer of 1994, Nill officials deliberately failed to lock up ralioactive unterial as part of an erperiment with a liberalired policy concerning security and use of radioactive materials, which effectively excused laboratories from hxking up radioactive materials, in violation of section 20.1801, Nill requested a license amendment on October 31,1994, to establish and permanently imple-ment a previously submitted Interim Security Policy" and an esemption from the requirements to secure (under lock and key), or maintain constant surveil-lance of, licensed radioactive materials not in excess of ten times the activity listed in Appendix C to 10 C.P.R. Part 20, on a per-container basis. IYtition-ers state that the resultant breakdown in security led to the issuance of CAL l 95 018, on October 27,1995, which required Nill to take immediate Steps to secure radioactive materials. Petitioners state that Nill objected to complying with security regulations, and did not withdraw its application for an esemption from the security requirements until after the contamination of Petitioners.
Petitioners state that NRC's repeated discovery of unsecured radioactive ma-terials and of absence of security controls in several Nilllaboratories indicates a systemic failure of security rather than an isolated problem, and that Nill's las control and security of radioactive materials created an environment where acts such as the deliberate contamination of Dr. Ma were bound to occur, given that the means to commit such an offense were readily available, Petitioners state that security over radioactive materials used in the Petit ioners' laboratory was nonexistent, Specifiully, the refrigerator and frecier used to store radioact ive reagents were not keked, the lab was frequently left unattended during non-working hours, and there were no procedures to document individuals' access to the refrigerator or freezer, or to check to see if records were kept regarding the documented use of radioactive materials in that laboratory, Ittitioners state that despite Nill's reckless disregard of NRC requirements, since 1986 NRC has taken no enforcement action against Nill or the National 136
Cancer institute (NCI)4 for repeated Violations of Part 20 regulations related to ucurity and control of radioactive anaterial, occupational exposure, notification of esposure, incineration, surveys, rnonitoring, and dosimetry.
Contrary to the assertions in the petition, since 1986, and before the June 1995 contamination incident, NRC had taken enforcernent action against NIH for violations of NRC requirements concerning security and control of radioactive rnaterials, occupational overexposures, surveys, monitoring, and dosimetly.s Although rnany of these enforcement actions involved Notices of Violation for SL IV violations and no civil penalty, they still constitute enforcement action taken by NRC.*
'the requirements of rections 20.1801 and 20.1802 to secure and control licensed material are absolute in that the rules specify no radioactivity thresholds.
N!!! established a threshold amount for the Security of radioactive materials located in laboratcries based on Part 20, Appendis C quantities and NdREO/CR.
l 6204, " Questions and Answers Hued on Revised 10 C.F.R. Part 20"(January 1994), The answer to Question 129 indicates, in part, that the security requirements described in sections 20.1801 and 20.1802 will not be enforced
'NIH and NCI are two efferers biensees &cware Althcauces lawannu< mal CawP ladde NRC Ivimi scope bcenne tw acuvatwa at de NCI Itedernk Cae Research and tirwhenent Cemer imihty kmand e itet thetrwn la itedwuk, Maryland (NkC ticense No 19 21091 01) Prtsw qu March 1993, de inense was hrld l'y Program Reunwces lacorpwawd (PRit ses 19s5. NRC has issued to Pkt sin NoYs asum twd with enter eted erwney newt (st)lY nolamme or a naurtary esv61Mnal'y- (1) dunng a felruary 1993 6miptuna, dree $L IV e6olauons wee cued fut ina.lrquaw awwys im P42 premmael samanunauon. failwe to perfen thyroid temasays, and fa lwe to perfwto luttes package surveys (2) dw,og a January 1991 inspectum, two SL IV vkdaunas were ciwd for failwe to wipe erne peanges and perfurta Wayrund lutenneys, (3) dunng a fetuuary 1991 inspecute.
one $L IV uulants was ciwd im felwe to pertwin Imkags, swwys, (41 dunng a knuary 1959 ingection one SL ly was esied fut failure to perLam surwy 6nstrunem cahteatma. (5) a s25(o Civil l'enalty was 6asued on feluuary 27,1987, for an $L 111 vadmite froen en innprecoF pRrfarnWd eather that numth, and (6) a [iecernIer 1986 inspectum resulwd to tw v6clatuma tems cied ie ens snuty overeaposure, (nadrquee trening 4mproper eransfer and &nptual of ra&naruve puderial, and encoedance of the hcense puere6cm knut:
'(1) The June 16-13,199n inspecute resulwd la an NoV caergwnsed at an $L IV, for failure to otula speahc user esurnawa of sohd radwane generamm. as well en ol' .' nonctwd violanons fut loss of raeancuw erswnal that was bcenseeddrnuhed (Repwt No. 90ml) (2) Tme hty s-12.19916nspection resulud to an NoV cawg<wwed at an rL IV for falmo to secure embeactive awterial(keywt No 91 4101) On Tlw July 2024,1992 inspecuos 6drnched an inadequaw dune newsinent fa a luteuurrelf7 c<uaanumanna 6nadent, and resuled 6a en NoY charatorised an an $L ly (Repnt Nu 9240s) (4) The January 13,1993 inspectum senulted la en escalawd enlistenwns acuon (LA 9344) categmsed at tao hL IV$ and one $L 111 fur Imles to swvey aner une of radmartlw matertal, a failwe to sunly diuannsy fiw a P 32 worker, and a P42 contanunauon entrenuty ovetegenwe, respecuwly (Repist No- 93401) (5) The Anti es.d May 1994 inspecuona resulted 6e enfiereners acute TEA 94-123) categrwired as swo $L IVS fut failure to secws, as well an a failwe to awwy, sfwr using emboacuve innenal (Reput No 94401) 11e securtty violatuma inun dw April May 1994 inspecuans also sesulwd to de 6siuaniv of a CAL on May i 1994 on July 12.1994, an ukhuonal arcurity violante resuled to the kiss of a pakage emauung 2 6 Mika 00 pCl) of huhne.121 The 1994 secunty violanons were secussed at no enfurtenwm conferente held with the LJtenere on July 27.1994 end subsequently were cued as an SL IV to an Nov 6ssued to NIH on August 16,1994 (6)Ibnns de April and May 1994 innpernons, an awarent v6clacon was 6denuhed for tacinerator operauons (Report No. 94404). on August 10,1994, however, NIH infurnwd NRC that k luut prnunently &nwaunutJ tocanersuon operstken et NIH in May 1994 Consequently, no enforsenres acima regar&ag iacteermum won takea
- 0. tee "orarral $tawarat of I% hey and Pvtxedurre f<w NRC Enfuerenwn Acuans," 10 C F R Pat 2, Appenes C (19861993), and NURIGifd), ormeral Stawaren of ibbey and fiocedures for NRC Lafurcenum Actums" (July 1995L i VI 137
for quantities of radioactive material der,cribed in Part 20, Appendit C, which are exempt from labeling by 10 C.F.R. 6 20.190$(a). !!y an amendment request dated October 31, 1994, Nill asked for permission to store up to ten times Appendia C quantities of radioactive material per container in posted radioactive innterial use areas without the requirement for direct oversight or lock and Ley.
In March 1995, N!ll requested an exemption from the requircreents of r,ections 20.1801 and 20.1802 to store less than Appendit C quantities in unlocked (and unattended) refrigerators or freciers in corridors. NRC approved the Nill request in June 1995 because these quantities did not require labelingJ In response to the event of June 1995, Nill revised its security policy for radioactive materials to require that all licensed material must be in locked storage, or in a locked room, if otherwise unattended, effective October 26, 1995. On January 19, 1996, Nill submitted a license amendment to, among other things, permit licensed material that is esempt from the labeling requirements of section 20.190$(a) to be exempted from the revised October 26,1995 Nill security policy. NRC renewed the N!!! license on June 13,1997, but did not authorire any exemptions to the security and control requirements of sections 20.1801 and 20.1802.
petitioners are cweect in stating that there have been security and control i
problems at Nill th,a required amelioration. In particular, the failure to secure refrigerators and freciers used to store radioactive reagents, and the failure to secure or maintain surveillance over laboratories, formed the basis for a series of NRC enforcement actions. Several CALs were issued to address security and control of radioactive material after the June 1995 contamination of Dr. Ma.'
On August 23,19%, NRC issued an NOV and Proposed Imposition of Civil l
Penalty of $2500 (EA 96-027) to Nill for failure to physically secure licensed material or maintain surveillance over it M prevent unauthorind removal. On May 20,1997. NRC issued an Order Imposing Civil Monetary Penalty in the amount of $2500 (EA 96-027), which Nill paid on June 6,1997. Ilased on the inspections and the investigation, the NRC Staff does not conclude that these
- 1. tee NMi% Technical Anastarre Requesa dated June 19.1991 frorn L Center, NRC Headgiuiners, to R Bellamy. NRC Region 1 8on July 21.1993. CAL I 954tl man , Jd. whnh dencntud the schone that NIH would take 10 reduce de ponnituhty of futdwr ingenuon nr taboncow matenal and to drwrnene that de full scope of de personnel sonianunanons was known on July 21.1991, CAL 190011, rev l, wm issued to clanfy certain puents se de 6rit CAL on (Atolwr 27.1991 NRC auued CAL I-900ls, which dricritied av atuorm that NIH would take h,nowing an NRC apecial inapecuas un (A u*we 23 and 24.1993, to funhet enhance and traan NDI staff regadang naturtty of rmhoacun new' sal os Novendier s.1993. NRC inued CAL l 9541s. supp 1. to furttwe discunwnt 8e correcows actions that nth took with respect to enforcernent or the new NDt secunty puhry, snodincauons to the surveillanos plan tar NIH laturninrws. and otter specihc acuane for inspesuora tw NRC cornphance. on twender 1.1991. NRC iuued CAL 19541s. supp. 2. to adjust eat dradhne within CAL I 95 01s and its d
supi enwin This sunilenwns desenhed de cegoing upgrades, to de taboa.uve snatettal securtry progrates that required dust any posted reorn se area that conuunca radioecow anarnals in sw, ralmacun masw. or radmeet vs trewstals ta anarcured seurage, woulJ tw eqiured to tw krked mhra unoccupied. on June 7,1996. NRC inaued CAL l 9541s supp 3. to further clarify lieues with regard to secunty and control of heenwd radioacuve snaienal in innhng corndare and naturatory freesers at NIH 138
violations were willful, contrary to the assertions of Petitioners. Moreover, although the AIT Report stated that the Licensee's violations of NRC necurity and control requirernents could have been a contributing factor, aher review of the various inspection and investigative results, the NRC Staff concludes that the violations of NRC security and control requirements did not contribute to the internal contarninstior. of Dr. Ma, her fetus, or the other twaty six Nill employees including Dr. Zheng.
Since the 1995 contamination event at Nill, NRC performed several inspec.
tions of N!!!. Additionally, over this period, N!!! performed 90,857 laboratory audits. 'Ihe most recent NRC inspection report in July 1997 found that N!Il has made continuing and significant progress in improving the security and control of licensed radioactive material since the 1995 contamination event. Ihr exarnple, the average rate of noncompliance with NRC security and control requirements has declined to 0.25% of laboratories surveyed, from an average rate of 0.57%
since the last NRC inspection of September 1996. See NRC Inspection Report No. 030-Ol78fW7 001 (July 29,1997). Additional enforcement action for se-curity and control violations is not warranted. y in view of the above, Petitioners presented valid concerns regarding security and control of licensed material at Nill, and their request for enforcement action with respect to violations of NRC security and control requirements was granted in part as described above, l
l 11, Dosimetry, lhiation Safety Training, and Ordering l Radloacthe Materials Prtitioners state that Dr. Weinstein, the Senior investigator in the Laboratory of Molecular Pharmacology and the former supervisor of Petitioners, insisted that the Petitioners begin working with radioactive materials before they were given radiation safety training and, on two occasions, directed the Petitioners to use Dr. Weinstein's and another Authorized User's identification number to order l radioactive material before Petitioners were assigned their own identification numbers. Petitioners state that the AIT found that during the first 3 months of their research, the Petitioners were given radioactive materials that had been ordered by a researcher who had since left NIII, which was not reported by the Authorized User, Dr. Weinstein, as required on N!!{ Ibrm 881; and that in November 1994, Petitioners were using phosphorus 33 (P 33), a low energy beta emitting isotope requiring whole-body dosimetry (or whole-body badges) during its use, but that Petitioners had not been trained to use radioactive material, in addition, Petitioners state that an NRC interview of a former researcher revealed that she had ordered radioactive materials for herself and 139
shared them with other researchers, although these users were not listed on NIII's Ibrm 88 l.'
Nlll worker training, use of identification numbers for procurement of licensed materials with Nill Ibrm 881, and dosimetry issuance and collection were reviewed during the October 23 24 and November 610,1995 NRC inspections. As a result of those inspections, NRC cited N!!! for several violations. Specifically, the Licensee was cited for allowing users to order radioactive materials electronically between October 3 and November 20,1995, without the signature of the authorited investigator. 'This violation was cited as an SL IV (EA 964127). Additionally, N111 was cited for permitting the use of sulfur 35, P 32, and P 33 by two researchers in October 1994, before providing the rer,earchers with the training course entitled," Radiation Safety in the Laboratory," on November 29,1994. 'Ihis violation was also cited as an SL IV (PA96-027). Nill was not cited for Petitioners' use of P 33 without the use of whole-body dosimetry because neither the N!ll License not NRC regulations require such dosimetry for low-dose material. See Section Ill.C and note 12, below. N!ll was cited, however, for violations of license requirements to use extremity dosimetry when using more than 185 MBq (0.5 mCl) of P 32 (EA 96-027).
Accordingly, Petitioners' request for enforcement action against Nill for violations of dosimetry, training, and ordering radioactive materials requirements was granted in part as described above.
C. Nill Routine Monitoring of, and Dosimetry for. Petitlopers Ittitioners state that Dr. Ma was internally contaminated, in part as a result of N111'a f.ilure to document Dr. Ma's exposure history at Nill, and failed to properly assess Dr. Ma's internal radiation doses, in violation of 10 C.P.R. Il 20.1202, 20,1201, 20.1501, and 20.1502. Petitioners state that Nlli did not routinely monitor IYtitioners' exposure to radiation and radioactive material through use of an appropriate dosimetry program. Specifically, the dosimetry given to Petitioners when they first arrived at N!ll was never collected or analysed, no dosimetry was assigned to the n at the time of Dr. Ma's contamination, and as a result Ittitioners were not wearing dosimetry at the time of Dr. Ma's contamination. Petitioners state that in November 1994, Ittitioners were using P-33, a beta-emitting isotope requiring whole body dosimetry during its use, but Petit.oners were not wearing required dosimetry, and Petitioners had never been issued dosimetry by Dr. Weinstein although they used P 32 in December 1994, and until March 1995.
- The.c racts do not connutute a vioissoa or NRC regulsions tw the NDI bcen,e.
140
N!!! was not required to routinely monitor Petitioners' occupational espo-sure to radiation, or to document their occupational esposure history. Section 20.2106(a) of 10 C.F.R., " Records of individual monitoring results." provides, in part, that "[ejach licensee shall maintain records of doses received by all in-dividuals for whom monitoring was required pursuant to i 20.1502 . . ." (em.
phasis added). Section 20,1$02(a) provides that "le]ach licensee shall mor,itor occupational exposure to radiation and shall supply and require the use of in-dividual monitoring devices by -(!) Adults liAcly to recetre, in 1 year froi!i sources external to the body, a dose in escess of 10 percent of the limits li.
6 20,120l(s)"(emphasis added), liased on NRC's review of information main-tained by Nill for the past 10 years regarding occupatiorial esposures at Nill, it Is evident that it is not liAely that any Nill user of NRC licensed radioactin ma- l l
tecials would exceed 10'k of the applicable occupational standard in 10 C.F.R.
l 120,1201.S Accordingly, issuance of personnel dosimetry monitoring, although !
done by Nill as a prudent measure in operating its Radiation Safety Program, was not required by section 20.1502. Since monitoring of Petitioners was not required, the recording requirements of 10 C.F.R. 6 20.2106 were not applicable to Petitioners.H Condition 29 of the Nill License required the uw of estremity (wrist or finger) monitors by occupational workers using P 32 in quantities greater than 0.$ mci (185 hilly), but did not require the use of whole body dosimetry by persons using P 32 or P 33,0 Ilased on a review of the Petitioner's laboratory notebooks, it appears that Dr. Ma did not use P 32 Additionally, Dr. Ma l
states that she advised her obstetrician that i e had previously been working with low-desage material (P 33) and, upon karning of her pregnancy, stopped handling iadioactive isotopes altogether, Nonetheless, N!!! internal documents dmonstrate that N!ll provided whole-body dosimetry to Petitioners on October 28,1994.0 Although lYtitioners' laboratory notebooks indicate that Dr. 7heng used P 32 on October 17, 1994, 11 days before receipt of a whole body W
in askhtum, dwing 1993, fd74 ineviduals a NIH were issued nuwutoring devices only cuw inev6 dual tother than Dr. Ma) pung N3C.bcensed mawraale escueded 10% or de opphcable occupauonal eternal Aue standard lthe total dwp Awe eqwvalent to this inev6 dual was repried as $30 nalhsm (5.5 m501 "In aabute, Regulakuy cuide a 34, *Monannes cruerta and Methods to Cakulate occurauonal Ra&auan Dunes," e4 tresses tw appbrahihty of tw &me emweng requirerrysus ehre ermeutonns 6s ant required. Regulatory ounde s 4,114, states that "lellule ttw results of requieJ nonskwing are subject to the &me reaseng ruluttetrrnia or t 201106, Ow results or nuatonag portdre when not regated by $ 201502 we not subject to etw Ane reaweng reqmrementa" U tannee Con &uon 29 tequ6:es conduct of uw NI)l pogram in encordance wuh Ow NIH hcene apphcanon daead July 2s,1986. Attachnent la D or the July 2s.1986 apphcanon states the persona mung or to close postnuty to persoes sung gamne enutters PJ2, or re&ation poductag s,wtunee "should wear tmdy hirn todges
- Tha la a rw-amenendauon, not a regerenwes, regareng mhole body Aninwery for only P42 Pal usage does not sequae any Amnrtry la nahuon, Anactment ISD stars Owl the *hrense requires entrenuty nuwtors for P 32 > 0.3 mCl* 3ee 6f at 33 U
Nul *Respanne to Apparent Ymlauons la inspectma Repet Nos 04017:6N5 002 (Redacted) and 04 017s645-203"(May 23,19u61, t.atub64 AIT AY21.
141
dosimeter, this was not a violation of Nill License Condition 29. Moreover, because Petitioners never worked with more than 185 MBq (0.5 mci) of P-32, they were not required to wear extremity dosimetry Additionally, since the monitoring required by License Condition 29 is not required pursuant to section 20.15W, the results of that monitning would not be subject to NRC dose recording requirements, contrary to the Petitioners' assertion. Src note ll, supra.
NRC conducted two special team inspections on October 23 24,1995, and November 6-10,1995, in which Nill personnel dosirnetty issuance and collec-tion were evaluated. Although review of exposure records during this inspection indicated that occupational doses to individuals from exposure to licensed ma-terials were well below NRC limits, Nill was cited for one SI, IV violation involving the failure to issue, wear, and return individual monitoring devices (EA 96 027).
Accordingly, !Ytitioners' request for enforcement action against Nill for violations of monitoring and dosimetry requirements was granted, in part, as iescribed above.
D. Inventory Control of Radioactive Materials
!Ytitioners assert that Nill exercised poor inventory control of radioactive materials. Specifically, if Nill had accurately monitored the use and disposal of radioactive materials, particularly P 32,it might be possible to ascertain who bad ordered, but not used, the requisite amour:ts of p.32 within the time frame of !Ytitioners' contamination, and possibly assist law enforcement officials to ascertain who contaminated Petitioners. Petitioners relied on the findings of the AIT that: (1) the accuracy ot' inventory records is questionable because researchers only estimate the amount of material removed from each vial, radioactive decay is rarely accounted for, and if the vial is not emptied (because the expiration date has passed), the users do not check the balance before disposal; and (2) the computerited invento:y system Nill used to replace ihmi 881 does not comply with the N111 license becsuse the electronic document does not include the riignature of the Authorized User, and has no mechanism to reasonably verify that an Authorized User had placed an order for radioactive materials and had received those mate ials, N!il places ultimate responsibility for the proper use of radioactive material on the Authorized User who orders the material. Authorited Users are permitted by N111 policy to order and share radioactive material with other users, and a Superyhed User may work under more thr . one Authorized User, if an Autho-rized User wishes to transfer responsibility for material ordered under her/his authorization, an Nill 881 form must be completed transferring responsibil-ity la another Authorized User, 'the RSO stated that routine laboratory audits 142
include checks to see who is using radioactive r :erial and that unauthorired use is dealt with severely.
Nill Iicense Condition 29 makes Authorized Users responsible for main-talning a record of the rtceipt, use, and disposal of radioactive materials under their authoritation by use of Ibtrn Nill 8816. " Isotope Receipt Utilitation, and Disposal Record" or equivalent. In addition, the RSO, in a memorandum dated October 3,1995, reminded Authorired Users that transfers among other Authorired Users must be doeurnented by completion of the same form and submittal of the form to the RSIl before the trant':r. During NRC inspec-l tions conducted October 23 24 and November 610,1995, the inspectors werc informed, during discussions with Authorized Users and RSil staff, that each {
shipment of radioactive material delivered has normally been acco..ipanied by ibrm Nill 88-1. Authorized Users stated that they knew that they were requited to keep records of the material currently on hand after loss by decay ot disposal j of material, and all those interviewed used the Ibrm N!Il 88 l. The inspectors I did not identify any instances in which the inventory was not being kept current.
Regarding the Petitioner's concern about the accuracy of inventory records, N!ll has recognlied a need to review its radioactive material accountability i portion of the Radiation Safety Program. Accordingly, the Nill RSO directed a complete and thorough physical inventory for radioactive materials during the latter half of 1996." As of June 23,1997, this inventory was completed, and now serves as the baseline for an online, real time tracking of all radioactive materials within the RSil's centratired database system. Each Authorized User receives a complete inventory of his/her materials from the centralized database each month and is requested by the RSil to adjust records consistent with his/her use and disposal of radioactive materials.
Ibr the Nill Authorized User to track the use of individual items of NRC-licensed materials, a new computer generated inventory and disposal form was developed and is currently in use at Nill. *lhis system permits Authorized Users to make changes in users, if required, and to report dispos 4 and other inventory changes to RSil for update in the centratired database. Tais system, not present before 1996, substantially enhances Nill's accountabii!!y for radioactive mate-rial. Increased accountability has received Hill senior management attention and is considered by NRC Staff to be a potential deterrent to the use of licensed radioactive materials t'or unauthorised purposes.
Initial use of the computerized inventory system, however, involved violation of NRC requirements. Nill License Condition 29 requires that the radiation safety identification number and name of all p(tsons who will use the radioactive material, the name and signature of the Authorized User, be entered on form "See 14we frorn M ooticaman. Nut. to R. Inough. NRC Regium t. Amed hne 211991 4
143
NIH 881,u Between October 3 and November 20,1995, however, the Licensee alkswed users to order radioactive materials electronically, without the signature of the Authorized User. In addition, an NIH 88-Is submitted for order and use of radioactive materials received on September 9,1994, did not inchide the radiation safety identification numbers and names of all persons who would urie the radioactive material. NIH was cited for these irregularities as an SL IV violation (EA 96-027).
Accordingly, Petitioners' request for enforcement action against NIH for poor inventory control of radioactive materials was granted in part as described above.
E. Tinee64ases of NIH Ennergency Poesonnel Response to Ca=s==&==*Aa= Incident Petitioners contend that NIH personnel responding to the scene of the incident l failed to respond in a timely manner to the contamination event, resulting in Dr. Ma's transport to Holy Cross Hospital more than 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br /> after discovery of her contamination, Petitioners state that after RSB officials confirmed Dr. Ma's
-contamination, they took I hout searching for a shower to decontaminate her,-
l- - that RSB officials surveyed the conference room and refrigerator, and that RSB officials directed Dr. Ma to provide a urine sample, which confimied that her contamination was internal.
Dr. Zheng reported the internal contamination of Dr. Ma to the Nill emer-gency number at appmalmately 5:58 p.m., shortly after diricovery of her contami-nation. 'Ihe first Nlll personnel (two emergency rnedical technicians) responded '
immediately and arrived on the scene with an ambulance at approximately 6:00 p.m. Dr Zheng alr.o notified Petitioners' immediate supervisor, Dr. Weinstein, who was on the premises at :he time. Dr. Weinstein, the Authorized User, contacted the RSB at 6:00 p.m. and notified the Chief of the Radiation Safety Operations Section about the contamination incident, in addition, the N!ll Fire Department independently notified the Deputy RSO, at approximately the same time, of a possible radioactive material contamination event involving an injec-tion of radioactive material," (The Deputy RSO is at the top of the emergency call list for response to incidents involving radioactive materials), 'Ihe Deputy RSO advised the RSO of the report at approximately 6:00 p.m. and contacted the Nill Occupational Medical Service (OMS) for information on the incident.
H LAenne Condisson 29 requires conJws or dw NIH program in exardance wnh de NIH hwnw appbcanon deed July 2s,19s6 hem 10 6 of de July 2s.19s6 appbcanon required, to part, the ow Ashanaed Uner prov.de to ow ambama safety orgarnatsoa e tongired Isra NIH ss-l. *Requent tar purchans mid liv or Raboscuve Meenals," fur each 6ncesang shipn em twfore the ninwnals me selramed to de invesugarut, rtvin NIH ss-l wu provided an Astadimem laF to the July 2s,19s6 apphcation Furm NIH ss 1 requires,in part, Gust the radiance safety 6denuncation numbert and camrs or au perums who will une de radioacave meenal. Os nane or the authorised lavenagatcs, arul em signature or the autimrtsed invesugmar, he emeted se the turnt j 144
At approsimately 6:15 p.m., the first of two responding RSil health physicists was notified by the RSin receptionist that a second health physicist was on the phone with the RSil Section Chief talking about a possible contamination event in Building 37. De two responding RSB health physicists picked up spill and skin decontarnination kits (which is a routine and necessary event response function) and responded to fluilding 37. Iloth health physicists met the Deputy RSO in the RSil parking lot at !!uilding 21. and were informed that Dr. Ma was being transported to OMS at Building 10. De health physicists responded directly to OMS and were advised by the physician on duty that Dr. Ma was still in Building 37. De health physicists then responded to the fifth floor of fluilding 37, arriving at appioximately 6:40 p.m.
To determine if Dr. Ma's contamination was etternal or internal and to identify the source of the contamination, the RSil took several incasures. De emergency medical technicians and the RSil both evaluated Dr. Ma's condition and questioned petitioners about the source of her contamination. De RSD took smears of Dr. Ma's hands, neck, and face to determine if any of the 1-contamination was removable and then had Dr. Ma change out of her clothes into l
' clean scrubs to see if her clothing was radioactive. None of the smears, surveys, or clothes of Dr. Ma showed esternal contamination.85 De RSD asked Dr. Ma to submit a urine sample at approximately 7:00 p.m. De sample was surveyed by the RSil and found to contain radioactivity, indicating that the contamination was internal. De RS11 health physicists performed sureys with portable radiation instruments to determine whether radioactive contamination wu present in the laboratory, adjacent hallways and corridors, and in the conference room. Shortly after 8:00 p.m., Nill transported Dr. Ma to lloly Cross llospital, where Di, Ma arrived at appmmimately 8:20 p.m. Iloly Cross was selected over Suburban llospital, which was much closer, because Suburban llospital did not have an obstetrics department.
Based on the inspections and the investigation, NRC Staff concludes that Nill personnel responded properly and in a timely fashion to the incident.
De actions taken by N!ll to determine whether Dr. Ma was extunally or internally contaminated and to identify the source of her contaminat%n are time consuming steps that must be taken during event response to ensure that the spread of radioactive contamination is prevented especiauy when the event involves the transfer of personnel off the Licensee's site and into a hospital setting. Moreover, because there were no signs of a hfe threatening condition or immediate danger to Dr. Ma, which would have made immediate transpon 8'necause (1r Ma's rkdung was not contannaird, there man no need its her to etwer in order to temow enerrnal comaminmuon. Peuuoner's muercon that R$B took I hour neardung ror a shower to destanunate Dr Ma was ad a6stanuated t,y the an,pecuans or the inwsognuon 145 j
l 1
necessary, the Licensee's attention to these measures was eminently reasonable before transport of Dr. Ma to the hospital.
F. Defects in NIH rmergency Response to Dr. Ma's Contamination IYtitioners state that Niii's emergency response to Dr. Ma's contamination was defective in that N!ll gave inappropriate and inadequate information and avvice to Dr. Ma regarding her level of contarninstion, and failed to advise Dr.
Mi concerning precautions to prevent spreading that contamination. Specifically, Petitioners state that one of the two RSD health physicists who responded to tie event erroneously told Petitioners, before Dr. Ma's transport to lioly Cross llospital and before any analysis concerning the extent of Dr. Ma's contaraination, that the exposure Dt. Ma received was well within the allowable limits, that there was no risk to her, and, although it was not certain, that there .:ppeared to be no problem posed to Dr. Ma's fetus. Additionally, Petitioners state that no one warned Dr. Ma about the possibility of vomiting as a consequence of her contamination, or instructed Dr. Ma as to appropriate steps to prevent contamination of her home as a result of vomiting. As a result, Dr. Ma contaminated her car and apartment.
'the Petitioners are correct in stating that at the time that the two RSD staff responded to the event, there was no way (within the first few minutes) to determine if the radiation exposure that Dr. Ma received was within NRC regulatory limits, or if the dose received was harmful, indeed, the only thing that could be determined at that time wat whether or not the radioactive contamination was internal or external, which the RSD staff did effectively.
There are no NRC requirements concerning advice by licensees to their em-ployees during emergencies concerning the possibility of further contarnination of the employce's home and belongings. As occupational radiation safety work-ers at Nill, the petitioners were required to, and did, complete formal radiation safety training on November 29,1994. As part of that training, personnel pro-tective procedures were described to limit the exposures from both external and internal sources of radiation. In addition, as part of their required daily radia-tion surveys, the Petitioners were aware of the potential hazards associated with contamination and radioactive material in their control and the need to isolate and remove any detected contamination.
On the evening that Dr. Ma became internally contaminated with P 32, the RSD staff at N!ll and the hospital staff at lioly Cross informed Dr. Zheng that Dr. Ma's blood and urine were contaminated. *lhe next day, the RSD staff surveyed the Petitioners' automobile because Dr. Ma had indicated that she had vomited in it earlier that morning. RSB staff found contamination inside the pr.nenger's side of the car and decontaminated the affe:ted area iminediately.
,JD staff also surveyed the petitioners' apartment where contaminated areas 146
were cleaned up or physically removed material for radioactive decay. Effective ;
communications during emergencies are difficult, at best, and might have been Improved by reminding Dr. Ma of the potential for not only het etereta being contaminated, but also any other bodily fluids released as well. Ilowever, the failure to fully advise Dr. Ma of the potential spread of contamination via body fluids was not a violation of any NRC requirement.
lYtitioners also state that the N!ll resp (mse to Dr. Ma's contamination was defective because RSil officials failed to secure the area, thus providing an opportunity for N!!! personnel to tamper with or contaminate evidence." In fact, before departing the scene of the event on June 29,1995, Nill RSil personnel locked the conference room and rnarked it with security tape. The N!!! RSil also asked Dr. Weinstein to secure the laboratory, which he did by locking it.
On June 30,1995, the N!ll RSIl changed the locks to the conference room, and again kicked the laboratory and then secured it with police tape. Ilased on a review of the evidence, NRC concludes that Nill took all reasonable measures to secure the scene after responding to the event.
G. Nill Conduct of Surveys After Contamination incident Petitioners state that in violation of 10 C.F.R. 6 20,201(b) and an October 14, 1992 commitment by Nill to emphasize to all users the importance of notDying Radiation Safety promptly of spills of radioactive materials when there is personnel contamination, N!!I failed to conduct surveys reasonably necessary under the circumstances surrounding discovery of Dr. Ma's contamination on June 29,1995; and thus failed to detect P-32 contamination of a water cooler until July 14,1995, which caused an additional twenty six people, including Dr.
Zheng, to become internally contaminated.
NRC stated in its AIT report of January 13, 1997, that because N111 did not survey the water cooler in the corridor near Petitioners' laboratory until July 14,1995, twenty six other individuals (besides Dr. Ma) were internally contaminated with P 32 by drinking water from the cooler. After review of all the evidence, however, the Staff concludes that, although it would have led to a more desirable outcome to have identified the contaminated water cooler earlier, under the circumstances, N!Il conducted all reasonably necessary surveys. When N!ll safety response personnel were celled to the scene, Dr. Ma and Dr. Zheng insisted that Dr. Ma had been contaminated by food that she U
Petit 6oners ansett that this providrd Dr Weinzieta with an stportutury to "6nd" a coffee cup with a centnfuse tube, both contanunated, thal Rsh otheials attest west not prcaent wtwa dwy surwyetI *ts aane area cartwr, and that, on his own iniuauve. Dr. Weinstela put the itenu la a plantec bag und nuwed tte lwns into tus lab and loded Ow door, la rn1, two NIH ernployees had area dw coffee cup and centnfuge tube la de hanway near Prunonerv lah over a pertad or i to 7 days befe-e de event AMtionally, the N!ll R$8 directed Dr Weinstria to put ttwee items aside f w the NIH RSB's later esaminat6aa and to accuti de laboratcry.
147
had stored in the conference room refrigerator. Dr. Ma and Dr. Zheng also told RSB personnel that they brought all their own food and beverages to work with them. Immediately after the event, Dr. Ma and Dr. Zheng denied that they drank any liquid from Building 37, and stated that they brought all liquids from horne.
In the days after the incident, Dr. Zheng denied drinking water from the water cooler. Nonetheless, Nill sought to determine if other individuals also had been f internally contaminated. After specimens provided by other N!!! employees on July 13,1995, demonstrated their internal contamination with P.32, and in an attempt to identify a common source of contamination, N!Il surveyed the water -
coolers and coffee stations on the fifth floor of fluilding 37 on July 14,1995, and identified contamination in a water cooler located in the hallway. Only later did Drs. Ma and Zheng tell the N!!! RSD that they had drunk from the contarninated water cooler. Finally, although NRC's AIT inspection arrived at Nill on June 30,1995, one day after the discovery of Dr. Ma's contamination, NRC Staff did not consider the possibility that Dr. Ma might have been contaminated by using a water cooler or suggest surveying water coolers.
Accordingly, the NRC Staff concludes that under the circumstances N!Il did not fail to conduct reasonably necessary surveys after discovery of Dr. Ma's contamination, in violation of 10 C.F.R. I 20.1501(b)."
i
- 11. Procedures for Collection of Samplea in Contamination Events Petitioners state that before Dr. Ma's internal contamination, Nill failed to have a procedure in place to provide clear instructions to Dr. Ma about sample collection. Petitioners note that John Glenn, Ph.D. (Dr. Glenn), Chief, Radiation Protection and llealth Effects Branch, Office of Nuclear Regulatory Research, NRC, stated at the December 19,1995 Commissioner briefing that Nlll" lost information about early excretion of P 32 because clear instructions
' l were not provided to the exposed individual about sample instruction [ collection of samples]."8'
'Ihe events and transcript from the December 19,1995 Commissioner briefing on ne Generic Implicartons of Recent hents Imviving Ingestion of Radioacrhv Afortrial or Research facil/ ries reveal a similarity between the N!ll AIT and the Massachusetts Institute of Technology (MIT) Incident Investigation Team (IIT) events in that both licensees lost information about early excretion of P-32 because clear instructions had not been provided to the exposed individual about U
Al de unw or etw inchken.10 C r R I 20 ISol(a) requad licenma to perfcem swwys piat are raannable endet es circumstances on Jawary 1.199110 C F R I 20 201. with a similm requmnwat, becane entant.
"Dr. olena's comnwnt wan inade beror, fullintarmsuoe was einilable regashng sample collecuan arist etw NIH event With tiv henest or all om evidence. 64 ts now apparent that clear anstruccons . twovided to Dr.
Ma Sad th# 90 iDIWmEtion was $0st. $M seChon Ill K 2 148 r
how to collect samples. Although there is a considerable amount of guidance in the scientific literature available on the management of contaminated persons, NRC Stalf determined that it would be beneficial to provide guidance to licensees on the levels of intake that should be considered for rnedical evaluation, the available methods to teduce the cornmitted dor,e resulting from an intake, as well as guidance for the collection of samples for analysis. Coni,equently, NRC Staff has completed its evaluation of current regulatory guidance on the collection of samples for analysis, as well as the analysis of intales, and will revise the caisting regulatory guidance to licensees.
Accordingly, the Petitioners' request for NRC action to ensure adequate procedures and instructions to exposed persons for sample collection is granted as described above.
I. Dr. Weinstein's Interactions with Nill Radiation Safety Responae Personnel Ittitioners state that Dr. Wrinstein interfered with the Nill radiation safety response to Dr. Ma's contamination, and delayed transpon of Dr. Ma to the hospital for emergency treattnent. Specifically, Petitioners state that Dr.
Weinstein performed smear tests, daccted Dr. Ma to drink a lot of water, argued with Nill RSin officials about how to save urue samples in order to get a correct determination of the amount of radiation Dr. Ma had ingested, attempted to interfere with RSil personnel efforts to question and counsel Dr. Ma about the biological cffects of radioactive inaterials and her contamination, tried to answer questions asked of Dr. Ma by RSD personnel, and attempted to usurp RSil furictions by conducting a survey of the N!!! conference room where Dr.
Ma had stored her food.
Ilased on the inspections and the investigation, NRC concludes that Dr.
Weinstein did not interfere with the reasonable and necessary Nill radiation safety personnel measures in response to the contamination event, delay Dr. Ma's transport to the hospital, or usurp or attempt to usurp RSil functions. Iloth Dr.
Weinstein and Dr. Zheng provided assistance to Nill RSD personnel in cou'tmg smears taken from Dr. Ma by RSil personnel. Dr. Weinstein reasonably asked Dr. Ma to drink liquids. (Dr. Weinstein recalled that the Nill RSD recommended over the phone that Dr. Ma drink liquids to stay hydrated.) ne lloly Cross llospital ER phys ician and the Nill RS0 agreed that intravenous hydration of Dr.
Ma was advisable. Petitioners state that lloly Cross llospital issued instructions to Dr. Ma on her discharge to maintain good hydration. Additionally, the RSil i directed Dr. Ma to provide a urine sample for immediate survey, a sneasure necessary for the Nill RSil to determine with certainty whether Dr. Ma was internally contaminated and thus whether to transport Dr. Ma to the hospital.
He evidence does not corroborate the Petitioners' assertion that Dr. Weinstein 149
argued with RSB personnel about the proper procedure for savmg specimens-from Dr. Ma. NIH RSB personnel at the scene described Dr. Weinstein as -
urging Dr. Ma's immediate transport to the hcapital, along with Dr. Zheng, and as being impatient. Dr. Weinstein was not the only non RSB person to survey the conference room. Dr. Zheng told an NIH colleagus that he had found radioactive contamination in the conference room by surveying it. That colleague and a second colleague then surveyed the conference room for contamination shortly
- before arrival of the RSB. Dr. Weinstein went to survey the conference room after a third and a fourth colleague had already begun surveying the room.
J - Medical Care of Dr. Ma and Thetanced to Redece Her CW==*ta-l Ittitioners state that NIH personnel gave conflicting and harmful directions to Holy Cross ER personnel which delayed Dr. Ma's treatment, that Nill provided inadequate medical treatment of Dr. Ma, which was completely ineffective to reduce her contamination, and that the only effort Nill made to hasten the removal of the ingested radioactivity was to give Dr. Ma intravenous infusions l
of fluid at Holy Cross Hospital, petitioners state thtt tl.s lloly Cross ER physician's attempt to consult with REAC/I3 in Oak Ridge, Tennessee, was frustrated because the lloly Cross llospital telefas machine was unable to receive information from REACfrS. IYtitioners lelieve that Dr. Ma should have been given phosphate orally as the buffered sodium salt, calcium intravenously, ar.d parathyroid inuainuscularly, but was only given intravenous infusions of fiuld (hydration therapy), based on directions by NIH personr.el, which resulted in no discernible enhancement of P.32 elimination.
IVtitioners state that Dr. Weinstein's presence in Dr. Ma's treatment points up fundamental flaws in NIH medical intervention and investigative security protocols, and the fact that Dr. Ma was directed by the lloly Cross ER physician to follow up with Mr. Zoon, Dr. Weinstem. and Dr. Ma's personal obstetrician.
gynecologist (OB OYN) demonstrate [s] that the ER physician looked to Nill officials, including Dr. Weinstein, to direct treatment of Dr. Ma for internal contamination, -
petitioners state that N!ll provided inadequate medical care to and followup on Dr. Ma. Specifically, Nilt had no plan in place to ensure that one single person was in charge of directing and coordinating a contaminated employee's medical care and followup, No one from NIH met uth Dr. Ma to discuss her contamination levels, and what, if any, medical treatment might decrease her contamination levels, except for a copy of the early NIH contractor, Oak
- Ridge Institute for Science and Education (ORISB) intake calculation of 9.8 MBq (265 Ci), given to Dr. Ma in July 1995 by the NIH RSO. 'the NIII OMS failed to provide any medic.d care or followup treatment to remove the ingested l
150 l
l l
1 l
tadioactivity. Petitioners state that Dr. Stansbury of OMS czarnined Dr. Ma on June 30,1995, and that no services were provided by OMS after that date, except to request blood work results. Petitioners state that elthough Dr. Ma told Dr. Stansbury of her Severe lower thoracic pain, Dr. Stansbury attributed the pain to Dr. Ma's pregnancy and recommended no followup other than for Dr.
Ma to see her Oll OYN.
Ittitioners state that on August 4,1995, they isited OMS and reported that Dr. Ma was esperiencing vomiting and severe pain in her lower right side, but that Dr. Ma was again referred to het OH OYN. Petitioners state that on August 8,1995, Dr. Ma again reported to PMS that she continued to experience frequent vomiting and nausea. and again no treatment or intervention was suggested.
Aftec the end of July 1995, no one frorn Nill requested additional urine sarnples from Dr. Ma. only bkmd samples. Dr. Ma states that subsequent tests re,raled that the cause of Dr. Ma's lower thoracic pain was a significant liver function abnormality resulting from her contamination.8' Nill took reasonable and appropriate measures to detennine whether Dr.
Ma's contamination presented a life-threatent g condition or immediate danger to Dr. Ma and her fetus, and whether her contamination was esternal or internal, before transporting Dr. Ma to a hospital for treatment. See Section !!!.11, supra Nill also contacted the on-call physician from REAC/TS and put the RilACfrS physician in direct contact with the ER physician at lloly Cross llospital, thus l
making expett advice available to lloly Cross llospital and expediting Dr. Ma's treatment by lioly Cross llospital. He ER physician decided not to follow the recommendation of the REAC/TS physician to administer a phoephate solution for dilution and displacement of the P-32 because of Dr. Ma's pregnancy.
After consultation with both the REAC/TS physiciar and the N!ll RSO the ER physician ordered intravenous infusions of fluida (hydration) in order to dilute Dr. Ma's internal contamination, as was his prerogative. Additionally, J based on the inspections and the investigation. NRC cannot conclude that Dr, l
Weinstein influenced or interfered with the Holy Cross ER physician's treatment decision regarding Dr. Ma's contamination.11cfore he arrived at lloly Cross at approximately 11:15 p.m., Dr. Weinstein was aware that the N!Il RSD recommended that Dr. Ma " push" fluids in order to maintain hydration. See Section 111.I, supra ne IV hydration ordered for Dr. Ma was started around 9.00 p.m., long before Dr. Weinstein arrived at lloly Crost or spoke to the ER physician.
Moeover, based on the medical information made available by lYtitior ers to NRC's Medical Consultant, the NRC concludes that the symptoms reported by Dr. Ma were not related to her ingestion of P 32. De professional literature 8'Medecal dats provkled t*y Ituunners did not aAstanuais this muertmn 151
reveals three cases in which persons were inadvertently administerw high levels oi Pc 2.8' 'Ihe intakes in these cases were approximately fifteen to th! ty times grenier than Dr. Ma's intake of octween 30.3 and 48.1 MBq (820 to 1300 pCi.' o P 32. 'Ihe person with the highest intake reported symptoms that were consistern with low blood counts, an expected response to exposure to relatively high radiation doses. Blood count depressions, with no symptoms were observed in the other two cases. NRC's Medical Consultant concluded that Dr. Ma's white blood cell cou.it, w hite blood cell differential count, and her platelet count were all within normal limits, and that minor abnormalities in Dr. Ma's hematological profile, which did not inciude blood count depression, were coasistent with typical plasma volume expansion during pregnancy. Additionally, radiation intakes sufficiently large to cause nausea and vomiting are accompanied by a depression or ablation of the bone mart.,w which was not indicated by Dr. Ma's laboratory data. Finally, experience with intakes of P 32 much larger than Dr.
Ma's intale, both accidental and as part on medical treatment, in which P 32 is frequently injected intravenously in doses seven to fifteen times great than Dr.
j Ma's intake, has not been observed to produce clinical symptoms. Accordingly, the NRC concludes that any symptoms Dr. Ma may have experienced, such as nausea and vomiting,28 resulted from causes other 'han her ingestion of P 32.
NRC licensees are clearly required to determine the nature and extent of radiological overexposures to occupational workers and members of the public, to maintain records of such exposures, and to provide notifications to exposed individuals and reports to NRC. See, for e. sample,10 C.F.R. Il 19.13, 20.1204, 20.1501, 20.1502, 20.2106, 20.2107, 20.2202, 20.2203, 20.2205, and 20.2206.
NRC requirements, however, impose no additional obligations upon licensees to provide medical care and followup to individuals exposed to radioactive materials for the purpose of removing radioactive contamination or ameliorating the medical effects of contamination.
In view of the above, to the extent that Petitioners are dissatisfied with the medical treatment provided to Dr. Ma by lloly Cross llospital, or with any medical care provided by Nill to Dr. Ma apart from dose assessment, dose recordkeeping, or notification and reportinp of Dr. Ma's dose, lYtitioners' remedies, if any, do not lie with NRC.
3'akul Vol 61. No. 4 (19831 at 14450. Achi,ettertsche sfestniaticAt aorhearier$ (lominal Jettie sie mededne3, Vol 124. Nu 42 (oct. 22.1994). at is4s Sl; and Amerscca /wnal of stadscal 3demes. Vol 134 No 4 (oct 1967s as 43143 Jee stre NURI:O 1535. '1ngrouan of P-32 at Maniactwuns lastitute of Technok.gy, cambrhtge. Massachunctin, klenufied ce Aa,vst 19.199r (twceneer 1993 la Dr. Ma's reported amusea and warniung started long before her ingenuon of P.32. An NDI tecimician oteerwd Dr. Ma *almsys" wormung at NIH rur approssmately 2 nonths prior to its coraanenauon event 152
K. Estimates of Internal Contamination of Dr. Ma and lier l'etas k Petitioners state that Hill failed to take proper actions to accurately assess, nd as a result, greatly underestimated Dr. Ma's internal contamination, that N Nill failed to consider all the relevant data in assessing Dr. Ma's intennal
% contamination, demonstrating that Nill is not able or willing to impartially
? evaluate its worker's radiation exposure levels when exposures are in excess of federal limits, and that N11. ".ed to Dr. Ma, to federai regulators, and to the public, about the magnitude of the exposure and the likely harm to Dr. Ma and her fetus. 'pecifically, the Petitioners state the following:
- Nill failed to take suitable and timely measurements from Dr. Ma to accurately calculate her occupational dose, in violation of 10 C.F.R.
- $ 20.1204(a). NIH should have taken a full 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> urine sample following detection of Dr. Ma's contamination. Over the first 2 days, urine was collected as spot sarnples at each void, rather than collecting the entire urinary excretion c"cr a 24-hour period as recommended by NUREG/CR 4884, " interpretation of Bioassay Measurements" (1987).
Additionally, Nill should have continued 24-hour urine collections and analysis until the activity level of the samples no longer yicided useful z results instead, the NIH dose evaluation was based solely on samples collected during the first month following the intake.
)
- Nill incorrectly suggests that Dr. Ma is responsible for Nill's inadequate -
urine analysis because she returned a weekend's collection of urine in g
one carboy (a container). rather than three, and failed to follow through with continuing urine collection despite urging by NIH personnel. Dr, Ma did everything requested of her by Nill until it became evident that NIH had little inter. v u her health or in providing her medical care. Nlli OMS and RSC officials asked Dr. Ma to collect all of her urine over the weekend follong her contamination. Dr. Ma returned a weekends' urine collection in one carboy rather than three because two L
" of ti.e ihree wide-mouthed containers provided by RSB officials were defective and leaked. Dr. Ma was t ked to bring in urine samples for the couple i . % olicwing her contamination. Dr. Ma collected her urine voluc#h e u M end of July 1995, and submitted urine samples r through July 21, 995. Dr. Ma stopped providing samples because she
" did not receive any assistance or information from NIH, NRC estimated a significantly greater dose than did NIH, using the same information avai:able to NIH.
- E ~ ween June 29,1995, and July 27, 1995, Holy Cross provided NIH
" with twenty-five urine samples collected by Dr. Ma.
- Based on a whole-body scan performed by NIH on June 30,1995, Dr.
Jorge CarrasquF a, Acting Chief, Nuclear Medicine Department, NIH.
153
c estimated that Dr. Ma had still retained a total of 862 pCi (? 1.9 MBq) l of P 32 on that date.
e Nill's preliminary estimate of Dr. Ma's ingestion of P-32 on :nly 3, 1995, was approximately 300 pCi (11.1 MBq), which was not baso on a 24-hour sampling of standard systemic excreta data as recommen6ed by NUREG/CR 4884 and the National Council on Radiation Protect.on and Measurements (NCRP) Report No. 87, "Use of Bioassay Procedures for Assessment of Internal Radionuclide Deposition"(1987). Additionally, L
the initial dose estimate relied entirely on analysis of urine samples and was not confirmet through analysis of fecal samples, whict, led to significant understaterrent of Dr. Ma's internal contamination.
e
'Ihe July 5,1995 NIH estimate of Dr. Ma's intake was 265 pCi (9.8 MBq) of P-32 and was not based on the total volume Dr. Ma excreted, but was based on a sample. When the NIH RSO provided Dr. Ma with a copy of the ORISE estimate, he told Dr. Ma that the NIH estimate was "more or less the same."
(
- By letter dated July 28,1995, Mr. Zoon advised NRC's Region I Office that evaluation of the total intake of Dr. Ma was continuing and could result in an estimated intake potentially exceeding the 10 C.F.R. Part 20, Appendix B Annual Limit on intake (ALI) for P 32 of 600 pCi (22.2 MBq).
At NRC's request, NIH asked its first consultant, ORISE, to confirm isotopic analyses performed by the NIH RSB with four of the first fifteen k urine specimens taken on June 29 and 30,1995 and with three urine samples and one blood sample. None of the samples was taken from a full 24-hour period and NIH failed to take any fecal samples. 'lhe August 15,1995 revised estimate of Dr. Ma's intake performed by ORISE for NIH was between 740 and 820 pCi (27.4 and 30.3 MBq), resulting in an effective dose equivalent to Dr. Ma of between 5.8 and 6.4 rem (58 and 64 mSv), and to her fetus a dose of between 4.6 and 5.1 rem (46 and 51 mSv).
- On August 29, 1995, NIH transmitted to NRC the " final" NIH assess-ment of Dr. Ma's effective dose equivalent as 4.17 rem (41/i mSv),
based upon an estimated intake of 500 Ci (18.5 MBq), and of the dose to her fetus as 3.2 rem (32 mSv). This analysis was not conducted in accordance with draft ANSI N13.30, " Performance Criteria for Bioas-say" (1989). NIH also failed to continue the collection and analysis of excreta to ensure that Dr. Ma's excretion of P-32 followed the mathe-matical model NIH had used to predict her initial dose, and NIH failed to account for the effect of hydration therapy when initially evaluating the urine data. NIH's use of the " weighted least. squares fit" method to 154
assign its final dose is unuceptable because actual excreti e does not follow the anticipated model.
- NRC's estimate of Dr Ma's intake was between 30.3 and 48.1 MBq (510 and 1300 pCi) and of her internal committed effective dose equivalent (CEDU) was between 80 and 127 mSv (8.0 and 12.7 rem). Although both NRC and Petitioners' consultant excluded data from the first 2 days of urine collection as unreliable, Nill relied on those data primarily.
Re Petitioners' consultant estimated that Dr. Ma ingested 1000 pCi (37 MBq) of P-32 corresponding to a CEDE of 9.2 rem (92 mSv), and that her fetus received a dose of between 3 and 6.4 rem (30 and 64 mSv),
based on an analysis of eleven urine specimens collected from Dr. Ma between June 29 and August 23,1995. .
4 Despite the ;nherent limitations in analysis based on excreta data and some differences in the assumptions used to evaluat- the ingested activity and radiation dosimetry, the final estimates obtained by FIH, the Petitioners', and NRC are reasonably close. See Table 1, infra. Accordingly, the Petitioners' concerns that Nill did not accurately assess Dr. Ma's dese and the dose to her fetus are unsubstantiated.
TaHe 1. Final htimates et Radiation Done to Dr. Ma and lier Fitus Dr. Ma's - Dr. Ma's Done Estimate }Ytal Done Estimate Organization Date (rem) (mST) (rem) (mST)
Nlit 7/96 47-7.0 47-70 3.7-5.4 37-54 NRC 12/95 8.0-t 2.7 80-127 5.1-8.1 51-81 Ittitioners' consultant 10/95 9.2 l 92 3.0-6.4 30-64 l
\ 1, Petitioners
- Estimates Petitioners retained the services of David A. Dooley, Ph.D., a Certified Health Physicist with expertise in internal dose assessment, to perform an assessment of the radiation dose and its effects upon Dr. Ma and her fetus. Based upon radioanalysis conducted by TMA/Norcal Laboratory, of eleven urine specimens collected by Dr. Ma betv/een June 29 and August 23,1995, Dr. Dooley estimated that Dr. Ma received an exposure of 9.2 rem (92 mSv) and that her fetus received an exposure of 3.0 and 6.4 rem (30 and 64 mSv). Although Dr.
Ma continued to submit urine samples to Dr. Dooley until October 4,1995 analysis of those samples did not result in revision of Dr. Dooley's estimates.u Dr. Dooley estimated that, because of the P-32 intake, Dr. Ma would suffer an "s,e i.ener dawd Apra i6.1996. fmm Judith A Wolfer. I'sq, to Cynttua Jones, NRC.
155 I
_ _ _ _ _ _ _ _ _ I
increased lifetime excess cancer risk of approximately 30% to 83%, and her fetus would experience a tisk of childhood cancer "30 to 150 times that of an unexposed child.'S
- 2. NIH Estimates Nill performed an assessment of Dr. Ma's intake of P 32, the resultant radiation exposure received by Dr. Ma, and the radiation exposure received by her fetus based on urine specimens collected by Dr. Ma.
On June 29,1995, the NRI RSB gave instructions to collect all of Dr. Ma's urine to Dr. Ma, to the paramedics who transferred her to the hospital, and to the lloly Cross ER physician. Le Licensee also contacted radiation emergency medical professionals via telephone at REAC/TS and arranged for the REAC/TS physician to speak directly with the Holy Cross llospital ER physician, to assist with the evaluation of Dr. Ma's P-32 intake and the radiation dose to Dr. Ma and to her fetus. Given the apparent level of P 32 internal contamination, Dr. Ma's pregnancy, and the ER physician's lack of experience in dealing with radioactive material internal contamination events, this was an eminently reasonable measure, ne REAC/TS physician, who also happened to be an OB/GYN, believed that medical intervention at the hospital would not have been very effective in inhibiting phosphorus absorption from the gastrointestinal tract because, by the time Dr. Ma had arrived at Holy Cross, and based on discussion with the RSB, the REAC/TS physician understood that over 9 hours1.041667e-4 days <br />0.0025 hours <br />1.488095e-5 weeks <br />3.4245e-6 months <br /> had elapsed since the suspected ingestion and the P 32 would have essentially been totally absorbed over this time period. De REAC/TS physician also asked the ER physician to instruct Dr. Ma to collect 24-hour urine samples for evaluation of P-32 kinetics.'S He Holy Cross ER physician recalled that the Nih RSO requested that all of Dr. Ma's urine was to be measured, the volume for each
-void recorded, and then all of the urine to be placed in one container every 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />. In addition, Dr. Weinstein suggested to the ER physician that each urine void, at least during hospitalization, he saved separately, so that more time points
, would be available for modeling in determining the radiation exposure. He also i suggested that the same could be accomplished by saving a small sample from each void (and recording the volume collected), separate from the continuing 24-hour collection. Dr. Weinstein believed that either procedure, if followed, would result in the availability of more information and no loss of urine.
He Holy Cross ER physician decided to develop his own method for collection of urine, and instructed his nurses that each time Dr. Ma voided, the 24 5ee teuer from Dr. David Dooley, dated Apnl 15,1905. to Debra C. Katz. Esq 15 tener fmm Ronald E. ooans.1%D., M.D., REACfrS, dated Nowmber 8,1995, to shawn W. ooggins. NDt.
and Memorandum from Ronald E. couns, Ph.D. M.D.. dated July 17.1995, to Dr. Robert Ricks. REAC/r3.
156 I
amount would be measured, a small sample of each void would be maintained separately, and the rest would be put into one large container. 'Ihe instructions given by the lloly Cross ER physician to Dr. Ma for collection of urine did not differ significantly from the recommendation of the REACfrS physician, or of Dr. Weinstein, and were appropriate for proper assessment of Dr. Ma's intake and exposure, as well as that of her fetus. Holy Cross Hospital instructed Dr.
Ma to collect urine on a 24-hour basis. When Dr. Ma reported to RSil on June 30,1995, she brought the urine collected since departing lloly Cross, and was instructed to continue collecting urine on a 24-hour basis.
NIH states that when Drs. Ma and Zheng reported to the RSB fc followup at 11:00 a.m. on June 30, 1995, they brought with them Dr. Ma's tirine, in tubes and a container, and stated to RSD staff that was all the urine collected at the hospital and since discharge. Later that day, when Dr. Ma complained of back pain, she was escorted, at RSB's r: commendation, to the NIH OMS where she was examined by a physician, and additional urine and blood samples were taken for radioanalysis. The results of the blood samples were within the expected range for a woman in her 17th week of pregnancy. Dr. Ma returned for a gamma camera scan at 5:00 p.m. at the NIH Clinical Center, and at that time was provided three carboys by RSB for the upcoming weekend and was advised to collect all her urine over the weekend using one carboy for each day.
N111 states that on Monday, July 3,1995, Dr. Ma returned only one carboy full of uriae, stating to RSB staff that it was the urine from the evening of June 30 to July 1,1995.
Based on NIII's preliminary noti 6 cation, NRC issued PNO-1-95-025, " Inter-nal Contamination of Research,:r," on July 3,1995, which stated that NIH had indicated that a 32-year old female, who was in her fourth month of pregnancy, had received an estimated ingestion of approximately Il.1 MBq (300 pCi) of P-32.2*
Subsequent urine samples, when received from Dr. Ma, were analyzed promptly. NRC's AIT determined that the Licensee analyzed all samples accurately, as confirmed by the analyses performed for NRC by ORISE, and by NRC's P.egion I Laboratory. The periodic reanalysis of samples by the Licensee to ensure that the samples contained no additional radioactive contaminates was appropriate.
On August 29,1995, based upon additional urine analysis, NIH performed another assessment of Dr. Ma's exposure. NIH calculated Dr. Ma's effective dose equivalent to be 4.17 rem (41.7 mSv), based upon an estimated intake of 26 PNs conantuie early nonce of events of possible safety or pubhe imerest sigmReance Informauon contened la PNs is received without any venscanon or evaluation, anal is basically all that is known by the licensee and NRC Stafr as of the date ofissuance to the pubhc. They are also known as prehnunary nouseauons of occurrence O'Nos).
157 l
500 pCi (18.5 MBq), and the dose to Dr. Ma's fetus to be 3.2 rem (32 mSv).
His reassessment was based on a total of twenty six urine samples obtained from lloly Cross llospital and Dr. Ma.
In lo96, NIH contracted with Skrable Enterprises Inc., to perform a reassesv I ment of all available urine data, as well as an evaluation of creati'iine levels 4 the urine samples in order to confirm sample validity. His consultan suggested modification of the standard model paameters for the short term retention com. '
partments and use of creatinine-normalized data to improve the fit of the estimate to the sample data. Rese suggestions accounted for the varying time periods of sample collection. Based upon this reassessment, NIH revised its estimate of Dr. Ma's CEDE to between 4.7 and 7.0 rem (47 and 70 mSv), corresponding to an intake range of between 570 and 840 pCi (21.1 and 31.1 MBq), De revised dose to the fetus was calculated to be between 3.7 and 5.4 rem (37 and 54 mSv). Also on July 30,1996, Nill R5B staff delivered its revised estimates entitled, " Report of 1995 Radiation Dow, NRC License 19-00296-10," to Dr.
Ma at Nill, which summarized the doses described above and stated that the
" levels (received by Dr. Ma) are considered to be safe and are not expected to result in a health irnpact.""
Regarding the concerns of the retitioners' that Nill failed to account for the effect of hydratior therapy, Nill's report of its last estimate of Dr. Ma's 1995 occupational radiation dose states that NIH's consultant was not only aware of the lange variation exhibited by the bioassay data as a result of hydration therapy, but accounted for these differences by using a modified biokinetic model and creatinine-normalized unne data to account for the large variances in the bioassay data. Moreover, the last NIH estimates are reasonably close to those of NRC and the Petitioners. Accordingly, the effects of hydration therapy upon the NIH l
dose estimates appear to raise no cause for concern.
As to the Petitioners' concerns that NIH's use of the weighted least-squares fit method was unacceptable because actual excretion does not follow the j anticipated models, NRC's second consultan'. Lawrence Livermore National l Laboratory (LLNL), performed an independent assessment of the NIH data
{ to determine if differences in the dose estimates may have been due to the use of the different internal dose assessment codes. When the first two data values were mmoved from the NIH data set, the unweighted least squares intake assessment using the CINDY code was 30 MBq (810 Ci). Intake assessments from CINDY using the LLN1-treated data set ranged from 20.7 to 40.7 MBq (560 to 1100 pCi). This range of results is also consistent with the ORISE intake estimates of between 22.9 and 30.3 MBq (620 and 820 pCi). R ese results indicate that differences in correcting for 24-hour excretion also do not U
See NDI Menurandum trom de NIH RsO. dated kly 30.1996, to Dr MA 158
significantly influence the intake estimates, nerefore, the differences in the dose assessments between Nill's August 29,1995 estimate and NRC's estimate were mainly due to differences in data handling. De major difference in these two dose estimates was the treatment of the sample data from the first few days post-intake, liowever, since the last NIII estimates r,ow yield relatively close results with those of the Petitioners and NRC, NIH's use of the least-squares method in its earlier estimate is not cause for concern.
After the surveys and bioassays of persons who had access to the contami-nated conference room, Nill determined that twenty-six individuals, including Dr Zheng and in addition to Dr. Ma, were positive for P-32 contamination.
All of the twenty-one individuals who were occupational workers as defined by 10 C.F.R. 5 20.1003 received radiation exposures of less than 10% of NRC's annual occupational exposure limit of 50 mSv (5 rem) specified by section 20.1201(aXIXi). Of the five individuals who were members of the pubhc, as defined by section 20.1003, one individual received a dose in excess of NRC's annual limit of 1 mSv (0.1 rem) for members of the public specified by 10 C.F.R. 6 20.1301(aXI). His individual's dose was estimated to be between 1.5 and 2.5 mSv (150 and 250 millirem).
Petitioners are correct in stating that the July 3,1995 preliminary NIH estimates for Dr. Ma and her fetus' intake were not based upon full an:1 complete data. NRC requires licensees to notify NRC within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> of any event that may have caused, or threatens to cause, an individual to receive a dose ucceding 50 mSv (5 rem),10 C.F.R. I 20.2202(bXIXi). Once information is reported to NRC, NRC issues a preliminary notification in accordance witi NRC Inspection Manual Chapter 1120, 691120-07 and 1120-08. Rese notifications promptly provide information to the Commissioners, as well as other NRC and Agreement State management, on matters that are of significant safety concern or have, or potentially could have, high public interest. Rese notifications, however, are not assumed to constitute final estimates.
As far as the Petitioners' concern that the NIH bioassay program was faulty in not collecting and analyzing fecal samples, NRC approved models and methods provide guidance for the use of either urine or fecal samples. See NUREG/CR-4884, " Interpretation of Bioassay Measurements" (1987). Based on descriptions in the International Commission tvi Radiological Protection Publication 30, the biokinetic model for phosphorus predicts that about 80%
of the ingested phosphorus is absorbed from the gastrointestinal tract and enters the bloodstream. Rom there,15% is assumed to go directly to excretion through urine and feces, with a half life of 0.5 day; 15% goes to intracellular fluids; 40% is incorporated into soft tissue; and 30% is incorporated into the skeleton. De 15% that goes to early excretion is considered to enter directly into the kidney /btadder compartment, from which it is eliminated within a 4-hour retention time. Because the route of Dr. Ma's intake was via ingestion, 159
-_N
i and because there is little excretion of P 32 from the systemic compartment into the feces, NIH's use of urinary excretion data and decision not to use fecal excretion data was entirely appropriate.
Although Nill did not follow ANSI N13.30, they were not required to do so. Not only was this guidance issued as a draft for public comment at the time of the event, but NRC had not endorsed its use in any NRC Regulatory Guide.as Moreover, ANSI N13.30 is industry issued guidance only, and does not constitute a regulatory requirement.
Petitioners are correct in stating that early reports from NIH of July and August 1995 were not based upon full and complete data. In hindsight, the August 29, 1995 report of NIli should not have been referenced as " final" assessments of dose. As NRC's LLNL evaluation points out, documented intakes of P-32 demonstrate an increase in urinary output of radiation over the first few days after intake. Since the concentration of phosphorus in the systemic compartments of the body is reflected in the urine, it is reasonable to conclude that urine activity may establish an equilibrium within a few days after the intake. Therefore, the early Nill dose assessments during the first month after the incident tended to underestimate the dose because of the nature of phosphorus biokin-tics and the limited usefulness of internationally accepted models derived primarily for standard setting. It is understandable, however, that an internal dosimetrist may have a strong desire to maintain and use the first few days of bioassay samples. Continued use of these early excretion values also provides more consistency with early dose estimates, since these early values have more statistical weight. However, at long times after an intake (i.e.,20 to 30 days for P-32), an evaluation of the entire set of data must be performed relative to the projected values. It is during this time that a reevaluation should be made regarding the validity, usability, and statistical weight of the early times 1
after intake. N111's last set c! consultants, as well as the NRC's and Petitioners' consultants, had the advantage of retrospective insight into the data, and based on that insight, did not use the urinary excretion data from the first few days after intake.
. 3. NRC Estimatn i
ORISE, serving as a scientific consultant to NRC, and using bioa say data provided by NIH, performed an assessment for NRC of the intake by, and resultant P-32 radiation Dr. Ma was exposed to, and of the radiation exposure received by her fetus. One of the major differences between the early estimates 28 ANSI NI)30. " Performance Cntena for Radiotnoassay" was issued as a draft standard for comment in September 1989,. and was 6aaksed in May 19% NRC han not yet endoned it for hcensee use in any NRC Regulatory Guides.
160 l
l
i of the Licensee and NRC was NIH's use of the annual limit on intake (Atl) that was based on Reference Man (70 kilograms (kg)), versus NRC's use of an ALI based on Reference Woman (57 kg). NRC requires licensees to calculate doses to individuals in accordance with ALis that are based on Reference Man.
Set 10 C.F.R. Part 20, Appendix B, notes to Table I," Occupational." Because NRC's understanding was that Dr. Ma weighed approximately 53 kg, the model to calculate the ALI that mere appropriately represented the circurrstances of 1 l
Dr. Ma's contamination was Reference Woman, and consequently all NRC dose !
estimates were based upon that model.
Because of 6e differences in 8he results of the assessments performed by the Licensee (dated August 26,1995) and by NRC's scientific consultant to the AIT, ORISE (dated August 9,1995), NRC contracted with a third party, LLNL, to independently review the assessments performed by the Licensee, and by ORISE, for NRC.
Sased on the work of its consultants, NRC estimates that Dr. Ma ingested between 30.3 and 48.1 MBq (820 and 1300 pCi) of P-32, an amount of P-32 in excess of the 22.2 MBq (600 pCi) annual limit specified by Part 20, Appendix B, Table 1, col.1. Based on these values, NRC estimates that Dr. Ma's internal CEDE was between 80 and 127 mSv (8.0 and 12.7 rem). The estimated radiation exposure received by Dr. Ma's fetus was between 51 and 81 mSv (5.1 and 8.1 rem). A more detailed discussion of NRC's dose assessment can be found in the AIT final report of January 13,1997.
NRC also contracted with one of its medical consultants to review and char-acterize the safety significance of the exposures to Dr. Ma and her fetus, sum-marized in his final report dated September 4,1996. Based on NRC's estimated exposures to Dr. Ma and her fetus, NRC's medical consultant concluded that no determi tistic or stochastic effects to Dr. Ma, and no deterministic effects to her fetus are expected. In regard to potential stochastic consequences to the fetus, l
' although there is moderate uncertainty in the data used for cancer risk estimation as a result of in utero radiation exposure, in this case, an excess risk of 0.33%
is estimated (for comparative purposes, the natural risk of childhood cancers is about 0.1%). 'Ihus the probability that the exposed fetus will not develop a radiation. induced childhood cancer is 99.67% (range 99.60 to 99.74%). It is unknown whether this risk estimate should be reduced because of the low doss and low dose rate associated with this internal exposure from P-32.
NRC performed a review of both the NIH AIT and the MIT llT contamination events in order to determine if NRC guidance to licensees regarding instructions for collection of excreta and analysis of fetal dose based upon matemal uptake is adequate. As a result of this review, the staff issued additional guidance to licensees on analysis of fetal doses, NUREG/CR-5631, rev. 2, " Contribution of Maternal Burdens to Prenatal Radiation Doses"(May 30, 1996).
161
One of NRC's vientific consultants reviewed and confirmed the Nill esti-mates of dose received by the twenty six individuals who drank from the con-taminated water cooler. NRC concluded that no deterministic or stochastic consequences are expected for any of the twenty-sit individuals, including Dr.
Zheng, who were internally contaminated with P 32.
I.
Directions to Hospital Emergency Rooni Personnel Concerning A-ment of Dr. Ma's Level of Contaniination Petitioners state that NIH personnel gave conflicting and harmful directions to Holy Cross ER personnel, which interfered with efforts to properly assess Dr. Ma's contamination. Specifically, the NIH RSO directed the ER physician at iloly Cross to collect the total volume of urine for a 24-hour period, whereas Dr. Weinstein instructed the ER physician to aliquot a small part of the samples already taken and to discontinue efforts to collect urine over a 24-hour period, in conflict with NUREG/CR-4884," Interpretation of the Bioassay Measurements"
-(1987). Petitioners also state that the Holy Cross ER physician did not know whose instructions to follow and so developed a compromise plan, and when Dr.
Ma was released from Holy Cross, no instructions were given to her to collect ,
i her urine at any interval.
NRC concludes that the NIH RSB gave appropriate instructions, in view of the limited NRC guidance available to licensees at the time of this event regarding urine collection, ser Section Ill.H. supra, to Dr. Ma, to the paramedics who transferred her to the hospital on June 29,1995, and to the Holy Cross ER physician for urine collection. Additionally, the three methods for collection of Dr. Ma's urine recommended to the ER physician by the REACfrS physician, the NIH RSO, and Dr. Weinstein were not significantly different from each other or conflicting, and the instructions given by the Holy Cross ER physician to Dr.
Ma for collection of urine were appropriate for proper assessment of Dr. Ma's intake and exposure, as well as that of her fetus. See Section Ill.K.2, supra.
Accordingly, NRC Staff cannot conclude that Dr. Ma was given inadequate or conflicting instructions.
M. NIH Notification to Dr. Ma of Her Radiation Exposure Level Petitioners state that in violation of 10 C.F.R. I 19.13(d), NIH deliberately failed to notify Dr. Ma of her estimated radiation exposure level at the same time such notification was provided to NRC. Specifically, the only NIH notification provided to Dr. Ma was a copy of the August 1995 ORISE report estimating her contamination at 265 pCi (9.8 MBq), despite NRC direction to NIH to make notifications required by section 19.13(d). As a result, before NRC's actions to 162 l
estimate her intake, Dr. Ma had to learn of her exposure levels from indirect sources and consulted with an independent health priysicist at great personal cost.
NRC notified NIH by letter dated December 1,1995, from homas T.
Martin, Regional Director for Region I, and by letter dated January 29,1996, from Charles W. liehl, Director, NRC Region I, Division of Nuclear Material Safety, that Nlll was required to make notifications pursuant to section 19.13(d) regarding the estimated radiation exposure of Dr. Ma and her fetus. De December 1,1995 letter notified NIH that Dr. Ma received a dose in excess of the applicable occupational regulatory limits, ?O C.F.R. 5 20.1201(a)(1)(i),
specifically that NRC estimates her internal CEDE was between 80 and 127 mSv (8.0 and 12.7 rem) and that NRC estimates the radiation exposure received by Dr. Ma's fetus was between 51 and 81 mSv (5.1 and 8.1 rem).
By letter and facsimile dated May 15,1997, counsel for Petitioners notified NRC that Nill had revised its dose estimates for Dr. Ma and her fetus, and l Petitioners' counsel provided a copy to NRC of an Nlli memorandum dated i July 30,1996, containing the revised estimates. Although this document is addressed to Dr. Ma, Petitioners' counsel state that Dr. Ma never received this memorandum and that N111 never notified her directly of her radiation dose after the accident.
N111 revised its original dose estimates after engaging an independent expert on internal dose assessment and bioassay interpretation to perform an analysis of the dose to Dr. Ma and her fetus. Nill's independent consultant completed its analysis and prepared a report to NIH dated March 4,1996. NIH provided its memorandum dated July 30, 1996, summarizing Dr. Ma's 1995 revised radiation dose estimates for her and her fetus, to NRC at its request, on April 4, 1997, by facsimile. Based on the NIH consultant's report, N!ll revised its dose estimates to a CEDE of between 4.7 and 7.0 rem (47 and 70 mSv) to Dr. Ma, corresponding to an intake range of between 570 and 840 pCi (21.1 and 31.1 MBq). and a dose of between 3.7 and 5.4 rem (37 and 54 mSv) to Dr. Ma's fetus.
NRC regulations at section 19.13(d) require that NIH provide Dr. Ma with a report of her exposure data at a time not later than NIH's transmittal to NRC of NIH's report on Dr. Ma's exposure. Nill denies that it never provided Dr.
Ma with the revised dose estimates. NIH states that its Area Health Physicist hand delivered the July 30,1996 memorandum to Dr. Ma on July 30,1996. De Area Health Physicist states that, at that time, she explained the contents of the memorandum to both Dr. Ma and Dr. Zheng, asked if they had any questions, and identified N111 persennel to contact if Petitioners had any questions. He 163 l
t Area Health Physicist states that Petitioners opened the envelope and read the memorandum in her presence "
. Accordingly, NIH did violate 10 C.F.R. 6 20.2203(aX2Xi), because NIH did not submit a written report to NRC within 30 days after learning of the occupational dose to Dr. Ma in excess of the limits for adults in section 20.1201.
A Notice of Violation is being issued concurrently with the issuance of this Director's Decision. However, NIH did inform Dr. Ma of its revised dose estimates on July 30,1996, in accordance with section 19.13(d). Accordingly, Petitioners' request for enforcement action for violation of section 19.13(d) is denied 5 N. Declaration of Pregnancy and Minimination of Radiation Exposure to Dr. Me Petitioners state that, in violation of 10 C.F.R. I 20.1208, their supervisor, Dr.
Weinstein, coerced Dr. Ma to not submit a written declaration of pregnancy to l the NIH RSB, even though it was her clear desire to receive maximum protection for her fetus from exposure to radiation and radioactive materials, and thus Dr.
Weinstein constructively denied Dr. Ma her right to receive protection for her fetus from ionizing radiation in excess of 0.5 rem (5 mSv). Petitioners state that between June 19 and June 23,1995, Dr. Weinstein withheld the NIH form
- used to file a declaration of pregnancy, and insisted that if Dr. Ma filled out
{ the declaration form, it would "cause trouble for the lab " Petitioners also state l that Dr. Weinstein disagreed with the steps proposed by Petitionm to minimize i
radiation exposure of Dr. Ma during her pregnancy.
As a related matter, Petitioners also state that because Dr. Weinstein was in a hurry to patent the results of their research (a no*xl method to display
(. more efficiently the existence of expressed genes),.which would have had significant scientific and commercial value, Dr. Weinstein urged Petitioners to work tirelessly, and over a period of several weeks before the contami-nation incident, repeatedly requested Petitioners to terminate Dr. Ma's preg.
nancy. Based on the several inspections and the investigation, NRC concludes that the evidence does not substantiate Petitioners' assertions that Dr. Wein.
stein urged Petitioners to work tirelessly, requested Petitioners to terminate Dr.
"see Lster dsed August 13.1997 rrom Roter A. Zoon. Radiauon Safety ofhcer. Nm. to Carl 1. Papeneno, NRC, and attacted " Memorandum" deed August 14.1997, from Beth Reed. NIH Area Health Physicist, so Robert A. Zoon.
30 Although there is a dispute es to whether in fact NIH noti 6ed Dr. Ma of its revised dose estimates. Dr. W was la fact provided with the revued NIH done enumares from another source.
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}'
s
._. ~. - - - ... . - .
Ma's pregnancy,88 and was in a hurry to patent the results of Petitioners' re-search nor that the research would have had significant scientific and commercial value.23 Based on the inspsetions and investigation, NRC concludes that the evidence does not substantiate Petitioners' assertions that Dr. Weinstein, with coercion or otherwise, prevented or tried to prevent Dr. Ma from declaring, or interfered with Dr. Ma's declaration of, her pregnancy in writing " or that Dr. Weinsteirs objected to or interfered with any measures pfoposed or taken by Petitioners to minimize exposure of Dr. Ma's fetus to radiation. Additionally, Petitioners both took the "NIH Radiation Safety in the Laboratory" training course on November 29, 1994. That training covered NIH procedures on written declarations of pregnancy for occupational workers and instructions for pregnant employees as to how to obtain the NIH form used to submit a written declaration of pregnancy. Although not required to do so. Dr. Weinstein obtained the NIH form for Petitior.ers and provided it to Ittitioners on June 23,1995. Dr. Ma, however, did not request the form, nor did she submit the formal declaration of her pregnancy to the NIH RSB, as provided in the materials covered in her training. In view of the above, Dr. Ma's failure to submit a written declaration of pregnancy was voluntary. Accordingly, the 5-mSv (0.5-rem) occupational exposufo limit specified by 10 C.F.R. 5 20.1208(a) for the fetus of a declared pregnant worker was not applicable to Dr. Ma.
Based on the above, Petitioners' request for enforcement action against NIH for violation of section 20.1208 is denied.
38 tn ad& tion to the lack of evidence corrobornung this aswrtion, there are aigm6 cant inconustences in Dr.
Ma's acteunt of how she learned of the alleged request. In the peution, Dr. Ma stated that in the ewmag, after
. returning fiorn a nweting with Dr. Weinstein at NIH, Dr. Zheng inforned Dr. Ma that Dr. Weinstein had made dw alleged request eurber that day. Dr. Ma, howewr, told inveangators that she learned of the alleged request during a fnreeng at NIH with Dr. Zheng and Dr Weinswin, a week aher Dr. Weinstein inade the alkged request to Dr. Zheng, and that Dr Zhecg had tot told Dr. Ma of tie request.
33 1n a&hoon to the lai of evidence to corrobor.de this asseruon. Nataners made contrahctory statenwnts regarding Dr. Weinssein's plans for pubhcation of the results of hutioners' rewarch. several days afwr &scowry of Dr. Ma's contamination Dr. Ma tukt a colleague that the Peuconen wanted to pubhah their research paper before obtaimag a patent appbcation (contrary to usual procedures), but that Dr. Weinswin was trytag to delay pubhcation of the research paper. Dr. Ma told inwstigators shatly anerwards that Dr. Weinswin bebeved that het pregnancy would prevent her from hanJhng rahoacave matenais, when Dr. Weinssein had anphed for a pawns and was trying to get .he Peuunners' research papr pubbshed. A few days later, Dr. Zheng su.autted a stammeta to investigators asserung that over the past 3 or 4 months Dr. Weinstein had been trying to delay pubhcanon of the rewarch paper.
"The investigauan in& cases that the Pettuonen* research, nhech was conducted to investigate a prooosal of Dr. Weinstein, ed not constitum a major scient:Ac discovery and had httle comnwrcial value.
M Morrowr, de invesuganon produced evidence that Dr. Ma was not eager to declare her pregwancy Dr. Ma told an NIH colleague approximately 2 months before the contanunanon incident that she was reluctant to inform
' Dr. Weinstein of her pregnancy, because then she might have to stop conducting expennwnts involving radiauon.
165
O. Responsibility for Contamination of Dr. Ma and Twenty Six NIH Employees Based on the inspections and the investigation, NRC concludes that Dr. Ma and twenty-six NIH employees were deliberately contaminated with P-32. Dr.
Ma's exposure and the exposure of one of the twenty six employees contam-inated by the water cooler were beyond regula*ory limits, in violation of 10 C.P.R. 65 20.1201 and 20,1301, respectively. Neither the means of administer-ing P-32 to Dr. Ma," not the person (s) responsible for the contamination of Dr. Max and of the water cooler, which was the source of contamination to the twenty-siv. NIH employees, however, was defmitively identified. In the absence of any evidence to the contrary, NRC presumes that the violations were caused by an employee (s) of NIH and that the material belonged to NIH. As explained above, NRC also concludes that the contamination of Dr. Ma and of the water ,
{
cooler was not a result of the Licensee's violations of NRC requirements for l
security and control of radioactive material. See Section III.A. " Violations of '
NRC Requirements for Security and Control of Licensed Material," supra. Nor-mally, the exposures beyond regulatory limits in this case would be subject to significant enforcement action. However, under the circumstances of this case, the Commission has decided to exercise its enforcenxot discretion and not ini-tiate formal enforcement action against NIH for these violations. Discretion is being exercised because NIH fully cooperated with the investigation, there is no evidence that NIH contributed directly or indirectly to the deliberate misuse of licensed material involved, and NIH could not reasonably foresee that an employee or employees would maliciously misuse radioactive material as was done in this case.
l Accordingly, enforcement action against NIH, in addition to that already taken i
in the NOV and Proposed Imposition of Civil Penalty $2500 (EA 96-027) and the Order Imposing Civii Penalty $2500 (EA 96-027), is not warranted in this case U
Pecuoners aswet that Dr Ma was contanunated at NIH on the evemag of June 2s, wtwo she ate food that she had senred in an NDI conference room refngerstor the previous evemng Dr. Ma's contarnination was discovered at approximmely 6 00 p n on June 29. The evidrnce indicates that Dr. Ma was not contanunated by food she had stored to the Nut conference town retrigerasor, la the ewmns of June 29, IN NIH RSB found no radioactive conianunanon of the conference rooni refngerator, the contents or the refrigerator, Dr. Ma's den, the table at wluch Dr. Ma aae. the trash cans or containers or tables in the halls near Peutioners' lab, the lab, or Dr Weinstein's othee, on June 30. the microwave used by Dr. Ma to heat 'wr food at NDI, and the plasoc containers and the uwnsils owd by Dr. Ma to eat the fond she brought to NIH, were surwyed. and no contanunation was found.
Addeuonally, the evidence indicates that thrt P 32 contaminanon of the carpet in front of the conference room refrtgerator occurved sonwtune afet 5 00 p n on June 29 The Art report states in the chronology that :he Nui RsB kmual esumated fair of ingeshoa was noon on June 29,1991 However, aner reyww of the phystcal eviince and radiatsoa surwys, Nut used 11.00 an, June 28,1991 as the most probable imualingestion tinw.
NDI also used this taitta! Ingescon tirne for the odwr twenty-sts contanunated nut individuals involved NkC also used this intial une of ingestion in its done esumates.
"The investigation produced no evidence to corroborate Pectioners' assenions that Dr. Weinstein had suggested to several people eidwt that Peuuoners already had a child in Cluna, or that Petiuoners dehberately contananated themselves in order to ternunate Dr. Ma's pregnancy.
166
for the occupational exposure of Dr. Ma beyond regulatory limits, the exposure of the member of the public beyond regulatory limits, or the contamination of the water cooler.81 IV. CONCLUSIONS
%c following requests of Petitioners are granted in part as described above:
.for enforcement action against NIH for violations of NRC security and con-trol requirements and for violation of NRC requirements related to radiation safety training, ordering radioactive materials, inventory control of radioactive materials, monitoring, and the issuance, use, and collection of dosimetry. Peti-tioners' request for NRC action to ensure adequate procedures and instructions to exposed persons for sample collection is granted as described above. De following requests of Petitioners for enforcement action against NIH are denied:
for the exposure of Dr. Ma beyond regulatory limits, for the exposure of Dr.
Ma's fetus, and for the contamination of the water cooler; regarding notifica-tion to Dr. Ma of her level of contamination; regarding Dr. Ma's declaration of pregnancyt regarding the conduct of surveys after Dr. Ma's contamination; and for the failure to accurately calculate Dr. Ma's occupational radiation dose.
Finally, Petitioners' request to suspend or revoke the NIH license is denied.
A copy of this Dechion will be filed with the Secretary of the Commission for Commission review in accordance with 10 C.F.R. 5 2.206(c) of the Commis-sion's regulations. As provided by this regulation, the Decision will constitute the fmal action of the Commission 25 days after issuance, unless the Commis-sion. on its own motion,-institutes a review of the Decision within that time.
FOR THE NUCLEAR REGULATORY COMMISSION.
Carl J. Paperiello, Director Office of Nuclear Material Safety and Safegt:ards Dated at Rockville, Maryland, this 17th day of September 1997.
37 3er teuer from AstuA C. Thadani. Actmg Deputy Execuuve Director for Regulatory Effectiwness, e Michael M. Oatiesman, M D., Deputy Director for intramural Rewarch, Nul, dnN Sepermber 17.1997.
167
Cite as 46 NRC 168 (1997) DD-97 23 UNITED STATES OF /,MERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Samuel J. Collins, Director in the Metter of Docket Nos. 50-361 50-362 SOUTNERN CALIFORNIA EDISON COMPANY, of et.
(San Onofre Nuclear Generating Station, Units 2 and 3) September 19,1997 De Director of the Office of Nuclear Reactor Regulation denies a petitio'n filed pursuant to 10 C.F.R. 6 2.206 by Stephen Dwyer on September 22,1996, asking the Nuclear Regulatory Commission to shut down the San Onofre Nuclear Generating Station, Units 2 and 3, pending a complete review of the seismic risk based on new information gathered at the Landers and Northridge carthquakes.
DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206 I. INTRODUCTION By petition dared September 22,1996, Stephen Dwyer (Petitioner) requested that the Nuclear Regulatory Commission (NRC) take action with regard to San Onofre Nuclear Generating Station (SONGS). The Petitioner requested that the NRC shut down the SONGS facility "as soon as possible" pending a complete l ('
review of the "new seismic risk."' he Petitioner asserted as a basis for this request that a design criterion for the plant, which was "0.75 G's acceleration,"
is " fatally flawed" on the basis of new information gathered at the Landers I
la tus e mail dated Mah 26.1997, supplettrnting has pention, the Petidoner also fcquested renoval or "all spent fuel out of the southern Cahfurnia setsmic zone."
168 l
l
_m
and Northridge carthquakes. He Petitioner asserted (1) that the accelerations recorded at Northridge exceeded "1.8G's and it was only a Richter 7+ quake l' (2) that there were horizontal offsets of up to 20 feet in the Landers quake, and (3) that the Northridge fault was a " Blind Thrust and not mapped or assessed."
On November 22,1996, the NRC Staff acknowledged receipt of the petition as a request pursuant to 10 C.F.R. 6 2.206 and informed the Petitioner that there was insufficient evidence to conclude that the requested in. mediate action was warranted. Notice of the receipt of the petition indicating that a final decision with respect to the requested action would be forthcoming at a later date was published in the federal Register on November 29,1996 (61 Fed. Reg. 60,734).
De Petitioner provided supplemental information in support of his petition in a letter dated December 10,1996, two e-mails dated March 26,1997, and an e-mail dated May 28,1997,8 My Decision in this matter follows.
II. DISCUSSION A. Regulatory Requiresnents Associated with Potential Earthquake Motion and the Licenslag Basis for SONGS ne design bases for each nuclear power plant must take into account the potential effects of canthquake ground motion.8 De seismic design basis, called the safe-shutdown earthquake (SSB), defines the maximum gimM motion that certain structures, systems, and components necessary for saF A Mown are designed to withstand.* SONGS Units 2 and 3 seismic design bast . wistent with the siting criteria set forth in Title 10 of the Code of Federal Regulations, Part 100, Appendix A," Seismic and Geologic Siting Criteria for Nuclear Power Plants." Appendix A describes the nature of the investigations required to obtain the geologic and seismic information necessary to determine site suitability and 2
By lener dased 3mm 26,1997 the NRC staff advised the IVunoner that his e-mal dawd Apnl 2$,1997, concernleg the abibty of the songs swarn generators to withstand a major seismic event, would be treased as a -
garase section 2.206 peutica.
See 10 CF R. Part M Appenda A. Criterion 2 and 10 CF R. 9 5a34aKlXik see afw 10 CF R. Put 100 Appeniha A. IV(a) wkh provides, in part. that "the design of each nuclear power plant shall take into account the pawnbst effects of vibrastry gmund monan caused by earthquakes " The investigauve obhgauona or Part 100 Appendia A. wluch are caly imposed emphcitly on appheants for construccon pernuts, were effeebve Decende 13,1973 08 ft4L Reg. 31.279 (Nov.13.1973)K The hcensing board issued its decision erganhag the SONOS Umts 2 and 3 consuucson permits on october 15.1973. Homtver, the SONGS site was revwwed against the Appendia A criana during the construction permit bcensing teview wluch was updated at the operaung bcense review stage.
- The sSE is dehmed, le part, as that earthquaka which is based upon an evaluation of the maxirnum earthquake pounrial conwJenna the restonal and local geology and seismology and specanc charactenstics of local subsurface matenal it is that earthquake which produces the ernumum vibratory ground mouon for which certma suurtures, sysems, and congonents are designed to remma funcuonal See 10 CF R. Part 100, Appendis A. I til(r1 i 169
provide reasonable assurance that a nuclear power plant can be constructed and operated at a site without undue risk to health and safety of the public. Among other particulars, Appendix A requires 5 e
Determination 'I the lithologic, stratieraphic, hydrologic, and structural geologic conditions of the site and the region surrounding tile site, e
identification and evaluation of tectonic structures underlying the site and the region surrounding the site, whether buried or expressed at the surface.
Evaluation of physical evidence concerning the behavior dunng prior earthquakes of the surficial geologic materials and substrata underlying the site, e
fuermination of the static and dynamic engineering properties of the
.naterials underlying the site, such as seismic wave velocities, density, water content, porosity, and strength, e Listing of all historically reported earthquakes ths. affected or that could reasonably be expected to have affected the site, e
Correlation of epicenters of historically reported earthquakes, where possible, with tectonic structures, any part of which is located within 320 kilometers (200 miles) of the site. Epicenters that cannot be correlated with tectonic structures shall be identified with tectonic provinces, any part of which is located within 320 kilometers (200 miles) of the site.
Ihr capable faults' that may be of significance in establishing the SSE or that are longer than 330 meters (1000 feet) ar.d within 8 kilometers (5 milu) of the site, detern.ination of the length of the fault; the relationship of the fault to the regional tectonics structures; and the nature, amount, and geologic history of displacements along the fault, including the estimated amount of maximum Quaternary displacement related to any one earthquake along the fault are required.
The information collected in these investigations is used to determine the vi-bratory ground motion at the site, assuming that the epicenters of the carthquakes are situated at the point on the tectonic structures or in the tectonic provinces nearest to the site. The earthquake that could cause the maximum vibratory ground motion at the site is designated the SSE. The vibratory ground motion produced by the SSE is defined by response spectra, which are smoothed design 3
Sn 10 C F R. Part 100. Appendia A,5 IV.
' A capable fault is a fault that has estutated one or more of the following charactensues: (1) mrrrement at or near the ground surface at least once wittua the past 33,000 years or numment of a recurneg nature within the past 500.000 yess; Q) macro sessanicity instrunentally determined with reconis of suf5cient precision to demonstrate a dtrect relationship with the fault; and 0) a cructural relationniup to a capable fauh accordmg to characterisuca (1) or G) abme, such that movement on one could be reasonably espected to be accompanaed by movement on the other Jn 10 CF R. Part 100. Appendit A. I!!!(g).
170
spectra developed from a set of vibratory ground motions caused by more than one earthquake.
SONOS was licensed consistent with the seismic and geologic siting criteria for nuclear power plants set forth in Part 100, Appendix A, described above.
De site has undergone geologic, geophysical, geotechnical, and seismic investi-gations and reviews that are at least as thorough and comprehensive as those of any critical facility.' The SONGS SSE is based on the assumed occurrence of a surface-wave (M,)* magnitude 7 earthquake on the offshore zone of deformation (OZD), a right lateral strike-slip fault zone, approximately 8 kilometers from the site at its closest approach. his magnitude 7 event is larger than any earthquake known to have occurred on the OZD, and the resulting ground motion estimate is larger than that which could reasonably be expected at the SONGS site from any other seismic source. The determination of the SSB was made in accordance with the criteria and procedures specified in Appendix A to Part 100 and using a multiple hypothesis approach in which several different methods were used to determine cach parameter; sensitivity studies were performed to account for the uncertainties in the carth sciences, in addition, the plant has design margins (capability) well beyond the demands of the SSE. He ability of a nuclear power plant to resist the forces generated by the ground motion during an earthquake is thoroughly incorporated in the design and construction of the plant. He codes that govern the construction of residential and commercial buildings are far less stringent than the requirements for nuclear power plants. As a result, nuclear power plants are able to resist carthquake ground motions well beyond their design basis, the SSE, and far above the ground motion that would result in damage to buildings designed and built to commercial codes.
'The en.hngs of ilww invesuganons were revwwed estensively by the stafr and were hogated in proceedings concermng dw lisuance of the construccon pernut and operaung hcenses fur SoNOS Usuts 2 and 3. See LBP-73-3G. 6 Al C 929 (1973L ALAB-248. 8 AEC 957 (1974); and see LBP 82-3.15 NRC 610982L ALAB-673, 15 NRC 688 0982k ALAB 717.17 NRC 346 0983); and see Caerrans v. NRC. 742 F.2d 1546 (D C. Cir.19s4L cert deamt 471 Us.1136 0985)(de Court of Agyeals affirmed the Comnusuon's granung of the operaung beennes for SONGS Umts 2 and 3, noung the volununous record and substantial evidence supperung the seisnue review).
8 in 1935, Charles Richsen introduced the concept of msgmtude to describe the size of earthquakes. Es ongmsd formula was based on ewnts in southern Cahforma recorded on torsma seismographs widue 600 km of the erecenter. This is the magnitude labeled AfpOver the years Richter and others developed fornulas to compuie magrutudes from body and surface waves (ni, and M g) at datant (telenetarme) stanons as well as other methods to compute magstudes for local ewnts in other areas of the worki Most of these methods of computing magnitude use us the neasured variable the amphtude of one or nm seismic waves. All of these magstude procedures, including the monrnt magmtude Af ir have been developed to produce a number that represents the size of an earthquake, and each was shingled onto Richter's enginal procedure so that the formulas would produce sinular values at parucular places on the magnitude scale. r.ach computation procedure has its own magstude or distance range over which it is vahd. Surface wave magstude is normally calculated fmm the amphtudes of waves with penods near 20 seconds. Moment magstude is based on the seisnue moment. Sentme moment is calculated from recordings on digital seismographs and compared to ttw waveform syntheuc sessmograms from nunencal models of the fault rupturt :n deternune the moment.
171 i
I x
De geologic and seismic siting and the design of SONGS were reviewed by
_t he NRC Staff, the U.S. Geologic Survey, the National Oceanic and Atmospheric
? Administration, the Advisory Committee on Reactor Safeguards and were litigated before the Atomic Safety Licensing Board befofe they were licensed by the Commission.' he NRC continually monitors the adequacy of the design of nuclear power plants in order to protect the public health and safety, he SONGS Licensee performed an individual plant examination of external events (IPEEE)
- he IPEEE is a program that involves the evaluation of the capability of a nuclear power plant to withstand the effects of several natural phenomena such as earthquakes, fires, and floods, well beyond its design bases. De most recent geologic and seismic information for the southern California region was used in the probabilistic analysis to quantify the scismic hazard and the
- uncertainties for the SONGS site for this program, he ground motion from an earthquake at a particular site is a function of the magnitude and focal mechanism (type of faulting, i.e., normal, reverse, strike slip) at the earthquake source. It is also a function of the distance of the facility from the fault and the geology immediately under the facility site, he estimates of SSE ground motion for the SONGS site conform with the procedures and criteria specified in Part 100, Appendix A, and the Standard Review Plan (SRP)"
li 2.5.1 and 2.5.2 (NURE04800), As previously stated, the carthquake that was determined to control the design of SONGS is an M, m 7 located on the OZD at a distance of 8 kilometers frora the site, he eppropriate level of c nservatism for characterizing the ground motion through a site-specific spectrum as specified in SRP 2.5.2 is the 84th percentile, his level of conservatism was used in the design and licensing review of SONGS Units 2 and 3.
Since the SONGS plants were licensed, a new magnitude scale, moment magnitude (M,), has come into common usage. He most recently published ground motion attenuation relationships u use M,. An attenuation relationship is a relationship between sized earthquake, distance to fault, and the amplitude of the ground motion. Since magnitude 7 M, is equal to magnitude 7 M,,u
'See cases csud sapre noes 7.
8 3ev Response to oeneric Isaer sa% Supp. 4, ladividual Plant Emanunation of Exwenal Events (IPEEE),
deced Decenter 15, IMS, escussed, Wra, at pp. Is4-83 "De $RP is und as guidance for the ofBee of Nuclear Reactor Regulatico staff responsable for the review of Ipcations to construct and operase nuclear power plare.
N A. Abrahamson and W1 Silva,
- Empirical Response Spectral Atenuanon Relanons for Shallow Crustal Earthquakes," 68 Seirmotorkel Aerearr4 lesers 94127 (1997h David M. Doore, William B. Joyner, and Dounns E, rumni, "Equahans for Emmnung Horizontal Response Spectra and Peak Acceleraion from Weswra North American Earthquakes. A Summary of Recent work.* 68 Saumologkal Researth Leners 128-53 (1997);
K,W. Campbell, "Emperical Near Source Auentuanon Relabonniups for Horuontal and Vertical Cornponensa
- of Peak orcund Acceleration, Peak oroud Velocity and Pseudo Absolute Acceleranon Respome $pectra.* 68 Seisaislaskel Research lesers 154 79; K. Sadigh, C.Y. Chang, JA Egan. F. Makdial, and R R. Yongr~
"Ameasmation Relanonships for Shallow Crustal Earthquakes Based on Cahfornia Suong Motion Data," 68 -
3eumodeskal Asseure4 Issers 1s489 (1997).
u norme Lay and Terry C, wallace, &Jern Ol,Aal Settmology (Acadernic Press 1995).
172
- there is no need to make a conversion between M, and M, when comparing the ground motion estimates obtained using the recent attenuation relationships to
. the SONOS SSB ground motion.
B. 87 : to the Petitioner's Comeerns I,
Concern not SONGS is in a High Seismic Hagard Area In the enclosure to his letter, the Petitioner referenced "a recent peper by M.D. Petersen et al. (Scismic Hazard Analysis, AEG,120-%)" and stated that it concludes that the entire Los Angeles, Ventura; and Orange Counties are high hazard areas, ne Petitioner stated that the paper also concludes that accelerations of 0.4g (pga),1,0g (0.3 second SA), and 0,5g (1 second SA) can
- occur nearly everywhere.
- De NRC Staff attempted to find the reference menticned by Mr. Dwyer but was unsuccessful.- Mark D. Petersen of the California Division of Mines and Geology informed the Staff ths.t the correct reference is an article that he and his coauthors published in the Bulletin of the Seismological Society of America."
Dr. Petersen made a presentation at a workshop or seismic hazard in southern .
Califwnia in January 1996 and gave participants in the workshop preprints and l reprints of some of his recent publications, ne cited reference was one of these handouts.-
In the section of the paper entitled " Hazard Maps," the authors state:
- The DMG probabilistic setsnde hazard maps (10% exceedance in 50 years) for peak ground '
acceleration (pga) and 5% damped spectral acceleration (SA) at 0.3- and 1 sec periods on alluvia
- site conditions are shown in Figures 3 tinough 5. These maps may be usefulin characterizing regional variationa in scismic hazard in southern Cahfornia but should not im used as input for detailed site specific estimates of ground shaking in the earthquake-resistant design of individual structures,
I-De paper then states -
- The three maps show similar hazard patterns that indicate high hazard over the entire tri-couruy area.1he espected peak accelerations exceed OAg (pga),1.0g (0.3 s SA), and 0.5g (1 : SA) nearly everywhere in the trl-county area?"
3'seephen Dwyer. lauer to Dr. Shirley Jackson and Frank J. Miragha, Jr., with encianura, dated Decernber 10,
~
199tk
" Mark D. Petersen, Chris H. Cranwr, Wilhara A. Bryans. 64n:hael & Reichle, and Tousson R. Topporada,
- Prehnunary setzenic Hasard Assessnwat for Los Angeles, %ennua, and orange Counsws Cahfornia, Anected by the t7 January 19M Northndse Earttquake," 86 Buurrin of the Stiram@gkaf Secdery of Amersce s247 61
~
, (1996K l' M UM I
173 o
. . ~ -- - - -
q q
l l
l ' % address the acceleration values mentioned by the Petitior:et with respect
.j to SONGS, the NRC Staff has produced Figure 1, which contains a plot.of - ,
the SONGS SSB seismic response spectrum at 5% of critical damping and the l- -values quoted from the Petersen paper Since period in seconds is the reciprocal of frequency in Hertz, the l second-period spectral acceleration (0.5g)is plotted 4 at a frequency of I Hertz, the 0.3 second-period acceleration (1.0g)is plotted at -
- a faquency of 3.33 Hertz, and the peak ground acceleration (0.4g) is plotted at
.a frequency of 33 Hertz. Figure ! demon.trates that the spectral accelerations -
.(accelerations plotted in 1he response spectra) used in the design of SONGS I
are significantly higher than those from the Petersen paper, thus showing thr
- . conservatism of the design basis for SONGS.
' L ~ Caseern Abent a large Earthquehe on the San Anbees Feuk
, in the enclosure to his letter dated December 10,1996, entitled " Uncertainty Factors Affecting Seismic Risk Modelling in Southern California" the Petitioner
- - stated "We must prepare for a great event on the Southern San Andreas Fau!t."
t He also mentioned an earthquake on the San Andreas in his e mail message.is De NRC Staff agrees that there must be preparation for a large event on the San Andreas fault and finds that the SONGS seismic design is well able
. to withstand the demands of a large carthquake on the southern San Andreas fault. Although the geologic evidence appears to indicate that the largest event to have occurred on the southern San Andreas in the Quaternary Period (the last 2 million ' years) is estimated to have been in the moment magnitude (M,)
. range of 7.5 to 8; to evaluate the potential ground mction at the SONGS site
- . from a large carthquake on the southern San Andreas fault, the Staff made the E very conservative assumption of a moment magnitude 8.25 strike-slip earth-
~
! quake at the closest distance of the San Andreas fault to the site (90 kilome-2 ters). His assumption was made to calculate the effects of a 1cee carthquake ~
- on the San Andreas fault. The results are plotted in Figure 2 Sich demon-strates that ;he design basis (SSE) spectrum for SONGS is much higher than
- . l the ground motion estimates from the M,8.25 on the San Andreas fault using 3
four recent attentuation relationships. These four empirical r,ttenuation rela-
- - tionships were developed after the occurrence of the Northridge and Landers
[
carthquakes, and include the recent strong ground motion from these events.
They _were performed by internationally known experts in earthquake ground
.3 f
18S M Dwyer. e mail message to Dr. Jackson, Subject Sen onorre Nucicer Power Plant Ruk, deed September 22.199tk h
4 174 N
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Ground Motion Response Spectra l 10 e i a > >>g *
- i i i e i a sing a * -
8, ' **-
- Magnitude: M, = 8.25 *-* San Onofre SSE Spectrum -
- Fault Type: Strike Slip s-a Boore et al. (1997) 84m percentile - - i g - Distance to Fault: 90 km o--a Campbell (1997) 84* Percentile y - 5% of Critical Damping
,(jggy y h
/. -a Sadigh et at (1997) 84* percentile 5 -
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motion analysis and were published in the Scirmological Research Lerrers,"
the peer reviewed journal of the Seismological Society of America. De assumption of a moment magnitude 8.25 strike-slip earthquake and the SONOS site foundation geology were unt as input parameters for these four carthquake
- ground motion attenuation relationships." De ground motion estimates were made at the 84th percentile level recommended by SRP $ 2.5.2. He plots of the results obtained from these four attenuation relationships and the SONOS Units 2 and 3 SSE design response spectrum are shown in Figure 2. De plotted information in the figure demonstrates that the SONGS design is well able to accommodate the demand of the ground motion of the large earthquake on the southern San Andreas fault since it envelopes the estimates of the four felationships at all frequencies.
- 3. Concern About the SONGS Design Basis in light of the landers and Norskridge Earthquakes -
In an e-mail message to Chairman Jackson, dated September 22,1996, the Petitioner stated -
j l am a geologist in Southern California, and I arn deeply concerned by the current situation at San Onofte NPP. De design criteria for this old plant was 0.75 0's acceleration. With the new information gathered at the Landers and Northridge Quakes, this criteria is fatally flawed. The accelerations recorded at Northridge exceeded 1.8 O's!!! and it was only a Richter 7+ quake. llorizontal offsets of up to 20 feet in the Landers quake were also way beyond geologists and seismologists estimates. De whole science is in disarray. Also the Northridge fault was a Illind Thrust and not mapped or assessed. If we have a larger quake here ou the San Andreas or a smaller one closer to the plant. well I hate to imagine .
What's even worse is the fact that scientists are not able to give us the info we need to evaluase the situation.
He main points of the Petitioner's message appear to be - -
A peak ground acceleration recorded from the Northridge magnitude M, 6.7 carthquake exceeded 1.8g.
- De Northridge earthquake occurred on a blind fault that had not been mapped or assessed.
e The maximum horizontal displacement of almost 20 feet due to the Lan.
dets magnitude 73 earthquake is much larger than would be estimated.
- Scientists are not able to provide the information to evaluate the situation.
De magnitude 6.7 Northridge earthquake of January 17,1994, occurred on a buried thrust fault in the San Fernando Valley and was similar to the 1971
" Abrahanson and Silva, seu note il Ed 177
l
. i San ivrnando Valley earthquake. De distance from this earthquake epicenter to
. the SONGS site is about 130 kilometers (80 miles). The Northridge carthquake was felt at SONGS. A free-field scismic instrument at SONGS recorded a peak ground acceleration of 0.025g which is significantly less than the SSE peak ground acceleration of 0.67g, thus indicating that an earthquake in the epicentral region of Northridge poses no threat to the plant, he peak ground acceleration of 1.8g from the Northridge earthquake referred to by the Petitioner was recorded by the California Division of hfines and Geology station in Tarunt., ne anomalous character of the seismic response at the Tarana site is well known," The intense shaking at the Tarzana site is a condition of the site and is not characteristic of the Northridge earthquake, Dis fact is demonstrated by the unusually strong ground motion that was alsa observed there during the 1987 Whittier Narrows earthquake n and during the L. shocks following both the No thridge and Whittier Narrows mainshocks.
In recognition of the unusually high ground motion recordings at Tarzana, there have been a number of studies of this site" to try to determine the cause of the high recordings, Rese studies have attributed the high peak ground accelerations to the site's specific geology, The anomalous site effect was found to be confined to a small area 50 meters in radius around the station; beyond this area, the ground motion recordings were down to their normally expected values, It is, therefore, inappropriate to rely on data recorded at the unique Tarzana site to make judgments about ground motion estimates at other locations. De geologic formations under the SONGS site differ from those at the Tarzana site, ne SONGS site does not anomalously amplify the earthquake ground motion as the Taruna site does. During the evahiation of the site, no geologic formations ur.aer SONGS were identified that would result in exceptionally high earthquake ground motions, Further, recorded earthquakes at SONGS have not exhibited any unusual amplifications, As a result of their studies of the near-field ground motieu from thrust faults, Somerville et al.2* found that the ground motions from the Northridge earthquake, in general, are within the 84th percentile when compared to previ-J A Rial, "nw Anomalous Seisnue Response of the oround Motion at tte Taruna lhu Site Dunng tie Northridge 1994 Souttern Cahforma Earthquaks: A Resonant Shshng Blockr 86 8m!!<rus of the Saunu*gkal Sorsary a/ Aewrsra 1714-23 (19961 M
A M. Shakal, M. Huang, and T. Cao, "The whimer Narrows, Califorma, Earthquake of october I,1987:
CSMIP Strong Monon Data" 4 Ear:Aquake Spectra 75100 t19881 D R.D Catchings and W.H K tee, ' Shallow Velodty Saucture and Pmnaon's Ratio at the Tarzana, Cahfarnia Strong Motion Acceleronster Site " 86 #slietta of #As Seirawloskal Sactery of America 1708-13. Rial, loc, cit.:
Paul Spechch, Margaret Hellweg, and W.H K. lee,"Direcuonal Topographac Site Respnnse at Tartana olnerved in Aftmhocks of the t?94 Nortaridge, California, rarthquake: Imphuuous for Mairshock Monons," 86 8mitatui qf #Ae Seismukskal Swiety of America S193-S'208 (19901
" Paul Somerville, Chandan Saikia, David wald, and Rover oraves *1mphcations of the Northndge Earthquaks for Spong Givund Motions from Th ust ruulis," 86 Ballerui of ras Scuawfogrcal Socrery of America $l13-25 (19961 178
ously developed empirical attenuation relations for thrust faults. His fmding indicates that the Northridge ground motion data would not cause seismologists to revi e ground motion estimates for thrust fault carthquakes. De data from this carthquake have been incorporated into the strong ground motion databases and have not signifuantly altered the results of the attenuation relationships. In addition, it is bsppropriate to use the ground motions from thrust faults for estimates i., a region in which there is no potential for this type of faulting, such as the Sc?th Coast Borderland where SONGS is located.
To ad ws the issue of whether there is a potential for buried thrust faults at the SONGS site, the Staff refe:Ted to a book by Yeats et al.n that contains a list and a map of the regions of the world that have the potential fer large reverse-fault earthquakes. Drust faults are low-angle reverse faults. In California, the regions listed are the northern California coast, the Coast Ranges of central California, and the western Dansverse Ranges. De 1994 Northridge earthquake and the 1971 San Rrnando Valley carthqrke are related to the western 'nansverse Ranges. Here is no indicstion of reverse-fault carthqudes in the South Coast Emderland where SONGS is located.
In southern California, the mountain ranges flanking the " Big Bend" of the San Andreas fault (thu 'Ransverse Ranges) strike cast west and are bounded on the south by nonh-dipping range-front reverse faults, part of a discontinuous system of faults that extends from the Santa Barbara Channel eastward to the eastern end of the San Gabriel Mountains. Other important reverse faults in this region include the Pleito fault in the southern margin of the South San Joaquin Basin; the south-dipping Oak Ridge fault in the Ventura Basin wh;ch extends castward to the San Fernando Valley as a blind thrust that produced
, the 1994 Northridge earthquake; and a blind reverse fault system beneath the l Santa Monica Mountains North of the Los Angeles basin. Msjor cartiquakes l_ generated by these reverse faults include the 1952 Kern County earthquake in i
the South San Joaquin Valley (Af,7.7), the 1971 San Fers ando earthquake at the eastern edge of the Ventura basin (Af,6.7), the 1978 Santa Barbara earthquake in the western Ventura basin (Aft 5.9), the 1987 Whittier Narrows earthquake in the Los Angeles basin (Aft5.9), the 1991 Sierra Madre earthquake at the southern edge of the San Gabriel Mountains northeast of Los Angeles (Aft 6.0),
and the 1994 Northridge earthquake in the San Fernando Valley (Af t 6.7). Of these, only the 1952 and 1971 earthquakes produced surface rupture. Global Positioning Systesa satellite geodesy confirms the high convergence rate as a result of reverse slip on these faults,25 indicating this is an active thrust fault area. Dese indications were not seen in the SONGS area.
D Robert S. Yeas. Kerry Sieh, and Chrence R. Allen. The Gelogy of EarrAquakes (Oxford Univeruty Pius 1997).
3%L 179 i
Tb state that the Northridge earthquake occurred on a blind fault that had not been mapped or assessed is an oversimplification Blind thrust faults are recognized as signi6 cant sources of seismic hazard in areas of active folding, and the 'IYansverse Ranges-Los Angeles basin has long been recognized as such an area. If, before the Northridge earthquake, such a fault had been sought as part of a siting investigation, it or the active folding indicative of such a fault would have been found and wculd hase been considered in the scismic hazard estimate, in addition, the potential occurrence of an M,6,5 to 7 on a buried fault has been assumed in the commercial design and construction codes for the area where the Northridge earthquake occurred, so in effect, the potential for blind fault has been accounted for.
De types of site investigations, borehole drilling, and scismic survey profiles normally performed for critical facilities such as nuclear power plants are not used for normal residential or commercial structures because of the high costs of such work. For residences or commercial buildings, the codes rely on more generalized hazard estimates, such as those found in Petersen et al? Rese hazard studies incorporate all the known geologic information in their ground motion estimates, The most promising new data for the identification of areas of potential buried thrust faults comes from geodetic measurements of the satellite-based Global Positioning System, which is capable of determining convergence rates across folded terranes, Geomorphic studies are important in that the deformation of late Quaternary stream or coastal terraces provides quantitative data on the uplift rates or lack of uplift of postulated active folds over buried faults, in fact, the locale of the 1987 Whittier Narrows, California earthquake was identified more than 70 years ago" as an active anticline on the basis of warped geomorphic
- rfaces.
The SONGS site lies in a relatively stable structural block bounded by major northwest-southeast trending strike-slip faults. The relative motion between the Pacihe plate and the North American plate is accommodated, in part, by dextral strike slip along the San Andreas fault system and faults in the borderlands, extension in the Gulf of California, and contraction i'i the Transverse Ranges and the Los Angeles basin region?
I
" Mark D. ftierson et at. supra note 15 I "Ff. Vwhery, "the Interpretauon rf Uw Physiography of the tas AngeVs Coastal Belt." 11 Bullva.n of she
\ Amerkan Assockstwn of retroleum Geolagun 411-24 (l921)
M l. Zaback and R.IL Andmon "Cenozoec Evolution of ite State of Stress and Style of Tectonism in western Urdted states,* 300 PAitoropA4 cal Transactions of #At Rovat Soricry of tonam 401-34 (1981); R. weldon and E. Humphreys, "A Kinematic Model of Southeca Cahforma," 5 Tersonks 38-48 (1986), DF, Argus and R.o.
oordon, " Sierra Nevada North Amenca Motion Itom VLBt and Paleomagneoc Data - Impheauons for the Kinematics of the Basin and Range, Colorado Plateau, and Cahfornia Coast Rages" 69 EOS Transactmas.
Amereren GeopAyskal Unkm 1418 (1988), R S. Stein and R.S. Yeats, *1bdden Earthqualm" 260 Scienspc Amencen 4s-57 (1989).
180
The tectonic setting of the SONGS site is significantly different from the compica regime of the hansverse Ranges and the Los Angeles basin. This difference is reflected it: the higher seismicity in the han verse Range and the les Angeles basin than in the SONOS site area. The presence or absence of blind thrust faults in a region is indicated by the presence or absence of significamt uplift and folding of late Quaternary period $cposits and geomorphic surfaces" as evidenced in the hansverse Ranges and the les Angeles basin region. Mapping of marine terraces along the western flank of the San Joaquin l Ilills to the north of the SONOS site indicates a uniform uplift rate for the past
' 80,000 to 120,000 years.H Lajoie et al.n reported on the coastal region trueen San Onofre Illuff and Torrey Pines north of Soledad Mountain in San Diego and noted that there has ')een no significant crustal tilt perpendicular to the coastline during much of the Quatemary Period. There is also no indication florn the marine terrace studies of gnificant till parallel to the coastline during much of the Quaternary period. The marine teriace data, along with other geological mapping and geophysical surveys, have not identified geologically young folds or blind thrust rau h in the SONGS site vicinity. The closest capable fault to the site is the 0.7E B kilometers from the site, and it is the postulated earthquake on this fault that dcminates the seismic hazard at SONGS. Therefore, the statement that the Northridge carthquake occurred on a blind fault that had not been mapped or assessed, and the implication that such a condition could also eaist at the 5ONOS site, are not valid.
> 'lhe Landers magnitude M,. 7.3 carthquake of June 28, 1992, was in the I
tiastern California Shear Zone (!!CSZ) approximately 140 kilomete s from the SOMOS site. The !!CSZ is a complex tone of predominantly right lateral strike-s? :witing. The earthquake wm caused by strike slip faulting on five fault se,p.ients with a total rupture tength of about 70 kilometers."
Carapbell and Ilotorgnia" used 167 accelerograms rece J during the Lan-dets carthquale to study the ground motions from this event. A comparison of these recordirigs with ground motions predicted by conte:nporary attenuation relationships indicated that relationships developed before the Landers carth-3" Stem u.d )ea a, supre noies 23 and 29 M
DT.16.wne T. lutnall, and C. oath *Netdectofuc tiphn and Ages or riesstocene Manne Terrams, san Inar. ta lhus, orange County Cahfortus.' The negresssw PietrieNene Shrelme Cantal Jamshare Calvornae lis-2J (E o licash and W.I.14wle eds . South Coast otologicii Society. Inc.,1992 Annual Iwid inp ouide Bme Na. 20. IW2L u K a 14aia.14 Ptuui. C t. Powell Il s A. Madaraun, and A M sama Wolckti, *0nergem Manne f Strandhna and Asanciaud 5ed nunti. Cuantal Cabrornia A kecad or Quaternary sea-Level fluctueuona.
V.wal lectmue Mownwnia Chmauc 06anges, and Coastal Processes.' the negrantw Metssorene 34orvine remnul Joe r 4ern Calve nas s1104, (Eo. Heath and W t. Lewis sda South Cast oeolostral soc 4*ty. tar, 1992 Annual Iwid Tnp ouide Ikne No. 20.19921 =
" Yeats. et al . supre once 23 S'K W. Cang. hen and Y. Boragnet "Lngerscal Analyus er struos oruund Mouos from the 1992 tarklers, Cahturn64. Larthquake.'s4 Salletin af #4e AtuaWesstel soraary s( Amers a 573-is (199D 181 g ___
quale made a reasonable prediction of the Landers ground motions within 60 kilometers of the fault, and relationships developed after the !.snders carth-quake did a reasonably good job of predicting the Landers ground motions within the distance ranges for which they were applicable. His information shows that there was nothing estraordinary about the ground motions frorn the l
1.anders earthquale that would challenge the viequacy of the near field grnnud I motion estimates made for the SONGS SSB. To demonstrate the adequacy of l the SONGS SSB ground rnotion Figure 3 contains a plot of the SSB response spectrum and the 84th percentile response spectra obtained from the four cecent earthquake ground motion attenuation relationships to estimate the ground mo.
tion for a magnitude M,,7 carthquale at a distance of 8 kilometers. De SONGS j
response spectrum envelopes the response spectra of all four relationrhips at all i frequencies.
To address the issue of the 20 feet (6 meters) of fault displacernent as a result of the landers certhquake, the Staff has reviewed the work of researchers on this subject. hestearthquake investigations have found that slip on the Landers earthquake la sits was estremely heterogeneous both along artile and down dip.
De magnitude of the horir.ontal offset varied along the fault trace, but was typically 2 to 3 meters with masimum strike-slip offset of about 6 meters."
his offset is not unusual and is within the range of offsets for an earthquake of this slic." ne U.S. Geological Survey, with NRC sponsorship, has conducted palcoscismic studies of the fault segments that ruptured during the Landers earthquake. Trenches across the faults provide clear evidence of the two most recent pre 1992 surface faulting events. De most recent faulting, llokicere age, has displacements essentially the same as the 1992 event. Evidence from the trenches also indicates that the segments that iuptured during the 1992 event had ruptured during the previous events." If, before the Landers carthquake, these faults had been subjected to the type of investigations that nuclear power plant sites undergo, the earthquake and fault rupture potential would have been identified.
Dere are no faults at the SONGS site capable of surfc.:e offset, ne fault nearest to the SONGS site capable of significant surface offset is the OZD, which ;s 8 kilometers from the site. Assuming that there were to be offsets on "Carke Lasarts. Jonathan D nray. ArvW M lohnson, and Robert li tenunct. "Surfa e nreakage of the 1992 tarklers l.'arthquake and hs IJfuts on Structures? s4 aallette a/ #4t Saumologksl Jersrry qf Amarera $47-61 (1994) 8'thmakt 1. wer's and Kevin J. Copperinvih. *New !.mptncal Relanondupe Aamng Magstude. Ruptwo length. Rupture Wahn. Rwpture Area, swi Swface chtplument? s4 8desta of #Ar $rumoluskal Jarstfy o/
Amerara 974 8003 (1994L "Duvid P. Sdr. vta, personal wmnemcanon to Dr Robert Rothman, of ste NRC Start. June 1997. Dr
$dewsu is a ernur gwlogtst engloyed tiy the US Ocoloska. Survey la Menlo Park. Cahrursua. and an inenrasuonal authority ca paletmetenmkigy 182
Ground Motion aesponso Spectra 10 . . . .....g . . .
.....g . . . . , ,, , . _
_~ Magnitude: M = 7 M San Onofre SStiSpectrum
~
- Fault Type: Strike Siip s-a Boore etal. (1997) 84* percentile -
3 - Distance to Fault: 8 km
_ 5% of Critical Damping Il g A--A Abrahamson & Silva (1997) 84* percentile
~
j H Sadigh et al. (1997) 84* percentile -
8 o _ _ _
ma a 1
- e 1 5 5aE.
_ Y- _
8 _
O ~
x 0.1 O.1 1 10 100 Frequency (Hz)
the order of 6 meters or more on the OZD, they would have no detrimental effect on SONGS because of the distance of the fault, the orientation of the fault, and the potential ground motion to which the plant is designed.
With respect to the Petitioner's statement that scientists are not able to provide the information to evaluate the situation, the Staff notes that numerous papers have been published in the scientific literature and presentations made at national and international scientific meetings on these two earthquakes. In addition, the Seismological Society of America has devoted one issue of its AtletW' to the Northridge carthquake and another issue to the Landers earthquake * %e information about these events is understood and is widely distributed in the professional cornmunity.
- 4. Concern About **Seismk Analysis Uncertainties" In the enclosure to his letter dated December 10,1996, the Petitioner provided a list of ten seismic analysis uncertainties" and implied that these must be addressed because new surprises will occur with each event.
%e Petitioner appears to have compiled a list of uncertainties in estimating seismic haards from the Petersen paper.88 %ere is nothing unique about this list. %ese are the types of issues a geologist or a seismologist performing i canthquake haard investigations must routinely confront. ney are among the points that the NRC Seismic and Geologic Siling Criteria for Nuclear Power Plants and the NRC SRP were developed to address.
He geologic and seismic investigations and reviews that were performed for l the licensing of SONGS Units 2 and 3 wtre deterministic in nature. In the deterministic method, the uncertainties were not explicitly quantified. Rather, a multimethod approach with sensitivity studies was used. Ibr instance, to determine the naximum magnitude estimate for a fault empirical relationship, such as magnitude as a function of the parameter's slip rate, the fault length, the rupture length per event, the rupture area, and the historical seismicity were used.
Also, various fault segmentation models were used in magnitude estimates. To H
Mallenn of 4 3etiaw4*sval3mw#y qf Anwme. Vol s6, No I,It B supp tielwuary 1996)
"8mlican of sse Stuau4arkel 3mero of Amtma, Vol. se, No 3. (lune 1994) 4"tJat or seisnue Analysis Uncertmauen (1) how to quanury shp raies and nusinaam nesmtudes along with dwar uncertaintwa f(v all fault wurns. (2) how to inctwpornas bland duusu with approteiv weighuog,01 what seismegenic rose w6d4hs to une fut venuus fauh sones. (4) mluch nagiutude ttatnbuuons are prat approtwtate for vanous fauks, (3) how to incorpurse basground seinnucHy and eluch *6" value is puut appropnaw rot espoacnually distrthved eartfutuakes, (6) whethre to tne source sones .d setnple posnt amertes in trustelling bathgwund scianucity,0) mhkh thernauwe argrnentauca nuels are viable (iiuluding alternauve cauales nuals fur "A" sones), (8) how to tacarporate geodeue esta dirmsty se dw muel, (9) whs;h attenuanoa relacotu are ammt appropnaw and how to nu*l ground nsmos frora large (M > 8) earthquakes, (10) how to rescIve de daccepancy letwee de rete or card quakes in dus and edier scannuc hazard nu dels and the hastanc earthquase secord (especially 6e dw Transverse kangesk l
il 'tiersus et al saarm suise 15.
184
determine the ground men from a magnitude 7 earthquake at a distance of 8 kilorneters, attenuation relationships from the statistical analysis of empirical ground motion data, theoretical numerical modeling studies, and the response spe<;tra from magnitude 6.5 and larger earthquakes recorded at distances of 13 kilorneters and less were used. De SSB for the SONOS site enveloped all of these estimates. De geology in the site region was investigated by geologic mapping, excavation of faults, offshore and onshore seismic reflection +
profiles, onshare refraction piofiles, geophysical surveys, drill holes, well logs, trenching, geomorphic surveys, and geodetic studies. He information from j l
i these various studies was analyicd by esperienced professional geologists and geophysicists, and the site characteristics were thus developed in a conservative l rnanner, Independent studies and reviews were performed by the NRC Staff, the U.S. Geologic Survey, the National Oceanic and Atmospheric Adminstration.
l and the Advisory Committee on Reactor Safeguards. nese studies and reviews
[ confirmed the Licensee's determinations, I
he uncertainties in seismic huard estimates can be addressed quantitatively through a probabilistic seistnic hazard analysis. In 1991, the NRC issued Supplement 4 io Generic Letter 80-20 requesting licensees of nuclear power plants to perform an IPEEB to identify plant specific vulnerabilities to severe accidents. Among the events to be assessed were carthquakes, internal fires, high winds and tornadoes, external floods, and transportation and nearby facility accidents. As part of the SONGS IPEEE program, a state-of the art probabilistic seismic huard arudysis was performed. in response to an NRC request for '
information, Southern Califomia Edison submitted its contractor's final report on the seismic hatard study."
In the seismic hatard study, ground motion exceedance probabilities were calculated using hypotheses about the causes and characteristics of canthquakes in the region. Scientific uncertainty about the causes of earthquakes and about the physical characteristics of potentially active tectonic features lead to uncer.
tainty in the inputs to the seismic huard calculations. Dese uncertainties were quantified using the tectonic interpretations developed by earth scientists knowl-edgeable about the region. Dese experts evaluated the hkelihood associated with alternative tectonic features and with alternative characteristics of these potential sources. Rese and other uncertainties were propagated through the entire analysis. Ac result of the analysis is a spectrum of hazard curves and their associated weights, %ese curves quantify the seismic hazard at the site and its uncertalaty, he major components of the probabilistic seismic huard analysis are the identification of the r,cismic sources, the determination of the earthquake "RA tvann. Inc Nanu Husd a San owin hka oenemung Sunn? pend ra Soudem Cattfasua lawn co., haal kenet (199D 185
anagnitt.de distribution and rate of occurrence for each source, the estimation of the ground rnotion, and the incorporation of these factors by the probability analysis into the hatard curves. The Risk Engineering. Inc., report *8 more than adequatch demonstrates how the uncertainties of the type the lYtitioner listed in the enclosure to his letter were addressed. The comparison of the probabilistic seismic hazard results to the SSE indicates that the SSE response spectrum has an annual probability of being eacceded in the range of $ x 10-4 to 4 x 10d.
depending on the frequency. This estimate is similar to the probabilistic hazard estimates foi other critical facilities in the western United States. 'ihe low frequency of caccedance of the SSE ground motion provides further assurance that the licensing basis for SONGS pmvides adequate protection of the health and safety of the public.
5, Concern About the Failure rl t At .W*el Frames in Commercial Ituildings During the Northrida Jw:n en In an e mail message to Dr. Shirley 14cke.iJ4 the IYtitioner stated -
i
' The tweaking of welds in steel tiulldmgs in the San Ittna lo Valley is a warning that all wwts of steel welds and fittings are vulneraNc. The nurnhet of och welds and Attings at
$0NOS is alnuut uncountaNe, and ;t's tierefore unreahitic to tcheve that they will all tie undarnaged to twoken at haces far tielow the Design Bas 6s !! vent of 6M g 11 appears that the Petitioner is referring to the failure of welded steel moment-resisting frames (WSMPs) in high rise residential and commercial buildings during the 1994 Northridge carthquake. Ibliowing the Northridge carthquake, inspections of many otherwise intact buildings indicated structural damage to WSMPs 'Ihe WSMPs were specifically designed on the basis of the assumption that they would be capable of catensive yielding and plastic deformation. 'the deformation was assumed to be accomplished by the yielding of plastic hinges in the beams at their connections to the columns. Damage was expected to consist of moderate yielding at the connections and localized buckling of the steel elements, llowever, contrary to the design assumption, the WSMF failures were brittle fractures with unanticipated deformations in girders, cracking in column panel tones, and fractures in beam to-column weld connections. A number of factors related to scistnic analysis and design, ma'erials, fabrication, and construction have been identified as contributing to the failure of the WSMFs
- 'id 4
Swptwa Dwyer.e mal nessage to Dr Sturiry Jadsaa, sut9ect 2 20h Ytinue Rs soNoS sesstruc HazardA dawd May 7s. lW7.
186
and are the focus of research projects sponsored by the Federal Ernergency l Management Agency.85 l 'Ihe method of computing seismic loads, their combination with other non-seismic loads, the acceptance criteria, and the quality assurance requirernents for nuclear power plants are significantly more conservative than those for non-nuclear buildings designed using building codes for residential or commercial structures. Ibr nuclear power plants, two levels of ground motion, based on very l
conservative siting criteria, are determined for designing the safety related struc-tures, systerns, and components, fbr the lower lesel of vibratory motion, the operating basis earthquake," the load factors, and acceptable allowable stresses ensure that the stresses in plant structures remain at least 40% below the yield j stress of the material. Ibr the higher level vibratory motion, the SSE, the as.
sociated load factors, and allowable stresses ensure that the stresses in steel structures do not exceed the yield stress of the material. 'Ihe NRC Staff design t review guidance specified in SRP $3,7.2 does not accept the use of inelastic deformation of any steel member or connection in nuclear power plan's for design-basis seismic events. Also, the use of broadband design response spec-tra, conservatively defined structural damping values, consideration of amphfied forces at higher elevations in the plants, and consideration of all three compo.
pents of the design basis vibratory motion in the dynamic analysis ensure that the loads and load paths of the seismic events are properly considered in the design, as opposed to the use of static shear forces in nonnuclear structures. For these reasons, the failure of WSMFs in residential and commercial buildings as a result of the Northridge earthquake is not relevant to nuclear power plants.
On the basis of its review of the petitioner's request that the SONGS units be shut down due to inadequate protection against potential earthquake ground motion, the Staff has concluded that the Petitioner has not presented a basis for such an action.
111. CONCLUSION On the basis of the above assessment, I have concluded that no substantial health and safety issues have been raised by the Petitioner that would require taking the action requested by the Petitioner, As explained above, the SONGS site has undergone extensive geologic, geophysical, geotechnical, and seismic investigations and reviews, including a recent analysis to quantify the seismic hazard and uncertainties for the SONGS site. Ibrthermore SONGS was
l1MA 267, *1nterim ouadrhues rvalueuan. Repaar, Mod &atmo and Design or WeUrd strel Moment hame structures, Program to Reduce the rarthquake Hards or serel Mamrat Ivane structures? ltderal r.mergency Management Agency, Wastungica, IC (1995)
"See 10 CT IL Part 100, Appendis A $ Ultd) 187
licensed consistent with the seismic and geologic siting criteria for nuclear power plants set forth in Part 100, Appendia A. "Ihe Petitioner has not provided any information in support of his concerns and requested actions, including information regarding recent carthquakes, that the NRC Staff was not already aware. Accordingly, the Petitioner's requested action, pursuant to section 2.2(M.
is denied, A copy of this Decision will be filed with the Secretary of the Commission for the Commission to review in accordance with 10 C.F.R. 8 2.206(c) of the Commission's regulations. As provided by this regulation, the Decision will constitute the final action of the Commission 25 days after issuance, unless the Commission, on its own motion, institutes a review of the Decision within that time.
FOR Tile NUCLEAR REGULATORY COMMISSION Samuel J. Collins, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 19th day of September 1997.
188
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Cite es 46 NRC 189 (1997) 00-9724 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1
0FFICE OF NUCLEAR MATERIAL SAFETY AND SAFEQUARDS I
Carl J. Peperiello, Director in the Metter of Docket No. 7210 NORTNERN STATES POWER COMPANY (Goodhue County 0. t;2.t Spent Fuel Storage Facility) September 26,1997 De Director of the Office of Nuclear Material Safety and Safeguards denies a petition filed by Florence Township, Minnesota, on August 26,1996. De IVtitioner asked that the NRC find that Northern States Power Company (NSP) had violated NRC regulations by not permitting Lake City, Minnesota, the opportunity to comment on the emergency plan for a proposed independent spent fuel stonage installation (ISFSI) before submitting the plan to the NRC.
On that basis, Petitioner asked that a civil penalty be imposed. In addition, Petitioner asked that the NRC reject NSP's application and require NSP to take certain actions with regard to the ISFSI application.
DIRECTOR'S DECISION UNDER 10 C.F.R.12.206 I. INTRODUCTION On August 26,19%, Florence Township, Minnesota (Ittitioner), filed a petition requesting that the Nuclear Regulatory Commission (NRC) institute a proceeding pursuant to 10 C.F.R.12.202 with regard to the application by Northern States Power Company (NSP), claiming that NSP violated the Commission's regulations by failing to provide Lake City, Minnesota, with an opportunity to comment on a proposed emergency plan for an independent spent fuel storage installation (ISFSD before submission to the NRC, ne Petitioner 189
1 1
1 1
tequested that NRC: (1) determine that NSP violated the requirements of 10 C.P.R. l?2.32(aX14) by refusing to allow Lake City, Minnesota. 60 days to comment on NSP's emergency plan before submitting it to NRC; (2) reject NSP's application as incomplete and inadequate and returti it to the corporation; (3) require that NSP specifically name the local governments referred to in section 5.6 of the emergency plan that are espected to respond in case of an accident; (4) require that NSP allow 60 days to the named local governments a o review and comment upon NSP's emergency plan prior to NSP's resubmission of the application;(5) impose a penalty in the amount of one million dollars and require NSP to compensate the lYtitioner in the amount of $7500.00 for time expended by its Daard and attorney in attempting to obtain the emergency plan before its submission to the NRC; and (6) provide hearings on this petition at which the Petitioner and members of the public may participate.
He Petitioner asserts as the basis for this request the regulatory requirement found in section 72.32(aX14) of Title 10 of the Code of federal Regulations (10 C.F.R. 6 72.32(aX14)):
The beennee shall allow the offitte response organizauons espected to respond la case of an archdent 60 days to comnent on the intual subnuttal of the hcennee's emergency plan twfort subnuning it to NRC. Subsequent plan changes need not have the offute comnwnt pettod unless the plan changes atteet the offute response teganizations The hcensee shall provide any comnents received within 60 days to NRC with the energency plan.
De petition has been referred to me for a decision. For the reasons given below, I have concluded that the Petitioner's requests should be denied.
- 11. HACKGROUND NSP has an onsite ISFS1 at Prairie Island Nuclear Generating Plant (PINOP),
which has a capacity to store 1920 spent fuel assembles in 48 Tlansnuclear TN-40 casks. In 1994, the Minnesota legislature enacted statutes authoriring NSP to store spent nuclear fuel at the ISFSt.1994 Minn. Laws ch. 641, arts.1,6 (cod (fied or Minn. Stat. Il i16C.77. 80 (1996)). De legislation authorired the immediate use of five casts and allowed the use of four additional casks upon a determination that NSP had: (1) filed a license application with NRC for a separate dry-cask storage facility in Goodhue County; (2) continued a good-faith effort to implement the alternate site; and (3) arranged for the use of additional megawatts of wind power. The law also provided that NSP could not construct at the second site without first obtaining a Certificate of Site Compatibility from the Minnesota Environmental Quality Board (MEQB). De MEQB was authoriied to certify that the alternative Goodhue County site was comparable to the independent spent fuel storage facility site located on Prairie Island.
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NSP applied foe a certificate from the MEQil in July 1995, it identified 1 two possible sites for the Gomlhue County spent fuel storage facility, both in '
Florence Township, south of the City of Red Wing.' On October 2,1996, after receiving the report of a citiren Advisory Task Terce, the MEQll determined that because of the additional risks it believed to be inherent in transporting spent nuclear fuel to a second site in Goodhue County away frorn PINGP, no other site in Goodhue County would be comparable to the Prairie Island facility and denied a certificate.
hSP's application to NRC included an emergency plan for the Goodhue County facility, which contained comments from the Minnesota Departments of Public Safety and Public Ilealth, as well as the Goodhue County, Minnesota.
Office of Emergency Management which coordinates emergency services within the county. NRC completed its acceptance review and docketed the NSP app!ication on September 9,1996. A " Notice of Consideration of issuance of a Materials License for the Storage of Spent Ibel and Notice of Opportunity for llearing" was published in the Federal Reghter on September 17, 1996.
He Petitioner and several others sought a hearing as provided by 10 C.F.R. 5 2.105. An Atomic Safety and Licensing floard (ASLll) was established on October 9,1996. Among the issues raised in the petitions to intervene by the Petitioner and by Lake City, Minnesota, were issues associated with emergency planning, substantially similar to the issues raised by the Petitioner in the petition requesting that the NRC institute a proceeding pursuant to section 2.202.
Consequently, the Staff deferred the response to the petition until completion of the AStil hearing process.
Ilecause of the physical proximity of its Reservation to PINGP, the Prairic Island Indian Community had been particularly interested in seeing the offsite ISFSI built. Since the MEQIl decision effectively ended the possibility of that facility being developed, the Indian Community initiated litigation in the Min-nesota State Courts in December 1996, seeking to overturn the MEQIl decision.
When the litigation began, NSP requested and was granted a suspension of t.oth NRC Staff's review of the Goodhue County application and the ASLil proceed-ing, just prior to the prehearing conference that was scheduled for December 1996. State litigation ended in July 1997, when the Minnesota Supreme Count declined to hear an appeal of the Minnesota Court of Appeals ruling that af-firmed the MEQil decision. Subsequently,in a letter dated July 22,1997 NSP withdrew the Goodhue County application. NRC acknowledged the withdrawal in a letter dated August 4,1997. De ASLB inued a Memorandum and Order lone or three was de sue (honce by NSP fte toduiloa in ha appbcanon to NRC lt is desenhed as being snu.ated sout or rtontenas Swan, north or Wells chek and between femtanal Road and de cP Rat emiroad erarks 191 i
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terminating its proceeding on July 30,1997. Ilowever, a motion for reconsid-eration is currently under review by the lloard.8 111. DISCUSSION Section 72.32(a)(84) provides that the offsite respcmse organizations rzpected by the thensee 10 respond to an onsite emergency should be provided an ,
oppostunity to comment on an ISFSI emergency plan.3 As required by section 72.32(a)(84), NSP contacted the offsite response orF2 nit.ations it expected to resptmd to an onsite ernergency at the proposed Goodhue County facihty.
l NSP requested comments from the Minnesota Departinents of Public Safety I and Public Ilealth and it.e Goodhue County, Minnesota, Office of Emergency Management. All three responded to NSP's request. 1 heir comments were provided to NRC with the emergency plan.
The Petitioner claims that because the take City, Minnesota, Fire Department contracts with Florence Township to provide fire protection, it is one of the offsite response organir.ations that NSP would contact in case of an onsite emergency at the Goodhue County ISFSt. Lake City is not located in Goodhue County, however, and therefore is not espected by the applicant to respond to an onsite emergency.
1he emergency plan appropriate for an ISFSI is an onsite emergency plan.
The Staff has determined that there are no credible accidents at an ISFSI that have significance for offsite emergency preparedness.' *lhere is no specific requirement that any particular political jurisdiction be contacted to comment on an ISFSI emergency plan. Rather, the applicant is required to determine which services it will require from offsite providers and to seek comments from those oiganizations. NSP did not indicate in the emergency plan that Lake City, Minnesota, was expected to respond to an onsite emergency f\irther, no Ion July % 1997. tie Petiuuner hied a ecspinne to NSP's July 24,1997 Morum for witMrawal or Appheauon and Ternunanos of proceeang la dw response, ste Ivtitiones requestrd that the ASili desnuss ow NSP mgylacauon with pejudnw. or alternanvely drey NSP's apphcanon, or irnpose a condiuon of withdrawal that de applu.auon for de IVavace Townstup asw shall not sw resubnuned. The ASIA conudered dde pennoner's June R 8997 subnuttal to be a nucos far reconsideration. on Augue 29.1997. the $taff sesponded that Herence Townstup's nuton far reconsadoratue shoulJ tw drand pa the baus the de paceceng haJ not sufhciently pogressed such that Annussal with pejuece is appropnase, and on etw baus hat Mmence Township has not dernaastrated legal harta warranting the telwf it requesst 8
the regulatory esquirerrnes fur comenreis on de energency plans for Isrsts. hke de requirenenia tw de energency plans, are arparate and quae efferent from those for nuclea teactors Tte seguirenrats for ene.gency plans for ISISis are for nasite enungentans only iterause offute health effects have not been idenuhed fw accidents at 15rsts, dere is no requuenrat fw neighboneg Junnacuona 40 be lavolved la ernergency respose Tiere is, tw instance, ao requirenrnt fw evacumun, planmag and trace no need for de kinds of pure elabarna plans assortated wnh nuclear reactors
- See NURiG-il40. *A Regulatory Analyus on Inergency Preparedress rar furt cycle and othce Raanactive Matertal Ucense,.a "
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i evidence has been provided that NSP, at the time of the submittal of the license application, had plans to wek emergency planning assistance from Lake City, l Minnesota. Thus, thwe is no violation of section 72.32(a)(84) to warrant any enforcement action, i
The Prtitioner raised severn! addstional requests regarding NRC's review of i
NSP's Goodhue County application. These are matters that the NRC considers during the license review, not as part of a petition filed under section 2.206.
Ibrther, in light of the fact that NSP has now withdrawn the application, they are moot.
IV. CONCLUSION 1 have concluded that NSP did not violate NRC regulations by failing to provide Lake City, Minnesota, with an opportunity to respond to the proposed ernergency plan. As provided by 10 C.F.R. 5 2.206(c), a copy of this Decision will be filed with the Secretary of the Commission for the Commission's review.
- FOR THE NUCLEAR REGULATORY COMMISSION Carl J Paperiello, Directot Office of Nuclear Material Safety and Safeguards ~
Dated at Rockville, Maryland, this 26th day of September 1997, i
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