ML20202E586
| ML20202E586 | |
| Person / Time | |
|---|---|
| Issue date: | 01/31/1999 |
| From: | NRC |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V48-N05, NUREG-750, NUREG-750-V48-N5, NUDOCS 9902030082 | |
| Download: ML20202E586 (71) | |
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! NUREG-0750 i Vol. 48, No. 5 Pages 259-323 l
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! NUCLEAR REGULATORY-I i
COMMISSION ISSUANCES
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l A year's subscription consists of 12 softbound issues, 4 indexes, and 2-4 hardbound editions for this publication.
Single copies of this publication I are available from ;
National Technical information Service l Springfield, VA 22161
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i NUREG-0750 l Vol. 48, No. 5 Pages 259-323 NUCLEAR REGULATORY l COMMISSION ISSUANCES November 1998 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' l Decisions (DD), and the Decisions on Petitions for Rulemaking l (DPRM) l 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.
i U.S. NUCLEAR REGULATORY COMMISSION l
i Prepared by the Office of the Chief information Officer U.S. Nuclear Regulatory Commission i Washington, DC 20555-0001 !
(301-415-6844) l i
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l COMMISSIONERS Shirley A. Jackson, Chairman Greta J. Dicus e- Nils J. Diaz Edward McGaffigan, Jr.
Jeffrey S. Merrifield l
B. Paul Cotter, Jr., Chief Administrative Judge Atomic Safety & Ucensing Board Panel l
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Issuances of the Nuclear Regulatory Commission I
. INTERNAT10NAL URANIUM (USA) CORIORATION .
(Receipt of Material from Tonawanda, New York) I
- l. Docket 40-8681-MLA-4 j i
- MEMORANDUM AND ORDER, CLI-98-23. November 24,1998. . 259 j i
l NORTil ATLANTIC ENERGY SERVICE CORPORA 110N' '
I- (Seabrook Station, Unit 1) .
l Dockets 50-443-LA,50-443-LA2 l
<- MEMORANDUM AND ORDER, CL1-98-24, November 24,1998. . . 267 '
Issuances of the Atomic Safety and Licensing Boards I COMMONWEALTil EDISON COMPANY (Zion Nuclear Power Station, Units 1 and 2) !
Docket 50-295/304-LA (ASLBP No. 98-744-04-LA) . !
-MEMORANDUM AND ORDER, LBP-98-27, November 5,1998 . . 271 l
l NORTHEAST NUCLEAR ENERGY COMPANY
- l. (Millstone Nuclear Power Station, Unit 3) 1 Docket 50-423-LA (ASLBP No. 98-740-02-LA)
MEMORANDUM AND ORDER, LBP-98-28, November 12,1998 .. 279 I PRIVATE FUEL STORAGE, L.L.C.
(Independent Spent Fuel Storage l Installation)
Docket 72-22-ISFSI (ASLBP No. 97-732-02-ISFSI)
MEMORANDUM AND ORDER, LBP-98-29, November 30,1998 . . 286 ;
Issuances of the Directors' Decisions l ADVANCED MEDICAL SYSTEMS, INC.
1 (Cleveland, Ohio)
Docket 030-16055 (License No. 34 19089-01) l ' DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206, DD-98-11, November 4,1998 . . .... .. ... ., . . 309 l . iii l
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CONNECTICUT YANKEE ATOMIC POWER COMPANY (Itaddam Neck Plant)
Docket 50-213 i DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206, l DD-9812. November 16,1998. . ... .. ..... .. .. 317 l ;
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! Cite as 48 NRC 259 (1998) CLl-98-23 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Shirley Ann Jackson, Chairman Greta Joy Dicus Nils J. Diaz Edward McGaffigan, Jr.
Jeffrey S. Merrifield 1
in the Matter of Docket No. 40-8681 MLA-4 l
CORPORATION (Receipt of Material from Tonawanda, New York) November 24,1998 l
'Ihe Commission reviews an Atomic Safety and Licensing Board decision i that denied a request for hearing and leave to challenge a materials license amendment. The Commission affirms the Board's finding that the Petitioner lacks standing to intervene. The Petitioner's alleged economic interest as a f- " competitor" in the marketplace - an interest unrelated to any radiological ,
harm - did not fall within the zone of interests of the Atomic Energy Act, the l Commission found. >
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RULES OF PRACTICE: STANDING TO INTERVENE (ZONE OF INTERESTS) ,
1 Merely because one may be injured by a particular agency action does not l
necessarily mean one is within the zone of interests to be protected by a given statute. " Competitive" harm, by itself, is not enough to satisfy both the " injury-i in-fact" and " zone of interests" tests of standing, )
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1 RULES OF PRACTICE: STANDING TO INTERVENE (NEPA) '
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l . It is well established that a petitioner who suffers only economic injury lacks l l standing to bring a NEPA-based challenge to agency action.
RULES OF PRACTICE: STANDING TO INTERVENE I 1
l In the end, our analysis of judicial standing cases seeks simply to detertmne '
l whether a petitioner's particular asserted " interest" provides an appropriate basis under section 189a of the AEA for triggering an adjudicatory hearing and permitting a petitioner to intervene as a party to such a hearing. 'Ihe NRC is not an article III court, and thus, although we customarily look to and apply judicial 1
- concepts of standing, we are not bound to do so. Our principal concern is to j essure that parties participating in our adjudicatory proceedings have mterests i that are cognizable under the AEA, our governing statute. I RULES OF PRACTICE: STANDING TO INTERVENE (ZONE OF INTERESTS)
It has long been our practice as an agency to reject standing for petitioners asserting a bare economic injury, unlinked to any radiological harm. Competi- ,
lors, whose only " interest" is lost business opportunities, could readily burden l our adjudicatory process with open-ended allegations designed not to advance public heakh and safety, but as a dilatory tactic to interfere with and impose l
costs upon a competitor. l MEMORANDUM AND ORDER l I, INTRODUCTION Pursuant to 10 C.F.R. 5 2.1205, Envirocare of Utah, Inc., has appealed an
, August 19, 1998, Presiding Officer's decision (unpublished), which rejected ,
l Envirocare's request for a hearing and leave to intervene in this license amend- !
ment proceeding. The Presiding Officer found that Envirocare lacked standing !
to challenge the license amendment. International Uranium (USA) Corporation !
("IUSA") and the NRC Staff support the Presiding Officer's decision. We affirm the decision.
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l II. BACKGROUND Ihr the second time in recent months, Envirocare is before the Commission seeking to challenge a license amendment that will allow a competitor, IUSA in this instance, to process radioactive waste. Envirocare argues that it will suffer a significant disadvantage in the marke: place from the NRC's licensing of IUSA because the NRC Staffis imposing more lenient and less costly regulatory !
requirements on IUSA than it imposed on Envirocare. According to Envirocare, l its potential economic loss from competition with IUSA gives it an " interest I
[that] may ne affected by the proceeding" and thus triggers its right to demand a hearing under section 189a of the Atomic Energy Act (AEA),42 U.S.C.
0 2239(a), on safety and environmental issues. It makes no difference, according to Envirocare, that its only harm is economic and that it alleges no radiological ,
or environmental harm to itself. !
1 Envirocare raised the same " competitor injury" arguments in a recent materi-l als license amendment proceeding involving the Quivira Mining Company. See l
Quivira Mining Co. (Ambrosia Lake Facility, Grants, New Mexico), CLI-98-11, !
48 NRC 1 (1998). There, both the Presiding Officer and, on review, the Com- l mission, found that neither the National Environmental Policy Act (NEPA) nor ;
the AEA provides statutory protection for purely economic harms unrelated to the potential radiological or environmental effects of the licensing action. The Commission first pointed to longstanding judicial precedent under NEPA and concluded that "[ajn interest in ' economic well-being vis-a-vis [] competitors is clearly not within the zone of interests' of NEPA, which was 'not designed to I prevent the loss of profits.'" 48 NRC at 8 (citations omitted); see also generally ,
id at 8-10 (discussing standing under NEPA). The Commission next turned to '
the AEA. While acknowledging that the question whether pecuniary "competi-tor" injuries fall within the AEA zone of interests presented a more difficult issue, indeed one of first impression, the Commission ultimately held that a '
" mere claim of ' competitor
- injury, unlinked to a claim of radiological injury, is not among those interests arguably protected or regulated under the Atomic Energy Act." Id. at 10.
In this proceeding, the Presiding Officer found Envirocare's claims of stand-
-ing "on all fours" with its unsuccessful standing claims in the earlier Quivira proceeding, and thus summarily dismissed Envirocare's request for hearing. To ,
accord Envirocare standing, the Presiding Officer stated, "would give nuclear facility or materials competitors a vastly expanded right to sue even for alleged harms that fall outside the ' zone of interests' of either the National Environmen-tal Policy Act or the Atomic Energy Act." Presiding Officer's Memorandum and Order (Aug. 19,1998) at 2 (unpublished).
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III. ANALYSIS On appeal. Envirocare's principal argument is that the Presiding Officer improperly relied upon the Commission's decision in Guivira. Envirocare submits that in Guivira the Commission " failed to recognize the significance" of the Supreme Court's recent " competitor standing" ruling in National Credit Union Administration v. National Bank & Trust Co.,118 S. Ct. 927 (1998),
"and thus erred in concluding that Envirocare's interests do not fall within the l zone of interests of either NEPA or the AEA." Envirocare Appeal Brief at 2.
We cannot agree. When we decided Guivira we were fully aware of National Credit Union -indeed our decision discusses it at length (48 NRC at 10-12)-
and concluded nonetheless that Envirocare did not allege the kind of " interest" necessary to satisfy the judicial " zone of interests" test or to gain admission into our proceedings. For the reasons given in Guivira, and for the reasons below, we adhere to our original view.
Envirocare's comparison of our case to National Credit Union does not survive scrutiny. Envirocare correctly points out that National Credit Union recognized the standing of banks - competitors of credit unions - to challenge an interpretation of the Federal Credit Union Act, even though there was no evidence of specific congressional intent to protect banks or their " competitor" interests. But the Court did not hold that the banks had standing simply on i account of their status as " competitors" of credit unions. Significantly, the !
Court required the banks to be "more than merely incidental beneficiaries" of the statute's " effects on competition." 118 S. Ct. at 936 n.6. Standmg, the Court emphasized, requires more than "merely . . . an interest in enforcing the statute in question." /d.
National Credit Union explicitly hinged upon the Court's conclusion that the banks " possess [ed] an interest that is ' arguably . . to be protected'" by the credit union statute. Id. at 938. That statute " expressly" sought to keep l credit unions from an unlimited expansion of their customer base, an interest the I Court deemed "unmistakab[ly] link [ed]" to the banks' competitor interest. Id. at )
935-36. Thus, the banks' particular " interest in limiting the markets that credit i unions can serve [ fell)
- arguably within the zone of interests to be protected'" !
by the statute. Id. at 938. In short, the Court found that one of the statute's '
cognizable interests - keeping federal credit union membership restricted - l was " precisely" the interest of the competitor banks that competed with credit unions for customers. Id. at 936.
Envirocare argues that "just as the Banks ha[d] an interest in limiting the markets that credit unions can serve, so does Envirocare hase an interest in limiting the markets that Guirira [and presumably, IUSA), can serve."
Envirocare's Amendment to Its Request for Hearing (Aug. 4,1998) at 7. This argument focuses on the claimed analogy between Envirocare's " competitor" 262
l interest and the " competitor" interest of the bankr. But Envirocare overlooks the crucial point that the statute in National Credit Union explicitly sought to limit the credit union market by restricting the credit unions' available customer base. It was this statutory limitation on customer base that underpinned the banks' standing, not simply their obvious economic interest in limiting their t competitors' market. !
National Credit Union thus falls directly in line with prior Supreme Court cases finding " competitor" standing, all of which "have been rooted in some applicable statutory provision whose clear intent or effect is to restrict competi-tion." Guivira,48 NRC at 12; see also Bennett v. Spear,117 S. Ct. I154, i167 (1997). The same is true of the few courts of appeals cases on " competitor standing" decided thus far in the wake of National Credit Union. In MOVA Pharmaceutical Corp. v. Shalala, for instance, the court found that a pioneer drug company's interest in limiting additional competition was "'by its very nature' linked with the [ applicable} statute's goal of limiting competition." 140 F.3d 1060,1076 (D.C. Cir.1998) (citing and following National Credit Union,
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l18 S. Ct. at 935 n.6). See also Louisiana Energy & Power Authority v. FERC, 141 F.3d 364, 367-68 n.5 (D.C. Cir.1998). In our case, by contrast, neither NEPA nor the AEA contains a remotely similar market limitation provision upon which competitor standing may rest.8 Envirocare urges us to read National Credit Union broadly to hold that the banks had standing simply because their competitive interests were "affected" l
by the credit union statute and the National Credit Union Administration's '
interpretation of it. See Envirocare Appeal Brief at 8: Envirocare's Amended Request for Hearing (Aug,4,1998) at 10. We find no support, however, for the view that petitioners - be they competitors or not - must be accorded standing and permitted to challenge agency licensing decisions simply because they might be "affected." Merely because one may be injured by a panicular agency action "does not necessarily mean one is within the zone of interests to be protected by a given statute." Air Courier, 498 U.S. at 524 (emphasis adoed).
I Envirocare maintains that its imervention in our proceeding would generally promote the goals of NEPA and the AEA because the NRC's " licensing sequirenents . , consutute a classic example of a regulatory schenz for linuung entry into a market." a scheme that, in Envirocare's view. would only benefit by havmg competitors participair in and oversee NRC determinations of who may " enter" the narket. See Envirocure Appeal linef at 10ul1. In Hazardous Wuste Treatment Council v EPA. 86I F.2d 277,284 (D C. Cir. I9K8). cert. Jemed. 490 U.S.
1106 (1989). however. the D C. Circuit rejected vmually or name argument. There. plainuffs contended that an envimnmental pmtecuan statute (RCRA) amounted to an " entry.reatneung" statute by acung to "exclud[e} from the market providers of less execlient treatnem services." a goal that the competitor hrms cLuned ttry would help further by their lawsuit. But "any pecuniary beneficiary of a regulatory program could so charactenze st." said Or court. a&hrig that "to accept leuch a ] characterizauon for stand ng would ehminate the prudenual stamdang requirement" B61 F.2d at 284 tjke RCRA. the AEA and NLPA have nothing to do with bntung nurkets or custoner access and cannot be viewed as " entry.restncung" statutes - eine all nramng be drained from the j concept. '
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It is well established, for example, that a petitioner who suffers only economic injury lacks standing to bring a NEPA-based challenge to agency action. 48 NRC at 8-10 (referencing cases). NEPA's purpose, the courts have said, is to protect the environment, "not the economic interests of those adversely affected by agency decisions" 14. at 8. NEPA's "rather sweeping list of interests . . .
do not include purely monetary interests, such as the competitive effect that a
. . project might have on plaintiff's commercial enterprise." Mountain States Legal Foundation v. Glickman, 92 F.3d 1228,1236 (D.C. Cir.1996).
- If NEPA's " sweeping" list of interests cannot be understood to include
- purely monetary concerns, neither should the AEA's interests, which focus not on economics or markets (except in limited areas not pertinent here), but on the public's radiological health and safety, an area closely akin to NEPA's
, environmental concerns. Environmental litigants whose sole motivation is
" economic self-interest and welfare are singula/ly inappropriate parties to be entrusted with the responsibility of asserting the public's environmental interest."
Churchill Truck Lines, Inc. v. United States, 533 F.2d 411,416 (8th Cir.1976)
(emphasis added). See also Quivira,48 NRC at 13 (discussing cases rejecting standing of parties seeking to impose higher costs on competitors under RCRA).
Envirocare does not purport to claim any injury other than competitive harm, but argues such injury is enough to satisfy both the " injury-in-fact" and the
" zone-of-interests" tests. Indeed, like Justice O'Connor in dissent, Envirocare suggests that National Credit Union did away with or "all but eviscerateld] the l
zone of interests' requirement." Envirocare Appeal Brief at 9, citing 118 S.
Ct. at 940 (O'Connor, J. dissenting). On that view, actual injury from agency action automatically falls within the zone of interests of the agency's enabling legislation. This seems an unlikely result to us. Indeed, the National Credit Union majority explicitly rejected Justice O'Connor's view that it had eliminated the zone-of-interests inquiry altogether. See 118 S. Ct. at 936 n.7. To hold otherwise would conflate two standing tests historically understood as separate
- " injury-in-fact" and " zone of interests" - and would render the zone-of-interests inquiry entirely meaningless. Liquid Crrbonic Industries v. FERC, 29 F.3d 697,704 (D.C. Cir.1994).
In the end, of course, our analysis of judicial standing cases seeks simply to determine whether a petitioner's particular asserted " interest" provides an appropriate basis under section 189a of the AEA for triggering an adjudicatory hearing and permitting a petitioner to intervene as a party to such a hearing. As the Commission pointed out in Guivira, the NRC is not an article III court, and thus, although we customarily look to and apply judicial concepts of standing, we are not bound to do so. 48 NRC at 6 n.2.
Our principal concern is to ensure that parties participating in our adjudica-tory proceedings have interests that are cognizable under the AEA, our govern-ing statute. Thus, even if we have misapprehended the judicial zone-of-interests 264 l
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l inquiry, and Envirocare and Justice O'Connor prove correct in their assessment that the zone-of-interests test as applied has been so diluted as to be virtually insignificant, our understanding of the AEA requires us to insist that a competi-tor's pecuniary aim of imposing additional regulatory restrictions or burdens on fellow market patticipants does not fall within those " interests" that trigger a right to hearing and intervention under section 189a. Quite apart from judicial standing concepts, therefore, we would not recognize purely economic concerns like Envirocare's as comprehended by section 189a's " interest" requirement.
The AEA concentrates on the licensing and regulation of nuclear materials for the purpose of protecting public health and safety and the common defense and security. 'Ihe appropriate party to raise safety objections about a specific licensing action is the party who, because of the licensing, may face some radiological harm (or the party who seeks the license). As such, it has long been our practice as an agency to reject standing for petitioners asserting a bare economic injury, unlinked to any radiological harm. See, e.g., Virginia Electric and Power Co. (North Anna Power Station, Units I and 2), ALAB-342,4 NRC 98, 105-06 (1976). Competitors, though, whose only " interest" is lost business opportunities, could readily burden our adjudicatory process with open-ended allegations designed not to advance public health and safety but as a dilatory tactic to intetfere with and impose costs upon a competitor. Such an abuse of our hearing process would significantly divert limited agency resoums, which ought to be squarely - genuinely - focused upon health and security concerns.
In our view, Envirocate's interests closely parallel those found insufficient for judicial standing in Ha:ardous Waste (see note 1, supra):
Ntitioner wants to increase the regulatory burden on others. Its interest hes in the competitive advantage that its membership might secure if the government imposed higher costs on other firms. . . IW]e see no special reason to suppose that Congress might have thought them suitable advocates of the environmental interests underlying the statute.
861 F.2d at 285. We think Ha:ardous Waste's view of judicial " zone of interests" standing remains sound even after National Credit Union. But we also see in Ha:arrbus Waste a useful test for applying section 189a's " interest" requirement, even if our understanding of judicial standing proves wrong.
By rejecting Envirocare's intervention petition, we are not simply turning a blind eye to any possibility that the IUSA license amendment may, on the merits, have some safety or environmentally oriented deficiency. Indeed, we have an ongoing adjudicatory proceeding on the IUSA license amendment.
The intervenor is the State of Utah, a party whose combined radiological, emironmental, and economic interests render it a suitable petitioner to challenge the licensing action. For those individuals who have legitimate safety concerns, but who either do not wish an adjudicatory hearing or do not meet section 189a 265
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standards for intervention, the Commission makes available the 10 C.F.R. 6 2.206 petition process. Accordingly, Envirocare may and shouH utilize the petition I process to detail any of its safety concerns about the IUSA amendment. Where appropriate, Envirocare also is free to participate in the ongoing adjudication as amicus curiae.
l IV. CONCLUSION AND ORDER '
For the reasons stated in this Decision, the Commission hereby affirnis the Presiding Officer's August 19,1998 order, it is so ORDERED.
For the Commission 2 John C. Hoyle Secretary of the Commission ;
i Dated at Rockville, Maryland, this 24th day of November 1998.
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2 Comnussioner Diar was not avalable for the afhrmauon of tius order Had he been preunt, he would have afhmed the order.
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f Cite as 48 NRC 267 (1998) CLI-98-24 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Shirley Ann Jackson, Chairman Greta J. Dieus Nils J. Diaz Edward McGaffigan, Jr. I Jeffrey S. Merrifield i l
l In the Matter of Docket Nos. 50-443-LA 50-443-LA2 NORTH ATLANTIC ENERGY-SERVICE CORPORATION (Seabrook Station, Unit 1) November 24,1998 i
The Commission grants North Atlantic Energy Service Corporation's motion to withdraw its proposed amendments for the Seabrook Station and dismisses the related adjudicatory proceedings as moot. We also vacate the Atomic Safety and Licensing Board's Memorandum and Order, LBP-98-23,48 NRC 157 (1998),
which had not been reviewed at the time the case became moot. ,
I RULES OF PRACTICE: VACATUR l
The Commission's customary _ practice is to vacate board decisions that have not been reviewed at the time the case becomes moot. See Louisiana Energy Services, LP. (Claiborne Enrichment Center), CLI-98-5, 47 NRC 113,114 (1998); Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), CLI-96-2,43 NRC 13 (1996).
MEMORANDUM AND ORDER ,
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'Ihe North Atlantic Energy Services Corporation (NAESCO) has filed a motion to withdraw two license amendment applications and to terminate related 267 l
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adjudicatory proceedings. He amendment applications were part of a series of
. proposed amendments to change the Technical Specifications for the Seabrook Nuclear Station to accommodate an extended fuel cycle. NAESCO is requesting withdrawal of the applications because it has revised its schedule to conduct its next refueling outage at the Seabrook Station consistent with the schedule in the existing Technical Specifications.
He adjudicatory proceedings were initiated by two intervention Petitioners, the Seacoast Anti-Pollution League (SAPL) and the New England Coalition on Nuclear Pollution (NECNP). In one proceeding, the Atomic Safety and Licensing Board granted intervention to SAPL and denied intervention to NECNP. LBP-98-23. 48 NRC 157 (1998). The Board also requested the parties to provide further information on SAPL's argument against " segmentation," i.e., its claim that license amendment applicants should not be permitted to effectuate a rnajor operational change requiring several license amendments through separate amendment requests rather than through a single request. SAPL reasoned that without reviewing the change as a whole, the NRC may be unable to assess accurately the safety implications of the overall change. Id. at 168. The Board ordered the second Seabrook amendment proceeding held in abeyance pending resolution of the " segmentation" question.
Before the Board reached a decision on the admissibility of the "segmen-tation" issue, the Commission exercised its inherent supervisory authority over the conduct of adjudicatory proceedings to take sua sponte review. See CLI 18,48 NRC 129 (1998). The Commission stated that the segmentation issue is
' " novel and has broad implications for this and other proceedings." The Commis-sion set a briefing schedule and held all further proceedings before the Board in abeyance. Subsequently, at the parties
- joint request, the Commission deferred the briefing schedule to accommodate settlement negotiations. However, no set-tiement was reached. Instead. NAESCO filed the present motion to withdraw its amendment applications and to terminate adjudicatory proceedings.
SAPL and NECNP acknowledge that NAESCO's decision to withdraw the applications would " appear to moot the need for any further proceeding." Re-sponse to Motion by NAESCO to Withdraw Applications and to Terminate Proceeding at 2 (Oct. 26.1998).' Nevertheless, they " oppose mooting the pro-ceeding " unless the Commission institutes a process to resolve the " segmenta-tion" issue on a generic basis and affords meaningful public participation. Id.
at 3.
I On October 30.1998. NAESCO filed a Mouan for leave to rile Reply to SAPL. and NECNP's Renponse.
= That snotion is hereby gramed.
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I A moot adjudicatory proceeding is clearly not the forum to decide a novel is-sue like " segmentation."2 As SAPL and NECNP themselves recognize, NAESCO's abandonment of its amendment requests has rendered the current adjudications moot. Based on the present record, we are disinclined to commit scarce Commission resources to the initiation of a public process to consider the segmentation issue on a generic basis outside the adjudicatory setting. Although a final adjudicatory decision on segmentation might have proved a significant adjudicatory precedent, the legal questions surrounding segmentation remain in-choate. The parties had not yet briefed the issue before the Commission at the time NAESCO decided to abandon its amendment requests, and neither the Board nor the Commission had considered whether " segmentation" was even an appropriate matter for litigation. We see no harm to SAPL or NECNP from our decision to terminate formal consideration of the segmentation issue. They remain free to challenge any future licensing action that they deem to involve segmentation,just as they did here.
In conclusion, we grant NAESCO's motion to withdraw its proposed amend-ments and dismiss the related adjudicatory proceedings as moot. We also follow our customary practice and " wipe the state clean" by vacating the Board deci-sion, LBP-98-23, that we had not yet reviewed at the time the case became moot.
See Louisiana Energy Services, LP. (Claiborne Enrichment Center), CLI-98-5, 47 NRC 113,114 (1998); Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility) CLI-96-2,43 NRC 13 (1996).
The proceedings are hereby terminated.
For the Commission' JOHN C. HOYLE Secretary of the Commission Dated at Rockville, Maryland, this 24th day of November 1998.
2 Among etter policy factorn, we are reluctant to ask parties to a noot proceeding to incur the expenw and inconvenience of preparing briefs and argunents.
3 Cornnussioner Diaz was not available for the afGrrnation of this order. Had be been present, he would have afbrned the order.
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! Atomic Safety j and Licensing i
t Boards issuances ,,
i ATOMIC SAFETY AND UCENSING BOARD PANEL l
B. Paul Cotter, Jr.,* Chief Administrative Judge 0
l Vacant,* Deputy Chief Administrative Judge (Executive) l Frederick J. Shon,* Deputy Chief Administrative Judge (Technical) $
! O ;
I i Members g
l Dr. George C. Anderson Dr. Harry Foreman Thomas S. Moore
- Q Wj Charles Bechhoefer* Dr. David L. Hetrick Thomas D. Murphy
- Peter B. Bloch* Dr. Frank F. Hooper Dr. Richard R. Parizek G. Paul Bollwerk lil* Dr. Charles N. Kelber* Dr. Harry Rein b Dr. Robin Brett Dr. James H. Carpenter Dr. Jerry R. Kline*
Dr. Pe*er 3. Lam
- Lester S. Rubenstein Dr. David R. Schink
]
l Dr. Richard F. Cole
- Dr. James C. Lamb lit Dr. George F. Tide" Dr. Thomas S. Elleman Dr. Linda W. Little
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Cite as 48 NRC 271 (1998) LBP-98-27 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD ,
Before Administrative Judges:
Thomas S. Moore, Chairman ,
, . . Dr. Jerry R. KUne Frederick J. Shon l I
I in the Matter of . Docket No. 50-295/304-LA (ASLBP No. 98-744-04-LA) )
COMMONWEALTH EDISON COMPANY (Zion Nuclear Power Station, Units 1 and 2) November 5,1998 In this proceeding on the license amendment application of Commonwealth Edison Company, the Licensing Board concludes that the Petitioner, Edwin D.
Dienethal, lacks standing to intervene.
I RULES OF PRACTICE: STANDING TO INTERVENE in ascertaining whether a petitioner has pleG a sufficient " interest" within the meaning of the Atomic Energy Act and the Commission's regulations to intervene as of right in a licensing proceeding, the Commission years ago held that contemporaneous judicial concepts of standing are to be applied. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610,613-14 (1976).
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RULES OF PRACTICE: STANDING TO INTERVENE i To establish standing the petitioner must state a concrete and particularized
. injury, i.e., an injury in fact, that is fairly traceable to the challenged licensing i
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t action and likely to be redressed by a favorable decision. Yankee Atomic Electric
' Co. (Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185,195 (1998);
Quivira Mining Co. (Ambrosia Lake Facility, Grants, New Mexico) CLI-98 I1,48 NRC 1,6 (1998).
RULES OF PRACTICE: STANDING TO INTERVENE The asserted injury may be either an actual one or harm that is threatened in
' the future, but the injury must be to an interest that is arguably within the zone of interests protected by the statutes governing NRC proceedings - the Atomic Energy Act or the National Environmental Policy Act of 1969. Yankee Atomic, CLI-98-21,48 NRC at 195-96 Guivira, CLI-98-11,48 NRC at 6.
RULES OF PRACTICE: STANDING TO INTERVENE In Commission license amendment proceedings - in contrast to proceedings for reactor construction permits or operating licenses - the presumption found in agency precedents that confers standing, without more, on a petitioner who resides or otherwise conducts activities in the vicinity of a nuclear power plant applies only if the challenged license amendments present an " obvious potential for offsite consequences." Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Units I and 2), CLI-89-21,30 NRC 325,330 (1989).
MEMORANDUM AND ORDER j (Resolving Standing Issue)
The Petitioner, Edwin D. Dienethal, seeks to intervene in this proceeding l involving the license amendment application of the Commonwealth Edison !
Company (" Applicant") for its Zion Nuclear Power Station, Units I and 2, in i Lake County, Illinois. In response to the Commission's notice of opportunity for I hearing, see 63 Fed. Reg. 25,101, 25.105-06 (1998), the Petitioner timely filed l
a petition to intervene and an amended petition opposing the requested license !
amendments The Applicant and the NRC Staff both challenge Mr. Dienethal's j standing to intervene. !
~ For the reasons set forth below, we conclude that the Petitioner has failed to i establish his standing to intervene in this license amendment proceeding.
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! I. BACKGROUND in early 1998, the Commonwealth Edison Company decided to close the Zion l Nuclear Power Station. Thus, both Zion units are now defueled and permanently shut down, although neither unit has yet been decommissioned. The Applicant seeks the requested license amendments in order to facilitate activities at the now shutdown facility. According to the Commission's hearing notice, "[t]he proposed amendments would restore the Zion Custom Technical Specifications (CTS) that had been replaced with Improved Technical Specification [s] [(ITS)]
by a previous amendment and would reinstate License Conditions that were deleted by that previous amendment." Id. at 25,105. The Applicant's no significant hazards consideration analysis included in the Commission's hearing notice states that the ITS were never implemented at the facility so the CTS have remained as the binding technical specifications at Zion. Further, that analysis explains that the requested amendments also would restore to the Zion operating licenses the five license conditions that previously had been transferred in the i form of requirements to other licensing documents as part of the amendment process for adopting the never-implemented ITS. Id.
Additionally, the Commission's hearing notice states that "[t]he proposed l
amendment [s] would also modify the CTS to allow the use of Certified Fuel Handlers to satisfy shift staffing requirements and would change management titles and responsibilities to reflect the permanently shutdown organization." Id.
In this regard, the Applicant's analysis indicates that the changes to the CTS would reduce shift staffing numbers and crew composition as well as modify language implying the units were operational. Id. at 25,106.
In his intervention petition opposing the Commonwealth Edison Company's license amendment application, Mr. Dienethat asserts that he resides in Kenosha, Wisconsin, within 50 miles of the Zion Nuclear Station and that the Applicant's facility directly impacts his health and safety and the health and safety of his family. Mr. Dienethal's amended petition and an accompanying affidavit explain that he resides with his wife and two minor children 10.4 driving miles, or 8.5 o # iniles as tAe crow flies, from the Zion plant. 'Ihe pleadings state that
'. petitioner ad his family boat, fish, swim, and play water sports in Lake Michigan where the Applicant's facility discharges effluents and wastes. The l~ amended petition and affidavit also state that the Dienethal family frequently uses a bike trail that passes directly in front of the plant in the town of Zion, Illinois, where the Applicant's facility is located and that the Petitioner also plays golf and frequents a park in the town. In the amended pleadings, Mr.
l Dienethal further asserts that his children play soccer once a week,6 months of the year just 9 miles from the Zion plant and that he and his wife attend each of their children's soccer matches.
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i i In further cataloguing his activities near the Zion plant, the intervention t pleadings indicate that the school the Dienethat children attend is located 12 miles from the Applicant's facility and the Petitioner and his wife share the task of driving their children to and from school. The amended petition states that
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the Petitioner and his wife also travel within 1 mile of the nuclear plant three or four times a week to shop, buy gasoline, visit the post office, or attend movies
. and that Mr. Dienethal visits on a regular basis an essential business supplier .
located I mile from the plant. Additionally, the pleadings assert that many of the roads used by the Petitioner in his business travel are the same ones used by the Applicant to transport radioactive waste from the Zion plant. Finally, the
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intervention filings claim that the food and water the Petitioner and his family consume are affected by the Zion plant because Mr. Dienethal purchases food from farms located within 10 miles of the plant and that his drinking water, as well as the fish he catches and cats, comes from Lake Michigan where the Applicant dumps waste from the Zion. facility.
According to the amended petition and accompanying affidavit, the various activities of the Petitioner and his family in the vicinity of the Zion plant place them at risk of future negative health effects directly traceable to the Applicant's i facility. Specifically, paragraphs 19 and 20 of Mr. Dienethal's affidavit state:
- 19. I have specific concerns about the injuries that could result to my family and the local communities that derive from the proposed amendments by Commonwealth Edison. .
I beheve that the proposed amendment presents many threats to the public health and safety, harm to the environment, and harm to the health of employees at Plant Zion. These injuries would result from the structural and functional changes in Plant Zion proposed by the amendment or if any mishap should occur while Plant Zion is functioning under the
. proposed changes of the amendment.
- 20. . [l]f Plant Zion functions under the proposed amendments, the potential injuries to me and my family, Plant Zion workers, the community, and the local envimnment include, but are not limited to: 1. LOCA (les[s] of Coolant Accident),2. radiological concerns. 3. unsafe j levels of radiation for the employees at the plant and the general public 4. undetectable j radiation contamination by employees. $. contamination of the local community and the '
environment, 6. increase risk of accident at plant Zion, and 7 contamination of Lake j Michigan ;
i Finally, the amended petition asserts that the challenged amendments pose a risk j to the value of Mr. Dienethal's real property as well as to the property values l of the surrounding community. l l
II. ANALYSIS A petitioner's right to participate in a Commission reactor operating license amendment proceeding flows from section 189a of the Atornic Energy Act, 274'
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as amended. In pertinent part, that section provides that "[i]n any proceeding under this Act, for the granting, suspending, revoking, or amending of any li-cense. . , the Commission shall grant a hearing upon the request of any person I whose interest may be affected by the proceeding." 42 U.S.C.12239(a)(1)(A).
Parroting the language of section 189a, the Commission's regulations provide that "[a]ny person whose interest may be affected by a proceeding and who de-sires to participate as a party shall file a written petition for leave to intervene."
10 C.F.R.12.714(a)(1). The regulations further specify that "[t]he petition shall set forth with particularity the interest of the petitioner in the proceeding,
[and] how that interest may be affected by the results of the proceeding, in.
cluding the reasons why petitioner should be permitted to intenene." 10 C.F.R. 6 2.714(a)(2). In ascertaining whether a petitioner has pied a sufficient " interest" j
>vithin the meaning of the Atomic Energy Act and the Commission's regula-tions to intervene as of right in a licensing proceeding, the Commission years ago held that contemporaneous judicial concepts of standing are to be applied.
Portland General Electric Co. (Pebble Springs Nuclear Plara, Units I and 2),
CLI-76-27,4 NRC 610,613-14 (1976).
According to the Commission, those judicial principles require that to es-tablish standing the petitioner must state a concrete and particularized injury, i.e., an injury in fact, that is' fairly traceable to the challenged licensing action ;
and likely to be redressed by a favorable decision. Yankee Atomic Electric Co.
(Yankee Nuclear Power Station), CLI-98-21,48 NRC 185,195 (1998); Quivira Mining Co. (Ambrosia Lake Reility, Grants, New Mexico), CLI-98-11,48 NRC I 1, 6 (1998); Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia), CLI-95-12,42 NRC 111, i15 (1995). The asserted injury may be either an actual one or harm that is threatened in the future, but the injury must be to an interest that is arguably within the zone of interests pro-tected by the statutes governing NRC proceedings - the Atomic Energy Act or the National Environmental Policy Act of 1969. Yankee Atomic, CLI-98-21,48 NRC at 195-96; Gulvira, CLI-98-11,48 NRC at 6.
In both his initial intervention petition and his amended petition, Mr. Di-enethal explicitly states that he seeks to intervene in the license amendment proceeding and his intervention petitions only refer to a singular petitioner seek-ing intervention. Therefore, even though he also asserts various injuries to his wife, family, employees at the Applicant's facility, and the community at large, Mr. Dienethal is the sole petitioner before us. Thus, it is only Mr. Dienethal's standing that is determinative of his right to intervene in this proceeding.
The gist of the Petitioner's standing claim is that his many activities in the vicinity of the Zion plant place him within a zone of harm of possible future negative health effects from the Applicant's facility. The intervention pleadings nowhere explicitly state that a release of radioactive fission products from the two-unit Zion Nuclear Power Station into the environment where the Petitioner's 275
activities take place will negatively impact his health, safety, and property values, but that fact is clearly implicit in the pleadings. Thus, the Petitioner's long list of activities that, inter alia, regularly place him as close as I mile to the Zion plant throughout the year provides an adequate statement of future harm from the Applicant's facility to meet the standing requirement of pleading a threatened injury in fact.
The pleading of an injury in fact, however, is only one element of the requirements for establishing the Petitioner's standing. Mr, Dienethal must also demonstrate that the claimed negative health effects and property value diminution from the offsite release of radioactive fission products at the Zion plants is fairly traceable to the amendments that the Applicant seeks. Stated otherwise, the Petitioner must show the causal link between his asserted harm and the proposed license amendments. In this regard, the Commission has indicated that "[s]uch a determination is not dependent on whether the cause of the injury flows directly from the challenged action, but whether the chain of causation is plausible." Sequoyah fuels Corp. (Gore, Oklahoma Site), CLI-94-12,40 NRC 64,75 (1994). Here, as the Applicant and the Staff correctly argue in opposing the Petitioner's standing, Mr. Dienethat has failed to establish a plausible chain of causation between his alleged injury and the Applicant's proposed license amendments.
Contrary to Mr. Dienethal's apparent belief, in Commission license amend-ment proceedings - in contrast to proceedings for reactor construction permits or operating licenses - the presumption found in agency precedents that con-fers standing, without more, on a petitioner who resides or otherwise conducts activities in the vicinity of a nuclear power plant applies only if the challenged license amendments present an " obvious potential for offsite consequences."
Florida Power & light Co. (St. Lucie Nuclear Power Plant Units 1 and 2),
CL1-89-21, 30 NRC 325, 330 (1989). When, as here, the Zion reactors are permanently shut down and defueled, it cannot reasonably be concluded that the license amendments of the type at issue in this proceeding create an obvi-ous potential for offsite consequences. Therefore, the Petitioner "must allege some specific ' injury in fact' that will result from the action taken." Id. Yet, even construing the intervention pleadings most favorably for the Petitioner, as Commission precedent requires, Georgia Tech, CLI-95-12,42 NRC at i15, Mr.
Dienethal's pleadings fall far short of this required demonstration of causation. ,
The challenged amendments restore the Zion CTS that had been replaced l
by the never-implemented ITS and reinstate, as part of the CTS, five license conditions that had been changed to requirements and added to other licensing documents as part of the amendment process adopting the ITS. Because the ITS had never been implemented at the time the Applicant permanently shut down and defueled the Zion plants, the instant license amendments merely restore the Applicant's facility to the status it had while operating. In other words l 276
L with respect to the technical specifications for the facility, these amendments
, do nothing more that restore the status quo to the Zion plants. Nowhere in his intervention pleadings, however, does the Petitioner explain, as he must in order to establish his standing to intervene, how these amendments could plausibly lead to the offsite release of radioactive fission products from either of the shutdown and defueled Zion reactors.
He challenged amendments also modify the Zion CTS to allow the use of Certified Fuel Handlers to satisfy shift staffing requirements, change management titles and responsibilities to reflect the permanently shutdown organization, and alter certain language in the technical specifications to remove any implication that the Zion units are operational. Once again, however, the Petitioner's pleadings fail to explain adequately how these amendments could plausibly lead to.the offsite release of radioactivity from reactors that are permanently shut down and defueled so that the spectrum of accidents with offsite consequences is vastly diminished.
Rather than explain the process by which the proposed license amendments could cause him future negative health effects and diminish the value of his property, the Petitioner in his amended petition and accompanying affidavit merely lists seven items that he claims increase his risk of injury should the amendments be adopted. First, the Petitioner states that his risk of injury from the proposed amendments is increased because of loss of coolant accidents.
Yet loss of coolant accidents can only occur in operating reactors, not reactors that are permanently shut down, defueled, and depressurized. He Petitioner also claims the challenged amendments increase the risk of accidents at the Zion plants. But the type of accident that credibly could occur in permanently shutdown and defueled reactors from these license amendments is anything but self-evident. Nowhere does the Petitioner set forth a plausible or credible causal chain for any such accident or explain how the risk of such an accident is increased by the Applicant's proposed amendments. Similarly, the Petitioner lists radiological concerns and various on- and offsite radioactive contamination as increasing his risk of injury from these amendments. But the Petitioner's pleadings are silent with respect to any plausible chain of causation for such radioxtive contamination resulting from the challenged amendments.
In short, the Petitioner's unsubstantiated allegations simply fail to demon-strate a plausible nexus between the challenged license amendments and Mr.
Dienethal's asserted harm. Because Mr. Dienethal's intervention pleadings fail to establish the causation element essential to establish standing, his petition 277
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fails to demonstrate that the Petitioner has standing to intervene in this license amendment proceeding.8 III. CONCLUSION lier the foregoing reasons, we find that the Petitioner, Edwin D. Dienethal, lacks sufficient interest within the meaning of section 189a of the Atomic En-ergy Act,42 U.S.C. 9 2239(s)(1)(A), and section 2.714(a) of the Commission's
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regulations,10 C.F.R. 5 2.714(a), to intervene in this license amendment pro- !
ceeding. Accordingly, the Petitioner's intervention petition is denied and the proceeding is terminated. {
Pursuant to 10 C.F.R. 9 2.714a, the Petitioner, within ten (10) days of service blthis Memorandum and Order, may appeal the Order to the Commission by filing a notice of appeal and accompanying brief.
It is so ORDERED.
j THE ATOMIC SAFE'lY AND LICENSING BOARD Thomas S. Moore, Chairman ADMINISTRATIVE JUDGE Dr. Jerry R. Kline ADMINISTRATIVE JUDGE 1
liederick J. Shon )
ADMINISTRATIVE JUDGE I
Rockville, Maryland November 5,1998 i
3 Mr. Dienethat's argunwor that be has stamhng to intervene based upon his allegauons that the Appbcam lacks the necessary character and cornpetence to manage fhe Zion facihty also is without rnent. Contrary to the Petitioner's assertions, this liceme anendment proceedmg does not concern the Apphcant's failure to nanage properly the Zion plants. Raiter, the scope of the proceedmg is dehned by the substance of the liceme amendnrots on which the nouce for opportunity for hearing is based. Here, the challenged hcense amendmems do not implicate the Apphcats character and competence and the Peuuoner's various allegauons about the Apphcant's past nanagement pracuces are wholly outside the scope of the proceeding. Moreover, in order to benent from the presumpuon that reside.ry and activiues near a nuclear power plant. without more. confer standing upon a pennoner, the challenFed license anendnents must present an obvious potenual for offsite consequences. St facie. CLI-89-21,30 NRC at 329 30. It is not, as Mr. Dienethal would have it, the Peuunner's own allegations about the offsite consequences of the Apphcant's conduct that makes the presumption applicahic.
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Cite as 48 NRC 279 (1998) LBP-98-28 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Thomas S. Moore, Chairman l Dr. Richard F. Cole Dr. Charles N. Kelber l
In the Matter of Docket No. 50-423-LA (ASLBP No. 98-740-02-LA) -
NORTHEAST NUCLEAR' ENERGY COMPANY (Millstone Nuclear Power Station, Unit 3) November 12,1998 In this license amendment proceeding, the Licensing Board finds that none of the proffered contentions of the Petitioner, Citizens Regulatory Commission, meet the regulatory requirements for admission so the Petitioner's intervention petition must be denied.
RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY) i l
A proffered contention that, even if proven, would be of no consequence l
because it would not entitle the petitioner to any relief must also be dismissed.
10 C.F.R. 5 2.714(d)(2)(ii).
RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)
A petitioner's proffered contentions must be confmed to the subjects de-lineated by the hearing notice and contentions concerning matters outside that defined scope cannot be admitted. Public Service Co. ofIndiana (Marble Hill 279
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-(1976).
MEMORANDUM AND ORDER (Ruling on Contentions)
He Licensing Board held in LBP-98-20, 48 NRC 87 (1998), that the Petitioner, Citizens Regulatory Commission (" CRC"), had standing to intervene in this license amendment proceeding. %c Commission's Rules of Practice also require, however, that in order to be admitted as a party to the proceeding
- CRC must file at least one admissible contention See 10 C.F.R. 6 2.714(b)(1).
In a timely filed supplement to its intervention petition, CRC has proffered two contentions seeking to satisfy the Commission's contention requirement.
- De Applicant, Northeast Nuclear Energy Company, and the NRC Staff oppose the admission of CRC's contentions. Because we find that CRC's proffered contentions do not satisfy the regulatory requirements for admission, we must deny CRC's intervention petition.
- 1. BACKGROUND He background of this license amendment proceeding, in which the NRC Staff has made a final no significant hazards consideration determination, is detailed in LBP-98-20 and need not be repeated fully here. It suffices to note that the Applicant seeks an amendment to the licensing design basis of its Millstone Unit 3 to eliminate the requirement that the recirculation spray system
("RSS") inject directly into the reactor coolant system following a design basis accident. De elimination of the design basis direct injection flow path involves I no physical modifications of the RSS. Also, the operability of the affected valves for the direct injection alignments remains unchanged and these paths are still available for contingencies beyond the design basis.
He change in function of the RSS that is the subject of the instant license amendment application was actually made by the Applicant in 1986 pursuant to 10 C.F.R. I 50.59. Dat provision permits a licensee to make such a change without an amendment if it does not involve a revision of the facility's technical specifications or an unreviewed safety question. A recent restart review revealed, however, that the change should not have been made under section 50.59 because it in fact involved an unreviewed safety question. He Applicant seeks the license amendment to rectify its earlier error.
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As stated in LBP-98-20,48 NRC at 89:
The original 1986 change was made because during preoperational testing in 1985 excessive tube vibration in the RSS heat exchangers occurred during certain modes of operation. The Applicant determined that excersise tube vibration could occur when heat exchanger Hows exceeded 4600 gallons per minute. Because its system analysis demonstrated that direct injection was not required for the recirculation phase to ensure minimum flow for core cooling, the Applicant eliminated RSS direct injection thereby reducing heat exchanger flow and tube vibration. Tie Applicant also revised its energency operating procedures to reflect the functional change in the RSS, although direct injection procedures were retained as a contingency action.
II. CRC'S CONTENTIONS CRC's first contention states:
The license amendment assumes a certain proportion of the recirculation spray system (RSS) coolant will supply the containment spray ring during the LOCA floss of coolant accidentj design basis accident; however, smce the systems lusve not been tested, it has not been determined that they will be functional, tluit is, that the flow will be divided as postulated.
As part of the basis for the first contention, CRC initially asserts that the Applicant submitted only a computer analysis to support its postulation that a certain proportion of the RSS coolant will be supplied to the containment spray ring and the emergency core cooling system ("ECCS") so that the RSS will function as intended during the LOCA design basis accident. The second paragraph of CRC's basis then states that "[t]he amendment entails a physical reduction of the flow within the system by half, modifications of piping, a reduction in the number of spray ring holes; the remaining system flow is to supply the ECCS, including direct injection to the coolant loops." Next, referencing the Applicant's February 16, 1998 integrated safety analysis for the Millstone Unit 3 RSS, CRC claims the analysis shows that the Applicant has made eighteen modifications to the RSS since the Applicant's system flow testing in 1985.8 CRC's basis then lists the eight mor'Dations made prior to the 1996 Unit 3 shutdown and the ten modifications that were to be completed prior to restart.
Further, CRC's basis alleges that the Applicant has a history and propensity for supplying incorrect calculations and information for computer modeling. It I
CRC did not include the RSS integrated safety analysis as an exhibit to its contentions. Becauw the Appbcant sinularly referenced the integrated safety analyus bui did not include at as an exhiba in answering CI!C's contentions. we directed the Apphcaat dunng the telephone preheanng conference to file a copy with the 1.icenung Board. That analysis evaluates, both indsvidually and on an integrated baus, the vanous modifications to the current RSS that have been implemented since the Staffs Safety Evaluauon Report for Mdhtone LJnit 3.
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j claims that, in the past, faulty calculations and incorrect information supplied l
to Westinghouse and Stone and Webster contributed to problems with the RSS l and that such deficiencies contributed significantly to the well-known March )
1998 incident in which severe vibrations damaged expansion joints and cooling pumps. According to CRC, the Independent Corrective Action Verification Program for Millstone identified programmatic problems in these same areas.
The basis then declares that if the calculations and information for computer simulation are incorrect, the simulation is inadequate and fails to take into l account the potential harm to the containment, including structure fracture because of an insufficient reduction in pressure. In conclusion, the basis states that the Applicant has submitted no documentation establishing it has conducted actual testing of the system, other than pump flow tests, or that any of its contractors have conducted actual testing or modeling of the system in place. In contrast to the lack of testing of the RSS system, CRC asserts that the Applicant hired contractors to conduct simulations on two models when air-binding issues were discovered in the charging system.
CRC's second contention states:
Reduction by halfin the RSS now resuhs in a maior change in capacity which requires actual testing. '
As the basis for this contention, CRC alleges that the Applicant concluded it was necessary to reduce the number of spray holes in the containment spray ring to create the estimated flow requirements. According to CRC, the flow requirements must ensure adequate reduction in containment pressure within the prescribed time and remove airborne contaminants from the containment atmosphere. CRC's basis then concludes by once again asserting the Appheant has submitted no documentation establishing that either it or its contractors conducted actual testing or modeling of the system.
III. ANALYSIS In order to be admissible, the Commission's Rules of Practice provide that a proffered contention "must consist of a specific statement of the issue of law or fact to be raised or controverted." 10 C.F.R. 6 2.714(b)(2). The rules further require that the petitioner provide "[a] brief explanation of the bases of the contention" and "[a] concise statement of the alleged facts or expert opinion which support the contention together with references to those specific sources and documents . . on which the petitioner intends to rely to establish those facts or expert opinion." 10 C.F.R. 5 2.714(b)(2)(i) & (ii). The regulations also obligate the petitioner to set forth "[s]ufficient information . to show 282
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that a genuine dispute exists with the applicant on a material issue of law or fact.** 10 C.F.R. 5 2.714(b)(2)(iii). In this regard, the petitioner's l
showing must include references to the specific portions of the application . that the petitioner disputes and the supporting reasons for each dispute or, if the petitioner believes that the application fails to contain inforrnation on a relevant matter as required by law, the identification of each failure and the supponing reasons for the petitioner's behef.
l Id. A contention that fails to meet any one of these requirements must be ;
rejected. 10 C.F.R. 6 2.714(d)(2)(i); Arizona Public Service Co. (Palo Verde l Nuclear Generating Station, Units 1,2, and 3), CLI-91-12,34 NRC 149,155 '
(1991). Similarly, a proffered contention that, even if proven, would be of no consequence because it would not entitle the petitioner to any relief must also ;
be dismissed.10 C.T R. 6 2.714(d)(2)(ii).
In addition to the specific regulatory requirements that a proffered contention must meet, a corollary to an overarching principle of Commission adjudication j adds another stricture on contention admissibility. In all agency licensing I proceedings, the scope of the matters the Licensing Board is empowered to !
hear is set forth in the hearing notice initiating the proceeding. Consequently, j a petitioner's proffered contentions must be confined to the subjects delineated j
by the hearing notice and contentions concerning matters outside that defined scope cannot be admitted. Public Service Co. ofIndiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316,3 NRC 167,170-71 (1976). ,
in opposing the admission of the CRC's proffered contentions, the Applicant {
and the Staff argue that both contentions are beyond the scope of the proceeding '
and are therefore inadmissible. Further, they assert that CRC's contentions fail to meet the Commission's regulatory requirements for contentions. In assessing .
these arguments, because both contentions purport to address the adequacy of I the spray ring function of the RSS due to the Applicant's failure to test the system, we treat them together and need not differentiate between the two.
Indeed, there is no real difference between the proffered contentions; CRC's second contention essentially is subsumed by the first.
De Applicant and the Staff are correct that CRC's contentions are outside the scope of this license amendment proceeding. Although exceedingly brief, the Commission's hearing notice initiating this proceeding leaves no doubt that the design basis function change in the RSS system is the sole subject of this license amendment proceeding. Contrary to the unsupported assertions in the bases of CRC's contentions, that change involved no physical modifications to the RSS. Rus, only contentions addressing the narrow subject of the design basis functional change can be admitted. Here, the CRC contentions address a number of physical changes and components of the RSS system but not the 283
i change in the design basis function of the RSS. Accordingly, CRC's contentions are inadmissible.
To be sure the line for pennitted challenges to the requested amendment in this proceeding is blurred by the fact that (1) the Applicant erroneously made the change in the design basis function of the RSS in 1986 without obtaining a license amendment; and (2) the Applicant has made a large number of other changes, including physical modifications, to the RSS system since that time.
Notwithstanding the Applicant's absolutist position that all subsequent changes to the RSS are out of bounds, those changes to the RSS could play a part in contentions challenging the instant amendment if the functional change in the design basis was shown to be degrrded or otherwise negatively affected by one or more of those changes. Here, however, CRC's contentions and supporting bases do not make the essential connection between the instant license amendment and any of the Applicant's other changes to the RSS system. Thus, even though the subsequent chan3es to the RSS system are not entirely out of bounds (as the Applicant would have it), none of those changes are properly invoked by CRC's contentions.
Moreover, even assuming the Petitioner's contentions could be found to fall ,
within the scope of this license amendment proceeding, the proffef ed contentions l still would have to be rejected for failing to meet the contention pleading require-ments of the Commission's Rules of Practice. For example, the CRC contentions fail to identify what portion or portions of the Applicant's license amendment application are deficient as required by 10 C.F.R. 9 2.714(b)(2)(iii). Similarly, the contentions do not provide an adequate explanation of the Petitioner's rea-sons for disputing these deficiencies.
He same conclusion must be reached if the Petitioner's contentions are viewed as challenging the completeness of the Applicant's amendment applica-tion for failing to include the results of tests of the RSS. He CRC contentions fail to identify the specific tests that the Petitioner claims should be performed and the reasons each test should be performed. In this regard, CRC's contentions nowhere mention much less challenge the sufficiency of that portion of the Ap-plicant's license amendment rpplication dealing with testing. Likewise, even though the Petitioner seemingly relies upon the Applicant's integrated safety analysis of the Millstone Unit 3 RSS, CRC fails to address the purported inad-equacy of the test results contained in that analysis.2 2
The integrated safety analysis contains a accoon actring forth the Apphcant's conclusions on the effect de various modancuuons to Gm RSs have had on the conunuing vah&ry of de imual preoperauonal tenung rif the MHstone Unit 3 RSS. for the mo&hcanons that were soll in the process of bemg completed at de time the integrated safety analysis was issuco, the Apphcant committed to a tesung program for item pnor to restart. As previously escussed. the Pensioter's proffered contentions fail to detal the specific tests it beheves should be perfarned on the RSs in contravennon of De pleading requirenents of the Commission's regulanons.
Nevertheless. it appears that the tesung 11 e Petitioner necks may already have been performed so CRC's pronered contentions, even if proven, would not enutle the Peuuoner to any rebef. See 10 CER. 6 2.714(dK2)(ii).
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Moreover, the Petitioner's broad challenge to the effect that the Millstone RSS is inadequate because it has not been tested is also plainly deficient. Nowhere does the Petitioner provide any expert opinion that the asserted testing is necessary. Without expert support, CRC's recitation of past instances of alleged Applicant mistakes in connection with calculations and computer modeling is an insufficient basis to support its contention. Thus, the CRC contentions also fail to meet the admissibility requirements of the Commission's regulations.
IV. CONCLUSION For the foregoing reasons, the proffered contentions of the Petitioner, Citi-zens Regulatory Commission, are outside the scope of the instant amendment proceeding and, in addition, fail to meet the regulatory requirements for admis-sibility. Accordingly, the Petitioner's contentions must be rejected. Because the Petitioner has no admissible contentions, pursuant to 10 C.F.R. 9 2.714(b)(1)
CRC is precluded from participating as a party in the license amendment pro- l ceeding. CRC's intervention petition is, therefore, dismissed and the proceeding is terminated.
Pursuant to 10 C.F.R. 5 2.714a, the Petitioner, within ten (10) days of service of this Memorandum and Order, may appeal the Order to the Commission by filing a notice of appeal and accompanying brief.
j lt is so ORDERED. '
THE ATOMIC SAFETY AND LICENSING BOARD nomas S. Moore, Chairman ADMINISTRATIVE JUDGE Dr. Richard F. Cole ,
ADMINISTRATIVE JUDGE !
Dr. Charles N. Kelber ADMINISTRATIVE JUDGE Rockville Maryland November 12,1998 285
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Cite as 48 NRC 286 (1998) LBP-98-29 i UNITED STATES OF AMERICA -
NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
G. Paul Bollwerk, Ill, Chairman
.. Dr. Jerry R. Kline Dr. Peter S. Lam in the Matter of Docket No. 72-22-ISFSI (ASLBP No. 97-732-02-ISFSI)
PRIVATE FUEL STORAGE, LLC.
(Independent Spent Fuel Storage installation) November 30,1998 In this proceeding concerning the application of Private Fuel Storage, L.LC.
(PFS), under 10 C.F.R. Pan 72 to construct and operate an independent spent fuel storage installation (ISFSI), the Licensing Board denies Intervenor requests to accept late-filed contentions concerning a revised proposal to construct a rail spur that would be used to transport spent fuel shipping casks to the PFS facility.
RULES OF PRACTICE: NONTIMELY SUBMISSION OF CONTENTIONS (GOOD CAUSE FOR DELAY)
In considering whether under factor one of the 10 C.F.R. 5 2.714(a)(1) stan-dards there is good cause for late-filing based on the time it took an intervenor to prepare and file its contentions regarding the application amendment, such a finding depends in each instance on the scope and complexity of the "new" information the intervenor relies upon as the basis for late-filing.
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RULES OF PRACTICE: NONTIMELY SUBMISSION OF CONTENTIONS (GOOD CAUSE FOR DELAY)
In instances in which a new contention purportedly is based on information contained in a document recently made publically nailable, an important consideration in judging the contention's timelinec is the extent to which the new contention could have been put forward .,ith any degree of specificity in advance of the document's release. See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-737,18 NRC 168,172 n.4 (1983); see also Yankee Atomic Electric Co. (Yankee Nuclear Power Station), LBP-96-15, 44 NRC 8,26 (19%).
RULES OF PRACTICE: NONTIMELY SUBMISSION OF CONTENTIONS (GOOD CAUSE FOR DELAY)
Among the five late-filing standards of 10 C.F.R. 6 2.714(a)(1), the good cause factor has been accorded a preeminent role such that the moving party's failure to satisfy this requirement mandates a compelling showing in connection with the other four factors. See Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units I and 2), CLi-86-8,23 NRC 241,244 (1986).
RULES OF PRACTICE: NONTIMELY SUBMISSION OF CONTENTIONS Among the four remaining late-filing standards of 10 C.F.R. 92.714(a)(1),
factors two and four - availability of other means to protect the petitioner's interests and extent of representation of petitioner's interests by existing parties
- are accorded less weight than factors three and five - assistance in devel-oping a sound record and broadening the issues / delaying the proceeding. See Braidwood, CLI-86-8,23 NRC at 245.
RULES OF PRACTICE: NONTIMELY SUBMISSION OF -
CONTENTIONS (SOUND RECORD DEVELOPMENT)
Relative to factor three - assistance in developing a sound record - for a contention that is essentially a legal question, an intervenor failure to specify witnesses or testimony does not count as heavily against admissibility as it otherwise might have. At the same time, in line with the Commission's Braidwood reasoning, see CLI-86-8, 23 NRC at 246, a strong showing under this factor for a legal contention may require a more detailed description of the authority for the intervenor's legal claim.
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l -DISCUSSION: State Low Rail Contentions at 7-12; PFS State Low Rail Contentions Response at 9-17; Staff State Low Rail Contentions Response at 12-18; State Low Rail Contentions Reply at 6-7.
RULING: In connection with paragraphs two through seven, these portions of the contention are inadmissible because these parts of the contention and their supporting bases impermissibly challenge the Commission's regulations or rulemaking associated generic determinations (paragraphs two, four, six, and seven);" lack adequate factual or expert opinion support (paragraphs two, four, five, six, and seven); and/or fail properly to challenge the PFS application, as amended (paragraphs three, four, six, and seven)? See LBP-98-7,47 NRC at 179-81.
UTAH B-l - License Needed for Intermocal Transfer Facility CONTENTION: PFS's application should be rejected because it does not seek approval for receipt, transfer, and possestion of spent nuclear fuel at the Rowley Junction intermoda!
Transfer Point ("ITP"), in violation of 10 C F R. t 72.6(c)(1), in that the Rowley Junction operation is not merely part of the transportation operation but a de facto interim spent fuel storage facihty at which PFS will receive, handle, and possess spent nuclear fuel. Because the ITP is an interim spent fuel storage facility. It is important to provide the public with the regulatory protections that are afforded by compliance with 10 C.F R. Part 72. including a security plan, an emergency plan, and radiation dose analyses.
T in this regard. we note that for each paragraph. adminion of the content.on would broaden the hsues in the proceeding. Isrther,in connecuon with factor three we ubmerve deve is even leu provided concernmg idenuhcanon of witnesses and tesumony than there was for contention Utah HH
" Although agency regulations implemenung the National invironnental Pohey Act of 1%9 (NI;PA) mandate cost qmmuhcauan of environmental impacts as pracucable in an environmental report. they impone o hurden on the a licant to provide a quantahcauon dncuuion oriy "to the fullest extent practicable " See 10 CER I 51.45(c).
Although we need not reach the inue of its adirussibihty under secuon 2.714(b). based on our review of the parues' filmgs. the hrst nurugraph of the coruenuon also would be inadmisnible as imperruinibly challengmg the Comnussion's regulanons or rulemakmg-relaico generic deternunations and/or as lading adequate factual or expert ignruan support. Src L11P 98-7. 47 NRC at 179 80 196 l
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i DISCUSSION: State Low Rail Contentions at 12-17; PFS State Low Rail Contentions Response at 17-20; Staff State Low Rail Contentions Response at 18-20; State Low Rail Contentions Reply at 7-8.
RULtNG: With this " contention," the State seeks to amend the basis for already admitted contention Utah B to " account for proposed changes at the ITP" resulting from the August 1998 amendment. State Low Rail Contentions at 13 n.2. The Applicant opposes this request, asserting the contention should remain as originally admitted except to note that the Rowley Junction ITP is now 1.8 miles west of its original location. The Staff takes a somewhat more expansive view. Declaring that in addition to the location change, factual statements in the State's revised basis concerning the viability of the ITP pending completion of the BLM approval process and a revised description of the Rowley Junction facility, equipment, and expected shipping volume could be admitted, the Staff opposes any basis revisions that would expand the contention beyond the scope established in the Board's original admission ruling or that are speculative and unsupported.
Although we see no need to adopt a renumbered contention Utah B as proposed by the Stne, bearing in mind the admonition that "[t]he reach of a contention neceste,-ily hinges upon its terms coupled with its stated bases,"
Public Service Co. oj New Hampshire (Seabrook Station, Units I and 2), ALAB-899,28 NRC 93,97 (1988), we will deem the bases of that contention amended to incorporate: (1) the new location of the proposed Rowley Junction ITP, see State Low Rail Contentions at 13; (2) the assertion about the continuing viability of the ITP proposal pending BLM approval of the right of way for the Low rail spur, see id. at 13 n.3; and (3) the description of the ITP facility and equipment, per statements in the AuFust 1998 PFS application amendment, see id. at 14.
In so doing, however, we intend no change in the scope of our original ruling admitting this contention on a limited basis. See LDP-98-7,47 NRC at 184 85.
C. Confederated Tribes Contentions CONFEDERATED TRIBES I The Goshute Tribe hereby adopts and restates as though set fonh in full herein the additional Contentions and Supporting Bases of the State of Utah filed with the Board on September 29,1998, relating to the Low Rail Transportation License Amendment.
DISCUSSION: Confederated Tribes Low Rail Contentions at 1, 6; PFS Confederated Tribes Low Rail Contentions Response at 1-2; Staff Confederated Tribes Low Rail Contentions Response at 6.
RULING: As we have held previously, a contention that seeks to adopt another intervenor's contention by reference is inadmissible. See LBP 7, 47 NRC at 236-37. Although we would permit the Confederated Tribes 297
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to incorporate these State contentions, see id., none of them has been found admissible.'8 See section H.B above.
CONF'EDERATED TRIBES J The Applicant's Environrnental Report fails to provide adequate consideration to the po-tential fire hazards and the irnpedinent to responre to wild fires associated with constructing and operating the proposed rail line in the lew corridor.
Discussion regarding Late-Filing Standards: Confederated Tribes Low Rail Contentions at 6; PFS Confederated Tribes Low Rail Contentions Response at
' 3-5; Staff Confederated Tribes Low Rail Contentions Response at 2-6.
RULING: Relative to the first factor, the Confederated Tribes has failed to demonstrate the information upon which it places significant reliance as the basis for this contention was not available relative to the original application.
See supra pp. 292-93. 'ne Confederated Tribes thus lacks good cause for filing this contention late.
Nor has the Confederated Tribes made the compelling showing in connection with the other four factors that is needed to overcome a lack of good cause for late filing. As with the State's late-filed contentions, factor two - availability of other means to protect the petitioner's interests - favors late admission of this contention. But unlike the State's late-filed issues, factor four - extent of representation of petitioner's interests by existing parties - does not. This contention essentially tracks Utah HH, and, based on our previous experience, we have no difficulty in concluding the State is well able to represent the interests of the Confederated Tribes (or any other intervenor) relative to such an issue. See Licensing Board Memorandum and Order (Memoralizing Prehearing Conference Rulings) (May 20,1998) at 2 (approving request to change lead party for consolidated contention from Confederated Tribes to State) (unpublished).
So too, factors three and five - assistance in developing a sound record and broadening the issues / delaying the proceeding - do not support admission.
In connection with factor three, the Confederated Tribes has not provided any information regarding witnesses or testimony that it would proffer in order to develop a record in support of this contention. And relative to factor five, although the fact formal discovery has not yet commenced means prompt admission of this contention likely will not result in a protracted delay in this proceeding, admission of this contention will broaden the issues because the admitted wildfire-related contention - Utah R - concerns onsite rather than offsite fire protection.
30 We previously pernutted Confederated Tribes to incorporate contention Utah B. ses LEP-98-7. 47 NkC at 237. Our ruling regarding the revised basis for that contenuun. are supre p. 297 would reach that incorporation
.ruhng as well.
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A balancing of the o*her four factors thus clearly does not provide the
,' requisite compelling showing needed to overcome the lack of good cause for the contention's late filing.83 CONFEDERATED TRIBES K The " Amended'* Application fails to account for the costs associated with the construe.
tion, maintenance, operation, and decommissioning of the rail line and the costs associated with the ultimate removal of the stored fuel at the end of the lease.
DLSCU$510N regarding Late-Filing Standards: Confederated Tribes Low Rail Contentions at 6; PFS Confederated Tribes Low Rail Contentions Response at 7; Staff Confederated Tribes Low Rail Contentions Response at 2-6,
, RULING: The Confederate Tribes has not met its burden to establish good cause for the late-filing by showing that significant new data were first revealed in the application amendment. Further, for the reasons set forth in connection with contention Confederated Tribes J, we fmd that an analysis of the other four factors is insufficient to offset this lack of good cause in the admissibility balance. 2 See supra p. 298. This contention thus is not admissible as late-filed."
CONFTDERATED TRIBES L The intermodal transfer point (ITP), under the proposed " Amendment," becomes a temporary storage facihty which requires a separate and additional license. 10 CFR I 72.6(c)(I).
Discussion regarding Late-Filing Standards: Confederated Tribes Low Rail Contentions at 6; PFS Confederated Tribes _ Low Pail Contentions Response at 9; Staff Confederated Tribes Low Rail Contentions Response at 2-6.
RULING: The Confederate Tribes again has not met its burden to establish good cause for the late-filing by showing that significant new data were first revealed in the application amendment. Further, for the reasons set forth in connection with contention Confederated Tribes J, we find that an analysis of 33 While we need not reach the question of its adnussibihty under section 2 714(b), based on our review of the parties' tihngs, we would not have adnutted the contention because the contention amt its supporung basis impernussibly chahenge the Comnussion's regulanons or generic rutemakmg-associated determinanons, including 10 Cf.R. Part 71; lack adequate factual or expert opimon support, and/or fad properly to challenge the Pr5 ag2lication, as anended See LBP.98-7,47 NRC at 179,180 81.
in this regard, relatise to factors four and five we note that this contention essenua'ly tracks contention State Il and that adnussion of the contention would broaden the issues in the proceedmg.
U Although we need not seach the issue of iui adminibihty under secuon 2.714(b). bai.ed on our revrw of the parues' fihngs this contenunn also would be inadmimble bccause the contention and its supporting twin lack adequate factual or expert opinion support; fail properly to challenge the Pf3 applicanon, as amended, and/or seek to htigate issues already rejected by the Board relauve to contention Confederated Tribes A. See LBp-98 7, 47 NRC at i80-81,234 299 i
the other four factors is insufficient to offset this lack of good cause in the admissibility balance.84 See supra p. 298. This late-filed contention thus is not '
admissible.85 CONFEDERATED TRIBES M The proposed rail line will increase hazards to the public.
DISCUSSION regarding Late-Filing Standards: Confederated Tribes Low Rail Contentions at 6; PFS Confederated Tribes Low Rail Contentions Response at Il-12; Staff Confederated Tribes Low Rail Contentions Response at 2-6.
RULINo: The Confederate Tribes once again has not met its burden to establish good cause for the late-filing by showing that significant new data .
were first revealed in the application amendment. Factor two and, in contrast '
to contentions Confederated Tribes J through L, factor four - extent of representation of petitioner's interests by existing parties - support admission of this contention. As we have already noted, however, factors two and four are accorded less weight than factors three and five. See supra p. 294. Consequently, ,
when considered with factors three and five that, for the reasons set forth in '
connection with contention Confederated Tiribes J, do not support admission, t ser supra p. 298, we are unable to conclude the combined weight of these four factors is sufficient to offset the lack of good cause in the admissibility balance.86 g This late-filed contention is not admissible as well."
CONFEDERATED TRIBES N The " Amendment" fails to provide adequate notice to the public of the changes. which are substantial.
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34 1n this regard, relative to factors four and five we note that this contention essentially tracks contentmn State l 1
B.I and tha. 4 mission of this contention would broaden the inues an the proceedmg i 83 Although we need not reach the issue of its admissibihty under sectmn 2.714(b) bmed on our review of j the parties' hlings this contentmn also would be inadnusuble became the contentmo and its supporting basis 1 impermissibly challenge agency regulations or rulemaking-associated generic deternunations, including 10 CJ R. I Part 71; lack adequate factual or expert op nion support; fait properly to challenge the PFS apphcation; and/or !
seek to litignie issues already rejected by the Board relative to contenuon Utah B. See 1,HP-98-7,47 NRC at 179-81, 164.
'*In this regard. relative to factor hve we note that admiasma of the contenuun would twonden the inues in the proceeding.
" Although me need not reach the issue of i's adnussibility under section 2 714N. based on our review of
, the parties' fihngs dus contenuon also would be inadnusuble in that the contention and its supporting baus imperndsnibh challenge agency regulations or rulemaking-associated generic deternunations. including 10 Cf.R.
Parts 71 and 73, lack adequate factual or expert opinion support; and/or seek to htigate iunes already rejected by the Doard reladve to centention OGD C. See t.BF 98-7. 47 NRC at 17940,227-28.
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- 1. Late-Filing Standards DISCUS $10N: Confederated Tribes Low Rail Contentions at 6; PFS Con-federated Tribes Low Rail Contentions Response at 12-13; Staff Confederated Tribes Low Rail Contentions Response at 4-6.
RULING: Challenging, as it does, the adequacy of the procedures under which the August 1998 application amendment is being considered by the agency, the contention raises a concern that could not have been proffered prior to that amendment. There thus is the requisite good cause under factor one.
Notwithstanding the fact that factors three and five do not support admission of this contention as described in connection with contention Confederated Tribes J,"' see supra p. 298, placing the factor one support for admission into the balance along with the support accorded by factors two and four as described hiiove relative to contention Confederated Tribes M, see supra p. 300, we conclude that the admission of the contention is not precluded by the fact it was late-filed.
- 2. Admissibility Discussion: Confederated Tribes Low Rail Contentions at 5-6; PFS Con-federated Tribes L,ow Rail Contentions Response at 1213; Staff Confederated j Tribes Low Rail Contentions Response at 12-13. i RULING: This is essentially a legal contention; nonetheless, it must have a basis sufficient to warrant its admission. Assuming that changes in a license !
application of sufficient magnitude could provide cause for renoticing the application, compare Rochesfer Gas & Electric Corp. (R.E. Ginna Nuclear
)
)
Plant, Unit 1), LDP-83-73,18 NRC 1231,1233-36 (1983) (delay in proceeding of 5 years pending Staff application review renders original notice of hearing sufficiently stale to require renoticing of proceeding), the Confederated Tribes conclusory assertions that " changes on virtually every page" of the application as a result of the August 1998 amendment indicate " substantial changes in the I nature of the license" being sought, Confederated Tribes Low Rail Contentions at 5, are wholly inadequate to support admission of this contention.
38 in this regard. relauve to factor hve we note that adminaion of the contention would broaden the issues in the proceedmg. We also note relauve to factor three th.it because this is essenually a legal quesuon, the Confederated j
Tribes failure to specify witnesses or tenumony does not count as heavily against admissibihty as it otherwise -
might have. At the same time, in hne with the Commission's Braidwood scahonmg. see CLI-86-8,23 NRC at 246 a strong showing under this factor for a legid contentmn may require a more detmled descitpuon of the authonty for the intervenor's legal claim then has been provided here.
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D. OGD Contentions OGD Q -
In acting on the proposed license and amendments prior to completing an Environnental Impact Statement (EIS) as required by the National Enviromnental Policy Act (NEPA). the NRC has made irretrievable commitments of resources resulting in severe prejudice to the EIS process. In particular, the present procedure employed for the PFS hcense and hcense amendments prejudices the NRC's abihty to fairly assess alternativt:s to the proposed PFS i facility and the transportation of high level spent fuel. l l
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Discussion regarding Late-Filing Standards: PFS OGD Low Rail Con- !
tentions Response at 1-5; Staff OGD Low Rail Contentions Response at 3-5; OGD Low Rail Contentions Reply at 1-5. !
, _ RULING: As we noted above, consistent with longstanding agency practice, all contentions filed subsequent to November 1997 (other than those physical security plan contentions for which the Board granted a filing extension, see ,
LDP-98-13,47 NRC at 363) are late-filed. Consequently, OGD's arguments to l the contrary notwithstanding,* this contention (and all its other Low rail spur-related contentions) cannot be accepted unless a balancing of the five factors set forth in section 2.714(a) supports its admission.
l Concerning factor one - good cause for late filing - while this issue l
statement is predominately a legal contention, OGD nonetheless has failed to demonstrate the information upon which it places significant reliance as the basis for this contention was not available relative to the original application. ;
See supra pp. 292-93. It thus lacks good cause for filing this contention late. j OGD also failed to make a compelling showing in connection with the other l
fout factors so as to counterbalance the lack of good cause for late filing. Factors j two and four availability of other means to protect the petitioner's interests ;
and extent of representation of petitioner's interests by existing parties - do j favor late admission of this contention. As we have noted, however, they are l given significantly less weight in the balance as compared to factors three and I
five. See supra p. 294. Although, in the context of this legal contention, OGD's
)
lack of a witness and testimony proffer means that factor three - assistance ;
in developing a sound record - does not necessarily weigh as heavily as it I might against late admission, see sirpra note 18, this is certainly not the case with factor five - broadening the issues / delaying the proceeding - which WoGD asserts its Low rail spur-related comentions are not late lined because there was no new heunng notice issued about the anendment and. therefore. its contentions need not meet the section 2 714(a)(1) late-6hng enteria.
see OGD tow Rail Contentions Reply at 1-2. The agency's I; censing review procedures contemplate a dynanne process in which an upphcation may be modshed or improved without "renoucing" the apphcarion. At the sane ume, an intervenor is free to mount an adjudicatory challenge to any apphcation revisions pmffered after the deadhne for hhng contentions, at least so long as the new or nnended contenuons meet the late-hhng entena of secuan 2.714(a)(1). see Ratumore Gas and Electnc Ca (Calvert Chff, Nuclear Power Plant. Units I and 2).
LitP 98-26. 48 NRC 232. 243 (1998). appeal pendmg.
l l 302
3 does not support admission given the significant new element this contention would introduce into the proceeding. Even with factors two and four on the i
admissibility side of the balance, there is not sufficient support to overcome the I lack of good cause, rendering this contention inadmissible.2o OGD R OGD and its menbers will be adversely impacted by the routine operation of the Low rail spur and will be seriously impacted by any transportation-related accidents.
DISCUSSION regarding Late-Filing Standards: PFS OGD Low Rail Con-tentions Response at 1-5; Staff OGD Low Rail Contentions Response at 3-5; OGD Low Rail Contentions Reply at 1-5.
- RULING: Because OGD has failed to show the information upon which it places significant reliance as the basis for this contention was not available relative to the original application, we find it lacks good cause for late submission of this contention. And lacking factor one support, OGD also has failed to i make the compelling showing regarding the other four factors that is necessary I
to gain this contention's admission. While factors two and four - availability '
of other means to protect the petitioner's interests and extent of representation of petitioner's interests by existing parties - once again favor late admission of this contention, in this instance both factors three and five do not. Relative to factor three - assistance in developing a sound record - OGD has not provided l
any information regarding witnesses or testimony that it would proffer in order to develop a record in support of this contention. Further, concerning factor five
- broadening the issues / delaying the proceeding - although the fact formal i discovery has not yet commenced means prompt admission of this contention I likely will not result in a protracted delay in this proceeding, admission of this ;
contention (and indeed any of OGD's remaining contentions) will broaden the l issues. With factors three and five thus weighing against admission, the support provided by the less important factors two and four clearly is insufficient to provide sufficient support for admitting this contention.28 20 Nthough we need not reach the issue of its admissibihty under section 2.714(b), based on our review of the parties' hiings we would not have admitted the comenuon because the contenuon and its supportmg basis impernussibly challenge the basic structure of the Commission's regulatory process; lack adequate factual or I expen opinion support; and/or f.ul to estabhsh with specificity any genuine dispute. See LDP48 7,47 NRC .et I 178-81.
21 Ahhough we need not reach the issue of sta adnussibihty under acetion 2.714(b). based on our retiew of the parties' fihngs we would not have admitted the contention because the contention and its supportmg basis lack j adeq.ete fae:ual or expert opinion support, f.ul properly to challenge the PFs application. as amended, and/or '
seek to htigate issues already rejected by the Board relative to contenuon oGD P. See LBP48-7,47 NRC at i80 8t,233 34.
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OGD and its mernbers are adversely affected by the potential sabotage of spent nuclear I fuel during transportation along the proposed rail spur, l
DISCUSSION regarding Late-Filing Standards: PFS OGD Low Rail Con- 1 i
tentions Response at 15; Staff OGD Low Rail Contentions Response at 3-5; OGD Low Rail Contentions Reply at 1-5.
rut ING: For the reasons set forth in our ruling regarding contention OGD l R, we find this contention inadmissib!c.22 See supra p. 303.
OGD T OGD and its nwmbers are adversely affected by the failure of PFS and/or the NRC to
. ~ fully evaluate the potential failure of the flat bed rail cars that will transport the spent nuclear fuel along the rail spur. )
DISCUSSION regarding Late-Filing Standards: PFS OGD Low Rail Con-tentions Response at 1-5; Staff OGD Low Rail Contentions Response at 3-5; OGD Low Rail Contentions Reply at 1-5.
{
RULING: For the reasons set forth in our ruling regarding contention OGD R, we find this contention inadmissible.2) See supra p. 303.
OGD U '
OGD and its nrmbers are adversely affected by potential fires caused by or enhanced by rail activities.
DISCUSSION regarding Late-Filing Standards: PFS OGD Low Rail Con-tentions Response at 1-5; Staff OGD Low Rail Contentions Response at 3-5; ;
OGD Low Rail Contentions Reply at 1-5. ~
l 22 Although we need rwit reach the issue of its adnuwibibty unaler sectwa 2 784(b). based on our review of the parties' fihngs we woulJ not have adnutted the contenuon because die contention and its supporung basis impermissibly challenge the Comminion's regulauons or genenc rulemulung anociated deternunations, including 10 C.ER. Parts 71 and 73; raise issues tryond the scope of ttus proceedmg, lack adequate factual or expert opinion support; and/or seek to hogate inues already rejected by the Board relative to contention OGD C. See t.BP-98-7,47 NRC at 179-81. 227-28.
23 Ahhough we need not reach the tnue of its adnussibihty under secuan 2.714(b), based on our review of l the parties' fihngs we would not have admined the contenoon because the contenoon and its supportmg basis impermissibly challenge the Commiwion's regulahons or generic rulemaking auociated deternunanons, ircludmg 10 C.F R. Parts 71 and 73, raiw inues outside the scope of the proceedmg and/or lock adequate factual or espert opinion support. see LBP 98-7. 47 NRC at 179-81.
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RULINo: Er the reasons set forth in our ruling regarding contention OGD R, we find this contention inadmissible.24 See supra p. 303.
OGD V OGD and its members are adversely affected by the potential human health and environ-mental safety problems associated with any type of failure of the casks that may be used to ship spent nuclear fuel to the proposed PFS facility along the proposed rail spur.
DISCUSSION regarding Late-Filing Standards: - PFS OGD Low Rail Con-tentions Response at 1-5; Staff OGD Low Rail Contentions Response at 3-5.
RULING: Er the reasons set forth in our ruling regarding contention OGD R, we find this contention inadmissible. 25 See supra p. 303.
OGD W OGD and its members are adversely affected by potential human errors, accidents. and/or other malfunctions involving the 1) huding of shipping casks,2) transportation of shipping casks to a railhead, and 3) transportation of shipping casks via rail, includmg the proposed rail spur to the proposed PFS facility.
DIscusslON regarding Late-Filing Standards: PFS OGD Low Rail Con-tentions Response at 1-5; Staff OGD Low Rail Contentions Response at 3-5; OGD Low Rail Contentions Reply at 1-5.
RULING: Br the reasons set forth in our ruling regarding contention OGD R, we find this contention inadmissible.26 See supra p. 303.
24 in doing so, we note that to the degree this contenuon attempts to raise some of the smue issues as were put forth in contention Utah HH. this weakens the oGD showing relative to factor four - essent of representation of peutioner's interests by esistir!g parues - given the state is fully quahfied to represent its interest relative to thew issues. see supra p. 298.
harther, although we need not reach the issue of its ada.iuibility under section 2.714(b), based on our review of the parties' fihngs we would not have admined the contenuon becauw the contention and its supporung basis lack adequate factual or espert opinion support; and/or fait properly to challenge the PFs appbcanon, as amended.
.see LBP.98 7,47 NRC at 180 81.
25 Although we need not reach the issue of its admissibibty under section 2.714(b). baned on our review of the parties' tilings we would not have adnutted the comention because the contenuon and its supporung basis impernussibly challenge the Commission's regulauons or generic rulemaking associated deternunauons. including to C.F R 151.52 tsummary Table S-4), lack adequate factual or espert opinion support; and/or seek to hugate issues already rejected by the Board relauwe to contenuoras oGD C and oGD 1. See 1.BP 98-7,47 NRC at 17941.
227 28. 230, 26 Although we need not reach the issue of its adnussibihty under section 2.714(b) based on our review of the parties' fihngs we would not have adnutted the contention because the contenunn and its supparung basis impernussibly challenga the Commission's regulanons or generic rt lemaking assocised determinations, including 10 C.F.R.15152 (summary Table S-4); lack adequate factual or espert opinion support and/or seek to htigate issues already rejected by the Board relauwe to contention Utah V. See LBP.98 7,47 NRC at 179 81; 20 Nil.
305
OGD X f
OGD and its members are adversely affected by the failure of PFS and/or the NRC to assess environrnental justice issues caused by the proposed amendment to transport high level spent riuclear fuel into the Skull Wiley area via rail spur. l 2
j DISCUSSION regarding Late-Filing Standards: PFS OGD Low Rail Con- '
tentions Response at 1-5; Staff OGD Low Rail Contentions Response at 3-5; OGD Low Rail Contentions Reply at 1-5. '
RULING: R)r the reasons set forth in our ruling regarding contention OGD :
R, we find this contention inadmissible.27 See supra p. 303. I l
OGD Y l
- OGD and its members are adversely affected by the taking and use of lands proposed for the construction and operation of the proposed rail spur because they will be deprived of the opponunity to utilize these lands for grazing animals.
1 1
DISCUSSION regarding Late-filing Standards: PFS OGD Low Rail Con- l tentions Response at 1-5; Staff OGD Low Rail Contentions Response at 3-5; I OGD Low Rail Contentions Reply at 1-5.
RULING: R)r the reasons set forth in our ruling regarding contention CGD R, we find this contention inadmissible.2 See supra p. 303.
l OGD Z I The construuion and operation of the proposed rail spur will permanently damage the I historically end culturally significant trail used by the Goshute and others who used the area planned for the low Corndor Rail Spur to travel through the Skull Wiley region.
27 Because there already is an adimtred contention, oGD o. concermng environmental jushce, factor five
- broadening the issues / delaying the proceeding - seenung!y would provide somewhat less support on the "inadtuissibihty" side of the balance than for contendon oGD R. albeit not enough to provide the compelling showing needed to overcome the lack of good cause relative to factor one.
Additionally, although we need not reach the issue of its admissibihty under section 2.714(b), tused on our review of the parues' hhngs we would not have admitted the contenuon because the contention and its supparung basis rase inues outside the scope of this proceedmg; lack adequate factual or espert opimon support, and/or fail properly to challenge the PI S apphcation, as amended. See CLt-9813. 48 NRC at 36. LDP-98 7,47 NRC at 179-81. I 2s oGD maintains good cause exists for late-hhag this contenuon because one of its nrmbers' use of grazing land is hmited to a part of the Skull Valley Band reservation on which the relocated rail spur will run. Su oGD tow Rail Contenuon Reply at 14. The cated afhdavit does not, however, suppott this muerdon.
Also in this regard, we observe relauve to factor three that the affidavit accompanymg the oGD hhng provides, at best, wry weak support in the admissihihty balance that clearly is inadequate. even in comhma6on with factnrs two and four. to provide the compelhng support needed to esercome the lack of gnad cauw.
Addidonally, ahhough we need not reach the sssue of its admissibihty under secdon 2.714(b). bawd on om review of the parues' hhngh we would not have admitted the contention because the conterbon and its supportmg basis lack adequate tactual or espert op nion support, and/or fait properly to challenge the PI'S apphcahon, as amended. See LBP 98-7,47 NRC at 180-81.
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- 1. Late Filing Standards DISCUS $10N: PFS OGD Low Rail Contentions Response at 1-5; Staff OGD l
Low Rail Contentions Response at 3-5; OGD Low Rail Contentions Reply at '
l-5.
RULING: Because OGD has made a showing that, by reason of the rail spur's relocation, there are now historical or cultural concerns that previously would not have been implicated, we fmd there is good cause for filing this particular contention late. Notwithstanding the fact that factors three and five provide little, if any support for admission of this contention as described in connection with contention OGD Y, see supra p. 306 & n.28, placing the factor one support for admission into the balance along with the support accorded by factors two and four as described above relative to contention OGD R, see supra pr303, we conclude that the admission of the contention is not precluded by the fact it was late-filed.
l
- 2. Admissibility inadmissible in that the contention and its supporting basis fail to establish with specificity any genuine material dispute; lack adequate factual or expert ;
opinion support; and/or fait properly to challenge the PFS application, as amended. See LBP-98-7,47 NRC at 179-81.
III. CONCLUSION Nr the reasons set forth above, we find that the late-filed contentions submitted by the State, the Confederated Tribes, and OGD regarding an August 1998 amendment to the PFS application that proposes, among other things, to construct and operate a rail spur between Low Junction, Utah, and its Skull Valley ISFSI are not subject to consideration in this proceeding either because these Intervenors have failed to establish (1) a balancing of the five factors in 10 C.F.R. 5 2.714(a)(1) governing late-filing supports admitting the contentions; or (2) the standards in section 2.714(b)(2) support admission of the contentions.
Further, although we find contention Utah B-1 inadmissible, we permit the basis for admitted contention Utah B to be amended to incorporate certain information about the proposed Rowley Junction ITP that arises from the August 1998 application amendment.
For the foregoing reasons, it is, this thirtieth day of November 1998. OR-DERED that 307
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- 1. The basis for admitted contention Utah B is amended as specified in '
section II.B. above.
- 2. The following late-filed contentions submitted by the State, the Confed-erated Tribes, and OGD in filings dated September 29,1998, October 14,1998, and November 2,1998, respectively, are rejected as inadmissible: Utah HH, l Utah II, Utah B-1, Confederated Tribes 1 Confederated Tribes J. Confederated i
Tribes K. Confederated Tribes L. Confederated Tribes M. Confederated Tribes j N, OGD Q, OGD R, OGD S, OGD T, OGD U, OGD V. OGD W OGD X, 1 OGD Y, and OGD Z.
j THE ATOMIC SAFETY AND LICENSING BOARD 2' G. Paul Bollwerk,111 ADMINISTRATIVE JUDGE Dr. Jerry R. Kline ADMINISTRATIVE JUDGE Dr. Peter S. Lam i ADMINISTRATIVE JUDGE Rockville, Maryland November 30,1998 l
" Copies of this Menwranduns and Ordv were sent dus date by Imernet e-enail transminion to counsel for (1)
Apphcam PFS; (2) Intervenors Skull Vancy lland, OGD, Confedermed Tribes. Castle Rock tamd and 1.ivestock.
LCJSkull Valley Cornpany.1.td., and de State; (3) Peuponer Southern Utah Wilderneu Alhance and (4) the Staff.
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Directors' Decisions Uncer 4 10 CFR 2.206 co Z
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i Cite as 48 NRC 309 (1998) DD-98-11 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS Carl J. Paperiello, Director in the Matter of Docket No. 030-16055 (License No. 34-19089-01)
ADVANCED MEDICAL SYSTEMS,INC.
(Cleveland, Ohio) November 4,1998
= DIRECTOR'S DECISION UNDER 10 C.F.R. # 2.206 I. INTRODUCTION letter dated August 19,1994, addressed to Mr. James M. Taylor, former utive Director for Operations, U.S. Nuclear Regulatory Commission (NRC).
V aiam IL Schatz, Esq., on behalf of the Northeast Ohio Regional Sewer o rict (District), requested that the NRC take action with respect to Advanced Medical Systems, Inc. (AMS), of Cleveland, OH, an NRC licensee,' He District requested, pursuant to 10 C.F.R. 6 2,206, that the NRC amend License No, 34-19089-01, to require AMS to install, maintain, and operate a radiation alarm I
Northeast Ohio Regional Sewer District submitted two previous petitions for action agamst AMS under 10 CER. I 2.206. In a petition dated March 3,1993, and supplenented by letters dated September 13,1994, october 13, 1994, and April 29,1996, the Petihorer requested that NRC: (1) modify AMS's Ucense No- 34-19089 41 to require that AMS assume all costs resulting from the offsite release of cobalt-60 that has been deposited at the Petitioner's Southerly Wastewater Treatment Center; (2) order AMS to decontaminate the sewer comiecting its facihty with the public acwer at landon Road, and conunue downstream with such decontamination to tir catent that samphng indicates is necessary;.(3) commence enforcement acuon against AMS for violation of 10
. CER. Il 303(a), 401(cX3), and 20.2003, and (4) take action on the AMS license to ufely, immediately, and reasonably decontaminate the London Road interceptor (the sewer). The second request had been partially granted when the NRC amended the AMs bcense to require remediation of the newer hne connecung the AMS facihty with the pubhc sewer, and the peuuon was demed in all other respects. DD-97-13,43 NRC 460 (1997). In a second pennon dated August 3,1993, the Petitioner requested that the NRC take action to require AMS tr provide adequate financial assurance to cover public habihty pursuant to secuon 170 of the Atomic Energy Act of 1954, as amended. The second peuhon was denied. DD-94-6,39 NRC 373 (1994).
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system on all drains at 1020 London Road, Cleveland, OH (AMS facility), that lead to either sanitary or storm sewers.
The District asserts two rnajor reasons as the bases for the request. First, it views the quantity of cobalt-60 waste in the AMS facility's basement as a major threat based on the following: (a) the NRC has admitted that the existing contamination at the AMS facility continues to pose a risk; (b) the contamination that exists at the AMS facility is estimated to include 393 curies, as of 1988, of loose, " talcum-like" cobalt-60 scattered on the floor of the basement waste holdup room; (c) cobalt-60 contamination was found in the sewer line connecting the AMS facility to the public sewer, c.nd was found directly under the AMS discharge; (d) the District has already incurred costs of nearly $2 million to address loose cobalt-60 contamination at the Easterly and Southerly Wastewater Treatment Plants; (e) the NRC has been unable or unwilling to explain the source of the cobalt-60 on the District's property, and unable to identify any likely sources for the cobalt-60 other than the AMS facility; and (f) the quantity of cobalt-60 at the Southerly Plant exceeds that which the AMS records show was released by AMS into the sewer system. Secondly, the original license for this site, issued to Picker in 1959, contained a requirement for an alarm system to detect unmonitored discharges. The District states that such an alarm system was nra a condition of the subsequent AMS license, despite a recommendation from Oak Ridge Associated Universities that such an alarm system be installed, along with control valves, to shut off flow to the sewer if the alarm sounds.
By letter dated September 7,1994, the NRC formally acknowledged receipt of the District's letter, and informed the District that its request was being treated pursuant to 10 C.F.R. 9 2.206 of the Commission's regulations. A notice of the receipt of the petition was published in the Federal Register on September 19, 1994 (59 Rd. Reg. 47,959). The NRC Staff sent a copy of its acknowledgment letter, with a copy of the petition, to AMS. By letter dated November 9,1995, the NRC informed the District that further action on its request was being deferred until completion of an ongoing proceeding on AMS's November 29, 1994 application to renew its license. While that proceeding has not been terminated, the NRC Staff has decided to deny the renewal application. See Letter from C. Paperiello, NRC, to S. Stein, AMS, dated September 28,1998.
Accordingly, it is now appropriate for the Staff to consider the action requested by the District.
I have completed my evaluation of the matter raised by the District and have determined that, for the reasons stated below, the petition should be denied.
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- 11. IIACKGROUND I In 1959, the Atomic Energy Commission (AEC) (predecessor to the NRC) issued License No. 34-07225-09 to Picker X-Ray Corporation (Picker) for operation of a sealed-source manufacturing facility located at 1020 London Road. The license authorized Picker to receive, store, and encapsulate cobalt-60 for the purpose of installing these encapsulated sources in approved devices and distributing the sources to customers having valid licenses. The facility at 1020 London Road had been built specifically for the intended purpose of handling and encapsulating large quantities of cobalt-60 (in the kilocurie range); the building included a hot cell for encapsulating the cobalt-60, and various support areas, including a heavily shielded room that contained two stainless steel tanks to. collect liquid radioactive waste (waste holdup tanks (WHUT)). During the manufacturing of encapsulated sources, it was not uncommon that the hot cell would become contaminated with oxidized cobalt 60. To maintain control of I contamination and radiation levels, the cell would be cleaned periodically, with the liquid waste generated by the cleanup diverted to the WHUT room, which had a combined holding capacity of 600 gallons. The stored liquid radioactive waste was then discharged to the sanitary sewer at irregular intervals, depending on the volume of liquid waste generated during normal operations. In a manual entitled " Radiation Safety Procedures for the Picker X-Ray Corporation, Waite I Manufacturing Division, Inc. " dated December 1959, a procedure outlined the '
{
equipment and steps followed to discharge the liquid waste to the sewer. The liquid radioactive waste was pumped directly from the WHUT into the sanitary )
sewer system through a drain in the basement noor. The hose from the WlIUT '
to the sewer drain was coatmuously monitored during discharge, with the liquid passing through a solenoid valve, an in-line monitor consisting of a G-M tube with a rate meter and a strip-chart tecorder, and a water meter. The solenoid valve opened only during intentional discharge from the WHUT, and only when the monitoring system detected count rates below a preset level, ensuring that l only authorized concentration levels were being discharged. A record of the total ;
discharge would be indicated by the total volume of liquid discharged and the count rate information from the monitor, calculating the average concentration and the total activity. The description of the monitoring process did not have ,
the detection system operating continuously, but only while discharging from l the holdup tanks to the sanitary sewer drain.
In a letter submitted to the AEC dated January 25, 1974, Picker submitted a manual entitled " Radiation Safety Procedures for the Picker Corporation, Iso-tope Operations," requesting it supersede the then-effective manual, " Radiation Safety Procedures for the Picker X-Ray Corporation, Waite Manufacturing Di-vision, Inc." mentioned above. This new manual modified the facility's liquid waste disposal method and system, and was later revised in September 1976.
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See Inspection Report No. 030-16055/93003 (DRSS) at 13. He AEC, and later the NRC, did not incorporate the January 1974 letter, the manual, and the sub-sequent September 1976 revision, into Picker's license. In Itbruary 1974 (OR I
Inspection Report No. 74-01 for License No. 34-07225-09 at 6), Picker modi-fied its liquid radioactive waste discharge procedure from the in-line continuous monitor, to a batch disposal method. This batch disposal system consisted of a 55-gallon drum located outside the room housing the WHUT, atop a stand pipe connected to a floor drain leading to the sanitary sewer line. Wastewater was pumped from the WHUT to the 55-gallon drum, the drum liquid was then agitated by an electrically driven trolling motor, and, aftet agitation, the liquid was sampled to determine its radioactive concentration. After determining ra-dioactivity concentration and the volume in the 55-gallon drum, for recording concentration and total quantity of radioactive material, the plug at the bottom of the drum was removed to discharge the contents to the sanitary sewer. His batch method of disposal was continued until Picker terminated this license in November 1979.
In 1979. Picker sold the facility and operation at 1020 London Road to AMS.
The provisions of the AMS I; cense applic; ion were similar to the previous Picker license, with many of the procedures eed forward to the AMS license, including the batch method for liquid radioactive waste release described above.
AMS used the same batch method for disposal of liquid radioactive waste as Picker, from the time that AMS's initial license (License No. 34-19089-01) was issued on November 2,1979, until April 1986. In 1986. AMS installed a 200-gallon plastic tank to collect waste from the drain leading from decontamination showers, the laundry, and sinks, and discontinued use of the 55-pallon drum for discharge. One of the two tanks in the WHUT room, a 500-galle i tank, was no longer receiving liquid waste when the 200-gallon tank was mstalled in 1986, and the use of the other tank in the WHUT room (100-gallon capacity) was l discontinued in 1988, when the WHUT room was isolated, he batch method of determining concentration and total volume of the liquid discharge from the ;
200-gallon tank, to show compliance, continued until May 1989, when discharge I to the sanitary sewer (via floor drains) was discontinued completely.
III. DISCUSSION Re District's petition requests the NRC to require AMS to install, maintain, and operate a radiation alarm system on all drains at the AMS facility that lead to either sanitary or storm sewers. The request to modify the license by having alarms installed appears to be an effort to put in place a mechanism that would indicate when cobalt-60 is entering the District's sanitary sewer system, and, in 312
turn, to stop the entry of the cobalt 60 into the sanitary sewer system on positive indication of material.
Most of the bases for the petition are restatements of facts, or existing infor-mation in previously published documents, that are associated with the facility at 1020 London Road. Since 1989, when AMS changed its decontamination process to a dry method, AMS's records indicate that AMS has not disposed of any radioactive waste into the sanitary sewer drain.
The District has incurred costs of nearly $2 million addressing the cobalt-60 contamination at its Easterly and Southerly wastewater treatment plants. De District's apparent concern in this petition is the threat that the London Road facility poses to the District's treatment facilities, primarily pertaining to the imposition of additional costs through telease of cobalt-60 from the AMS facility jnto the District's system. As described below, however, neither the nature or activity of the contamination in the WHUT room, in light of the condition of the WHUT room, nor the requirements formally applicable to Picker establish any basis to take the requested action. This cobalt-60 contamination is in a dry state, and the WHUT room is completely isolated from the sewer system and from accidental access. There are no floor drains in the WHUT room, and there is no water supply into or out of the room. Accordingly, the existence of contamination of 393 curies (14.5 terabecquerels) of loose, " talcum-like" cobalt-60 in the WHUT room in the basement does not warrant granting of the District's request.
The District indicated there had been an alarm and control system that had once been in place when Picker operated the facility, up to November of 1979.
In connection with this type of system, the District states that the system had not been a required condition of the license after Picker terminated work at the facility, and operations continued under the AMS license. In its original license application to show compliance with the regulations at that time, Picker included conditions requiring a water-monitoring system that detected concentration levels in a drainpipe. He system that Picker described in the Informational Memorandum No. 6, " Calibration and Evaluation of Water Monitor System,"
submitted by Picker to the NRC on December 2,1959, was used as both a control system, to prevent discharge above a preset limiting concentration, and as a method of showing compliance with then-applicable regulations. However, this documentation does not indicate that there had been any alarm as part of the system - nor is it documented, from that time, why the in-line system was discontinued, and a batch method used in its stead, in 1974. See OR Inspection Report 74-01, License No. 34-07225-09, transmittal dated May 3, 1974. Two interviewees questioned during a 1993 inspection indicated that the in-line system was discontinued because the in-line G-M detector needed to be replaced, but was no longer manufactured or available. See Report No.' 030-16055/93003 (DRSS) at 11. Both procedures, the in-line monitoring method and 313
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l the batch method, at the time they were being used, satisfied the requirement to show compliance independently, and, therefore, either procedure was considered !
acceptable at the time of the request. '
he Oak Ridge Associated Universities report that recommended monitoring l the discharge to the sanitary sewer and placing a servo-valve mechanism on the I drains was part of a larger report. See " Evaluation of the Operational Radiation i Safety and Fire Protection Programs of the Advanced Medical Systems, Inc.,
London Road facility, Cleveland, Ohio," December 1985. His method was given as an alternative for developing a contingency plan for controlling release to the sanitary sewer system in case of a major spill into the basement. He other alternative offered in this report was to seal the drains in the basement floor, so that any release could be monitored before releasing to the sewer system. AMS chose this latter alternative as a means of preventing an unmonitored release.
The method of sealing the drains was determined to be appropriate to ensure compliance with 10 C.F.R. 6 20.303 (1985). A continuous monitor could be used for the purpose of detecting a major unintended release, but might be relatively insensitive for normal operations.
In October 1994, the District issued an Executive Director's Order to AMS terminating all sewer service effective October 24,1994. In November 1994, the District placed a compression plug in the AMS lateral sewer line that connects the AMS facility to the District's sewer system under London Road. Thus, in effect, the District isolated the AMS facility's sanitary and storm drain lines from the sanitary sewerage treatment system. In mid-1995, AMS grouted shut the entire lateral line, to immobilize any residest cobalt-60 that remained in the lateral. AMS's grouting of the lateral line blocked release, through the lateral, from the AMS facility to the District's sewer system. At some point following the grouting operation, the District removed the compression plug on AMS's lateral sewer line. Currently, there are drains at the AMS facility ,
that lead from the rooftop (for rainwater) to the main sewer system in London i Road, but there are no other drains from the facility that are connected to the sewer system. The lateral connector, which connects all drains originating from within the AMS facility to the District's sewer line, remains grouted. Also, in a settlement agreement between the District and AMS, executed on December 20,1996, the District indicated that it would allow reconnection of the AMS facility to its London Road Interceptor pursuant to procedures set forth in the agreement, provided that several conditions were first satisfied. As of the date of this Director's Decision, AMS has not executed all the conditions in the agreement. he December 1996 settlement agreement states that reconnection shall be in full accordance with several criteria and requirements, with one of the requirements being that AMS must agree not to discharge any cobalt-60 into the srnitary sewer system,'directly or indirectly. See Settlement Agreement dated December 20,1996, at 10, forwarded by a letter from Dwight Miller, Stavole 314
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& Miller, Attorneys and Counsellors at Law, to John Madera, Chief, Materials
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Inspection Branch 1, Region III, dated January 6,1997. With this agreement for i reconnection in place, and with the only connection between the interior of the l AMS facility and the District's sewer system grouted, until AMS satisfies the j condition of the settlement agreement, the requested requirement for an alarm )
system is not necessary at this time.
l The existence of unsealed cobalt-60 at the AMS facility does represent l a potential risk. As the NRC Staff has previously stated, the possibility remains that the contamination existing on site might be spread to areas off site or that future operations could result in offsite contamination. Such offsite contamination would not necessarily spread to the District's system, however. In addition, the likelihood of accidental release of cobalt-60 from the Licensee's facility has diminished and continues to do so. DD-94-6, 39 NRC at 379.
Since 1994, the amount of cobalt-60 that could be released in an accident i l at the Licensee's facility has been greatly diminished because of disposals to l l a licensed disposal site. See NRC Inspection Report No. 030-16055/97001 l l (DNMS) (March 7,1997). Moreover, NRC inspectica and review of records have not revealed any documentation at AMS or other evidence that would indicate that discharges into the sanitary sewer system have been in excess of authorized limits. DD-97-13, 45 NRC at 465. As the situation exists today, the NRC Staff cencludes that neither the contamination at the facility nor the Licensee's drainage system present an immediate health and safety hazard to '
the public, and that the requested action is not warranted.
IV. CONCLUSION l
'the Staff has carefully considered the request of the Petitioner. In addition, '
the Staff has evaluated the bases for the Petitioner's request. For the reasons discussed above, the District's request for action pursuant to section 2.2% is denied, and no action pursuant to section 2.206 is being taken in this matter.
As provided by 10 C.F.R. 5 2.206 a copy of this Decision will be filed with the Secretary of the Commission for the Commission's review. 'Ihe Decision will become the final action of the Commission 25 days after issuance, unless 315
the Commission, on its own motion, institutes review of the Decision within that time.
FOR THE NUCLEAR REGULATORY COMMISSION Carl J. Paperiello, Director Office of Nuclear Material Safety and Safeguards Dated at Rockville, Maryland,- ;
this 4th day of November 1998.
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Cite as 48 NRC 317 (1998) DD-98-12
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Samuel J. Collins, Director in the Matter of Docket No. 50-213 CONNECTICUT YANKEE ATOMIC POWER COMPANY (Haddam Neck Plant) November 16,1998 DIRECTOR'S DECISION UNDER 10 C.F.R. # 2.206 I. INTRODUCTION On March 13, 1998, Mr. Jonathan M. Block submitted a petition pursuant to Title 10 of the Code of Federal Regulations, section 2.206 (10 C.F.R.
Q 2.206), on behalf of the Citizens Awareness Network (Petitioner) requesting that NRC (1) take immediate action to suspend Connecticut Yankee Atomic Power Company's (CYAPCO's) license to operate the Haddam Neck reactor and -
(2) investigate CYAPCO's intention to use an air cooling method as a backup cooling method for spent fuel.
In support of his request, the Petitioner offers the following five bases: (1)
CYAPCO has not resolved longstanding failures to exercise adequate radio-logical controls, (2) the nitrogen intrusion event of August 1996 demonstrates i that CYAPCO is unable to maintain operations in a shutdown condition, (3) l CYAPCO's plan to use air cooling of the spent fuel pool (SFP) as a backup cooling method would constitute an unmonitored, unplanned release into the environment, (4) the proposal to use the air cooling method is a violation of ;
CYAPCO's license, and (5) the proposal to use the air cooling method reveals '
CYAPCO's lack of comprehension of the defense-in-depth approach to safety systems. ,
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Connecticut Yankee Atomic Power Company is the holder of Facility Operat-ing License No. DPR-61, which authorizes the Licensee to possess the Haddam Neck Plant (HNP). The license states, among other things, that the facility is i subject to all the rules, regulations, and orders of the U.S. Nuclear Regula- j tory Commission (the Commission or NRC) now or hereafter in effect. The l
facility consists of a pressurized-water reactor located at the Licensee's site in Middlesex County, Connecticut. On December 5,1996, CYAPCO submitted written certifications of permanent cessation of operayon and that all nuclear j
fuel had been permanently removed from the reactor vessel. The certifications l were docketed on December 11, 1996, and therefore, in accordance with 10 i
C.F.R. 5 50.82(a)(2), the facility is permanently shut down and defueled and is i no longer authorized to operate or place fuel in the rea tor.
Additional background relevant to the five bases offered by the Petitioner to 1 support its requests is outlined below.
He Petitioner's first basis regarding the adequacy of HNP's radiological controls program has been evaluated by the NRC. He Petitioner notes that (1) in November 1996, the Licensee allowed two workers to become contaminated during an entry into the fuel transfer canal; (2) in February 1997, the Licensee released contaminated equipment to an unlicensed facility; and (3) on numerous occasions during the operating phase of the HNP, the Licensee released contam-inated materials to unrestricted areas. The first two items noted were included in the basis for issuing a confirmt. tory action letter (CAL) to the Licensee on March 4,1997, which documeated the Licensee's commitments to improve its radiation controls program. Sr.bsequently, on May 5,1998, the NRC issued the results of an inspection of the changes to the Licensee's radiation controls program and concluded that the Licensee had met the commitments listed in the CAL. The third item need was addressed by the NRC in the Haddem Neck Historical Review Team Report, dated March 1996. The report concluded that, based on dose assessments completed thus far, radiation exposure to members of the public from the telease of contaminated materials to offsite locations did not exceed the regulatory limits of 10 C.F.R. Part 20. l The Petitioner's recond basis, that CYAPCO is unable to maintain operations in the shutdown condition, is based on an August 1996 event. At that time, the reactor was shut down with the head in place and contained a full core of fuel.
However, operators allowed nitrogen to collect in the reactor vessel, displacing water contained in the top of the reactor vessel head. The NRC conducted in augmented inspection team (AIT) review of the event and concluded that the event, in combiimtion with other events that took place at the same time, was safety significant. However, there were no actual public health and safety consequences. He AIT issued its report on October 30,1996. A Notice of 318 1
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Violation and Proposed Imposition of Civil Penalties - $650,000" was issued
- j to the Licensee by NRC on May 5,1997, due, in part, to the nitrogen intrusion l
event.
He Petitioner's third, fourth, and fifth bases pertain to modifications to the
,y HNP spent fuel cooling system. CYAPCO submitted its Post Shutdown Decom-missioning Activities Report (PSDAR)on August 22,1997. He Licensee plans l lL to keep its spent fuel in wet storage in the SFP until it can be transferred to the Department of Energy (DOE). In the interim period, the spent fuel building and systems necessary to accomplish fuel cooling will remain on site, separate i
from the rest of the site's mechanical and electrical systems. This arrangement
- is referred to as the " spent fuel pool island." On March II,1998, at a public i meeting at the Haddam Neck site, the Licensee reported on the status of estab-l lishing the SFP island, among other items. He Licensee stated that two trains ,
of water cooling will be installed to cool the SFP. Heat rejection will be changed 31 from the existing service water system to two new spray coolers to be mounted
.on the roof of the spent fuel building. During the discussion, the Licensee stated
. that a bkac up coo ng li met ohd
, created by opening the building's doors and roof l
hatch to establish' natural-circulation air flow through the building, could be used
(
l to cool the spent fuel in the event that all other cooling systems became un-available. He Licensee did not present an evaluation of the dose consequences of radiological releases through the roof hatch, if the air cooling method was actually used. However, the Licensee had not used the air cooling method and '
considered it highly unlikely that conditions would arise that would require its use. .
6 In order to respond to the petition, the NRC requested information from the
!F ' Licensee with respect to its plans to air cool the SFP if other cooling methods ,
- were unavailable. The Licensee responded by letters dated June 29 and October f l- 14,1998. -
t IIL DISCUSSION OF PETITIONER'S REQUESTS Each of the Petitioner's requests is discussed below. The five bases presented by the Petitioner are considered for each request, and determinations are made as to whether the bases support the request.
! He Petitioner's first request it to immediately suspend CYAPCO's operating l- license. .
De first basis presented by the Petitioner, that the Licensee has not resolved I failures to exercise adequate radiological controls, no longer pertains to the first l request, since the Licensee has implemer.ted improvements, and the NRC has found them acceptable.
He second basis presented was the nitrogen intrusion event of August 1996.
y Although the NRC took enforcement action in response to the event, the basis no i l
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i t I f
l
/ -
1 longer pertains to the first request since the reactor vessel has been permanently defueled and no reactor accident is, or ever will be, possible at HNP.
He third basis presented to support the request to suspend HNP's operating license is that air cooling the spent fuel through the spent fuel building roof hatch would constitute an unplanned, unmonitored release of radioactivity to the environment. The Commission's regulations require a licensee to monitor and control radioactive releases. The Commission places a licensee under the authority of the regulations by issuing a license with appropriate conditions. For example, the HNP operating license imposes the requirements of 10 C.F.R. Part 20, " Standards for Protection Against Radiation," and 10 C.F.R. Part 50, "Do-mestic Licensing of Production and Utilization Facilities," among others, on the Licensee. Part 20 limits the radiation exposure a licensee may allow a person to
, receive and requires the licensee to demonstrate that it has contmited exposures to levels less than the limits. Part 50 governs the operation and decommis-sioning of a reactor facility, and, perhaps most significantly in view of the third basis presented, requires a licensee to limit the release of radioactive materials in effluents to "as low as reasonably achievable" (ALARA). Suspending the HNP license would not relieve the Licensee of its responsibility to adequately control the use of radioactive materials in its possession, but could impede the NRC's ability to enforce regulatory requirements. Since the license is a mechanism through which the NRC holds the Licensee to its responsibility, the third basis presented does not support suspension of the license.
The fourth basis presented to support the request to suspend the license is that the Licensee's proposal to air cool the SFP using a flow path through the spent fuel building doors and roof hatch constitutes a violation of the license conditions. However, the license does not prohibit making proposals for alternative methods of operation of a reactor facility. Since making a proposal to air cool the SFP does not violate the license, the fourth basis does not support suspension of the license.
He fifth basis presented to support the request to suspend the license is that the air cooling proposal reveals that CYAPCO does not understand the defense-in-depth approach to backing up safety systems. Defense in depth, as applied at the system level, can be achieved by providing redundant and diverse methods to accomplish a function. De Licensee described the normal and alternate SFP cooling systems. The normal system consists of redundant components for the SFP cooling system, the intermediate cooling loop, and the roof-mounted spray coolers. These are closed loops and do not require outside water to remain in operation, except for makeup water to the sprayers in hot weather. The redundancy provided in the normal cooling system allows several configurations to remove SFP heat. In addition, the SFP cooling pumps are backed up by alternate pumps that can be used to circulate river water through the normal system heat exchangers, which provides a diverse heat sink for the 320 a
normal system. He pumps may be powered from offsite or onsite electrical power sources, and there is an engine-powered pump available that does not require electrical power. Rus, there are re:!undant and diverse sources of power for pumping. In the event no heat exchange systems are available, makeup water could be added to the SFP, and the cooling could be accomplished through evaporation. The heat would then be removed by the building exhaust fan, which is the normal release path. As evidenced by the components and alternates listed above, redundant and diverse methods are available to provide defense in depth for the SFP cooling function. The air cooling method is not required. Thus, the fifth basis does not support the request to suspend the license.
Ibr the reasons stated above, the Petitioner's request to staspend the 1.icer .ee's operating license is denied.
7The Petitioner's second request is to investigate CYAPCO's propen! to air L cool the SFP by opening the spent fuel building's doors and roof hatch. !
He first basis presented by the Petitioner, that the Licensee has not resolved failures to exercise adequate radiological controls, no longer pertains to the second request, since the Licensee has implemented improvements, and the NRC has found them acceptable.
He second basis presented was the nitrogen intrusion event of August 1996. Although the NRC took enforcement action in response to the event, the basis does not pertain to the second request since the reactor vessel has been permaneritly defueled and no reactor accident is, or ever will be, possible at HNP.
The third basis presented by the Petitioner to support the request to investigate the Licensee's air cooling proposal is that the Licensee's plan to air cool the SFP by opening the spent fuel building's doors and roof hatch would constitute an unplanned, unmonitored release into the environment. The third basis concerns actions that have not occurred, and that the Licensee does not expect to take.
However, because the Licensee plans to use the air cooling method under certain
)
circumstances, the NRC considers the Petitioner's basis to be sufficient to grant l the second request. A review of the Licensee's regulatory responsibilities is I presented in Section IV, below. j
%e fourth basis presented to Support the request for an investigation is i that the Licensee's proposal to air cool the SFP using a flow path through the spent fuel building doors and roof hatch constitutes a violation of the license conditions. However, the license does not prohibit making proposals for alternative methods of operation of a reactor facility. Since making a proposal to air cool the SFP does not violate the license, the fourth basis does not support the request.
De fifth basis presented to support the request to investigate the Licensee's proposal is that the air cooling proposal reveals that CYAPCO does not j understand the defense-in-depth approach to backing up safety systems. As )
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l noted above, the system proposed by the Licensee achieves defense in depth by installing redundant and diverse components, power supplies, and heat sinks.
The air cooling method is not required for defense in depth. Hus, the fifth )
basis does not support the request.
l Re NRC has determined that the third basis presented by the Petitioner is l
sufficient to grant the Petitioner's request to investigate the Licensee's proposal ,
to air cool the SFP.The Staff's evaluation of the Licensee's proposal is presented l in Section IV, below, i
IV. REVIEW OF Tile LICENSEE'S PROPOSAL The NRC requested information from the Licensee with respect to its plans lo, air cool the SFP if other cooling methods become unavailable. The Licensee responded by letters dated June 29 and October 14, 1998. The NRC also reviewed the Licensee's operating license, Updated Final Safety Analysis Report I (UFSAR), and Offsite Dose Calculation Manual (ODCM).
By letter dated October 14, 1998, the Licensee stated that the dose conse-quence to an offsite member of the public fmm an airborne release from the SFP if the doors and roof hatch were opened to cool the spent fuel would be 0.254 mrem. He dose was calculated assuming that the air cooling method would be in use for 2 weeks before returning to a water cooling method and closing the doors and roof hatsh. The dose is within regulatory limits. He Licensee stated that procedures are in place to monitor a radioactive release from the roof hatch.
He Licensee's October 14 letter contained a commitment to develop proce-dural guidance regarding when to open and subsequently close the spent fuel i building (SFB) doors and roof hatch, in the event air cooling becomes neces. l sary. The procedure will also direct operators to request airborne radioactivity surveys when the SFB doors and roof hatch are opened.
He Facility Operating License limits gaseous effluents in accordance with Technical Specification (TS) 3/4.11.2. That TS also requires that if a dose rate l exceeds the limit, the Licensee must decrease the release rate within 15 minutes to comply with the limits.
The UFSAR, section 9.13, describes the SFP cooling system. Under the )
provisions of 10 C.F.R. 6 50.59, a change to a system described in the UFSAR requires the Licensee to perform a safety evaluation and, if necessary, obtain NRC approval before implementing the change. Using the air cooling ..;ethod ;
would fall within the scope of section 50.59. Herefore, when the Licensee l revises its procedure to permit use of the air cooling method, it must perform a safety evaluation.
He ODCM provides the parameters and methodology to be used to calculate offsite doses and effluent monitor setpoints. Each effluent pathway used by the i
322 I
i Licensee must be accounted for in the ODCM. The Licensee has procedures to '
monitor and quantify airborne releases, although, at the time of this review, the l
ODCM did not contain parameters or a methodology for a release path from the SFB roof hatch. However, there is no requirement to develop that information until the release path is used.
In summary, a release from the SFB doors and roof hatch from air cooling the SFP is required to be within regulatory limits. Before the air cooling i method could be used, the Licensee would have to perform a safety evaluation in accordance with section 50.59 and revise its ODCM. In the event that the ;
SFB doors and roof hatch are actually used for cooling the SFP, the release path l must be monitored and actions taken to meet regulatory limits. Ilowever, there is no requirement to revise the ODCM unless the Licensee, in fact, uses the air cooling method.
V. DECISION l Ihr the reasons stated above, the petition is denied in part and granted in part. !
The request to suspend the operating license is denied. The request to investigate l the Licensee's proposal to air cool the SFP is granted. The investigation is presented as the review in Section IV, above. The decision and the documents cited in the decision are available for public inspection in the Commission's s l
Public Document Room, the Gelman Building,2210 L Street, NW, Washington, D.C., and at the Local Public Document Room for the Haddam Neck Plant at the Russell Library,123 Broad Street, Middletown, Connecticut.
In accordance with 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. As provided for 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.
1 FOR TIIE NUCLEAR REGULATORY COMMISSION I I
Samuel J. Collins, Director Office of Nuclear Reactor i Regulation Dated at Rockville, Maryland, this 16th day of November 1998.
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