Text

Nuclear Regulatory Commission Issuances.Opinions and Decisions of the Nuclear Regulatory Commission with Selected Orders.January-June 1997
	ML20202G017
Person / Time
Issue date:	12/31/1997
From:	; NRC
To:	;
References
	NUREG-0750, NUREG-0750-V45, NUREG-750, NUREG-750-V45, NUDOCS 9802200041
	Download: ML20202G017 (526)
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{{#Wiki_filter:.. . _ _ .. . . . . _ _ . . . _ _ . _ NUCLEAR REGULATORY COMMISSION ISSUANCES OPINIONS AND DECISIONS OF TIIE NUCLEAR REGULATORY COMMISSION WITH SELECTED ORDERS , January 1,1997 - June 30,1997 Volume 45 Pages 1 - 495 pBRfog s* Prepared by the Office of the Chief Information Officer U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301 - 415 - 6844) I psL g 99j22 g 971231 0750 R PDR

                                                                                                                         -      COMMISSIONERS Shirley A.Jhckson, Chairman Kenneth C. Rogers
                                                                                                                                   ! Greta J. Dieus Nils J. Diaz Edward McGaffigan, Jr.

Leonard J. Callan, Executive Director for Operations

                                                                                                                          . Karen D. Cyr, General Counsel B. Paul Cotter, Jr., Chief Administrative Judge.

Atomic Safety & Licensing Board Panel M 1 _ _ .,r . . . - . . , _ m . r

   . . -      . .       --              .. . . . .          . . . . . . . . - . - _ . . ~ . .             _ . . . . . -

T 4 ^ i i 4 ATOMIC SAFETY AND CENSING BOARD PANEL ~ , B. Paul Cotter, Jr.,* ChiefAdministrative Judge _ - James P. Gleason,* Deputy ChiefAdministrative Judge (Erecutive) Frederick 3. Shon,* Deputy ChiefAdministrative Judge (Technical) _ l l Members Dr.Ocorge C. Anderson Dr Richard F. Foster Dr.Kenneth A.McCollom Charles Bechhoefer* - Dr. David L. Hetrick Marshall E. Miller Peter B. Bloch' - Ernest E. Hill Thomas S. Moore *

         - G. Paul Bollwerk Ill'        Dr. Frank E Hooper                       Dr, Peter A. Morris Dr. A.Dixon Callihan         Dr. Charles N. Kelber*                   Thomas S. Murphy

Dr. James H. Carpenter Dr. Jerry R. Kline'.- Dr. Richard R. Parizek -

Dr. Richard F. Cole

Dr. Peter S. Lam
Dr. Ilarry Rein

<: Di. Thomas E. Elleman Dr. James C. Lamb III Lester S. Rubenstein ' . ' Dr. George A. Ferguson Dr. Linda W. Little Dr. David R. Schink

         - Dr. Harry Foreman            Dr.Emmeth A.Luebke                       Dr. George E Tidey mnnanent panelmembm

!~ 4 n v

I PRE' ACE This is the forty-fifth volume of issuances (1 - 495) of the Nuclear Regulatory Commission and its Atomic Safety and Licensing Boards, Administrative Law Judges, and Office Directors. It covers the period from January 1,1997 to Jun 30,1997. Atomic Safety and Licensing Boards are authorized by Section 191 of the ! Atomic Energy Act of 1954. These Boards, comprised of three members conduct adjudicatory hearings on applications to construct and operate nuclear power plants and related facilities and issue initial decisions which, subject to internal review and appellate procedures, become the final Commission action with respect to those applications. Boards are drawn from the Atomic Safety and Licensing Board Panel, comprised oflawyers, nuclear physicists and engineers, environmentalists, chemists, and economists. The Atomic Energy Commission first established Licensing Boards in 1962 and the Panel in 1967. Beginning in 1969, the Atomic Energy Commission authorized Atomic Safety

.nd Licensing Appea! Boards to exercise the authority and perform the review functions which would otherwise have been exercised and performed by the Commission in facility licensing proceedings. In 1972, that Commission created an Appeal Panel, from which are drawn the Appeal Boards assigned to each licensing proceeding. The functions performed by both Appeal Boards and Licensing Boards were transferred to the Nuclear Regulatory Commission by tne Energy Reorganization Act of 1974. Appeal Boards represent the final level; ithe administrative adjudicatory process to which parties may appeal. Parties, however, are permitted to seek disc-etionary Commission review of certain board rulings. The Commission also may decide to review, or, its own motion, various decisiont or actions of Appeal Boards.

On June 29,1990, however, the Commission voted to abolish the Atomic Safety and Licensing Appeal Panel, and the Panel ceased to exist as of June 30,199L In the future, the Commission itself will review Licensing Board and other adjudicatory decisions, as a matter of discretion. See 56 Fed. 29 & 403 (1991). The Commission also has Administrative Law Judges appointed pursuant to the Admin istrative Procedure Act, who preside over proceedings as directed by the Commission. The hardbound edition of the Nuclear Regulatory Commission Issuances is a final compilation of the monthly issuances. It includes all of the legal precedents for the agency within a six-month period. Any opinions, decisions, denials, memoranda and orders of the Commission inadvertently omitted from the montHy softbounds and any corrections submitted by the NRC legal staff to the printed softbound issuances are contained in the hardbound edition. Cross references it, the text and indexes are to the NRCI page numbers which are the same as the page numbers in this publication. Issuances a.: referred to as follows: Commission-CLI, Atomic Safety and Licensmg BoardutBP, Administrative Law Judges-ALI, Directors' Deci-sions--DD, and ~ sions on Petitions for Rulemaking -DPRM. The summar d headnotes preceding the opinions reported herein are not to be deemed

jart of those opinions or to have any independent legal signi6cance.

v

CONTENTS Issuances of the Nuclear Regulatory Commission - LOUISIANA ENERGY SERVICES, L.P. (Claiborne Enrichmert Center) Docket 70-3070-ML Order, CL197 2, January 29,1997...... . ...............,... . 3 Order, CLI 97 3, February 13,1997.. .......................... 49 Order, CL1 97-4, March 21, 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Order, CLI 97 7, June 30,1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 437 RALPil L. TETRICK (Denial of Application for Reactor Operator License) Docket 55-20726-SP Memorandum and Order, CL1-97 5. May 20,1997 . . . . . . . . . . . . . 355 REGENTS OF THE UNIVERSITY OF CALIFORNIA (Indemnity Claim) Dee!2 ion, CL1-97-6, May 29,1997 . . . . . . . . . ............,358 SEQUOYAH FUELS CORPORATION and GENERAL ATOMICS (Gore, Oklahoma Site Decontamination and Decommissioning Funding) Docket 40-8027 EA Memorandum and Order, CLI 971, Janua.y 22,1997 ... . ........ 1 Issuances of the Atomic Safety and Licensing Boards ATLAS CORPORATION (Moab, Utah Facilcy) Docket 40-3453 MLA Memorandum and Order, LBP-97-9, May 16,1997 . . . . . . . . . . . . . . 414 ENERGY FUELS NUCLEAR. INC, (White Mesa Uranium Mill) Docket 40-8681 MLA Memorandum and Order, LBP-97 10, May 27,1997 . . . . . . . . . . . 429 GENERAL PUBLIC UTILITIES NUCLEAR CORPORATION (Oyster Creek Nuclear Generating Station) Docket 50-219-OLA Memorandu;n and Order, LDP-971, January 31,1997...... ,. . 7 GEORGIA INSTITUTE OF TECHNOLOGY (Georgia Tech Research Reactor, Atlanta, Georgia) Docket 50-160-Ren Initial Decision. LBP-97 7, April 3,1997. . . . . . . . . .. 265 vil

ILLINOIS POWER COMPANY and SOYLAND POWER COOPERATIVE (Clinton Power Station, Unit 1) Docket 50-461 OLA Memorandum and Order. LDP-97 4, March 11,1997 . . . . . . . . . . . . . . 125 LOUIS 1ANA ENERGY SERVICES, L.P. (Claiborne Enrichment Center) Docket 70-3070-ML Partial Initial Decision, LBP-97-3, March 7,1997 . . . . . . . . . . . . . . , . . . 99 Final Initial Decision, LDP-97 8, May li 1997 . . . . . . . . . , . . . . . . . 367 RALPH L. TETRICK Qenial of Application for Reactor Operator License) 3 Jocket 55-20726-SP Initial Decision. LBP-97 2, February 28,1997..................... 51 Corrected Copy of Memorandum and Order, a LBP-97-6, March 27,1997 . . . . . . . . . . . . . . . . . . . . . . ....... 130 Memorandum and Order, LBP-97 11, Jane 25,1997 . . . . . . . . . . . . . . 441 UNIVERSITY OF CINCINNATI (Denial of License Amendment)

       - Docket 30-02764 MLA Memorandum and Order, LDP-97 5, March 27,1997 . . . . . . . . . . . . . . 128 1

l Issuances of Directors' Decisions ADVANCED MEDICAL SYSTEMS, INC. (Cleveland, Ohio) Docket 030-16055 l Director's Decision. DD-97-13, June 13,1997. . . . . . . . . . . . . . , . 4 60 CONSUMERS POWER COMPANY (Palisades Nuclear Plant) Dockets 50-255,72 7 Director's Decision. DD-97-1, January 23,1997. . . . . .... 33 Director's Dec sion, DD-97 5, March 4,1997 . . . . . . . . . . . . . . . . . . . . l? 5 Director's Decis;nn. DD-97 9, April 17,1997 . . . . . . . . . . . . . . . . 328 Director's Decision, DD-97 15, June 18,1997. . . . . . . . . . . . . . . . . . 475 4 ENTERGY OPERATIONS, INC. (Arkansas Nuclear One, Units 1 and 2) Dockets 50-313, 50-368. 72 13 Director's Decision, DD-97 5, March 4 1997 . . . . . . . . . . . . . . 135 Director's Decision, DD-97-9. April 17,1997 . . . . . . . . . . . . . 328 Director's Decision. DD-97 15, June 18,1997. . . . . . .. .. . 475 vili

ENVIROCARE OF LTTAli, INC. Docket 40-8989 Director's Decision, DD-97-2, libruary 5,1997 . . . . . . . . . . . . . . . . . . 63 GENERAL PUBLIC UTILITIES NUCLEAR CORPORATION (Oyster Creek Nuclear Generating Station) DocKt.' 50-219 Final Direewr's Decision, DD-97 8, April 2,1997 . . . . . . . . . . . . . . . . 315 Director's Decision, DD-97-14, June 16,1997. . . . . . . . . . . . . . . . . . . 472 GEORGIA INSTITUTE OF TECIINOLOGY (Georgia Tech Research Reactor, Atlanta, Georgia) Docket 50-160 Final Director's Decision, DD-97 16, June 27,1997 . . . . . . . . . . . . . . . 487 GEORGIA POWER COMPANY, et al. (Vogtle Electric Generating Plet, Units 1 and 2; llatch Nuclear Plant, Units 1 and 2) Dockets 50-321,50 366,50-424,50-425 Director's Dec'sion. DD-97 6, March 18,1997 . . . . . . . . , . . . . . . . . 144 NORTHEAS1 NUCLEAR ENERGY COMPANY

   -_( Millstone Nuclear Power Station, Unit 1)

Docket 50-245 Director's Decision, DD 97-4, libruary ll,1947 . . . . . . . . .. ..... 86 NORTl; EAST UTILITIES (Millstone Nuclear Power Station, Units 1,2, and 3) Dockets 50-245,50-336,50 423 Director's Decision. DD-97 11. April 29,1997 . . . . . . ........ 347 StilELDALLOY METALLURGICAL CORPORATION (Newfield, New Jersey)

       - Dock:t NO-07102 Director's Decision, DD-9710, April 15,1997 . . . . . . . . . . . ...           338 Docket 040-8948 Director's Decision, DD-97-12, June 6,1997. . . , . . . . . . . . ..,,. 449 SIERRA NUCLEAR CORPORATION Docket 721007 Director's Decision, DO-97 15, June 18,1997. . . . . . . . . . . . . . . . . . 475 TOLEDO EDISON COMPANY, et al.

(Davis Besse Independent Spent Fuel Storage Installation) Dockets 50-346, 72-1004 Director's Decision, DD-97 3, February 5,1997 . . . . . . . ... . . 71 WESTINGHOUSE ELECTRIC CORPORATION (Madison, Pennsylvania) Director's Decision, DD-97-7 March 20,1997 . . . . . . . . . . . . . . 258 lx

1 1 i WISCONSIN ELECTRIC PJWER COMPANY (Point Beach Nuclear Plant. Units 1 and 2) Dockets 50-266,50 301,72 5 Director's Decision. DD-97 5, March 4.1997 .................... 135 Director's Decision, DD-97 9, April 17,1997 . . . . . . . . . . . . . . . . . . . . 328 Director's Decision. DD-97 15, June 18.1997. . . . . . . . . . . . . . . . . 475 Indexes Case Name Inde x . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 Legal Citations Inde x . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , , .1 3 Cases.............,..................................I.3 Re gulat ion s . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I.7 S tatute s . . . . . . . . . . . . . . . . . . . . . . . . ................. . . . . . . . 1 15 O the r s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 17 S ubject Inde x . . . . . . . . . . . . . . . . . . . . . . .. . ... ......... . . . 1 19 Fac ility i nde x . . . . . . . . . . . . . . , , . . . . . . . . . . . . . . . . . . . . . . , . . . . . . I.2 9 X

Cite as 45 NRC 1 (1997) CLl-971 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS: Shirley Ann Jackson, Chairrnan Kenneth C. Rogers Greta J. Dicus j Nils J. Diaz '

                               . Edward McGaffigan, Jr.

l l In the Matter of Docket No. 40-8027-EA SEQUOYAH FUELS CORPORATION , and GENERAL ATOMICS (Gore, Oklahoma Site Decontamination and Decommissioning Funding) January 22,1997 ( he Commission grants two petitions for review challenging the Licensing Board's approval cf a settlement agreement. De Commission also establishes , a briefing schedule. MEMORANDUM AND ORDER ne State of Oklahoma, Native Americans for a Clean Environment, and the Cherokee Nation have filed petitions for Commission review of the Atomic Safety and Licensing Board's Memorandum and Order, LDP 96-24,44 NRC 249 (1996), i,_ which a majority of the Board approved a settlement agreement between the NRC Staff and General Atomics (GA) in this proceeding. In a dissenting opinion, Judge Bollwerk raised questions that, in his view, merited further inquiry. He NRC Staff and GA oppose Commission review. In accordance with the considerations set forth in 10 C.F.R. 52.786(b)(4), the Commission has decided that review of LBP-96-24 is appropriate. Pursuant to 10 C.F.R. 6 2.786(d), the Commission sets the following briefmg schedule: 1

l. Intervenors and the State shall file their briefs within 21 calendar days after service of this Order. Their briefs shall not exceed thirty pages each.

2. %e Staff and GA may file responsive briefs within 21 calendar days after service of the Petitioners' brief. Reir responses shall not exceed thirty pages each.

3. Within 10 calendar days after service of the responsive briefs, Intervenors and the State may file reply briefs. Deir replies shall not exceed ten pages each.

The parties' briefs should address (1) what the role of the Board should be in reviewing settlements; (2) what factors the Board should consider when applying the "public interest" standard governing review of settlements (see Sequoyah fuels Corp. (Gore, Oklahoma Site), CLI-94-12,40 NRC 64,7I (1994)); (3) the arguments set forth in the petitions for review; and (4) the questions raised by Judge Bollwerk. Briefs exceeding ten pages must contain a table of contents, with page references, and a table of cases (alphabetically arranged), statutes, regulations, and other authorities cited, with references to the pages of the brief where they are cited. Page limitations on briefs are exclusive of pages containing a table of contents, table of cases, and of any addendum containing statutes, rules, regulations, etc. IT IS SO ORDERED. Ibr the CommL.ani JOllN C. IlOYLE Secretary of the Commission Dated at Rockville, Maryland,

 - this 22d day of January 1997.
   'Constussioner Diaz was hot available for the afntmation of this Order. If he had been present, he would have erfroved the order.

2

Cite as 45 NRC 3 (1997) CLI-97 2 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS: 1 Shirley Ann Jackson, Chairman - Kenneth C. Rogers Greta J. Dicus Nils J. D?az Edward McGaffigan, Jr. . In the Matter of Docket No. 70-3070-ML LOUISIAi4A ENER3Y SERVICES, LP. (Claiborne Enrichment Center) January 29,1997 ne Commission denies a motion, filed by the Intervenor, requesting partial reconsideration of CLI-96-8,44 NRC 107 (1996), in CLI-96-8, the Commission granted in part and denied in part the Intervenor's petition for review of Atomic Safety and Licensing Board initial Decision LDP-96 7,43 NRC 142 (1996), which resolved all contentions on emergency planning in the Applicant's favor. RULES OF PRACTICE: RECONSIDERATION MOTIONS Motions for reconsideration may not rest on a new thesis that could have been raised earlier in a petition for review, RULES OF PRACTICE: RECONSIDERATION MOTIONS NRC rules contemplate petitions for reconsideration of a Commission deci-sion on the ments, not petitions for reconsideration of a Commission decision to decline review of an issue. See 10 C.F.R. 5 2.786(e). 3

i ORDER The Intervenor, Citizens Against Nuclear "Ilrash (CANT), has filed before the Commission a Motion for Partial Reconsideration of CLI-96-8, 44 NRC 107 (1996). Both the NRC Staff and the Applicant, Louisiana EnerEy Services (LES), oppose the Intervenor's motion. For the reasons stated in this Order, we deny the motion. In CLI-96-8, the Commission granted in part and denied in part CANT's petition for review of Atomic Safety and Licensing Board Initial Decision LDP-96 7,43 NRC 142 (1996). He Licensing Board's decision resolved all contentions on emergency planning in favor of LES. De Commission in CLI-96-8 granted review of only one Usue raised in CANT's petition for review: whether the Licensing Board erred in directing the NRC Staff to clarify the intended role of the Applicant':. onsite fire brigade. 44 NRC at 108. The Commission went on to hold, based on the pleadings and record before it, that the emergency plan description of the onsite brigade's size and training meets Commission requirements. 44 NRC at 110. We deny CANT's motion for partial reconsideration for three independent reasons: First, motions for reconsideration may not rest on a "new thesis."' Both LES and the NRC Staff argue that CANT is now raising for the first time before the Commission the issue of the qualifications and training of the offsite fire dep.irtment, an issue they say that CANT failed to raise in its Petition for Review of LBP-96-7, We agree with the NRC Staff and LES. While CANT's petition for review contained references to the offsile fire department (at 2,5), the petition failed to articulate any explicit challenge to the Bord's findings on the department's training and qualifications. A " cursory assertion"is insufficient to raise an issue for appeal. See Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI 96-7,43 NRC 235,272 (1996)) Secondly, even if CANT had intended in its petition for review to raise 'he offsite fire department question, the Commission in CLI 96-8 explicitly denied review of the Licensing Board's decision, "except for a single issue," involving "the intended role and training of the Applicant's onsite fire brigade." 44 NRC at 108. CANT, in requesting reconsideration of CLI-96-8, does not challenge the Commission's findings on the role and training of the onsite fire brigade. CANT I Jee. e 3. Centrut Elartric Pinver Coverative (Virgil C. Summer Nuclear stauon. Umt 11 CtJ 81-26.14 NRC 787,790 (19811 quoting Trnarssee Yulley Aarhanty (Hataville Nucles Plant. Umts 1 A,2A 1B. and 2BL A1.AB. 418,6 NRC 1,2 (1977). 2 The NRC Staff and ti.S also claim that the motion for reconsideration was hied 2 days late, a poent disputed by CANT. We do not decide this timing issue. Even taking into account aD of CANT's argunents to its monon for reconsideration and its reply brief, and assurrung orgurmto that the mocon is timely, we 6nd no reason to grant 6t. 4

Instead requests the Commission to review the qualifications and training of the ogshe fire department, a sut> ject the Commission did not accept for review. Our rules contemplate petitions for reconsideration of a Commission decision on the merits, not petitions for reconsideration of a Commission decision to decline review of an issue. See 10 C.F.R. 6 2.786(e). Third, CANT's motion for reconsideration simply does not raire any com-pelling argument calling into quemion the Licensing Board's findings on the training and qualifications of the offsite fire department. The Board made sev-eral findings about the training and qualifications of the offsite fire department. See LBP 96-7,43 NRC at 15152,158,159-61,164-65. It found the informa-tion outlined in the LES plan adequate under the "brief description" requirement of NRC rules (10 C.P.R. Il40.31(jX3Xi),70.22(iX3Xi)); it properly based its finding. on information contained in the record and found in either expert tes. timony or the LES emergency plan itself. We are not persuaded by CANT's argument that the Licensing Board was unaware that the offsite fire department would be ultimately responsible for fighting a severe onsite fire at the LES facility. The Board assumed from the SAR and the SER that the offsite fire department would be the primary organization responsible for controlling fires at ti.e plant, and that the onsite fire brigade would merely " supplement" but not replace the local fire department. 43 , NRC at 161. In referring the onsite brigade issue to the Staff, the Board sought merely to confirm that the on. rite brigade would not have a b:3ger firefighting role than the Board had found reflected in the SAR and SER, and accordingly l to ensure that the brigade did not need additional training or members. 43 NRC l at 160-61. He Board expressed no concerns about the adequacy of the offsite fire department. He Intervenor's biotion for Partial Reconsideration of CLI 96-8 is denied. It is so ORDERED, l } For tne Commission JOHN C. HOYLE Secretary of the Commission Dated at Rockville, htaryland, this 29th day of January 1997. J 5

1 i Cite as 45 NRC 7 (1997) LBP 971 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD ] Before Adminletrative Judgee: G. Paul Bollwerk, lit, Chairman Dr. Charlee N. Kolber Dr. Peter S. Lam in the Matter of Docket No. 50-219-OLA (ASLBP No. 96-717 02 OLA) e GENERAL PUBLIC UTILITIES NUCLEAR CORPORATION (Oyster Creek Nuclear Generating Station) January 31,1997 in this proceeding concerning challenges by Intervenors Nuclear Information Resource Service (NIRS) and the Oyster Creek Nuclear Watch (OCNW) to a technical specification change regar: ling heavy load handling over the Oyster Creek Nuclear Generating Station spent fuel pool, the Licensing Board grants summary disposition in favor _ of Licensee General Public Utilities Nuclear Corporation (GPUN) on the sole intervenor contention, ruling that (1) prior to the requested revision, the technical specification did preclude the heavy load activity now at issue; (2) as they embody _ tM agency's " defense-in-depth" philosophy, the provisions of NUREG-0612. " Control of Heavy Loads at . Nuclear Ibwer Plants"(July 1980), which Intervenors assert preclude authorizing the requested technical specification change, establish guidance rather than regulatory requirements for handling heavy loads; and (3) aethine in the provisions of NUREG-0612 and later NRC Staff generic letters intended to promote compliance with that document's recommendations bars the adoption of the requested technical specification change. 7

                                              . - . - ~ _ -          -        . - -.         . . _ .

LICENSEt - CONSTRUCTION DF TERMS (PLAIN MEANING) -

            'Ihe first interpretational tc. I for discerning the meaning of the terms of a
     . license is the plain meaning of the language of the provision in question.

LICENSES -- CONSTRUCTION OF TERMS (SUBSEQUENT REVISION)

           - A subsequent enactment that declares the intent of an earlier provision generally is to be given " great weight" in resolving a construction problem.

See Red Don Broadcarting v. FCC, 395 U.S. 367,380 81 (1969); cf 17A' Am. Jur 2d Contracts $ 388, at 415-16 (1991) (when contract terms are ambiguous and parties have made other contracts concerning the same subject matter, those . instruments can be examined together to aid in interpretation)i 'Ihe relesance of such a subsequent enactment seems particularly telling when the parties who drafted and approved the revision declare it was intended to clarify any ambiguity in the prior version. LICENSE: - CONSTRUCTION OF TERMS ("EXCEPT") , in a technical specification paragraph that sets forth a pneral prohibition, the use of the term "except" to describe a specific activity sanctioned in a subsequent

     . paragraph establishes that, but for its specification as an exci:ption, that activity would be covered by the general prohibition.

i REGULATORY GUIDES: APPLICATION: STATUS A Staff report bearing the NUREO designation does not fall into the category . of a regulatory " requirement," such as a statute, regulation, license condition, or order, See Curators of the University of Missouri, CLI 951,'41 NRC , 71, 98 (1995). Instead, at best, "it serves as g . dance, setting forth but one

       - method for meeting the npplicable regulatory requirements , . , in other words, that document 'is treated simply as evidence of a legitimate means
      - for complying with regulatory requirements.'" Carolkm Power and Light Co.

(Shearon Harris Nuclear Power Plant), ALAB 852,24 NRC 532,544-45 (1986) ' z (quoting Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-698,16 NRC 1290,'1298-99 (1982), aff'd in part on other grounds. CLI-83 22,18 NRC 299 (1983)) 8

l GENERIC COMMUNICATIONS: APPLICATION; STATUS In a generic letter that both "requestt d" that licensees take various actions and

     " required" that licensees provide a report detailing their complience efforts, in contrast to the reporting component of a generic letter, which seemingly would constitute a " requirement," see 10 C.F.R.16 2.204, 50.54(r), the generic let .

ter's compliance request would not constitute a " requirement" la the absence of

some additional regulatory directive such as an order or a reguiawn mandating compliance. Cf 60 Fed. Reg. 34,381,34,392 (1995)(agency expects licensees to adhere to commitments resulti.ig from administrat;ve actions such as confir-matory action letters and will issue appropriate orders to en+ure commitments j are met), reprinted in Office of Enforcement, U.S. Nuclear Regulatory Com- i mission, NUREG-1600," General Statement of Policy and Procedures for NRC Enforcement Actions" at 14 (July 1995). ATOMIC ENERGY ACT: . LICENSE AMENDMENTS LICENSE: AMENDMENT OPERATING LICENSE (S): TECilNICAL SPECIFICATIONS (AMENDMENT) OPERATING LICENSE AMENDMENTllEARING: ISSUES FOR l CONSIDERATION A technical specification that is not subject to revision would not be the norm. By p oviding in section 187 of the Atomic f nergy i Act that agency. issued );;enses are " subject to amendment, 42 U.S.C. 5 2237; see also, e.g., 10 C.F.R. 550.90, the Congress contemplated that any license provision could be changed, at least so long as the revision sougl9 was not inimical to the [ public heahh and safety or the common defense and security. Consequently, in the absence of language in the license (or some other regulatory requirement) that makes manifest a license provision's immutability, the question in a license amendment proceeding generally _is whether the requested change is consistent with applicable agency regulatory strictures and any suitable guidance. MEMORANDUM AND ORDER (Ruling on Summary Disposition Motion) Pending before the Licensing Board is a motion filed by Licensee General

    - Public Utilities Nuclear Corporation (GPUN) requesting that summary disposi-tion be entered in its favor on the sole contention at issue in this proceeding.

i. 9

i -,

                                 - 'this contention, which is sponsored by pro se Intervonors Nuclear Information -

{ and Resource Service (NIRS) and the Oyster Creek Nuclear Watch (OCNW), >

poses a single legal issue that can be summarized as follows:

                                              , Whether a hi speciAcetion avision for OPUN's dyster Cask Noctur Generating
                                             - Station (OCNGS) penniettag a dry shielded canister (DSC) shield plug to be moved over irradleted hiel in a DSC as a psonquisise to seelms and venuwing the DSC from the OCNOS ~
                                             } apont feel pool for transport to as easies ' , " speet fuel escrase lastatistion (tSPSI) is Ibseclosed under the tenus of a 1900 NRC semif myost, Ofnce of Nuclose Reecear kegulash
                                             + (NRR), U.S. Nuclear Regulatory Commissier (NRC), NURHO4612, "Chaerot of Heavy Leeds et Naciser Power Plants." Uely 19s0) (hossianher NURB046121. as k esubodes :he agency's " defense-inwiepth risk management precepts.
                                         'Ihe NRC Staff supports the Licensee's' motion, while Intervcnors NIRS and OCNW oppose it.                                                             _

For the reasons set forth below, we grant the Licensee's summary disposition

                                    -motion, finding that (1) the " heavy loast. limitation in OCNGS Technical
                                    - Specification 5.3.1.B encompasses a shield plug movement over irradiated fuel -

in a DSC; (2) as it embodies the agency's defense-in-depth philosophy, NUREG. 0612 provides guidance rather than requirements regarding the control of heavy loads at nuclear power plarits; and (3) nothing in this NUREG-0612 guidai,ce __ l precludes the adoption of the requested OCNGS techiilcal specification change, I, BACKGROUN9 j

                                                ~As we outlined in our October 25,1996 ruling admitting Interterars NIRS      _

and OCNW and their legal contention into this proceeding,8 see LBP-96-23,44.

                                   - NRC 143,147 56 (1996), the license arrendment at issue here involves a change
                                        'in OCNGS Technical Specification 5.3,LB. When this proceeding began in June -

11996, and through early November 1996, that provision stated "[1}oads greater

                                    ' than [the] weight of one fuel assembly shall not be moved over stored irradiated' fuel in the spent fuel storage facility," _ NRC Staff Response in Opposition -

to Request for Hearing and Petition to Intervene of [NIRS/OCNW/CitizensJ Awareness Network (CAN)) (June 26, 1996) unnumbered attach. 2 (OCNGS Technical Specification, p.' 5.31 (Apr.10.1995)), On November 7,1996, 9:

                                         ~I
                                           - la that mennorandum and order, we also concluded that ahhough a tlurd penticeer, the Citizens Awareness Network (CAN1 had failed to esteldish its standing to sneenene either as of rigtn or as a master or discreuon, we wouhl pornet CAN to partictense as an anneu* cunas if it wished to do so. See t aP.96 23. 44 NRC at 159-61.
                                    -- We then established a deedhne for CAN. to advise the Board and the other pernes that it wanard to parucipase as 1                          I an anscus. See M at 161 e 13. CAN, however, has neither appealed this ruhng to lhe Commission mar shown any further intesent la participating la this proceeding before the Board.                                                          .l 10
 - . +-    -.

i.. ,. .

pursuant to a Staff"no significant hazaals considera. ion" finding,' that provision was revised so that it now reads: B. 1. toads greater than the weigid of one fuel assembly shall not be rnoved over stored irradiated fuel in the spers fuel storage facility, enept as noted in 5.3.l.B2.

2. The shield plug and the associated hfting hardware may be snoved over irradiated fuel assembbes that are in a dry shicided canister within the transfer cask in the cask drop protection system.

Letter from Ann P. Ilodgdon, NRC Staff Counsel, to Licensing Board (Nov. 12, 1996) encl., at encl.1, attach at unnumbered p. 2 (OCNGS Technical Specification p. 5.3-1, Amendment No.187) [hereina%r Amended Technical Specification 5.3.1.B]. GPUN proposed this change to facilitate % off loading of spent fuel from the OCNGS spent fuel pool into dry cask stor, ige in the OCNGS ISFSI. As we 3

 - described in some detail in our earlier opinion,3ec LBP-96-23,44 NRC at 148-50, while submerged in one corner of the spent fuel pool within the confines of a GPUN-developed cask drop protection system (CDPS) and a 60-ton onsite transfer cask (TC), the 14 ton DSC is loaded with : . to fifty-two spent fuel assemblies, each weighing approximately 800 pounds. To close ee DSC before removing it and the accompanying 'IE from the fuel pool in preparation for transport to the OCNGS ISFSI, a 4 ton shield plug attached to a crane by a 3-ton yoke is moved over the DSC and the fuel assemblies it contains and then lowered into place atop the DSC. The technical specification amendment at issue in this proceeding explicitly allows the shield plug - which weighs many times more than a fuel assembly - to be moved over the fuel assemblies in the DSC l

while those assemblies and the DSC are in the CDPS in the corner of the spent j fuel pool. In LBP-96-23,44 NRC at 156-66, we found that in challenging the GPUN technical specification change, in accordance with the requirements of 10 C.F.R. 6 2.714(a), (b)(2), NIRS and OCNW had both established their standing to intervene and jointly put forth a single litigable contention concerning that amendment. Their sole contention states: 2 in its iniual nouce of opportumry for hearing regard:ng the t.icenre's anwndnem icquest. Llw Staff advised that it proposed to 6nd the change involved "no ssgmAcant hazards consideration." 3ce 61 red. Reg 20.842, 20.848 (1994 Unuer Atomse Energy Act (AliAl secuan 189e(IXAh (2XAh 42 U.S C. 4 22Raxt XAA (2xak and the implemenung reautauons in 10 C.f' R. Il 50.91 92 upon malung such a Andans the Staff can issue an anwndnwn notwithstandmg th pendency of a heanng request challenging the proposed license change. on November 7 1996, tamed on its conclauon the oPUN propoced technical spect6 canon tevision involwd "no signi6 cant harards conuderation." the Staff issued the technical specificanon amendnwns effecuve immediately See 61 IM Reg. 66.702, f4720 (199% 11

ne OPUN apphcahon falls to provide defense-in<!epth againa the risks of a heavy load drop onto hvadtated fuel and fails to satisfy NRC regulatory guidance as provided in NUREO. 0612

Control of licavy Loads At Nuclear Power P' ants" pertaining to defense-in-depth risk management to assure that a heavy load drop does not impact es encroach on irradiated fuel.

Supplemental Pc'ition of [NIRS/OCNWICAN] (July 18,1996) at 2. Further, although the Intervenors put forth several bases in support of this contention, we determined only one was adequate to support its admission, which we summarized as follows: The NRC's fundamental regulatoey defense-in-depth principle is implemented in NURBO-0612

Control of Ileavy Loads at Noclear Power Plants," which is the equivalent of a regulatory guide. Elecause OCN05 does not employ a single failure proof crane for shield plus movement, consistent with NUREG-0612 guidelines s' described in enclosure I to NRC Generic Letter 35-11 Uune 28,1985), GPUN must ret, on analvred safe load paths and rescicted load limits for movement of heavy loads *to assure, to the extert practical" that heavy loads are not carried over or near irradiated fuel. Although GPUN clains in its safety evaluation regarding the proposed technical specincation change that a shield plus drop accident is not credible because of OPUN admmistrative controts (e.g., rail stops,,

operator training, and inspections concerning dry-storage related spent fuel movements, this does not adequately address human error or mechanical %1ectrical failure issues. Rather the snost effective way to avoid such failures is to restrict both human directed activity and prohibit the movement of hea ey loads as is done with curient Te6hnical Specincation 5.3.t A1. As such, consistent with the agency's NUREG-0612 defenne in-depth guidance, the esisting provision cannot be revised as the Licensee has requested. ! LBP-96-23,44 NRC at 15152.

    . In considering the admissibility of the Intervencts' contention, we observed that the contention and this supporting basis are premised on the Intervenors' assertions that (1) NUREG-0612 provides binding regulatory guidance for implementing the agency's overall defense-in-depth principle in the context of heavy load control; and (2) the then-existing technical specification with its one fuel assembly heavy load limit cannot be changed consistent with NUREG.

0612 because that limit is a vital control necessary for compliance with the defense-in-depth principle underlying NUREG-0612. Although recognizing GPUN and Staff assertions that NUREG-0612 is not a regulatory requirements document and declares only that moving heavy loads over or near irradiated fuel should be avoided "to the extent practical," we nonetheless found two factors established a dispute regarding the technical specification change that warranted further inquiry. He first was the apparent adoption of the then-existing GPUN technical specification with its absolute single fuel assembly load limit after the publiestion of NUREG-0612 with its "to the extent practical" language. He second concerned various statements in Licensee and Staff documents regarding NUREG-0612 " requirements." See id. at 165 66. We also concluded this contention apparently presented a legal issue so that summary disposition 12 1

l I provided the al propriate procedural avenue for seeking to resolve its merits in l the first instan z. We thus established a schedule for dispositive motions and I responses by the parties. See id. at 166-67. In a November 15,1996 motion, which is accompanied by a statement of matedal facts not i.. dispute and the supporting affidavit of GPUN Licensing and Regulatory Affairs Director John C. Ibrnicola, Liet:nsx GPUN seeks summary disposition in its favor on this conter.: ion. See Licensee's Motion for Summary Dispo4 tion (Nov. 15,1996) [ hereinafter GPUN Dispositive Motion); Licensee's Statement of Material ructs as to Which here Is No Genuine Dispute (Nov. 15,1996) [ hereinafter GPUN Material Pacts Statement]; Affidavit of John C. Ibtnicola (Nov.15, .'996) [ hereinafter Ibrnicols Affidavit]. In a December 6, 1996 response, wnich includes the supporting affidavits of NRC Senior Project Manager Ronald B. Eaton and NRC Senior Reactor Engineer linrold Walker, the Staff acrees that GPUN's summary disposition request should be grant:d. See NRC Staff Response in Support of Licensee's Motion for Summary Disposition (Dec. 6,1996)[ hereinafter Staff Response). On the same date,Intervenors NIRS and OCNW filed a response opposing GPUN's summary disposit:en request, albeit without any suppoiting affidavits. See Petitioner [s'] Opposition to GPUN Motion for Summary Disposition (Dec, 6,1996) [ hereinafter NIRS/OCNW R:sponse]. Thereafter, in accordance with the pleading schedule we established, on December 20,1996, GPUN tiled a reply to the Intervenors' response. See Licensee's Reply to Petitioners

Opposition to Motion for Summary Disposition (Dec. 20,1996) [ hereinafter GPUN Reply].)

IL ANALYSIS A. Standards Governing Sutrrmary Disposition Under Rule 56(c) of .he rederal Rules of Civil Procedure, a party is entitled to seek summary judgment in its favor on the merits of any claim for which "there is no genuine issue as to any material fact." The Commission's administrative counterpart to this judicial rule is found in 10 C.F.R. 5 2.749(d), which provides

 -in pertinent part:

The presiding officer stall tender the decision sought if the filings in the proceeding, depositions, answers to interrogatories, and admissions on file together with the statements of the partie:: and the arfidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a snarter of law. 3 By numorandum issued Jarniary 3.1997, we advined the paraca we had decided not to hold an oral argument on orDN's dispositive motion. See licensmg Board hiemasndum (oral Argument on Dispositive htouon)(Jan. 3.19W) at la 13

A number of the central procedural requirements governing the summary dis- ^ position process were recently summarized as follows: The party filing the summary disposition motion has the burden of demonstrating the atnence of any genuine issue of material fact. In this regard, [10 C.P.R. Il 2.'149(a) requires that the moving pany include a statenrnt of material facts about which there is no genuine issue to te heard. In contrast, the opposing pany must append to its response a statement of matersal facts about which there exists a genuine issue to te heard. If the responding pany does not adequately controven material facts set forth in tte motion, Ow pany faces the possibihty that those f acts may be deen,ed admit ed, if, however, the evidence before (tw Board does not establish the absence of a genuine issue of material fact, then the motion must be denied even if there is no opposing evidence. Nevertheless, a party opposing a motion cannot rely on a simple denial of the movant's material facts, but must set forth specine facts showing there is a genuine lasue of material fact. YanAce Atomic Electric Co, (Yankee Nuclear Power Station), LUP-96-18,44 NRC 86, 92 93 (citations omitted), perfrion for review denied, CL1-96 9, 44 NRC i12 (1996). B. The Parties' Positions I, GPUN's Arguments in seeking summary disposition, GPUN declares that the two factors identified by the Board as potential support for the Intervenors' position that OCNGS Technical Specification 5.3.1.B cannot be changed in fact provide nojustification for that claim. 'Ihe Licensee asserts that while, as the Board observed, NUREG. 0612 does indicate that in 1980 OCNGS did not have a technical specification governing the movement of heavy loads over spent fuel, NUREG-0612 was incorrect, According to GPUN, Technical Specification 5.3.1.B was adopted , initially in 1977, some 3 years before NUREG-0612 was issued. See GPUN !- Dispositive biotion at 19 & n.13; GPUN hiaterial Facts Statement at 12. As a result, GPUN concludes that any concern the language of Technical Specification 5.3.1.B prior to its recent amendment was reflective of a Licensee /Staffjudgment regarding the application of defense-in-depth principles is misplaced. As to the second concern about the language of various Licensee and Staff documents referring to NUREG-0612 " requirements," GPUN cites agency authority and language in NUREG-0612 it astetts establishes that a NUREG document, like a Staff regulatory guide, merely serves as guidance and cannot prescribe requirements. See GPUN Dispositive hiotion at 8; GPUN hiaterial lhets Statement at 1. GPUN further declares that while the Staff requested in two Staff generic letters that licensees conform to certain NUREG-0612 recommendations, the NUREG-0612 recommendation that licensees adopt a. technical specification like OCNGS Technical Specification 5.3.1.B to govern 14

heavy load handling was not among them. See GPUN Dispositive Motion at 910; GPUN Material Pacts Statement at 1. In support of its summary disposition reqtnst, GPUN also claims that the Intervenors' position is legally untenable because Technical Specification 5.3.1.B "only applies to heavy loads moved over stored fue' in the spent fuel storage racks and is no legal impediment to the movement of heavy loads over spent fuel in the CDPS." GPUN Dispositive Motion at 2. According to GPUN, by

  " wording and intent" Technical Specification 5.3.1.B has always applied only to -
  " stored" spent fwl, which does not include fuel assemblies placed in the CDPS prior to being removed from the spent fuel pool. Id. at 11, GPUN a.serts that it requested the amendment at issue "at the suggestion of the NRC staff and out of an abundance of caution, only to make this meaning more explicit." 14.

GPUN argues that various factors suppcrt this interpretation including (1) the use of the terms " stored" and " storage" in Technical Specification 5.3.1.B prior to it: recent amendment; (2) a purported Staff / Licensee understanding about this meaning under Technical Specification 5.3.1.B that permitted GPUN in the mid 1980s to place a " heavy load" lid over fuel assemblies 'vhile loading and unloading a transportation cask in the CDPS as the cask was being sent to and later returned from a reprocessing facility; (3) a Staff interpretation of a similar technical sg ' tification at the Palisades Nuclear Plant; (4) language in the Safety Evaluation issued by the Staff in support of the November 7,1996 "no significant hazards consideration" amendment; (5) regulatory history relative to the OCNGS spent fuct pool indicating there was a clear differentiation beteen the spent l fuel pool and the CDPS; and (6) the language of and the interpretation accorded l the agency's standard technical specification (Standard Technical Specification l 3.9.6.2) regarding heavy load handling at boiling water reactors (BWRs). See l. Id. M 12-22. Finally, GPUN asserts that interpreting Technical Specification 5.3.1.B ar.d NUREG-0612 in the manner suggested by the Intervenors is untenable because this would lead to an " absurd" result. To read these two items as the Intervenors I suggest would mean GPL*N is preclud 4 from ever placing a shield plug over a loaded DSC while the cask is in toe CDPS. 'this, GPUN declares, would violate numerous agency regulatory requirements that require shielding for spent fuel moved out of a spent fuel pool GPUN maintains that sanctioning such an untoward result is mconsistent with the NUREG-0612 and its "to the extent practical" language, which in summarizing its recommended defense-in, depth measures declared that licensees should "' define safe travel paths through procedures and operator training so that to the extent practical heavy loads avoid being carried over or near irradiated fuel or safe shutdown equipment.'" Id. at 23 (quoting NUREG-0612, at 5-2). Pointing to the Staff's use of the same language in a 1985 generic letter in which the Staff recognized the need to handle the reactor vessel head over spent fuel in an open reactor vessel head 15 __a

during refueling, GPUN asserts that without such an interpretation spent fuel can never be removed from the spent fuel pool. Because there is no other alternative, I GPUN declares, the only conclusion is that this "to the extent practical" language sanctions the shield plug movement. See id. at 23 24.

2. The Stqff's Response in its response supporting GPUN's motion, the Staff likewise declares that, as with a Staff regulatory guide, NUREG-0612 is only a guidance document that does not prescribe requirements. See Staff Response at 6 7, 'Ihe Staff further asserts that any technical specification, including OCNGS Technical Specification 5.3.1.B. can be changed so long as the amended provision provides reasonrble assurance of protection of the public health and safety. See id. at 7-8. In addition, addressing the Licensee's argument that GPUN really did not -

need the requested amendment, the Staff cites an October 5,1995 Staff-issued amendment for the Rancho Seco Nuclear Power Station similar to that recently granted GPUN and concludes "not only may a licensee move a shield plug over spent fuel despite a Technical Specification like (Technical Specification) 5.3.1.B (prior to the Nov. 7th amendment) (Palisades), it may amend that Technica. S,necification to clarify that it can move a shield plug over spent fuel in the canister / cask (Rancho Seco)." Id. at 8 9.

3. The Interrenors' Arguments intervenors NIRS and OCNW oppose the Licensee's summary disposition motion. They declare that the intent of Technical Specification 5.3.1.B with its prohibition en carrying a load heavier than a single spent fuel assembly over irradiated fuel was to ensure OCNGS operations were within the facility's engineering design basis, which included the offsite dose limitations set forth in 10 C.P.R. Part 100. The subsequerc. istuance of NUREG-061?. the Intervenors claim, was not intended to alter this design basis, but rather te provide guidance for handling loads greater than a single fuel assembly. According to the Intervenors, with its "to the extent practical" qualifier, NUREG-0612 specihed two permissible options for dealing with these loads: (1) safe load paths that precluded heavy load transportation over irradiated fuel; or (2) u;c of a single-failure-proof crane. Before it was amended in November i B6, OCNGS Tech-ical Specification 5.3.1.B with its prohibition on moving heavy loads over irradiated fuel satisfied the first option. If, however, GPUN wants to move heavy loads over irradiated fuel, the Intervenors argue that the Licensee must cumply with the second option by installing a single-failure-proof crane. See NIRS/OCNW Response at 6-7, 16

         - -.- .                 -- - . , . - - - . . - , . ~ .                                               . . . - -              . - . -    . .. .. - ..     - - _ .
                               ;The Intervenors also declare that, notwithstanding the Licensee and Staff .

attempts co obscure various references to NURBO-0612 " requirements" by , rendering those references interchangeable with the term ," guidelines," the i _ provisions of NUREG-0612 embody the fundamental regulatory mandate of - defense in depth that must be complied with. See 14. at 8 9 ' Ibrther, Intervenors l NIRS and OCNW describe as " legalistic semantics" the_ GPUN attempt to _i establish that Technical Specincation 53.1.B never applied _ to_the movement l

Jof the DSC ahield plug based on the purported distinction between whether fuel -

1 assemblies are in the spent fuel pool for " storage" or for " transport." /d. at 9. ! j: ' they also suggest that the prior cask movement described by GPUN either was ]

                        - an undetected noncompliance or, at best, could be sanctioned ufw."                         i language of                                         1

(! . the pre November 1996 technical specincation because that movement involved 1; - offsite shipments,'as opposed to the presently proposed activities that _will,

.: involve the onsite iSFSt. Finally, the Intervenors question why it was necessary F to seek this amendment at all if, as GPUN asserts, the mid 1980s transfer of fuel assemblies from the reprocessing facility was in compliance with the prior '

                         - unamended language of Technical Specification 53.1.B. See 14. at 10. NIRS                                                                         1

'and OCNW conclude that GPUN's motion should be denied.4- i: 4. _ GPUN's Reply-; In reply s GPUN labels the intervenors' veeious claims " unpersuasive" be-; j. . cause they are based on mere allegations, without supporting afndavits, evi-~

[. . : dence, or other authority.. GPUN Reply at 2. 'the Intervenors' attempt to lend i regulatory significance to NUREG-0612 is, according to GPUN, a totaily unsup- 1 ii ported allegation that contradicts long-standing agency precedent regarding the 5 weight to be given to such documents. GPUN also declares that, in light of this 1 precedent and the Staff's uncontroverted confirmation that NUREG-0612 was not intended to_ impose regulatory strictures, there is no genuine material issue regarding the references to NUREG-0612 " requirements" ifi various Licensee-c and Staff documents. See id. at 3 4.- - Further, according to_GPUN, both it and the Staff have established Technical - Specification 53.1.B was not adopted in response to NUREG-0612 'and, ic any event, was never intended to prevent moving a shield plug over a DSC-containing spent fuel. In this regard, the Licensee classifies as " mere allegation and suspicion" the Intervenors' charge that an earlic 4 site cask movement was -

                             'In encabhehing a schedule fs sununary disposition Rhags. we noted that she Inserwaare could,if they wished, seek to estabbsh their need for discovery to mapand to the Ucensee's motion. See LDP423,44 NRC at 166 .

n 20, The inomganars' msponse snakes no measson of the need for discovery. I Undet our schedule saurnias disponinw enollon Ahnts. the Interwoors were enntled to Ale a reply in the Staff's eenpense to GPUN's inocon. See L.BP%23,44 NRc at 166. They inade no such Ahng. howewr. 17

i 1 an undetected noncompliance and maintains the Intervenors' asserted distinction between offsi:e and onsite transportation is meaningless. Id. at 5-7. , Finally, GPUN argues the Intervenors' claim that consistent with NUREG-0612 it must use a single-fai'.are-proof crane to move any heavy load over spent fuel should be rejected. His assertion is deficient, GPUN declares, because it is based on a misreading of NUREG-0612 and is an untimely new basis for the Intervenors' contention that they have failed to show meets the late-filing standards of 10 C.F.R. 6 2.714(a). See Id. a. 7 9. C. Discussion

1. Applicability of Technical Specification 5.3.1.8 to OSC Shield Nag Movemena In assessing the various arguments made by GPUN in support of its disposi-tive motion, we begin with the Licensee's assertion the requested amendment is really unnecessary because Technical Specification 5.3.1.D as it existed prior to the November 1996 *no significant hazards consideration" amendment, already

_ permitted GPUN to place the shield plug over the irradiated fuel in a DSC. As described above, GPUN has put forth a host of explanations as to why this is so, including references to Staff and Licensee interpretations of that language and Staff interpretatione of similar language in the agency's standard technical specification and other facility technical specifications relating to movement of heavy loads. As GPUN acknowledges, however, the first interpretational tool is the plain ' meani g of the language of the provision in question. See GPUN bispositive Motion at 12 & n.b. In this instance, GPUN asserts, the references in Tecimical Specification 5.3.l.B to " stored irradiated fuel" in the "the spent fuel storage facility" settle the issue of its meaning. *ccording to GPUN, the CDPS containing the DSC is not a " storage" area nor is irradiated fuel in the assemblies in the DSC " stored." he problem with this claim, at least insofar as it is asserted to establish a clear and unambiguous meaning, is that it does not account adequately for the physical circumstances regarding spent fuel handling at OCNGS as they have been presented to us. As we noted in our previous determination, see LBP-96-23,44 NRC at 149, the CDPS is a cylinder physically located within and attached to the walls of one corner of the OCNGS spent fuel pool - i.e., the OCNGS " spent fuel storage facility" - in which irradiated fuel is stored. De CDPS is configured this way so that while spent fuel assemblics are being loaded into a DSC, those assemblies car > remain submerged in the water that fills the spent fuel pool and provides shielding and residual heat removal for the stored spent fuel Given this physical configuration, at least so long as the 18

irradiated fuel remains within the confines of

4 spent fuel poot, the distinction between " storage" and " packaging / transfer" up'n which GPUN seeks to rely is, in our estimation, too problematic to allow us to conclude the language of

' Technical Specification 5.3.1.B is " unambiguous" in this regard. His ambiguity in the language of Technical Specification 5.3.1.B necessarily causes us to look for other clues to its meaning. GPUN asserts, and the Staff seemingly agrees, that a number of circumstances support its reading of this technical specification, including GPUN's past practice under this provision and the Staff's interpretation of similar provisic.as. %e Licensee, however, does not make reference to one interpretational tool that has been found significant in resolving language construction issues - a subsequent enactment that declares - the intem of an earlier provision. As the United States Supreme Court has noted, such later enactments generally are to be given " great weight" in resolving a construction problem. See Red Lion Broadcasting v. FCC, 395 U.S. 367, 380-81 (1969); cf 17A Am. Jur. 2d Contracts $ 388, at 41516 (1991) (when contract terms are ambiguous and partier have made other contracts concerning tbc same subject matter, those instruments can be examined together to aid in interpretation). The relevance of such a subsequent enactment seems particularly telling here when the parties who drafted and approved the revision declare it was intended to clarify any ambiguity in the prior version. See GPUN Dispositive Motion at Ilt Staff Response at 7. He language of the recent revision to this technical specification makes it readily apparent the interpretation of its predecessor's meaning now proffered by GPUN is not correct. After stating that heavy loads shall not be moved ov-r stored irradiated fuel in the spent fuel storage facility, amended Technical Spec-ification 5.3.1.B.1 adds the proviso "c.tecpt as noted in 5.3.1.B.2." Amended Technical Specification 5.3.1.B (emphasis supplied). Amended Technical Spec-ification 5.3.1.B.2 then states that the shield plug may be moved over irradiated - fuel in a DSC in the CDPS. He use of the term "except" in paragraph one of amended Technical Specification 5.3.1.B to describe the shield plug heavy load activity sanctioned in paragraph two, plainly establishes that, but for its specification as an exception, this activity would be prohibited by paragraph one. Otherwise, there would be , no reason to create the exception. As the GPUN technical specification is now i worded, therefore, it indicates quite clearly that, without the specified exception, the DSC shield plug activity over irradiated fuel that is the focus of GPUN's amendment request would be a prohibited heavy load activity. And because the prohibition language in amended paragraph 5.3.1.B.1 is indistinguishable from that in Technical Specification 5.3.1.B prior to that recent revision, the constmetion rule regarding subsequent enactments counsels that, affording considerable weight to an unambiguous expression of utent by the drafting and enacting parties, we give a parallel construction to these identical provisions. 19

We must, therefore, reject GPUN's claim it is entitled to summary disposition because the shield plug movement activity in question is not covered under the terms of Technical Specification 5.3.1.B prior to its fevision in November 1996.8

2. The Status and Meaning of NUREG-0612 llaving conclu kd that the technical specification at issue here would, unless amended, preclude the Licensee's planned shield plug movement activity, we next consider whether, as the Intervenors assert, the amendment proposed by GPUN and adopted by the Staff in November 1996 is appropriate la light of NUREG-0612. As we have explained, the Intervenors clahn Technical Specification 5.3.1.B cannt.t be amended as GPUN has asked because to do so would violatw the precepts of NUREG-0612 u it implements the agency's

                             - defense-in-depth approach to regulation.'

Backgrcund on NUREG 0612 in analyzing this assertion, we begin with an overview of NUREG-0612, the centra' focus of the Ir.:crvenors' contention before the Board. This 1980 docu-ment sets forth the results of a Staff attempt to make a systematic examination of the adequacy of then-existing measures for handling of heavy loads" at nuclear power plants.' In its initial summary, the report states: This report provkles the resuhs of the NRC staffs review of the handling of heavy loads and includes the NRC staffs recommendations on actions that should be taken to assure safe handhng of heavy loads. These recomnwndations include: (1) a program should be initiated to review operating plants against the guidehnes developed in [this report]; (2) certain interim measures should tie taken for operating plants until con.ipletion of this review program; (3) changes to certain Standard Review Plans and Regulatory Guides should be made to incorporate the guidehnes in this report; (4) changes to technical specifications should be made aner completion of the review; and (5) a task should be initiated to establish

                                # in this connection we we troubled by the siafra apparent claim that under the language of Technical SpeelAcatmo sJl.B before its recent revision the Liansee was free to treat the nevenwnt of the shield plug over the DSC en either coveted or not covered by that license requirement. Jae Staff Response at 8-9 Ahhough we have no quarrel with the general propoution there rnay be more than one way to comply with a regulatory requirenunt, see id at 6. as a matter of logic we are hard pressed to understand how a direcove that states twavy kuls "shall not" be neved over irrahared fuel can be read to both manctmn and prohibit the same heavy load anvement acuvity From an enforcenwnt pmpective, such an interpretation teaders that *requirenunt' essentially naamngless.

I A: we noted la our october 1996 issuance. "[tlhe ' defense in-depth' prinnple is the agency policy under which regulaard enuues are reqmted to safeguerd the public health and safety 'through muluple intermeshing and overlappmg prosecuens?" 1.BP 96-23. 44 NRC at 162 a.14 (quoting Wrmons YanAre Nuclear Pouer Corp, (Vernent Yankee Nuclear Power Station). Ct.M4-M s AEC 809. 813 (1974)). 8 tn using the arrin " heavy load" in tNs decision, we adopt t!w dennitwi of that phrase found in NUREo-0612. which clasnihes a " heavy band" as "any load that weight more than the combined weight of a single spent fuel asumbly and us assoc 6med handling tool for sta spec 1Ae plant in quesuan" NUREG4612. at 12 20 i

guidelines for the con. rut of small loads near spent fuel. The guidehnes proposed include deAnition of safe 1:ad paths, uw of load handhag procedures, training of crane operators, guidehnes on shngs and special lifting devices, periodic inspection and maintenance for the o Ae, as well as various alternatives that include: use of a single f ilure proof handling system, use of rnochaa.ical stops or electrical laterlocks to keep heavy loads away from fuel or safe shutdown equipment, or analy:ing the consequences of postulated heavy load drops to show these are dhin acceptable hmits. NUREG-0612, at 111. He report then goes on to provide a generic analysis of the consequences of heavy load drops, including the " potential problem areas" of offsite releases from heavy load drops on spent fuel or safe shutdown equipment - and recriticality from fuel reconfiguration; a survey of licensee information on load handling operation. at reactor facilities; a review of historical data on crane operations; guidelines that describe alternative approaches for heavy loads control; and a program for implementing the suggested guilclines at operating facilit%s, including suggested standard review plan, regulatory guide, and technical specification changes. See id. at v vi. As highlighted by the parties in their various filings, several portions of this NUREG document potentially are pertinent to any resolution of the merits of the Intervenors' contention. For instance, as e previously noted, in describing the results of its survey on load handling procedures, NUREG-0612 indicates that OCNGS was one of twenty-seven plants without a technical specification prohibiting handling of heavy loads ovet spent fuel. See id. at 3-8,3 9 (Table 3.2-1). Thereafter, in section 5 of the report entitled " GUIDELINES FOR CON-TROL OF IIEAVY LOADS " addressing the general problem of load drop ac-l cidents the report declares that although existing operating facility heavy load handling measures cover certain of the potential problem areas, they nonetheless varied widely and did not adequately address the major causes of load handling accidents. The report identifies these causes as operator errors, rigging failures, lack of adequate inspection, and inadequate procedures. Subsequently, in section I 5.1 of the report under the heading " Recommended Guidelines," NUREG-0612 sets forth a series of items designed to upgrade the measures already in effect

         "(tjo provide adequate measures that minimite the occurrence of the principal causes of load handling accidents and to provide an adequate level of defense-in-depth for handling heavy loads near spent fuel and safe shutdown systems "

Id. at 51. According to the repo't, the objectives of the alternative approaches it sets forth as guidelines for controlling heavy loads are to assure either (1) an extremely small load drop potential, or (2) for each of the potential problem areas, satisfaction of four " evaluation criteria." These criteria include keeping any damaged spent fuel releases well within 10 C.F.R. Part 100 limits; preventing fuel and storage rack damage from resulting in a configuration that creates an 21 l l w _ _ _ _ _ _ _ _ _ _ _

effective multiphcation ' actor (&,,,) larger than 0.95; Leeping feactor vess,el or spent fuel pool damage from resuiung in water leakage that would uncover the fuel; and limiting damage to fedundant or dual safe shutdown path equipment so ti not to fesult in a lost of feq iired safe shutdown functions. Sec id. at 51,

 - NUREG-0612 then goes on to orovide:

Aftet reviewing the historical data available on trane operat6ons,6denufying the principal causes of load drops, and stesidering tie type and frequency of ked handling cperwkms at nuclear powet plants, the NRC staff has developed an overall philosophy that provides a defense in<leph approach for controlhng the handling of tea,y loads. This philosophy enccmpasses an intent to prevent as well as mitigate she consequences of postulated accidental ked drres. The following sumnwires this def tnie la-deph apprcach* (t) Provide sufficient operator training. I,andhng system design, ked handhng in. attucHons, sad equipment inspection to assure reliable operation of ttw landling system; and (2) Define safe had travel paths through procedures and operator training so ttat to ele essent prnikal heavy loads evold being carried mer a rear irradiated fuel or safe shutdown equipment, and (t Prov6de sinchanical stops os electrical interlocks to pevent movenent of leavy lono tser irrsotated fiel or 's prosimity to equipmerd associated with redundant shutt'own paths. l Cenalu al'en.,auve nwedres may be taken to compensate for deficiencies in (2) and (3) above, sAh as the inahahty to prevent a part;cular heavy load from teing brought over spent l fuel (e g., teactor venect head) *!hese ahemaHve treasur s can include: increasing crane rehabit,ty b) ,wovkhng dual ked pattu for certain components increaned safety factors, and increased inspechon as discussed in Section $ l.6 of this report; sestricting crane operations in tie spent fuel pool area (PWRs) until fuel has decayed so that off stte releases would be sufficiently low if fuel were damaged. or analyzing tie effect of postulated had drops to show that crwacquences are within acceptable hmits. Lven if one of these thernative nrasures is selected, (1) and (2) above should still be autisfied to prt. wide masinnam pracHeal defenwinepth NUREG 0612, at 5 l to 2.

       'Ihereafter, under the heading of "Ger.eral," it, section 5.1.1 NUREG 0612 describes seven criteria that all plants should satisfy in handling heavy loads that could be brought over or in the proximity of safe shutdown equipment or irradiated fuel in any plant area. 'Ihese include (1) defining safe inad paths to minimite the potential that any dropped heavy load would impact irradiated fuel or safe shutdown equipment; (2) developing procedures, such as piemovement inspection criteria, to cover heavy load handling operatkns over or in the proximity of irradiated fuel or safe shutdown equipment; iN training crane operators to conduct thetnsclves in accordance with applicable American National Standards Institute (ANSI) standards; (4) ensuring that special lifting drJees, such as spent fuel cask yokes and slings, satisfy applicable ANSI 22

l 1 guidelines;(5) ensuring that lifting devices that are not specially designed meet applicable ANSI guidelines; (6) inspecting, testing, and maintaining cranes in , accordance with ANSI standards; and (7) designing cranes to meet ANSI and 1 Crane Manufacturers Association of America (CMAA) standards. Finally. relative to reactor buildings for HWR facilities such as OCNOS, in section 5.1.4 NURE0412 declaren:

                                                                                                        'io nasure that tie evalusion crtiena of Section $.1 are satished one of uw following shou'l be tret to addition to satisfying tte peretal guidelines of Sectke 3.1.1:

(1) Uw rendor building crane, and assocised lihing devices used fcv handling the above lesvy loads, should sausfy tie single-failure proof guidelines of Sectke

                                                                                                                                $ 1.6 of this report.

OR (2) Uw effects of heavy load drops la tie reactor building should te analyzed in show tiuit tte evaluation criterte of Section $,1 ue seushed. Uw loads analyred should include: s' leid plugs, drymell head, reactor vessel lead, stearn dryers and separmors; refueling canal plugs and gates; shicided spent fuel shipping casis; vessel inspectka platform; and any other leavy loads that nwy le brougtd over or near safe shutdown equipment as well as fuel in tie reactor vessel or tie spent fuel pool Oedit inay tw taken in this analysis for operatum of tie Standby Gas Treatment Sysiern if facility technical spectheatkms require its opciWkin during periods when the load being analyred should te handled, he analysis should also conforrn to tie guidehnes of Appendia A. NURBO&l2, at 5-6 to 7, And, as an interim measure to provide reasonable am.aance that no spent fuel shipping cesks or other heavy loads were handled over the spent f uel pool until the section 5.1 guidelines were finally implemented, NUREO&l2 declares that facility technicti specifications "should be upgraded to prohibit handline; of heavy loads over the spent fuel pool." /J. at 518. He parties' fi. gs also suggest that two agency generic letters issued in the wake of NUREG&l2 are relevant to our inquiry here. De first, an unnumbered letter dated December 22,1980, set forth a two-stage proce:.s for licensee responses regarding compliance with the recommendations of NUREG-0612.' As outlined in the December 1980 letter, in Phase I licensees were to ' identify their load handling equipment within the scope of NUREO-0612 and describe now their use of that equipment complied with the six general c iteria specified in NUREG-0612 section 5.1.1. Dereafter, in Phase !!, BWR licensees like GPUN were to provide a second resp (mi,e showing that, consistent with NUREG 0612 section 5.1.4 cither single-failure-proof lifting equipment was provided or such equipment was not needed, as demonstrated in a detailed load drop analysis. See GPUN Dispositive Motion, exh. B, encl. 3, at 2 7 (Letter

                                                                                          'on Itbruary a.19sI, the sten's December 22 levier e as supplernenied by oenenc leuer sl.07, m hich previded assing pages f(v ene of the enckwwen.

23

i l from Darrel O. Eisenhut, Director Division of Licensing, to All Operating Plant , Licensees. Operating License Applicants, and Construvion Permit iloiders (Dec. 22,1980)). De generic letter, however, did not request that licensees undertake ' any technical specification change regarding heavy loads, as had been suggested in NUREO-0612. De other corrvspondence of potential import is Generic letter 8511, dated June 26,1985, in which the Staff described its resolution of Phase 11. See id., exh, D (letter from ilugh L. Rompson, Jr., Director, Division of 1.icerning, to All Licensees for Operating Reactors (June 26, 1985)). In an encioso. . to l this letter, the Staff stated that, based on its comprehensive review of licensee l Phasc ! responses, licensee satisfaction of the Phase I guidelines had assured that the potential for a load drop accident was extremely small. Dus, the Staff found that Itase I guidelines were " adequately providing the intended level of protection against load drop accidents." Id, encl.1, at 3. In this generic letter, the Staff kiso noted that although all licensees had provided a Phase 11 submittal, because the Staff considered Phase 11 an en. hancement of Phase I, it had decided to conduct a pilot progtam review of a limited number of plants to aid in deciding whether to undertake an equally extensive review of all Phase 11 submittals. According to the Staff, based on its pilot program review of twelve operating reactor sites as well as its review of five operating license applicants, it had concluded most risk associated with cairying heavy loads involved possible damage to spent fuel rather than safe shutdown systems. He Staff further declared that, as a result of licensee Phase I activities, the handling of heavy loads over spent fuel had been limited to the extent practical but, where necessary, was being performed in conformance with Phase I guidelines. See id. at 3-4.

         %ere remained, however, the question of whether under Phase 11 licensees wishing to handle heavy loads over spent fuel would have to either install costly single failure proof cranes or perform costly detailed load drop analyses. %e Staff concluded that with Phase I implementation improvements and based on its review of individual licensee Phase 11 submittals, it did not perceive a significant enough benefit in requiring costly conversion to single failure-proof cranes or find any outstanding plant-specific concerns. Rus, the Staff declared Phase !!

was considered complete without further Staff or licensee action. See id. at 4 6,

b. Status of NUREG 0612 With this background in mind, we turn to the question of the status of NUREG-0612 as it impacts on the requested GPUN technical specification change. %e Intervenors have asserted the provisions of NUREG-0612 effec-tively bar the requested revision. Although both the Licensee and the Staff vigorously oppose this notion, as we observed in accepting the Intervenors' 24

legal c<mtention framing their NUREO-0612-based challenge to GPUN's license amendment, there are any number of instances in Licensee and Staff documents in which the terms "NURE04412" and " requirement" are linked. If NUREO. 0612 did indeed establish " requirements," its provisions seemingly would be on a par with legally binding directives r ch as a statute, regulation, license condition, or order and so might, depending on its terms, preclude wioption of a requested technical specification change. As both the Licensee and the Staff point out, however, the Commission previously has declared that a Staff report bearing the NUREO designation, such as NUREG-0612, does not fall into this category. See Curatore of the University of Missourt, CLl 951,41 NRC 71,98 (1995). Instead, at best, "it setves as guidance, setting forth but one method for meeting the applicable regulatory requirements . . , , in other words, that document 'is treated simply an evidence of a legitimate means for complying with regulatory requbements.'" Carolina Power and Light Co. (Shearon llartis Nuclear Power Plant), ALAD-852,24 NRC 532,544-45 (1986)(quoting Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit I), ALAD 698,16 NRC 1290,1298 99 (1982), q/f'd in part on other grounds, CL183-22,18 NRC 299 (1983)). Certainly, nothing in NUREG 0612 itself suggests the provisions of that document should have any other standing. See, e.g., NUREG-0612, at ill,14 (NUREG 0612 provides the Staff's

recommendations" and " guidelines" for actions that should be taken to assure safe handling of heavy loads). See also Staff Response, attach. 2, at 4 (NUREO-0612 was intended to provide guidance and acceptance criteria, not regulatory requirements)(Affidavit of Ilarold Walker in Support of the NRC Staff's Response in Support of the Licensee's Motion for Summary Disposition (Dec. 6,1996) at 4); id., exh, 2, at 2 (NRC positions communicated to licensees in NURBO reports are not binding requirement unless formally issued as regulations or included in order or as part of a permit or license)

(NRC Management Directive llandbook 3.7, at 8 (rev, feb. 9,1995)). With this Commission explanation of the status of NUREO documents generally as well as NUREG-0612's own description of the scope of its provisions, the question b comes whether anything on the record before us establishes that report's tei.as should be given a different status. As we have pointed out, there are various Licensee and Staff references to NUREG-0612

                                                                                                 " requirements," Nonetheless, when viewed against the Commission's clear declaration about the status of NUREO documents, we can only conclude these otherwise unexplained references do not accurately reflect the status of that document and its provisions That they suggest an apparent misunderstanding of this document's status is unfortunate, but in this instance these misstatements do not change the fundamental nature of this NUREG document or its provisions.

25

NUREO&l2 does not itself cof..ain " requirements," but rather Staff " guidance" on assuring safe handling of heavy loads."

c. Meaning of NUREG 0612 Ultimately, however, whether the provisions of NUREO-0612 are found to constitute guidance or requirements, if OPUN's amendment does not violate that document's dictates, then, at least as the issue before us has been framed by the Intervenots, summary dispoeion should be entered in favor of OPUN.

In accepting the Intervenors' contention as litigable, the factor the Board found signibcant in this regard was the apparent timing of the adoption of Technical Specification 5.3.1.!! as reflected ist NURE0412. He seeming adoption of this technical specification after the publication of NUREO-0612 suggested that the heavy loed movement prohibition it contained might, as the Intervenors have maintained, reflect the Staff's ultimate judgment about how OPUN should conform with the provisions of NUREO&l2. It is apparent, however, that as OPUN has asserted (without contradiction from the Intervenors or tl.e Staff) the information in NURE0412 regarding the OCNOS technical specification was incorrect, in fact Technical Specification 5.3.1.B was adopted in 1977s some 3 years " fore NURE0412 was published. See OPUN Dispositive Motion at 19 & n.13; ibrnicola Affidavit at 3. Rus, the timing of this technical specification's adoption provides no support for the Intervenors' assertion the technical specification's language prohibiting the movement of heavy loads over stored spent fuel was intended to reflect a NUREG-0612-dictated irrevocable prohibition for OCNOS."

                     " As we have obserwd above. in several genenc leswts de staff both " requested" that hcensees take vanous arvons ou confuren with de recomnendatens on handhng heavy kieds cuthned in NURF.04682 and " required" that beenwes pavide a tepot deta6hng dwir enarts la this regard la contrast to alw reptrung comporwat in dese generic letters, wtuch seemingly would ensutuw a "requerenwnt," see 10 C F R 481204 $0,54(rk dw gener6c letten' comphance requests did not connatum "requirenrnts"in uw shnence or sonw a&btenal regulattev direcuve such as an order or a ngulance mandming compliance. (y 60 red Reg 34388.  .392 (1995) (egency espects hcensees to adhra to comnuunrats re.utung frorn artnunistrative arcuons such as conhrnuuory acnon letwts and will issue appnynate twders to ensure commitnrnut are meth erprimed in ofhce of 1.nftweenwnt.

NRC NUlti.0-lG10. 'tieneral slmenwnt of Fuhty and procedures far NRC Imforcemrnt Ac6ons* at 14 (July 1995)

                     "To be sure, a techment specthcauan that is not subject to revision would out be Os nnrm Dy pcviang in scetma is7 of Hw Atomic la,erry Act that agency issued hcenwa are " subject to anendment? 42 U s C. (223h see she e g.10 C F R. IV)90, the Congress comemplated that any bcense provisma could be changed, at hast so kmg as de revinica sought was not 6mnucal to de pubhc health and s4fety or the comnen defense and security Comequently in the absence of language la the beense (or sonw otter regulatory requirenwnt) that makes numfest a heense povision's 6mmutatahty. Gw queadon in a beenie amendment poceeding generally 6:

wheder de requenwd change is consisent with alt cable h agency regulakry strictures and any suitable guesace. As is apparent from a scadmg of Techedeal specincailon 5.3 l.B. ondung on Ow face of that pov6sion suggests hwn en any bassa for finang ti en inevocable hcense corxhuon. The sane is true for de odwr tegulatory req urenents c.at the Staff has klen4thed as potentially pertinent to oPUN's requested in9.*al specthcauon change. See staff Respams, atisch. 2. at 4-5 1hese inciwle orneral Dr. sign Cnwrton (oDC) 2, which estabinhes (Continard) 26 Y

This leaves only the provisions of NUREG 0612 as the supporting source for the Intervenors' assertion that OCNGS Technical Specification $11.11 cannot be revised to perrinit hauling heavy loads such as the DSC shield plug over spent fuel, including the fuel inside a DSC within the CDPS in the spent fuel pool,88 The problem for the Intervenors is that the NUREG-0612 guidance in fact contemplates there are instances when, with the proper safeguards, heavy loads can be hauled over spent fuel. As we noted above, NUREG 0612 recomrnends that, consistent with the agency's defense-in-depth approach, in handling heavy loads, operator training, load handling instructions, and equipment inspections be provided sufficient to assure reliable handling system operation; safe load paths be defined through procedures and operator training so that "to the extent procricat' heavy loads are not carried over or near spent fuel; and mechanical stops and electrical interlocks be provided to prevent movement of heavy loads over irradiated fuel. NUREG-0612, at 5 2 (emphasis s'ipplied), NUREG-0612 then goes on to declare that if there are deficiencies concerning these measures "such as an inability b prevent a particular heavy load from being brought over spent fuel," alternative measures may be utilired, such as increasing crane reliability or analyr.ing postulated load drop effects to show that any consequences are within acceptable limits, so long as those measures in combination with the above specified defense-in-depth measures, will provide the " maximum pracsical defense in-depth," Id. (emphasis supplied). With its repeated emphasis on " practicality," the upshot of this guidance is not that heavy loads can never be moved over irradiated fuel, Rather, NUREG. 0612 seeks to ensure that through the use of a combination of preventative measures - including crane operator training, systems and equipment upgrades and inspections, load handling instructions and procedures, and load movement planning that sets practical limits on spent fuel exposure to heavy loads - the risks inherent in hauling large loads over spent fuel are reduced to permissible levels. NUREG-0612 clearly reur. lies it sometimes is necessary to move heavy loads over spent fuel, as is the case with the DSC shield plug, but that such action should be taken only after the risks involved have been confined at acceptable levels through the implementation of appropriate safeguards, design lanes fcw prmeetion agains natural gernonrna su:h an earthquakes, oDC 4, ohnh concerns des.gn tones for environnemal and dynanuc effects such as nussiles, otX' S, mhsch sets forth design banes for shared structures, systena, ami cornporents the are importam to safety; and ooc 61, ehkh esiahhshes design sniena fiv fuel sintage and hanJhng see 10 C F.R Pan $0, Agg. A, It, Critena 2,4. a 5. IVI, Cruenun 66.

  '3 la respond ng to the IJcennee's summay disposidan inntica, ste leervemes have made no claina regarding the agthcatuhry of Regulatory Guiden 1.11 and 1.29, mhich concern de design basis for spes fuel storage facihues and seismic design classahcanna, respectawly See staff Ressmass, attach. 2, eths 3 and 4 (of Ace of standards Dewtopnem, NkC Regulatury Guide 1.13, spent hael storage innlity Design Basis (rev, I, Dec 8975) (fut comnemh M Reguleury ouiJe 1.29 seismic tkasgn Clannilkation (rev 3. sept 1978))

27 7

In contesting GPUN's summary disposition motion, with one exception the Intervenors have not sought to challenge the adequacy of GPUN's implemen-tation of the various preventative mea utes (such as ensuring that crane oper-ators are adequately trained and load handling procedures are developed) that NUREU-0612 suggests should be put in place to ameliorate the risks inherent in heavy load hauling. 'this single execption is their argument that, consistent with NUREO-0612, GPUN can move the shield plug only by installing and using a

               " single failure proof *' crane, which OPUN does not have.n As we described in the background discustion above, the Staff once con-templated that for DWR facilities like OCNOS to comply with the guidance in NUREG 0612, besides providing the various preventative measures discussed above, a licensee would have to show (1) the reactor building crane and asso-clated lifting devices met the single failure proof guidelines," or (2) the ef-fects of any remaining potential heavy load drop events in the teactor building, including those involving shield plugs, would satisfy the evaluation criteria in NUREO-0612 section 5.1, including its specification that ar y releases fall within 10 C.F.R. Part 100 limits and any fuel reconfiguration not exceed an effective multiplication factor of 0.95, indeed, as it was outlined in the Staff's December 1980 generic letter, this was to be the second phase of the Staff's NUREG-0612 guidance implementation program.

It also is apparent, however, that the Staff later determined, based on its assessment of the Phase I implementation activities of licensees such as GPUN and a pilot program review of a selection of the submittals provided by all licensees addressing the Phase 11 criteria, that this Phase 11 activity was not necessary. Describing the results of Phase 1 in Generic Letter 8511, the Staff declared: Our rettew has indicated that satisfaction of tie Ptaw I guldchnen assures that the potential for a load drop is estrenwly snall We have noted hnprovenents in leavy load harulling procedures and training and crane and handling hmt inspection and testmg. These thanges han been geared to lumu'ns the handkng of heavy Imuk over safety related equipment and spent fuel to the essent practkal, but where this can not be ownded. to seccounphshing it wish the operatuonal and other features of the program implemented in phase / We therefore conclude that tte guidehnes of Phase I are adequately providing the intended level of protection against load drop accidents. O Ahtmugh OPUN has challenged Qua claim at a laar4 led baus for de Interwnors' comenhan that they have aus morngged to slow stavu the entesia for late 4 led autmusuona, we conshh e pus auctuon widun De contines of the Intervenora' adnuned legal contenues and baut H As described in NURI041611. a " single-failure proof

crane must have certain acave components mecung 6mproved redundancy w duahey evaluatw.a enterla that rendes the trane hight) rebaNe $re NURIO Ot12 at

                 $ 7.

28

GPUN Dispositive Motion, exh. D.. encl.1. at 2 3 (emphasis supplied). At the same time, based on its Phase 11 pilot program feview, the Staff found that with the Phase i improvements, there was no cost / benefit justification for requifing licensees to perform costly detailed load analyses or 2nstall costly single failure-proof cranes. The Staff clacluded: lW)e beheve ate Phase 1implenwntaike has provided sufficient prttection such that tie risk associated with potential heavy load drops is acceptaldy small. We funler conclude that the ob)ertive identshed ins' .: Hon S I of NURflG-0612 fut providing *masimum practical defense in depth"is satisfied t>y the Phase I compilance, and that the Phone ll analyses did act indscase the necd to require further generic action at this time. This conclusloa has treen i conhrmed t=y the resuhs obtained frorn the Phase Il pilot program and add 6tional Phane II

seviews, which idenuhed no residual heavy loads handling concerns of sufficient sign 6ncance to demand furtier generic acuon. All plants have examined t:wir load handhng practices - against tie recommendat6ons of Phabe il and subnutted the Phase il report. In this way, He uuhteos were required to identify any enemptcted problenw ;4 the Stafr. Id. at 5-6. Thus, without installing a single failure proof crane, teactor licensees, including GPUN, were found by the Staff to have complied with the guidance in NUREG-0612 as it was intended to implement the agency's defense-in-depth principle, lhe Intervenors have presented nothing that calls into question the efficacy of l the Staff's June 1983 generic determination not to impose sins;1c failure proof l

 ' crane installotion on GPUN (or any other licensee) as a condition for compliance with the guidance it set forth in NUREG-0612.'8 Nor have the Intervenors presented anything that would lead us to conclude relative to the technical specification at issue here that a different result is required in order to comply with the Staff's NUREG-0612 guidance as set forth in that document or the subsequent generic letters describing how that guidance was to be implemented.

In the context of this case, therefore, we find nothing in NUREG-0612 (whether

    '8 Akhnugh it might be asserted on staff's decision, as seheceed te Generic titter ti-il, out to amadaw single.

failwe proof crane installatum he oPUN simply reflects a staff recogniana of On Owecaisung prohitution on heavy load handhng found in Technical Specdcanon S 3 i B, this does tent account for tie fact Weere amarrady were eiurnerous sther fac4hties widmut such a trdwilcal specincation that more not requimd to adopt sue a luenw condiuon or to implenom om iniual NURI;O4ritt guidance resanbas single-failwe proof cenas installaute

     As outhned above, under en wrms of tie staff's December l9110 generic len.a. 6a de abwnce of a omgle-failwe.

proof crane oPUN would have been required to provide an analysis almwing that any leavy ked drop accident In-volving Om spent fuel la the DSCKDPs would sahnfy Ow evaluauon criweia la secuan S I of NURIil-Of>ll. inchid. 6ag showings that any resultag releaws would not violaw 10 C F R Pwt 100 hmits and diat any ensuing fuel recon-figuranon would ac4 reauk is an effecove naalupheation factor escreding 0 eS. As the staff recently has made clear, lowever, the closcout of Pharie II under oeneric tstier till and mal reiwwe hcennes of to responsitukty to eval-unie any planned ocw heavy had acuvtiies under etwer esisting sedmscal specshcanons to ensure pione acovities do not imolve en unrevwwed safety quesuon the woukt wanani a keense anenden at See Hearing ivtiuon, unnum-besed anaA 6, at 54 niawd on Staff ambt of olt'N subnuss6aa claiming nu unreviewed safety 6amics in proposal to haulloaded DSC/TC over safety.retaied equipment while oCN05 in opermung, Staff advises insowes or respon-sibihty to evaluate leavy load actvines sad requires report discussing need fw any Wehnical spec 4 canon changes (ContmaraU 29

or not it is considered a regulatory requirement) that would, as a matter of law, preclude the adoption of OPUN's requested technical specification revision. Ill. CONCLUSION Contrary to the assertions of OPUN and the Staff, we find that, prior to its recent amendment pursuant to the Staff's November 1996 "no significant har.ards consideration" determination, OCNOS Technical Specification 5.3.1.B did apply to the movement of heavy loads over irradiated fuel in a DSC within the spent fuel pool CDPS We also find, however, that GPUN has established there is no genuine issue as to any material fact and it is entitled to a judgment as a matter of law on its claim that, contrary to the Intervenors' contention, nothing in the guidance in NUREG-0612 precludes the grant of the technical specification revision GPUN has sought. For the foregoing reasons, it is, this 31st day of January 1997, ORDERED that:

1. 7he November 15,1996 motion for summary disposition of GPUN is granted and, for the reasons given in this Memorandum and Order, a decision regarding the nwrits of the Intervenors' admitted legal contention is rendered in favor of GPUN.

2. Pursuant to 10 C.F.R. I 2.760, this duision will become the final decision of the Commission 40 days from the date of its issuanca (i.e., on Wednesday, March 12,1997), unless a petition for review is filed in accordance with section 2.786, or the Commission directs otherwise.

3. At the determination rendered herein terminates this proceeding before the Licensing floard, pursuant to 10 C.F.R. 9 2.786(b)(1), within 15 days after service of this Memorandum and Order a party may file a petition for review with the Commission on the grounds specified in section 2.786(b)(4). He filing of a petition for review is mandatory in order for a party to have exhausted its administrative remedies before seeking judicial review Within 10 days after service of a petition for review, any party to this proceeding may file an answer to matrou planned travy load neuviues)(NRR. NRC. NRC nulleus 9402 Mownwnt of Heavy L4eds owe spent Ivet, owrt Ivel ta 0.e Reactor Core, or over Safety-Relawd l'quipmes (Apr 11. 19962).

Subwquent to the dradhne fur 6hng conwntions, oPUN nue! evallabb to ele Staff and the intervenuet several

ems tate" analywa uma appear to address Ow NURI:04612 evalumum cnwns. See WIP 96-23,44 NRC at 155 56. 4.v abe oPUN thapuutive Monon, enh. A, enct 2, at 3 3 (NRR NRC. *$afety rvaluathm of (NRRl Related to Anendmn.it No 157 to inc4hty operaung utenne Na DPR 16 IOPUNI and Jerwy Central Power a tJght Company loCNoS) theket No $4219"(Nov 1.1996)) 1he intervenarn have act nude any atwege to conwet de tahdity of Dune analyws la conforwunce with the siendards gowrning law 4 led content *oon and tous. See tBP,942144 NRC at 163 a 16 30

supporting or opposing Commluion review, lhe petition for review and any answers shall conform to the requirernents of section 2.786(bX2)-(3). THE A10MIC SAFETY AND LICisNSING BOARD O. Paul Bollwerk Ill, Chairman ADMINISTRA11VE JUDOB j Charles N. Kelber ADMINISTRA11VE JUDOB __ lher S. Lam ADMINISTRA11VE JUDOB Rockville, Maryland January 31,1997 l l-3

                                        .31 h                                . . = -             =

i i Cite as 45 NRC 33 (1997) DD-971

                         ' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REOULATION Frank J. Miraglia, Jr., Acting Director in the Matter of                                               Docket Nos. 50 255 12 7 CONSUMERS POWER COMPANY                                                                                                  :

(Palleedes Nuclear Plant) January 23,1997

    'the Acting Director of the Office of Nuclear Reactor Regulation is Franting, in part, and denying, in part, a petition filed by the organizations Don't Waste Michigan and Lake Michigan Ibderation pursuant to 10 C.P.R. 62.206. 'the Petitioners requested that the NRC (1) find that Consumers Power Company violated NRC requirements related to unloading procc.dures for dry storage casks for spent nuclear fuel (2) suspend the Licerssee's use of the general license provisions related to dry cask storage of spent nuclear fuel,(3) require a substantial penalty be paid by the Licensee, and (4) conduct hearings related to unloading procedures for dry storage casks at Palisades. To the extent that the NRC has determined that Consumers Power Company violated NRC regulations insofar as the original unloading procedure developed for unloading dry storage casks was not adequate, the petition is granted. Ilowever, the NRC has decided not to impose a civil penalty for the violation or to suspend Consumers Power Company's use of the general license for dry cask storage at Palisades. To that extent, the petition is denied.

DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206

1. INTRODUCTION Gn September 19,1995, the organizations Don't Waste Michigan and Lake Michigan lideration (lYtitioners) filed a petition pursuant to section 2.206 of 33 y - n-n -n

Title 10 of the Code of federal Regulations (10 C.F.R. I 2.206) requesting that the U.S. Nuclear Regulatory Commission (NRC)(1) find that Consumers Power Company (Licensee) violated NRC requirements related to unloading procedures for dry storage casks for spent nuclear fuel,(2) suspend the Licensee's use of the generallicense provisions related to dry cask storage of spent nuclear fuel,(3) require a substantial penalty be paid by the Licensee, and (4) conduct hearings related to unloading procedures for dry storage casks at Palisades. On September 30,1996, the Petitioners amended the petition by including additional information in support of their position that the Licensee did not have a wolkable unloading procedure before loading the thirteen dry storage casks currently in the Palisades independent spent fuel storage installation (ISFSI). De petition has been referred to me pursuant to section 2.206. De NRC letter dated October 24, 1995, to Dr. Sinclair and Mr. Skavroneck, on behalf of the Petitioners, acknowledged receipt of the petition. Notice of receipt was published in the federal Regisfer on October 31,1995 (60 Fed. Reg. 55.388). On the basis of the NRC Staff's evaluation of the issues and for the reasons given below, the Petitioners' requests are granted in part and denied in part. II. IIACKGROUND NRC regulations contain a general license that authorites nuclear power plants licensed by the NRC, such as Palisades, to store spent nuclear fuel at the reactor site in storage enkt approved by the NRC. (Scr 10 C.F.R. Part 72, Subpart K.) In regard to dry cask storage of spent nuclear fuel at Palisades, the Licensee opted to use the VSC 24 Cask Storage System designri by Sierra Nuclear Corporation. %e VSC 24 Cask Storage System was added to the list of NRC-certified casks in May 1993 (58 Fed. Reg.11,948).- ne associated certificate of compliance, Certificate No.1007, specifies the conditions for use of VSC 24 casks under the general license provisions of Part 72. Section 1.1.2," Operating Procedures," in the certificate of compliance for the VSC 24 casks, requires that licensees prepare an operating procedure related to cask unloading. Specifically, the condition states Wntien operaung procedures shall te prepared for cad handhng, loadmg. movenent, surwillance, and nalntenance. lie operating procedures suggested generically in the S AR isafety analysis reportl are considered appropriate, as discussed in Section t t.0 of the SER l safety evaluanon reportl and should provide tie basis for the user's written operating peccedures.1he following additional written procedures shall also be developed as part of the user operaung procedures

t. A procedure shall be developed for can unkinding, assummg damged fuel. IIfuel needs to be rertwved from tte multi-assembly scaled badet (Milt), either at the end of service hfe or for inspection eher an accident, precauuons nwst be taken against 34

de pnential for de pesence of caldired fuel and to prevent radological expcows to personrel dortrig this opersion. This activtry can to achieved tiy ate use of pe

               $wagelok valves, which permit a deterniinske of tie atmosphere witida the M5B tefore de removat of tie structur4 and sh6 eld inds. If the Wmosphere wittun de MSB is helium, then operskes simulJ proceed omsmally, with fuel ternoval. either via tie transfer eask ce Si tte poul. Ilowever, if air is present within the MSH, tien appopriate fihets should be in place to permit de flushmg of any pMential                            '

aitterte radmactive part6cutse frorn the M5C. via the $wapelok valves. "this action will protect teh penannel and the operskms an.' frorn poterdial c<mtatnisation. Ibr de accident case, personnel protection in the fann in rapirm<rs or supplied air should te considered in accrudance with the licensee's Radiation protectkm Pn'trant h Licensee for Palisades began loading casks in hiny 1993 after imple-menting pertinent certificate conditions, including those in section 1.1.2. In July 1994, the Licenace discovered radiographic indications of possible I defects in a weld in multiassembly scaled basket (MSD) No.4. htSD No.4 had I been loaded with spent fuel earlier that month and placed, inside a ventilated I concrete cask, on the ISFSI storage pad. The Licensee evaluated the flaw ) indications and determined that the MSU continued to meet its design basis and was capable of safely storing spent fuel for the duration of the certificate (20 years). Nevertheless, the Licensee stated that htSB No. 4 would be unloaded to support additional inspections and evaluations related to its future use.' in preparation for the unloading of MSH No. 4, the Licensee reviewed the unloading procedure issued in May 1993 (Revision 0) and identified several technical questions. A revision of the unloading procedure (Revision 1) was sutr.equently developed to resolve the identified technical questions.

    *lhe technical questions and the associated procedural changes were discussed during meetings with the FRC Staff, and additional information was provided in submittals from the Licensee to the NRC. Evaluation of the revised unloading procedure by the NRC Staff was initially made through the review of submittals from the Licensee and has continued through an inspection of the Licent.ee's revised unloading procedure.

As a result of its inspections and reviews, the NRC Staff recognized that some licensecs, including Consumers Power Company, had developed unload-ing procedures that tended to be simplistic and la: Led sufficient details and contingencies, in order to address these issues, an item related to cask loading and unloading procedures was added to the NRC dry cask storage action plan that was implemented in July 1995. Some issues, such as the thermal hydraulic 8 The erhedule for vakading Mia M 4 remains indenniw. The stafr has recemly leaned that the thenace nwy postpme the anloading umel e nailupurpose cask is svelatile TNs would allow de spent fuel evnewly stored in MSa No 4 to tu annifened to e tank Ows would suppwt toth skrage and pansputauon of de spent fuel The NRC staff is revwwteg this plan and w6H iniuam discussions pertan ng to this netta with de Lkenace and cart effected potes-35

behavior of casks during the unloading procesd, were included largely as a result of questions related to the original unloading procedure at Palisades. !!sperienw at other facilities using storage and transportation casks resulted in the identi-fication of other issues. Ibr example, as a result of the turbidity of the spent fuel pool during the unloading of a transportation cask at the Sheaton liarris Nuclear Power Plant, the NRC Staff assessed the potential for and significance of deposits on fuel assembly surfaces becoming loose during the unloading of dry storage casks. !! valuations and inspections were used to resolve these is-sues for specific facilities, and revisions to NRC guidance documents have been prepared to resolve generic concerns. Completion of the NRC inspection of the revised unloading procedure for Palisades was postponed following an event at the Point Beach Nuclear Plant.8 lbliowing the hydrogen ignition event at Point 11each, the NRC issued confirmatory action letters (CALs) to those licensees using or pianning to use VSC 24 casks for the storage of spent nuclear fuel (i.e., licensees for Point 11each, Palisades, and Arkansas Nuclear One), The CALs document the licensecs' commitments not to load or unload a VSC 24 cask without resolution of material compatibility issues identified in NRC Dulletin 96-04, Chemical, Galvanic, or Other Reactions in Spent Puel Storage and 11ansportation Casks," and confirmation of corrective actions by the NRC.s

    *Ihe NRC Staff is continuing to review the bulletin responses and corrective actions for the Palisades facility, and, therefore, the Licensee is restrained from loading or unloading additional VSC 24 casks. Completion of the ongoing NRC inspection of the revised unloading procedure at PMiades will be coordinated with the Staff's review of the Licensee's response to the bulletin. Ibrther, the NRC has committed to state officials and members of the public that the exit meeting for the inspection at Palisades will be open to the public, the meeting will be noticed sufficiently in advance to allow interested parties to attend, and the NRC Staff will allocate time to discuss issues with the public following the meeting with the Licensee.

Ill. DISCUSSION 1he petition requests four actions by the NRC on the basis of the contention that the original unloading procedure (Revision 0) implemented by the Licensee was inadequate, and therefore, the Licensee violated NRC regulations requiring Ion May 2s.1% a bydmgen go igonuun occwerd dunns de mekhns of de shicki hd on a VSC 24 tad at de liant inest Nucirw Plant Tiw bydmgen was fwwwd by a etw sal tractma between a sonr-bawd testmg gCarbo Fanc 11) and de burawd mater in de spent fuel pact on December 3.1% de NRC staff infwned de IJcense for dw : ay Nuclear one facihty la Run,elMue. Arkansu, dus it had completed tu teviews and innrecuans anweiser i 4: racihiy and found that de IJcennes > i saunfacturtly tonpirted dw conunitnents documemed in de s Jortly therraher, de tjansee inmated

 . & kehng activitics 36

the Licensee, prior to using an approved cask, to establish that all conditions in a dry storage cask certificate of compliance have been met (see 10 C.P.R. I 72.212(bX2)). j 1, Determine That the Ucenser % lated NRC Requirements in support of the petition's contention that the Licensee violated NRC requirements related to the original unloading procedure, the Petitioners claim that haues identified in Licensee documents dated November 11,1994, and June 2,1993, regarding revisions to the unloading procedure to support the planned unloading of Cask bo. 4, demonstrate that the original procedure was inadequate. The amendment to the po'ition filed on September 30, 1996, included issues related to material compatibility identified in NRC Bulletin 96-04 as additional evidence that the Licensee's original unloading procedure was inadequate. The primary information offered by the Petitioners in support of their claim that the original procedure vic'ated NRC tequirements is identified in the 1.icensee's document dated November i t,1994. Although the issues identified by the Petitioners have been representei by the Licensee as improvements or enhancements to the original unloading procedure to support the planned unloading of Cask No. 4 at palisades, a potential inference that might be drawn from the November il document is t!.at the original unloading procedure could not adequately support the unloading of Cask No. 4. Ilowever, the Licensee's letter dated December 29, 1994, aff,rmed the Licensee's position that the original unloading procedure was adequate, and therefore complied with the certificate of compliance. Additiona! Information, including the revised unloading procedure and the supporting engineering analyses, was provided in the Licensee's submittal to the NRC dated June 2,1995. The NRC Staff f requested additional information from the Licensee, and that information was provided by the Licensee in submittals dated October 16,1995, December 20, f 1995, and July 19,1996. On the basis of its review, the NRC Staff concluded dat, had the Licensee attempted to unload a cask using the original unloading proct. dure, certain de-ficiencies associated with the original procedure would have prevented comple-tion of the unloading process. The original unloading procedure's administrative limit for masimum cask pressure would have prevented the Licensee from estab-lishing a continuous cooling cycle because the internal cask pressure would not have been sufficient to force steam to the outlet of the discharge piping at the bottom of the spent fuel pool, Other weaknesses in the original unloading pro-cedure that would have hampered cask unloading included a restrictive venting capacity due to reliance upon a small vent line with an installed Swagelok fit-ting, scant Fuidance for personnel performing tasks such as drawing a gas sample from the MSil to check for dameged fuel, and several esamples of references to 37

the wrong step within the procedure. Such deficiencies and weaknesses would have required the Licensee to suspend activities at one or more times during the unloading process in order to evaluate the prob! cms encountered and implement necessary revisions to the procedure. Therefore, because the original unloading procedure would have required revision in order to complete the unloading pro-cess, this was a violation of requirements that all activities affecting quality be prescrited by procedures appropriate for the circumstances and that procedures are reviewed for adequacy. (See Criteria V and VI in Appendis 11 to 10 C.F.R. Part 50.)4 Ilowever, the Staff also determined that the deficiencies in the original unloading procedure would not have challenged the integrity of the cask or fuel contained in the cask and that the Licensee would have ultimately been able to safely unload a cask. 'Ihus, given the limited safety significance of the pro-cedural deficiencies and the fact that the Licensee identified and corrected the deficiencies, the NRC exercised its discretion to refrairi from issuing a Notice of Violation or a civil penalty for the viciation.

                                  *Ihe purpose and objective of the NRC's enforcernent program are focused on using enforcement actions (1) as a deterrent to emphasire the irnportance of compliance with requirements, and (2) to encourage prompt identification and prompt, comprehensive correction of violations. Mitigation of enforcement sanctions, such as refraining from issuing a civil penalty and/or a Notice of Violation, is described m section Vll.Il of the " General Statement of Policy and Procedures for NhC Enforcement Actions (Enforcement Policy)" for those case. i which a licensee identifies a problem and corrects it within a reasonable timt        ese mitigating factors were applicable to the subject Severity Level IV violat        pertaining to the original unloading procedure at Palisades and the violate . was, therefore, dispositioned as a Noncited Violation.8 As noied, the Licensee, in varivud correspondence, took the position that the original unloading procedure was adequate and that subsequent changes incorporated into the revised procedure were enhancements based on lessons learned from operating experience and additional evaluations. Several statements in the Licensee's correspondence appear to assert that ui. loading procedures for 8

Secuan l l 3 or de centshcase ed c<wnpliance for os V$C-24 can simws diat artmten at lie ISISI simil be conducard 6n amadance with de regerenwnts or 10 e F R. Pw150, Appena Il Reqmrenwnta erlated to quahty muurance rur Isi$la me also carnaned la subpart O ki 10 C F R Part 72.11e requirenwnin or Cruena Y and YI en Appendia 11 to 10 C F R. Past 30 are ow unw an ow regmreness stated in 10 CI !c i 72150 and 10 C F a. t 72 IS2. In tid rane or Ow evtgtnal cad unkiedmg pucedure a Pahnake, the nunder of petdeau in De twig 4nal pmedure and the railme of tw (Jtenare to klenury thrne poblena during reviews perforned pnar to appoval or tlw pucedme seashed in its sad..ig that a yhdat.oa of NRC regulaines had occurred Thin hadmg is skwunwnied 6a NRC Inspectkm Reput 54233h6014 8 Ahlmugh dw NRC $tarf has 6drnuhed weaknestes and drheiencies in Ow enkating procedure daveloped tiy ste LAenase. #ww putdems reauked frian de Ikemate givieg insurhc6ers considerst on to de congdruly rd the acuvity As pwt or its evaluauun pertairAng to de mingenen or entmenwes sanctuma, the NRC Starr concluded thal the tArnnee had ant knootngly and willfully v4alated NRC vequ6temema telaird to having an makabng , procedure im dry skvage tasks na was claured by de IYutioners 38

dry storage casks do not need to maintain fue, integrity during the unloading process in order to satisfy requirements of the certificate of compliance or NRC regulations. He NRC Staff disagrees with this interpretation. NRC requirements mandate that the unloMing process should be developed with due consideration to maintaining fuel integrity (see 10 C.F.R. Il 72.122(h),72.122(1), and 72.236(h)). Unloading activities are required to prevent gross ruptures of the fuel cladding in order to prevent opesational safety problems. Unloading procedures are also required to include contingencies in case fuel cladding has degraded during storage such that additional measures are necessary to address inercased radiological har.ards during the unloading process. De NRC Staff has concluded that the original unloading procedure woud have supported unloading of undamaged fuel assemblies without causing a significant loss of fuel cladding integrity. He issues identified by the Licensee in the document of November 11,1994, and for which the Petitioners claim that the original unloading procedure was inadequate, are addressed below. MS!! Cooling SUd he Licensee modified the configuration of the fill and vent piping and components from that used in the original unloading procedure. An increase in the venting capacity and the use of the previous vent path for instrumentation necessitated these modifications. De original unloading procedure included steps to remove a gas sample for analysis, connect the wnting arrangement to the spent fuel pool, and connect the cooling water supply from the spent fuel pool to the vacuum drying system water pump and the MSB drain line. Neither the Petitioners nor the NRC Staff have identified fundamental safety concerns with the anangement used in the original unloading procedure. Thennal flydraulle Afodeling in order to verify that undamaged fuel could be safely removed from MSil No. 4 and to support preparing the revised unloading procedure, the Licensee performed multiple andyses by modeling the thermal hydraulic behavior of the cask during the cooling process. Rese analyses were used to estimate the pressure response of the cask, to estimate the time requirements for cooling the cask, and to select the appropriate venting capacity in the revised unloading procedure. De analyses per'ormed by the Licensee showed that the venting capacity available for the original unloading procedure would have supported the cooling and refill of the MSB, hese analyses also showed that cask unloading using the original procedure would have taken significantly longer than the 39

time estimated for the revir.ed procedur x llowever, no violations of regulatory requirements would have resulted from taking longer to complete the unloading process. The Licensee's performance of the analyses during preparation of the tevised unloading procedure highlighted the lack of supporting analyses or evaluations for the original version of the unloading procedure and contributed to the Staff's finding that the Licensee had violated the requirements of Criterion VI of Appendix B to 10 C.F.R. Part 50 by issuing the original procedure without sufficient reviews to determine its adequacy. Afasimum Allowble l'renuritation During its review of the unloading procedure, the Licensee determined that the cask should be limited to 38.3 psig in order to satisfy criteria established by the American Society of Mechanical Enginects Boiler and Pressure Vessel Code.

     'this value is conservative with tespect to the pressure that would challenge the structural integrity of the htSIL The original unloading procedure included
   - precautions to maintain the internal pressure less than 10 psig and thus was bounded by the subsequent evaluations and the acceptable conditions specified in the revised procedure.

llowever, the Staff has concluded that the procedural limitation of 10 psig in l the original unloading procedure would have intsoduced problems in establishing j the cooling cycle because the pressure would have been too low to force steam or water from the htSil to the coolant discharge at the bottom of the spent fuel pool. *lhese problems, in turn, likely would have prevented completion of cask unloading without revising the procedure. Ilowever, the problems would not have challenged the integrity of the cask or otherwise introduced a safety concern. Rather, upon identifying the problems caused by the administrative limit of 10 psig, the Licensee could have revised the procedure, proceedal to establish the desired cooling cycle, and completed unkmding of a cask. ruelIntegrity During Cooling in support of preparing the revised unloading procedure, the Licensee, with support f om the nuclear fuel supplier, analyzed the allowable temperature differences between fuel assembly components and cooling water. Additional analyses determined maximum espected fuel temperatures before establishing the cooling flow to he htSB. *these evaluations and the expected thermal response of the htSB and fuel assemblics following the introduction of coolant during the unksading procedure confirmed that thermal shocking would not challenge the integrity of the fuel assemblics in the htSB. 40

e I Fuellleatup While the AfSR is in the hansport Cask As pre-lously mentioned, the Licensee and it.J contractors analyzed the maximum fuel temperatures that could be esperienced during the time that the htSil is in the transfer cask before establishing the cooling flow from the spent fuel pool to the hiSil interior. These analyses were performed for various heat -loads and time periods and included consenative analysis assumptions. The analyses showed that fuel temperature limits would not be esceeded before ! establishing the cooling flow from the spent fuel pool using the original (or the ' tevised) unloading procedure. l hISH lJd Remmel lhe revised unloadmg procedure uses more advanced cutting technologies in order to incorporate operating experience, case lid removal, and minimite personnel exposure. 1he capability of the original unloading procedure to control removal of the htSil lid was verified by the Licensee during mockups before loading casks at Palisades. Some of the irnprovements in the revised procedure are related to problems experienced during that exercise, llowever, the Licensee has demonstrated tSat techniques for lid removal in the original unloading procedure were adequate to remove the lids and provide access to the fuel assemblies in compliance with NRC requirements. Criticality Prevention 1he original unloading procedure included steps for sampling the spent fuel pool boron concentration and establishing time limits for lid removal , following termination of recirculation flow. The NRC Staff considers the original procedurc's lack of a detailed contingency for preventing bulk boiling, as was incorporated into the revised procedure, a procedural weakness, llowever, the weaknes: does not translate into a concern related to public health and safety or personnel exposure because of the inherent conservatisms related to reactivity control for storage casks, such as assuming nonieradiated fuel assemblies in supporting calculations, and the time that would be available for the Licensee to implement compensatory actions. Section 30.39 baluation Related to the AfSit Cooling SUd biodifications to the htSI) cooling stid led the Licensee to question whether an unreviewed safety question was introduced by a possible break of the return line to the spent fuel pool. Upon further review, the Licensee determined that the cooling system configuration did not create the possibility for an 41

7 accident or a malfunction of a different type than any evaluated previously in tne facil!:y's final safety analysis trport or otherwise esceed the criteria that i define an unreviewed safety r;uestioa under 10 C.F.R. 6 50.59. 'Ihe Licensee has stated that this conclusion is also applicable for the original unloading procedure. Neither the Pctit.ioners por the NRC Staff have identified a safety or compliance issue regarc u ng the L4ensevs conclusion. Rigging Procedurr The Licensee investigated several minor changes to the rigging process during

             >hs developtrwnt of the .4vited unloading procedure. These changes are intended

. to % na rpt@a and reduce personnel radiation esposures, llowever, the Ea"deterndt(1.htt the guidance provided by the origmal procedure, combined with expected Adl (4 Licensee personnel, would have been adcy ste to control the liMt.g of the mious louts associated with unloading a cask. Hellum Sampling During the development of the revised unloading procedure, the Licensee recognited possible difficulties in drawing a gas sample from the MSD before initiating the cooling ope,ation. The original unloading procedure inch 'ed a step to " remove a gas sample from the cask," but did not include th more detailed guidanet. :.iat is incorporated into the revised procedure. This lack of guidance in the original procedure may have resulted in Licensee personnel underestimating the helium concentration in the MSB. 'Ihe original unloading procedure included provisions to suspend the unloading process if the sampling indicated air within the MSil. Therefore, this potential weakness in the original unloading procedure would not have introduced adverse safety consequences but instead may have erroneoudy caused the Licensee to suspend cask unloading nctivities in order ?.o conduct management briefings and determine compensatory measures due to the potential oxidation of the fuel cladding. Summaryfor (I) " Determine hat the Licenser Violated NRC Requirements" On the basis of its evaluation of the Licensee's original unloading procedure, the NRC Staff affirmed the Licensee's determination that the procedure had numerous weaknesses.1hc Staff believes that the administrative limit of 10 psig for maximum cask pressure and other identified weaknesses in the original unloading procedure would have required the Licensee to suspend activities at one or moce times during the unloading process in order to evaluate the problems encountered and implement necessary revisions to the procedure Given the 42

number of weakneues in the original unloading procedure and the Licensee's failure to perform the necessary levels of review and analysis to have determined its adequacy prior to its issuance, the NRr' Staff found that the Licensee violated NRC tequirements contained in Criteria V and VI of Appendix B to 10 C.F.R. Part 50. De nrst requent in the petition, to nnd that the Licensee violated NRC requirements related to unloading procedures for dry storage casks for spent nuclear fuel, is therefore granted. The violation was dispositioned as a Noncital Violation consistent with the NRC Enforcement Policy. De Ittitioners' amendment to the petition dated September 30,1996, claims that the original unloading procedure was inadequate because of its lack of controls related to the generation of hydrogen gas from a chemical scaction ! between coatings used on the VSC 24 casks and the borated water in the spent ! fuel pool. De chemical reactions and hydrogen issue were identified following i an event that occurred during welding of the shield lid on a spent fuel storage cask at the Ibint Beach plant on May 28,1996, he need to include special precautions in the unloading procedures for VSC 24 cssks in order to prevent , Ignition of hydrogen gas had not been recognized by the cask vendor, licensees. l or the NRC Staff prior to the event at Point Beach, %c Licensee's original unloading procedure was denloped before the event at Point Beach caused the recognition of the potential for ignition of hydrogen gas during the unloading of a VSC 24 cask. Accordingly, the NRC cannot reasonably fault the Licensee, by taking enforcement action, for not having accounted for an issue that was not known to the NRC Staff, the vendor, or the Licensee,

2. Suspend the Ikenser's Use of the Generallicense On the basis of the contention that the Licensee's unloading procedure was inadequate, the Petitioners tequested that the Licensee's use of the general license provisions of 10 C.F.R. Part 72 be suspended until such time as the significant issues described in the Licensee's document of June 2,1995, have been resolved, the NRC has documented its review, approved the Licensee's revised procedure, and Cask No. 4 has been safely unloaded.

          %e Licensee's submittal of June 2,1995, provided Revision I of the un.

loading procedure and supporting engineering analyses, De petition includes specifie questions and comments regarding the Licensee's submittal of June 2, 1995, in support of the Petitioners' position that actions taken by the Licensee had not resolved significant safety issues. In respense to questions from the NRC ' Staff, the Licensee provided additional information related to the submittal dated June 2,1995. De subsequent submittmls were dated October 16 and Decem. 43

l ber 20,1995 ' In addition, the NRC Staff was reviewing and will continue to review the issues included in the submittal dated June 2,1995, as part of I the ongoing NRC inspection of the revis,ed unloading procedure. Ibrther, as l described above, the NRC Staff has already concluded that the deficiencies { in the original unloading procedure violated NRC tequirements, and that the i violation should be treated as a Noncited Violation because of the limited safety significance of the procedural deficiencies and consideration of mitigating factors defined in the NRC Enfoicement Iblicy. On June 3,1996, the NRC issued CALs to the Licensee and other users of the VSC 24 cask system. The CALs confirmed a commitment made by each licensee to the NRC Staff to refrain from loading or unloading a VSC 24 cask pending completion of investigatluns and implementation of corrective actions. On June 27, 1996, a supplement to the CAL was issued to confirm a further commitment by the Licensee to refrain from placing a VSC 24 cask into the spent fuel pool until aAA the NRC has reviewed and accepted applicable responses to NRC IMietin 96-04 and verified conective actions taken in response to the bullc6n. CALs are among the adininistrative mechanisms that the NRC uses to supplement Notices of Violation, civil penalties, and orders in its enforctment program. CALs rnay be issued to confirm an agreement by a licent.ce or vendor to take certain actions to remove significant concerns about health, safety, safeguards, or the environment. 'the NRC expects licensees and vendors to adhere to stated obligations or commitments included in a CAL and will not hesitate to issue appropriv.e orders to ensure that such obligations or commitments are met. The NRC issued the CALs and flulletin 9644 in recognition of the fact that the generation of hydrogen gas during the loading of VSC 24 casks at Point lleach was evidence that possible material compatibility issues were not fully addressed during the design or certification reviews associated with some spent fuel storage and transportation casks. It is not unusual for the NRC to use such administrative mechanisms to address generic issues. Given that the generation af flammable gases was a particular concern for the users of the VSC 24 cask system, those licensees, including Consumers Power Company, were issued CALs to confirm that VSC 24 casks would not be loaded, unloaded, or otherwise placed in a spent fuel pool before the resolution of issues identified in NRC Ilulletin 96-04. In regard to those issues contained in the amendment to the petition, the existing CAL documents the Licensee's commitment to refrain frcm loading, unloading, or otherwise placing a VSC 24 cask into the spent fuel pool pending 'Three Am nents. IAs all oilers identt6ed la this Decision, are aval.ible to tie pubhc at the NRC Pubt c Ikwumrnt R am, the oclman aun. lens,2120 L strect. NW. Washingke, DC and trarn the local puhhc thrurrent room located in the Ven Wylen tJtrary at Hope College la Holland M,ctugan 44

l verification of corrective actions related to NRC llulletin 9%4. Given the i Licensee's commitment not to load or unload a cask, the NRC does not, in this j instance, envision the need to issue ar, order as requested by the Petitioners. ;

   '! hose portions of the petition that address NRC's approval of the revised l

unloading procedure and include the unloading of Cask No. 4 as a condition ' for resuming normal activities under the general license are denied. 'Ihe NRC Staff does not generally review and approve specific procedures developed by licensees. NRC regulations, faciFty licenses, and NRC approved quality assurance programs require licensees to establish and maintain w formal process for the preparation and issuance of procedures and changes thereto. NRC assessments of Licensee procedures are generally conducted as part of the NRC's inspection program, in this instance, ghen the Licensee's commitment to refrain from action until completion of NRC's inspections, the inspections - will confirm that applicable regulatory requirements are satisfied before use of the Licensee's revised unloading proccoute. As previously mentioned, the NRC Staff will resume its inspection activities related to the revised unloading procedure when the Licensee has resolved the issues identified in NRC llulletin 96-04. If, and provided that, there is satisfactory resolution of the issues identihed in NRC llulletin 9M4 and ar.y other questions that may arise during the inspection of the Licenser's revised unloading procedere, then the NRC will have reasonable assurance of the Licensee's compliance with regulatory requirements. Accordingly, the Staff would not have any basis or reason to require the Licensee to unload Cask No. 4 before resuming normal activities under the general license at Palisades. Thus, following resolution of all issues to the satisfaction of the NRC Staff, the determination of the sequence of events related to the planned unloading of Cask No. 4 and the loading of additional casks at palisades will be at the discretion of the Licensee. As noted above, the NRC Staff has committed to open the exit meeting with the Licensee to the public at the conclusion of the ongoing inspection and will document its review in an inspection teport that will be aveilable for public review.

3. Require the Licenser to l'ay a SubstantW l'enalty On the basis of the contention that the Licensee's original unloading proce-dure was inadequate, the Petitioners requested that the NRC levy a monetary penalty of $1.3 million against the Licensee. As previously mentioned, the NRC Staff determined that, although finding that the deficiencies in the original un-loading procedure violated NRC requirements, the violation satisfied the criteria to be treated as a Noncited Violation because of the limited safety significance of the procedural deficiencies and consideration of mitigating factors defined in the NRC Enforcement Policy. Enforcement sanctions,ir.cluding issuance of civil penalties and orders, are normally used as a deterrent to emphasize the impor-45

tance of compliance with requirements, and to encourage prompt identification and prompt, comprehensive correction of violations. In this case, the Licensee identified the deficiencies that constituted the violation of NRC requirements and subsequently revised the unloading procedure to resolve the identified technical issues. It was the judgment of the NRC Staff that the violation should be dispo- i sitioned a= a Noncited Violation in order to comey the appropriate regulatory message in this case. Further, even 2'" ' violat!on had been cited, it is the NRC Staff's judgment thet it would havt .ategorized as a Severity level IV, for which a civil penalty would not ors .ly be issued. In regard to the hydrogen issues luentified in the amendment to the petition, i the NRC Staff han utilized an administrative mechanism in its enforcement policy (CALs) to ensure that the Licensee tales certain n nons to resolve this safety concern. As previously mentioned, the rpecific cratentions raised by the Petitioners pertaining to hydrogen issues and the origi tal unloading procedure do not warrant additional enforcement actions by the NRC.

4. Allow Petitioners to Review Proerdure, Requirs NRC to lloid llearings, and Allow Petitioners to Participate in Proeredings lhe originsi unloading procedue and the first revision of the unloading procedure have been provided to the Petitioners. In addition, correspondence between the NRC and the Licensee regarding the procedures has been furnished to the Petitioners. Further, due to the course of events following the Licensee's decision to unload Cask No. 4 - including the Licent.ce's evaluation of the original unloading procedure, identification of improvements to the unloading process, and the submittal of this petition - the original and first revision of the unloading procedure and related documentation have been available for public review. Accordingly, Petitioners have had the opportunity to review the unloading procedure. Ibrther, as noted elsewhere, it is the NRC Staff's intention to hold a public meeting in the vicinity of the Palisades Nuclear Plant

( at the conclusion of its ongoing inspection of the Licensee's revised utiloading procedure. The IYlitioners' request for hearings and participation in proceedings has been addressed in previous correspondence with the IYtitioners and the Attorney General for the State of Michigan, in that conespondence, the NRC Staff explained that neither the general licensing provisions of 10 C.F.R. Part 72 not the petition process described in section 2.206 require the NRC to institute a pioceeding. Under section 2.206, the NRC office director responsible for the subject matter of the request "shall either institute the tequested proceeding in accordance with this subpart or shall advise the person who made the request in writing that no proceeding will be instituted in whole or in part, with respect to the request, and the reasons for the decision." 46

l I i i As set forth in this Director's Decision, the NRC has determined not to ' institute the proceeding as requested by the petition. IV. CONCLUSION lYtitioners requested that the NRC determine that Consumers Power Com-pany violated NRC requirements, suspend the Licensee's use of the general li-cense, impose a substantial penalty, and hold hearings related to the Licensce's unloading procedure for dry storage casks. In response, the NRC determined that the Licensee violated NRC requirements insofar as the original unloading procedure (Revision 0) would have required revision in order to have completed the unkiading process, Ibrther, NRC Staff determined that the violation, which was identified and correted by the Licensee, should be treated as a Noncited Vi-olation consistent with the NRC's Enforcement Policy. Therefore, to this estent, Petitioners' request for a determination that the Licensee violated NRC require-ments is granted. The available information is sufficient to conclude, however, that no substantial safety issue has been raised regarding the operation of Pal. Isades or its associated ISFSI given the Licensee's commitment not to load or unload a cask until the NRC Staff is satisfied that the Licensee's procedures are adequate. Therefore, the NRC has determined that no adequate basis esists for granting lYtitioners' requests for suspension of Consumers Power Company's use of the general license for dry car.k storage of spent nuclear fuel at Palisades or imposition of a civil penalty. A copy of this Decision will be filed with the Secretary of the Commission for the Commission to review in accordance with 10 C.F.R. 6 2.206(c). As provided by this regulation, this Decision will constitute the final action of the Commission 25 days after issuance, ur,less the Commission, on its own motion, institutes a review of the Decision within that time, IOR TilB NUCLEAR REGULATORY COMMISSION Itank J. Miraglia, Jr., Acting Director Office of Nuclear Reactor Regulation Dated at Rockvil!c Maryland, this 23d day of January 1997, 47

Cdo as 4$ NRC 49 (1997) CLl 97 3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERSt Shirley Ann Jackson, Chairman Kenneth C. Rogers Orela J. Dicus Nils J. Olar Edward McGaffigen, Jr. I_ in the Metter of Dockel No. 70-3070 ML l LOUISIANA ENERGY SERVICES, L.P. . (Claiborne Enrichment Center) February 13,1997 he Commission grants octitions filed by the Staff and Loulslana Energy Services for Commission review of the Atomic Safety and Licensing floard Partial Initial Decision, LilP 9(w25, 44 NRC 331 (1996), and sets a briefing schedule pursuant to 10 C.F.R. I 2.786(d). ORDER ne Nuclear Regulatory Commission Staff and Louisiana Energy Services (LliS) have filed petitNns for Commission review of the Atomic Safety and Licensing floard's December 3,1996 Partial initia.1 Decision, LDP.96-25. 44 NRC 331 (19%), his proceeding involves LPe** application for a licenae to construct and operate the Claiborne Entichmen, .' enter (CEC) new Homer, Louisiana, %e Intenenor, citiiens Against Nuclear Trash (CANT), opposes the petitions for Commission review, in accordance with the considerations set furth in 10 C.F.R. I2,786(b)(4), the Commission has decided te grant the petitions and will review the issues raised in the Staff's and LES's petitions,- I, SCHEDULING OF llRIEFS Pursuant to 10 C.F.R. 6 2,786(d), the Commission sets the following briefing schedule: 49

1. The Staff and I.ES shall hic their briefs on or before March 13, 1997.

Each brief $ hall be no longer than 40 pag-s.

2. CANT shall file a single responsive brief on or before Apni 10, 1997, its response shall not exceed 50 pagen We allow $0 pages for CANT's responsive brief so that CANT will have adequate space to respond to separate approaches that snay be taken in the opening briefs of the Staff andI.ES.

3. On or before Apni 24, 1997, the Staff and LliS may file reply briefs.

Their replies shall not exceed l$ pages each. 7b be timely, aII documents must be sened on the parties and on the Commission. so that they are received in the hands of the recipient no farer than 4:15 p.m., i: astern Time, on the duc datesfor filing. Any mear,s is permitted, including hand delivery, facsitnile transmission, or e mail. Ilowever, for service on the Commission, facsimile or e mail transmissions shall be followed by a mailed original signed copy liciefs in excess of 10 pages must contain a table of contents, with page references, and a table of cases (alphabetically arranged), statutes, regulations, and other authorities sited, with references to the pages of the brief where they are cited. Page limitations on briefs are exclusive of pages containing a t;. tile of contents, table of cases, and of any addendum containing statutes, rules, regulations, etc.

11. REMAINING ISSUES IIEFORE Tile IlOARD l 'Ihe Commission espects that the lloard will be able to decide the remaining issues by lay 1,1997, if the lloard cannot do so the lioard should advise the Commission and parties of an alternative, reasonable schedule for deciding these issues.

IT IS EO ORDiiRED. Ihr the Commissioni JOllN C, llOYLE Secretary of the Commission Dated at Rockville, Maryland this 13th day of February 1997. I Ctmarunwwers 14 cut and thaa were am available lot de athrmsuon or thu orkt if Gwy had twa presete. Gwy mould have apprtwed the Orer-50

f i 7 Cite as 45 NRC $1 (1997) L8P 97 2 ! UNITED STATES OF AMERICA

NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND IJCENSING BOAMD PANEL e Before Adminletrative Judges: , Peter B. Bloch, Presiding Officer Peter Lam, Special Assistant in the Matter of Docket No. 65 20726 SP

                                                                                    - (ASLBP No. 96 72101.SP)

(Me: Operator License) MALPH L TETMICK

              ~ (Denial of Application for Moactor                                                                                                                          .

Operator License) February 28,1997 < ne Presiding Ofiker determined that a reactor operator should be considered to linvc passed the written test for senior reactor operator, lie determined that one of the questions on the exam was ambiguous and should he disallowed. lie also determined, in the absence of guidance from the Staff of the Commission, that examination scores are sufficiently imprecise that they should be rounded to the nearest inteFer. As a consequence, the score on the written esamination was 80%, which the Presiding Officer considered a passing score, Since this wps the last hurdle for the applicant in obtaining his license, the Iresiding Officci directed the Staff to issue a Senior Reactor Operator's license to him. INITIAL DECISION Ralph L. Tetrick, a reactor operator at the Wrkey Point Nuclear Generating .

             ! Plant, Units 3 and 4 ("hrkey Point"), operated by Florida Power & Light -

Company (" Florida Power"), is an applicant for a sc ilor reactor operator's 51

                                   -         #aw,..-                                                                                                                  %     +

qp,. p.-.e 9 ,p -.m.., y- yg.m,_pe 9- +g99m,... .7 9 ie -

%i,

u (SRO's) license. On October 21, 1996, I granted Mt. Tetrick's request for a hearing concerning whether he had passed his SRO license examination.' An SRO is defined in 10 C.F.R.155.4 as "any individual licensed undet this part to manipulate the controls of a facility and to direct the licensed activities of licensed operators." (Emphasis added:t he Nuclear Regulatory Corrnissir>n (NRC) has jurisdiction of this request for a hearing, in which Mr. Tetrick arpeals the result of his written examination The NRC helps to assure the health and safety of the public by requiring reactor operators to successfully demonstrate their knowledge of nuclear power plant operation before they are licensed. See Alfred J. Aforabito (Senior Operator License for Beave: Valley Power Station, Unit 1), LBP 8810, 27 NRC 417 (1988), and LBP-38-16,27 NRC 583 (1988); Rodger W. Ellingwood (Senior Operator License for Catawba Nuclear Station), LDP49 21,30 NPC 68 (1989). He Commission's regulations in 10 C.F.R. 5555.43 and 55.45 require that an applicant' for a senior reactor operator license pass both a vritten examination and an operating test. Written c.xaminations taken by applicants for senior reactor operator licenses are developed and administered by the licensee, in this case Florida Power & Light Compaq, and are governed by 10 C.F.R. 5 55.43. Written examination questions test "the knowledge, skills, and ubilities needed to perform licensed senior operator duties." 10 C.F.R. 5 55.43(a). In addition to information contained in a facility's training program, knowledge of "information in the Final Safety Analysis Report, system description manuals and operating procedures, facility license and license amendments, [and) Licensee Event Reports" may properly be tested. Id. Written - examinations for senior operators include a representative sample of questions l from fourteen subject areas specified for operator license applicants in 10 C.F.R.

5 55.41(b)(1)-(14). In addition, written examinations for senior operators are to l include a representative sample of questions from the seven areas specified in 10 C.F.R. I 55.43(b)(1)-(7).3 in addition to the written test, Mr. Tetrick took and passed the operating -

test, which involves a plant walkthrough and dynamic simulator evaiuation j during which various plant tasks, scenarios, and questions are presented to the i applicants. See 10 C.F.R 6 55.45. P On the written exammation, Mr. Tetrick was scored by the examiner as correctly answering 78 of 100 multiple-choice questions, for a score of 78%,

    'This is at infonnat heanng under 10 CF.R Pan 2. Subpan L See 10 CFA 12.120liaK2). By letter of Nown$ct 7.1996, the NRC Staff (" staff') subnutted the Heanns File pursuant to 10 CF R.12.1231. on Decenter 30.1996, htr. Tetnek tued his wntien presentation in this proceedmg. pursuant to 10 CF R. I 2.1233 (Tetnch Presentationk staff replied, pursuant to tNs name section of the regulauens on January 23.1997 (Staff Presentation 1 Isee NUREo-1021.  Operator Licensing Eununer sundards' for funher guidance on the adnunistration and grading of the senior reactor cpersror wntten test.

52 i

l l [ which does not meet the 80% minimum score required to pass. See NUREG. 1021, at 5 of 6. In response to Mr. Tetrick's tequest, the Staff completed an informal review that confirmed his failing grade, llearing File item 21, attachment at 2 7, Initially, Mr. Tetrick challenfed the gradiiig of Questions 24,63,84, and 96 on his examination. In its review, the Staff determined that Question 24 was invalid and shoulo be deleted from the examination, flowever, the result of this determination was that Mr. Tetrick's score was raised only to 78M, which is short of the 80'E required to pass. Mr. Tetrick continues to contest the scoring of his answers to Questions 63,84, and 96 and he also is contesting the scoring of his answer to Question 90. Mr. Tetrick must be sustained in at least one of the four remaining challenges to pass the examination. Below, the challenges are considered one at a time. I, QUESTION 63 A. The Question Examination Question 63 stated as follows: Plant condenons:

         - Preparations are brung made for refuelung operati,ms.
         - The refuelang cavurv ssfilled unh the transfer tube gate udse era
         - Alarm unnunctators ll 1/l, SFP LU LEXEL and G=9/1 CNThlT SUhlP 111 LEVEL are in alarm.

Which UNE of the folliming is the required IAIAIEDIATE ACTION in response to these condstwns?

a. Vertfy alarms by checksng containment sump lesel recorder and spent fuel level andacation.

b. Sound the containment enscuation alarm.

c. Initiate comtainment ventilation uolanon.

d. Imtsate control room ventilation isolanon B. Staff Position Staff contends 2 that the correct answer to this question is "b. Sound the containment evacuation alarm." It relies on Procedure 0 ADM-219,13.4.1 I

Aftidavu of Brian Hughes and Thomas A. PeeNes. January 23.1997 (staff Afhdatio, Attachmem 2 to staff's Presemauca. m 8,120. 53

(llearing File #20, attachment 2), which states: " Respond to alarms on color code priority andplant conditions." (Emphasis added.) Staff argues that: The platit conditions arid indications specified in this question (i c.. the refueling castry nited a.4d the transfer tube gate valve open with comeident Sf P IDW LEVEL rnd CONTAIN-MLNT SUMP 111051 LEVEL alarms) are maiuolly .supporutt and rorifirmatory, and require entry into Off Normal Operatmg Procedure 3 ONop.03) 2.

Refueling Casity Seal Failure" (llearing ble #24') [ Emphasis added 1 Staff further argues that there is only one immediate action specified for a refueling cavity seal failure. That action, which the operator must be able to perform from memory and before opening and reading the emergency procedures, is to sound the containment evacuation alarm. Ilearing File #24, 3-ONOP-033.2, at 5, 6 4.1; llearing File #25, 0-ADht.211, at 11, 6 5.2.1; and llearing File #25,3 BD-EOP-E-O " BASIS DOCUh1ENT."

Staff stresses the importance of this immediate action. It states, in Staff Affidavit at 9, that: Significantly, the need for such immediate action results from the fact that under the stated conditions, personnel located m the contamment would quickiv be exposed to high lesels of radiation (due to loss of mater which normally acts as a radiation shield) unless they are promptly naufied by a contamment a%nn to evacuate the area. Furthermore, Staff indicates that Off Normal Operating Procedures have a high priority among plant operating procedures, llearing Record #25,0-ADht 211, at 25, 5 5.13.1. Staff also points out that the question explicitly asks for "the Ihth1EDIATE ACTION," Staff Affidavit at 10. C. Afr. Tetrick's Position h1r, Tetrick's answer was "a. Verufy alarms by checking containment sump level recorder and spent fuel level indicatiort." lic relics on the CONTROE ROOh! ANNUNCIATOR RESPONSE procedure 3-ARP-097.CR to support l his belief that, Tie annunciators should be verified by additional supportive ( information to preclude the possibility of annunciator failure." llearing File l #20, discussion of Exam Question #63; see also Tetrick Request for llearing, September 25, 1996. d Seaft refers to

hem 24." mtucts I have changed solely for the pv' pose of complying with the siyle used in ttus documem.

54 '

D, Conclusion The Staff has persuaded me that when two concunent annunciators sound, indicating that there is an off normal event that could cause harmful radiation ,i within the containment, that the operator should take the required Ihth1EDIATE ACTION. Given the important safety problem that is being indicated by two different annunciators, that is not the time to verify that each of the annunciators is working properly. That they sound togelhrr is enough corroboration to act immediately to prevent injury to the health of plant employees. hir. Tetrick has had this Staff response available to him for some time and has never directly addressed it. In consequence, he continues to argue for an examination answer that could delay his action in preventing unnecessary exposure of his co-workers.- I fmd that hir. Tetrick's answer to this question was not correct. I note, as well, that h1r. Tetrick is incorrect in stating that 3-ARP4N7.CR states "that for all alarms the ARP shall be consulted." See the ARP at 8, "NOTIIS," at the bottom of the box. Step 2 in the notes requires that immediate corrective actions be taken as necessary. I interpret this to require that the immediate action of 3-ONOP-033.2 should be taken. %e language quoted by hir. Tetrick is from a bulleted paragraph that is part of paragraph "3) Daily Annunciator Response Procedure Usage." I do not interpret that language to supersede or qualify in any way plant procedures that require immediate action. II, QUESTION 84 A. The Question Examination Question 84 stated as follows: Which ONE of the folkming ts the basis for step I, "Versfy Reactor Trsp". of FR St. Response to Nuclear Power GeneratwdATWS?

a. To ensure that only decay hear and reactor er olant pumps are ad,hng heat to the RCS

b. To ensure shutdown n:argin is within Technical Spagwations hmsts for HOT

                  .%TMIDR Y.

c. To alert the operator no take further correctsve actwn of the reactor is NOT tripped d To vertfy that all auwmasse reactor protectne features have functwned as designed

11. Staff Position Staff states that the correct answer is "a." Staff argues that the question requests the basis (or reason) for Step 1. Verify Reactor Trip, of FR-S.I.

55

Response to Nuclear Power Generation /ATWS. To determine the basis for Step I, I first examine Step 1 in the following table: Verify reactor tript

Rod bottom lights - ON Manually trip reactor, if reactor will NOT
Reactor trip and bypass trip,7 HEN manually insert breakers - OPEN control rods.
Rod position indicators -- AT ZERO
Neutron flux - DECREASING StaN asserts that the reason or basis for this step (e.g., the reason the step is required) is: "a. To ensure that only decay heat and reactor coolant pumps are adding heat to the RCS [ reactor coolant system)." In support of this basis, Staff states that the reactor safeguard systems that protect the plant during an accident are designed on the basis that there are no additional sources of heat other than those mentioned in the correct answer, a. Staff Affidavit at 11 12, 1126-27; IIcaring File #20, "Page 9," 3-DD-EOP E 0, " Basis Document,"

l C. Mr. Tetrick's Position Mr. Tetrick asserts that a correct answer to Question #84 is, "C, To alert the operator to take further corrective action if the reactor is not tripped." D. Conclusion ' I conclude that the basis or " reason" for Step I has been correctly specified by the Staff as specified in File #20,3-BD-EOP-E-0," Basis Document." Since the procedure correctly states the " basis," a student could have answered correctly merely by learning what the procedure stated. The answer given by Mr. Tetrick is not the " basis" for Step 1. It is a followup action that might be taken after perfonning Step i but it is not the " basis" for that step. Ill. QUESTION 90 A. The Question Examination Question 90 stated as follows: f6 I

     - -- .--             ..- - -.                . .n~~_,.--                      . - ~ . . . . ~ ~ ~ . -       . . _ - - , - -      - - - -            . -   .

l g When draming the RC5 using 3 Opoll 9. REDUCED IM'LhTORY OPERAT10NS, the . ^

                     . reactve vessel head andprenurizer are both vented to containment atmosphere:--

Which rme of thefolkm'ing describes the efects on reactor usselindscathm (f an adequate I wnt path is not provided? IAnume the reference leg remainsfully a - A' vacuum in the RC5 loops mill result in lent indication being hmer than actual L lewis ,. .i

                        . b. A wcuum m the RCS hwps mill result in levelindscation being higher than actual lenit                                                                                                                           '

c. A positive prenure in the RCS loops uill result in levelindication being lower than actuallevelt 5

J The level outruments automatically com e,nsare for positne or negative pressure.. H. .. Mr. Tetrick's Position Mr; Tetrick's argument is simple.11e states': ,

                     = The assumption that the reference leg renuuns full makes this question invalid.. At Turkey lbint the drain down levelindicanon has dry reference legs. This condinon is venfied try

, _ 0-PMI-04t.ll0. Apphcant requests that this question be deleted. C. : Staff Position-- [ Staff states that the correct answer is:

                   - a. _  A mcuum in the RCS loops will result in level mducation bemg hmer than actuallevels.

Staff concedes that'at Turkey Point the draindown level indication' has a dry reference leg and that the assumption that the reference leg remains full is i:-

                - contrary to fact. Staff Affidavit at 15, 11 33, 35. Nevertheless, the Staff asserts that the question remains valid because "the fact that the reference leg is dry as :

opposed to filled with water is immaterial." Staff Affidavit at 17,139. The purpose of this question, according to the Staff, was to test an under-standing of a basic hydraulic principle, that if a-vacuum is drawn above the - water level in the reactor pressure vessel, that will affect the instrument that t measures water level because it will reduce the pressure exerted by the water in L' - the pressure vessel. .

                       'Ihe important leg in consider here is the variable leg of the water level 4
                 . instrument. When there is a vacuum above the water in the pressure vessel,

! . there will be less pressure on the variable leg than if the space above the water - were filled by' air at atmospheric pressure. The purpose of the " reference leg"

                . of the pressure indicator is to measure the heib ht of water that corresponds to

57 9

4 l i

   ~
      . n.,-, .      ,        ,               n.-               - - - - , - , -        ,         , , .      .~    ,-             ,. ,    , , _ , - . ,

the pressure on the variable leg. Providing that there is no malfunction affecting

   ' the reference leg, it does not matter whether the design uses a wet or a dry,
                                                                                                           =

reference leg. He answer will be the same: an accurate measurement of the

    . height of the water in the variable leg. Staff Affidavit at 16-17, 11 37 39.

Staff states that:

          -38 This question tests apphcants on theit understanding of the hydrauhc effects on level :

Indication during mid-loop operations u e., water level in the loop piping is less than full) and other draining operations if a vacuum is drawn while lowering water level. Numerous incidents have occurred within the nuclear Industry which involved draining reactor cuotant syntesas. A lack of understanding of the hydraulic effects on level Indications

          - by operators has been a prime contributor to snany of these esents. .Therefore, it is important that applicants denumstrate an understanding of this problem, as exanuned on this :

quesuon

    ; (Emphasis added.) l D. - Conclusion -

On this question, I agree with the_ Staff, The question is poorly worded,- R containing an assumption that is differer from the plant configuration. His : could have been somewhat confusing to Mr. Tetrick.-

          ' However, I have decided that if Mr. Tetrick had a basic knowledge of the
    - principles' that affect water level indication, he should have realized that the entire purpose of the reference leg of the water level indicator is to measure the height of water in the variable leg. Since the pressure exerted by the colunm of water in the variable leg would be reduced by the vacuum above the water -

in the reactor pressure vessel,' the water levelindicated by the instrument would . be lower than the ater level in the reactor vessel. Given the importance of

     -this principle; I conclude that Mr. Tetrick should be able to understand it and~

answer the question correctly. There is no explanation for the answer he gave: that the water level indication would be higher than actual levels. I conclude that, despite the contrary-to-fact predicate that makes this question more difficult than intended, Mr, Tetrick should have answered it correctly. The question is valid and Mr. Tetrick's answer is wrong.- IV. QUESTION % A. 'the Question e Examination Question 96 stated as follows: 58 l

Whkh GNE of the folleming is the lamest levelpeninen resswaible for ensursag entrnes are omule in the inhnicalSpenhcution Related Equipment Out of Sersise Inden? a Nunleur Plant Sureniwr

b. Asustant Nuclear Plant Surenner

c. Senior Nuclear Plant Operator d Nutlear Watek I.nxineer it. Staff Position Statf states that the correct answer is "b. Assistant Nuclear Plant Supervisor."

Staff states that Procedure 0-ADM 213. " Technical Specification Related Equipment and Risk Significant S C Out-of Senice LogtwA." states that the ALPS is the 'wst level position responsible for entering snoperable equipnent in the subject index (ttem . A When the NWE INuclear Watch Engineer l tcheses the ALPS he then assumes the position of the ALI"i. The NWE is not authonied to make enities in the subject inden unless he is aetmg in the capacity of the ALPS. any more th.m he would be able to exercise any other functions of the ALPS unless he is acting in the ALPS capacity, C. Mr. Tetrick's Position Mr. Tetrick states that "d Nuclear Watch Engineer" is also correct because _ procedure 0-ADM-200 makes the Nuclear Watch Engineer (NWE) responsible "for routinely relieving the Assistant Nuclear Plant Supervisor (ALPS) of the control room command and control function to enable the ALPS to leave the control room" [ Emphasis added 1 Staff does not question Mr. Tetrick's statement that this substitution is authorized and routine. D. Conclusion I conclude that the question is ambiguous and should be struck. Mr. Tetrick has reasonable ground to consider his answer to be correct. I do not think it necessary to address the following metaphysical question: Is the Nuclear Watch Engineer still at least in part a Nuclear Watch Engineer when he relieves the Assistant Nuclear Plant Supervisor? Staff apparently thinks that the Nuclear Watch Engineer completely loses his ordinary job identity when he acts as a substitute for the Assistant Nuclear Plant Supervisor While that is a plausible way to view what happens, I do not think it fair to require Mr. Tetrick to adopt that view of the use of words in order to pass his examination. The question in its current form is ambiguous and invalid. 59

hir. Tetrick has answered correctly 78 of 98 questions. Ilis score, rounded to the nearest tenth of a percent is 79.6%. I note that for the examination question to hase the unambiguous meaning given to it by the Staf f, it could have said: "Which DNE of thefollowing is the lowest levelposition that one must have (or be acting as)for ensuring entries are made in the Technical Specification Related Equipment Out of. Service index?" V. OVERALL CONCLUSION I have determined that hit. Tetrick was correct in 78 of 98 valid questions on his examination. Staff has not addressed the question of the number of digits in the examination score that should be considered significant. Because I have not been directed to any governing guidance or regulation, I have decided that it is appropriate to round up the answer to the nearest integer. These tests are not so precise that tenths of a percent have any meaning. Con:equently, hir. Tetrick's score is 80%, which is a passing score, lie shall, therefore, be granted a license as a Senior Reactor Operator. VI. ORDER Ihr all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 28th day of libruary 1997, ORDERED that:

1. De Staff of the Nuclear Regulatory Commission may issue to hir.

Ralph L. Tetnck a Senior Reactor Operator License for Turkey Point Nuclear Generating Plant, Units 3 and 4.

2. Pursuant to 10 C.F.R. I 2.1251, this initial Decision constitutes the final action of the Commission thirty (30) days after the date of issuance, unless any party petitions for Commission review in accordance with section 2.786 or the Commission takes review of the Decision sua sponte. If .here is no petition for review, the date on which this Decision will become final is hionday, h1 arch 31,1997.

3. Pursuant to 10 C.F.R. 6 2.786, a petition for review must be filed within fifteen (15) days after service of this Decision, which is considered served on the date it is mailed, pursuant to 10 C.F.R. 5 2.712(e). Ilowever, since service of this Decision is by mail, five days shall be added to the prescribed period of response, pursuant to 10 C.F.R. 5 2.710, which governs the computation of time. Consequently, the date the petition for review must be served is nursday, htarch 20. Service of the petition for review must, pursuant to this Order, he made by express mail.

60

 -. ..~       -      .            .           . . - .        ..=   .-.                         . _ .

I

            -- 4; A petition for review and a response to a petition for review must meet
        ..the requirements of 10 C.F.RJ $ 2.786.

5. _ If a petition for review is filed, the answer must be filed within 10 days.

Since the petition for review shall be filed by express mail, two days shall be added to the period of response pursuant to 10 C.F.R. 5 2.710, which governs the computation of time. Consequently, the date the answer must be served is hesday, March 16,1997, Service of the answer must, pursuant to this Order, be made by express mail.

                                                           - Peter B, Dioch, presiding Officer ADMINISTRATIVE JUDGE -

Rockville, Maryland 61

                                    -- Cite as 45 NRC 63 (1997)                     DD-97 2 UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS Carl J. Paperiello, Director in the Matter of                                                Docket No. 40-8989 (Ucense No. SMC 1559)

ENVIROCARE OF UTAH, INC. February 5,1997 De Director, Office of Nuclear h1aterial Safety and Safeguards, has denied a . petition filed by Dr. nomas B. Cochran on behalf of Natural Resources Defense - Council (NRDC) requesting that the NRC take action regarding Envirocare of Utah, Inc. (Envirocare). The petition requested that the NRC immediately revoke any license or cause the State of Utah (Utah) to revoke any Agreement State license or licenses held by Envirocare, its President, Khosrow Semnani, or any ( entity controlled or managed by h1r. Semnani; prohibit the future issuance of any license by the NRC, Utah, or other NRC Agreement State to Mr. Semnani or any entity controlled or managed by him or with which he has a significant affiliation; and suspend Utah's Agreement State status until it can demonstrate 1 that it can operate its Division of Radiation Control in a lawful marmer, As a basis for the petition, the Petitioner asserted that an article in the Salt Lake City

     ' Tribune reported secret cash payments made by Mr. Semnani to the Director l-      of the Utah Division of Radiation Control, and Utah's initiation of a criminal investigation into the matter. The reasons for the denial are set forth in the                                        .

l Decision. ATOMIC ENERGY ACT: ENFORCEMENT ACTION (HEARING RIGHT) ne Commission's regulations recognize that a licensee should be afforded under usual circumstances a prior opportunity to be heard before the agency suspends a license or takes other enforcement action, but that extraordinary circumstances may warrant summary action prior to hearing. 63

RULES OF PRACTICE: SilOW CAUSE PROCEEDING

   . Since the inception of the 10 C.F.R. I2.206 process, the Commission has consistently stated that the purpose of to C.F.R. 6 2.206 is to provide the public with the means for participating in the enforcement process.

RULES OF PRACTICEt SilOW CAUSE PROCEEDING In accordance with the Commission's determination that the section 2.2% process should be focused on requests for enforcement action rather than an evaluation of safety concerns, petitions will be reviewed under 10 C.F.R. I 2.206 if the request is for enforcement action, and a request under section 2.206 should be distinguished from a request to deny a pending license application or amendment. DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206 - I. INTRODUCTION In a letter dated January 8,1997, Dr. Thomas [1. Cochran, Director of Nuclear Programs, Natural Resources Defense Council (NRDC). requested, under 10 C.F.R. I 2.206 of the Commission's regulations, that NRC take action to revoke all licenses held by Envirocare of Utah, Inc. (Envirocare). Specifically, the petition requested that "NRC take the following actions;" I) . Immediately revoke the license or licenses, or cause the state of Utah to revoke its agreement state license or licenses, under which Envirocare

         - is currently permitted to accept low level radioactive waste and mixed waste for permanent disposal.
  - 2) Immediately revoke the NRC ll.c(2) byproduct recrial license under which Envirocare is currently permitted to accept uranium miit tailings -

for disposal.

3) Immediately revoke any other NRC license, or agreement state license, if such license exists, held by Envirocare, Khosrow Semnani, or any entity controlled or managed by Khosrow Semnani. !

4) Prohibit the future issuances of any license by the NRC, the State of Utah, or other NRC agreement state, to Khosrow Semnani or any company !

or entity which he owns, controls, manages, or [with whic'.i he] has a significant affiliation or relationship.

5) Suspend the agreement with the state of Utah under which regulatory authority has been transferred from the NRC to the Utah's [ sic] Bureau of Radiation [ Division of Radiation Controll, until the state of Utah can M

demonstrate that it can operate the Bureau of Radiation (Division of Radiation Controll in a lawful manner, and without the participation of licensecs, or employees of licensees, m Bureau of Radiation [ Division of Radiation Controll oversight roles." NRDC asserts, as a basis for the request, that a December 28,1996 article in The Salt Ide Tnbune reported that between 1987 and 1995, Mr. Semnani made secret cash payments to Mr. Larry F. Anderson, who served as Director of the Utah Division of Radiation Control (UDRC) from 1983 until 1993. The article also reported that the Utah Attorney General's office has initiated a criminal investiFation into the matter. Although NRDC's request that NRC suspend its agreement with the State of Utah, or cause Utah to revoke the license that it issued, does not squarely fall within the scope of matters ordinarily considered under section 2.206,' the Staff has evaluated the merits of those requests. This evaluation is contained in a separate "NRC Staff Evaluation of Natural Resources Defense Council Request to Suspend Section 274 Agreement with the State of Utah." This Director's Decision will address the NRDC requests that relate to the license to receive, store, and dispose of certain byproduct material issued to Envirocare' ' by NRC, pursuant to section ll.e(2) of the Atomic Energy Act of 1954 (AEA), as amended. II. BACKGROUND Envirocare operates a radioactive waste disposal facility in Clive, Utah, l 128 kilometers (80 miles) west of Salt Lake City in westerr. Tooele County. Radioactive wastes are disposed of by modified shallow land burial techniques. Envirocare submitted its license application to the NRC in November 1989 for commercial disposal of i1.e(2) byproduct material, as defined in section i1.e(2) of the AEA. On November 19,1993, NRC completed its licensing review and [' issued Envirocare an NRC license to receive, store, and dispose of uranium ' and thorium byproduct material. Envirocare began receiving II.e(2) byproduct material in September 1994 and has been in continuous operation since. To ensure that the facility is operated safely and in compliance with NRC requirements, the Seaff conducts routine, announced inspections of the site. Areas examined during the inspections include management organization and controls, operations review radiation protection, radioactive waste management, transportation, construction work, groundwater activities, and environmental I NRC Manual Directive 8 81. " Review Process rur 10 CFR 2.206 Pennons," issued September 23.1994 Ovvised December 12,1995L states ihm the scope of the secten 2.206 process is hmrid to requests for enforcement acnon agamst hansees or entmes engaging in NRC.hcensed asuvines. 8et ser Smte of Ute4 (Agreement Puriaant to Sectma 274 or the Atonne Energy Act of 1954, as AmendedA DD 95-l. 41 NRC 410995L , 65

monitoring. De NRC has conducted five inspections of the Envirocare facilities and has cited the Licensee for three violations. All violations were categorized in accordance with the guidance in NUREG 1600, " General Statement of Policy and Procedures for NRC Enforcement Actions" (Enforcement Policy) at a Severity Level IV.2 The first violation, is:ued as a result of a July 1995 inspection, and the second violation, issued as a result of a July 1996 inspection, have been adequately resolved by Envirocare. The last inspection conducted on November 18 22,1996, resulted in the issuance of the third citation noted above. This violation involved a failure to develop and implement, in a timely manner:

     - (1) site-specific standards for three constituents found in the groundwater that exceeded their baseline values, and (2) a Compliance Monitoring Plan for arsenic after it was found to exceed its baseline value. nese results of the November 1996 inspection are documented in inspection Report 40-8989/96-02 which was issued on January 28,1997. De NRC is in the process of determining whether Envirocare has taken appropriate action to correct this violation.

In addition, the November 1996 inspection identified other areas of concern where the Staff determined that additional evaluation was necessary. As a result, a followup inspection was conducted the week of January 27, 1997. Areas that were examined during this inspection included: (1) the Licensee's quality assurance / quality control program; (2) the Licensee's review of changes made i to the facility; and (3) contractor laboratory certification. The results of the ' Janut.ry 27,1997 inspection are currently being evaluated. Once this evaluation i ' is complete, the NRC will document the resuFs in an inspection report. Based on a preliminary review of the inspection results, no significant violations were identified. l t III, DISCUSSION in December 1996, the Salt IAe Tribune published a series of articles that questioned the relationship between Larry F. Anderson, former Director of UDRC, and Khosrow Semnani, President of Envirocare, during the licensing of the low-level sadmactive waste (LLW) disposal facility. Subsequently, the NRC Staff learned that on May 16,1996, Larry F. Anderson filed a complaint against Khosrow B. Semnani in the Hird Judicial District Court of Salt Lake County, State of Utah, to obtain compensation for alleged consulting services in the sum of 5 million dollars. The complaint al4eges that, while Directur of UDRC, Mr. Anderson recognized the need for an LLW site in Utah; incorporated a consulting 3 As esplained in secuon IV of de I afercement Ibhey. violmmns are normany categonted in wrms of four levels of seventy A seventy level IV vioisson is dehned as a notaten of more den nunor concern wtuch if leh uncorrected could lead to a nmee sennus concern 66 .\ l

firm. Lavicka, Inc., for the opress purpose of descloping a plan for siting the facility; and entered into a business arrangement to provide hit. Semnant with a license application and consulting services, hit. Andersor alleges that hir. Semnani, President of Envirocare, agreed to pay a consulting fee of 100,(XX) dollars and an ongoing remuneration of 5% of all direct and indirect revenues that hir. Semnani would realire from such a facility, if the site were successful. The

         ,:omplaint contends that hir. Semnani owes hir. Anderson unpaid compensation -

for consuhing services in the sum of 5 million dollars. In October 1996, hir. Semnani filed a counterclaim in the court, denying h1r. Anderson's claim and alleging that, in fact, hir Anderson used his position as the

       ' Director of UDRC to extort money in the sum of 600.0(X) dollars hit. Semnani contends that all the money he paid was based on the belief that if he did not pay, hir, Anderson would use his official position and capacity as an officer and employce of the State of Utah to deny hit. Semnani fair consideration, review, hearing, and determination on his license application and, thereby, cause the license not to be granted, or, if Envirocare was granted a license, hit. Anderson would use his position to subject the facility to unfair and biased oversight and supervision of the operation of the facility under the license. As a result of these allegations, the Utah Attorney General's office is investigating the relationship between hir Semnani and hir. Anderson.

He NRDC petition is based on the events described above. The NRC has evaluated the NRIX"s requests and found no basis to take the requested actions. As an initial matter, NRDC requests that the NRC immediately revoke the NRC ll.c(2) byproduct material license under which Envirocare is currently permitted to accept uranium mill tailings for disposal, in addition, NRDC also asks that the NRC immediately revoke any other NRC license, or agreement state license, if such license exists, held by Envirovare, Khosrow Semnani, or any entity controlled or managed by Khosrow Semnani. ne NRC's Enforcement Policy describes the various enforcement sanctions availahic to the Commission once it determines that a violation of its require-ments has occurred. In accordance with the guidance in section VI.C.3 of the Enforcement Policy, Revocation Orders may be used: (a) when a licensee is unable or unwilling to comply with NRC requirements; (b) when a licensee refuses to correct a violathm; (c) when a licensee does not respond to a Notice of Violation where a response was required;(d) when a licensee refuses to pay an apphenble fee under the Commission's regulations; or (c) for any other rea-son for which revocation is authorized under section 186 of the Atomic Energy Act (e.g., any condition that would warrant refusal of a license on an original application). Pursuant to 10 C.F.R. 6 2.202(a)(5), the Commission may issue an immediately effective order to modify, suspend, or revoke a license if the Commission finds that the public health, safety, or interest so requires or that the violation or conduct causing the violation was willful, he Commission's regu. 67 o

lations accognite that a licensee should be aflorded under usual circumstances a prior opportunity to be heard before the agency st spends a license or takes other enforcement action, but that extraordinary circumstances may warrant summary action prior to hearing. See Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44(M1), CLl 94 6,39 NRC 285,299 (1994). In this case the NRDC has not provided the NRC eth specific information establishing that a violation of NRC tequirements hs. >ccurred, nor provided the NRC with any other information that would provi.e a basis for immediate suspension of the Envirocare license. As NRDC notes in its request, the Utah State Attorney General has initiated a criminal investigation into the matter of the relationship between Mr. Anderson and Mr. Semnani. - Absent specific information supporting the existence of such extraordinary circumstances as would warrant such action, NRC believes that it would be premature to initiate immediate action pending completion of this investigation. We recognize that this matter involves potential issues of integrity, which, if proven, may raise questions as to whether the NRC should have the requisite reasonable assurance - that Envirocme will comply with Commission requirements. NRC intends to follow the investigation of the State Attorney General closely. If NRC receives information of public health and safety concerns during the investigation or on its completion, or receives such information from other sources, including NRC's ongoing Agreement State oversight activities, it wit: evaluate that information and take such appropriate action at that time as may be warranted. Furthermore, the NRC Staff has reviewed the bases for its licensing actions involving Envirocare, and confirmed that NRC did not rely on technical eval-uations performed by the State to reach a decision regarding the evaluation of Envirocare's ll.c(2) byproduct material license. The Staff conducted an inde-pendent technical evaluation of Envirocare's license applicatio . and subsequent amendment requests, and concluded that Envirocare had adequately demon-strated compliance with all applicable health and safety standards and regula-tions. In addition, as noted above, NRC inspections of Envirocare have not revealed significant violations that would warrant immediate action. Moreover, with regard to NRDC's request that the NRC immediately revoke any 9ther license, the NRC has issued no other license to Envirocare, Khosrow Semnani, or any entity controlled or managed by Khosrow Semnani, ihr these reasons, this request is denied. NRDC also requests that the NRC prohibit the future issuances of any license by the NRC, the State of Utah, or other NRC agreement state, to Khosrow Semnani or any company or entity that he owns, controls, manages, or with which he has a significant affiliation or relationship. With regard to this request, we have already noted that there is no basis for NRC to take immediate action. In any event, section 2.206 is not a venue for presenting licensing contentions of the sort raised by this aspect of NRDC's 68

petition. Section 2.206 provides for requests for action under that portion of the NRC's regulations governing enforcement actions, namely 10 C.F.R. Part 2, Subpart B. Subpart B is entitled " Procedure for Imposing Requirements by Order, or for Moditication, Suspension, or Revocation of a License, or for imposing Civil Penalties." Since the inception of the section 2.206 procen

  - the Commission has consistently stated that the purpose of section 2.206 is to provide the public with the means for participating in the enforcement process.5 The Commission has determined that the section 2.206 process should be focused on requests for enforcement action rather than evaluations of safety concerns. In accordance with this determination, the Commission's Management Directive 8.11, " Review Process for 10 C.F.R. 2.206 Petitions." Part Ill, section                              r A, states that petitions will be reviewed under section 2.206 if the request is for enforcement action, and that a request under section 2.206 should be distinguished from a request to deny a pending license application or amendment.

Because this request by the NRDC concerns licensing-type action, not enforcement. type action, the Staff has determined that, consistent with the guidance of Management Directive 8.11, this request is not within the scope of section 2.206.4 To the extent that further facts may be developed that may warrant consideration of this request, the matter may be raised in an individual' licensing proceeding; however, no such proceeding is presently pending, as there is no application pending for the issuance of a license to Envirocare. IV. CONCLUSION On the basis of the above assessment, I have concluded that no substantial health and safety issues have been raised regarding Envirocare that would require initiation of the immediate action requested by the NRDC, and the petition is therefore denied. As explained above, the NRDC has not provided any information in support of its requests of which the NRC was not already aware. Moreover, NRC inspections of the Envirocare facility have not revealed the existence of extraordinary circumstances that would warrant immediate suspension of the Envirocare license. In addition, the Staff's review of the technical basis for its issuance of the license and subsequent amendments found

no evilence of the existence of any substantial health or safety issue that would justify the actions requested by the NRDC. NRC will monitor the investigations -

3

Requests to impose Requurnrna by order os a 1.4censee, or to Modify, Suspend or Revoke a 11ense " 39 in Reg 12,333 ( Apnl S,1974); "L4Boeuf, tanb. Leiby & Marae," di Id Reg 3359 Ua 22, l976); "Pentions for Review of thrector's Denual of Inforcenem Requests," 42 Id Reg 36,239 Ouly I4.19771

    *Even if uus request were imerpreted as a request that the NRC inue an enforcenrni order prohibmng Mr.

semnam frtun engapng in licensed acavities, and thus conanture a request for enforcenew acnon wittun the scope of secnon 2.2u6, NRIX' has not provided the NRC with specific 6nformation such as would warrant the requested acnon, an esplasned above 69

and actions being conducted by the State of Utah. If NRC receives any specific information that there is a public health or safety concern as a result of these

                                             - actions or from any other source, including the NRC ongoing Agreement State oversight activities, NRC will evaluate that information and take such action as it deems is warranted at that time.

FOR THE NUCLEAR REGULATORY COMMISSION Carl J. Paperiello, Director Office of Nuclear Material Safety ' and Safeguards

                                             - Dated at Rockville, Maryland, this 5th day of I'rbruary 1997.

l 70

Cito as 45 NRC 71 (1997) DD-97 3 - I UNITED STATES OF AMERICA

                                                       = NUCLEAR RF.GULATORY COMMISSION OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS Carl J. Paperiello, Director in the Matter of                                                                Docket Nos,50-346 72 1004 TOLEDO EDISON COMPANY, et al.
                            . (Davle-Besse Ir> dependent Spent Fuel Storage installation)                                                          February 5,1997 Re Director of the Office of Nuclei ifaterial Safety and Safeguards grants,

. in part, and denics, in part, a petition ined pursuant to 10 C.F.R.12.206 on behalf of the Toledo Coalitica for Safe Energy, Alice Ilirt, Charlene Johnston, Dini Schut, and William Hoops. The petition is granted ;o the extent that the NRC has initiated a rulemaking to modify the Certificate of Compliance for the VECTRA Technologies NUHOMS-24p dry shielded canisters (DSCs) in order l_ to require fabrication inspection. He Petitioners' request that the NRC require l the unloading of DSCs pending completion of the rulemaking is denied. The Director also finds no basis for taking any further enforcement action against

                            . VECTRA or to require the halting of the ISFSI operation at Davis-Besse.
                                     - DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206 INTRODUCTION By a petitior dated December 5,1995, filed on behalf of the Toledo Coalition for Safe Energy, Alice Hirt, Charlene Johnston. Dini Schut, and William'.

Hoops (Petitioners),' the U.S. Nuclear Regulatory Commissiori(NRC) was asked 3 Acconhng to the petsuom the Toledo Coahuoo is a grassroots ant nuclear organizauon with numbers who reside within a 35-nule rabus of the Davis-Besse Nuclear Power Station The pennon imhcates that it 6s also offering the posinons of the Mu)lamt Safe Energy Coahuon, an organizanon represented to have numbers near the Calven CLits aucitar plant, another site where NUHoMS-24P dry storage camssers are being usett 71

immediately to issue an order to prevent the loading of spent nwkar fuel into the VECTRA Technolof ie% inc. (VECTRA), NDHOMS-24P 0 4 hie'ded canisters (DSCs) at the Dasis Besse Nuclear Power Station until the NRC conducts a 3 rulemaking and/or license modification hearing on all safety-related changes that have been made to the DSCA as described in the Safety Analysis Report (SAR). Also, the NHC was regr.csted not to authorite any loading of the DSCs until a written procedure for unlotJing them, in both urgent and nonurgent circumstances, was written, apprmed, and field tested. Petitioners conter.d that the safety of the DSCs has been compror..ised occause of certalii reductions that were made by VECTRA in the thickness of the welds in the DSC metal walls. In addition, Pethioners question the legal validity of the administrative and regulatory processes used by NRC after discovery of the DSC wall-thickness issue. 'Ihey assert that an agency rulemaking or ether public process is required for the DSCs at the Davis Besse site. The petition was referred to me pursuant to NRC regulations in 10 C.F.R. 9 2.206.2 Because the petition requested immediate relief (i.e., a halt to any loading of the DSCs at Davis Besse), it was necessary for me to give an immediate response to that portion of the Petitioners' request. By letter dated December 18. 1995, I detiied the Petition:rs' request for immediate action on the petition on the basis of my judgment that there was (and continues to be) no imminent risk to health, safety, or environment such as to warrant the emergency relief sought by the Petitioners.3 By letter dated January 23,1996, to Mr. Lodge, on behalf of the Petitioners, I formally acknowledged receipt of the petition. Notice of receipt was published in the Federal Regisfer on January 30,1996 (61 Fed. Reg. 3060). Based on the NRC Staff's evaluation of the issues and for the reasons given below, I have now concluded that the Petitioners' request should be granted in part ar.d denied in part. I BACKGROUND NRC regulations contain a general license that authorites nuclear power plants licensed by NRC, such as Davis-Besse, to store spent nuclear fuel at a reactor site in storage casks approved by NRC. See 10 C.F.R. 55 72.210 and 72.212. Among 2 Seenon 2.206 proentes that *talny person vnly 6te a mpest to insuture a procee&ng . . , to mmbfy, suspend, or revoke a heense, or for such other acunn as may be prope " The Director of the NRC ofAce with responsibihty for the subject maner of the request -in this case the ofAce of Nudear Material Safc.y arut safegu.mts -is to decule whether to insutuie the requested piocee&ng amt if no procee&ng is instituted. wdl provate the reasons for the Decisaan. 3 My Dreember 18 letter also nonAed Pennoners et my irwenuon to treat their December $ request as a peuuon under 10 CF R. I 2.206 and inacated that NRC would respond to the legal and techmcal issues they raised within a reasonable ume. 72

other things, the Licensee is tequired to conform to certain NRC conditions for ensuring safe storage and to notify NRC at least 90 days prior to the first :,torage of spent fuel under the general license. By letter dated June 30,1995, Toledo Edison Company (Licensee) informed NRC that it planned to use the VECTRA - Standardized NUllOMS-24P dry spent fuel storage system (NUllOMS) under

                                 - the general license at the independent spent fuel storage installation (ISFSI) facility at the Davis-Besse Nuclear Power Station. VECTRA's NUllOMS had previously been approved by hRC in December 1994 (59 Fed. Reg. 65,898) and as further reficeted by the issuance of NRC Certificate of Compliance No.1(XM -

(COC) to VECTRA, the cask vendor. This NRC approval was granted after notice-and comment rulemaking, to allow use of the NUllOMS system (subject to conditions specified in the COC) to store dry spent fuel at a nuclear power-reactor site under the terms and conditions of the general license in 10 C F.R. Part 72. NRC regulations require cask vendors, such as VECTRA, to permit NRC to inspect the premises and facilities at which NRC-approved storage casks are fabricated and tested. See 10 C.F.R. 5 72.232. On June 20-23,1995, NRC conducted an inspection of VECTRA's contractor, Ranor, Inc., at Westminster, MA. At that time, Ranor was fabricating the three NUllOMS DSCs and the transfer cask (TC) for VECTRA that vote. destined for Davis-Besse. The objective of the NRC inspection was to confirm that activities associated with the fabrication of the DSCs and TC had been executed in accordance with the requirements of the NRC COC and commitments made by VECTRA in the

                                   " Safety Analysis Report for the Standardized NUllOMS llorizontal Modular Storage System for Irradiated Nuclear Fuel" (SAR).' VECTRA /Ranor was fabricating the DSCs and the TC for Toledo Edison (Davis-Desse site).

The NRC inspection identified three items of concern that required further action by VECTRA: -(1) there was inadequate documentation to demonstrate that changes made by VECTRA /Ranor to the storage cask design described in the SAR had been reviewed and evaluated by the cask vendor in accordance with Condition 9 of the COC;8 (2) cask wall thickness measurements had not been taken by VECIRA/Ranor after welding and grinding operations were performed 4 Under NRC regulations a cask venew who sequests NRC approval of a spent fuel sacrage cask nest subnut an apphennon that includes a sAR desent* ng the proposed cask desagn and how the cask shoeld be used to store spne fuel safely See 10 C F R 5 7231 The NRC repon to VECTRA twee July 7.1993 CA1,)inaccurately desenbed the correctave ac' ion as fo"ows:

                                   ' VECTRA wdl provide to the NRC wnnen nouAcanon that the safety evaluatums consastent with 10 CrR 7148 have been cornpleted and no unresolved safety 6ssues were 6denuned pnor to shipping the DSCs and the TC." In fast. VECTRA was required to provide 'and ulutnately ed providel safety evaluations " consistent with Condanon 9 of etw CoC " Condinoa 9 and 10 C.F R. 8 72 48 are substannvely sinular in that each pernuts changes to the cask design desentied to the SAR. without pner NRC approval, if cestaan specihed condmons are enet and documented by a wntten safety evaluanon However, Coimhtien 9 apphes to changes by the cask vender 6 e, VECrRAL whereas section 72.48 applies to changes by the beensee 0 e.. Toledo Edisant 73

3 on the DSCs;' and (3) leak testing was performed on the DSCs in lieu of pressure testing? On July 7.1995, NRC issued a Confirmatory Action Letter (CAL) to VECTRA, confirming VECTRA's commitment to take actions to resolve the above three items of concern. Among those actions, as listed in the CAL, the following actions are related to Davis-Besse's ISFSI operation.

1. Regarding the finding of inadequate documentation of design changes, VECTRA was to review evaluations for adequacy and complete the documentation packages. VECTRA was to provide to the NRC written notification that the safety evaluations were completed and that no unresolved safety issues were identified prior to shipping the three DSCs and TC to Davis 13 esse,

2. Regarr'ing the finding on the lack of wall-thickness measurements after weld .ig and grinding operations, VECTRA was to inspect welded areas in the DSCs to determine actual wall thickness and prepare an engine 'ng document providing an evaluation of the safety significance of any wall thinning below design specifications. VECTRA was not to ship the three DSCs affected by wall thinning until this issue was resolved with NRC:

3. Regarding the finding on performing leak testing instead of pressure testing, VECTRA was to provide to NRC an engineering evaluation-justifying the use of a leak test in lieu of a pressure test. VECTRA was not to ship DSCs until this issue was resolved with NRC.

It is item 2 above - the absence of DSC wall-thickness incasurements by ' VECTRA - that relates to the major issue of this petition. As to item 2 of the CAL, on September 5,1995, VECTRA informed NRC that the .nasicmm thickness measured in the three DSCs prepared for Davis-Besse was 0.682 inch and occurred off the weld seam and in the base metal. VECTRA l said that the minimum thickness measured in the three DSCs was 0.581 inch

            'YECTR A's NUHOMS design desenbed in the SAR ases a nonunal DSC shell thwkness of 0 625 inch. However, VICTRA/Ranor had not measured the actual thackness of Itw fabneated DSC shells after welding and gnading l          yrsions to verify that it conformed to the descripuun in the SAR

)- As tahcated in dw SAR, the DSCa are designed, with one escepuun. as pressure veswls in accordance weh l the appheable sechons of ihe Amencan Society of Mechanwal Engineers (AsME) Boiler and Pressure Vessel (B&PV) Co le The ASME B&PV Code calls for proof pressure tesung of the vesul The one escepuon is the DsC top and botiorn clmure welds to wtuch the ASME B&PY Code cannot pracucably be apphed

            'The CAL also requuvi VECTRA to evaluate the potennal safety impact of the lack of wad-thickness measurerrents on previously fabncated DSCa wtush were stupped to sises other than DavwBesse amt to provide an engineerms analyus and any recommended aenons resulung from that analyus to NRC. By letter dated August 7,1995 VECTRA submured an acuan plan to sairess the issue retaied to those prevwusly fabnented DSCa. such as those at the Calvert Chris site Subsequently. VECTRA subnutted information for Staff revww is letters dated october 2.1993 March 8,1996, and April 25. 1996 The Staff evaluated the submitted infornv tin and by Irtwr dated January 3.1997,infonned VECTRA that the CAL issues were sesolved and. therefore, closed Osven the followup acuvnws of VECrRA and NRC already under way pursuant to the CAL and the absence of any aAhnonal informauon or claims in the pecuon relanns spetencally to Calvert Chffs. I see no basis to fait any further action at tius eme with regard to Calvert Chris.

74 a

and occurred in the weld scam of one of the DSCs, VECTRA also performed

calcu!:,tions that demonstrated that a DSC of 0.500-inch uniform wall thickness still met all ASME Code stress allowables, although the original design ahellE thickness in the SAR is 0.625 inch. In essence then, when it performed the

               . required measurements of the three DSCs fabricated for Davis Besse, VECTRA found actual, minimum _ wall thicknesses in each of the DSCs that wete less 1

than the 0.625 inct nominal thickness described in the SAR and a minimum-. thickness in one DSC of 0.581 inch. VECTRA thereafter went on io analyze whether a thinner wall design of 0.500 inch would satisfy NRC design criteriai- i De results of VECTRA's analysis submitted to NRC on September 5,1995,- I showed that it would. On October 12, 1995, NRC responded to the VECTRA _ actions taken in i response to the CAli Regarding item 2 of the CAL (the lack of wall thickness measurements and. VECTRA's subsequent September 5,1995 reevaluation), NRC accepted VECTRA's 0.500-inch unifonn wall-thickness calculation as meeting the ASME Code stress allowables, the original structural design criteria for the three DSCs. NRC said the structural capability of the DSCs would not be compromised if wall thinning from weld grinding were limited to local spots

               - along weld seams and if the remaining shell thickness was 0.500 inch or more.

l. . However, NRC said that, because of the limited experience in performing weld-l - thickness measurements, "it is prudent to require a minimum weld inspection threshold thickness 010.563 inches," to maintain a 0 063-inch fabrication margin over the 0.f00-inch minimum. The NRC Staff prepared a safety evaluation dated October 5,1995, documenting the basis for its acceptance of VtiCTRA's response to item 2.-

                                               ~
                   . : NRC's October 12,1995 response also found that VECTRA had acceptably addressed items 1 and 3 in the CAL Dus, based on the actions taken by

VECTRA and NRC's independent evaluation of the technical issues and review

,. cf the supplementary documentation provided, NRC found that VECTRA had H acceptably completed the actions specified inLthe CAL and could, therefore,_ ship the three DSCs and the TC to the Davis-Besse site; VECTRA shipped the i DSCs and TC to Davis Besse shortly thereafter. 1

On November 14, 1995, one of the Petitioners (Ms. Charlene F. Johnston) wrote NRC asking for clarification on certain questions relating to the following

               - issues: -(1) whether an amendment process is required for the change in the _

3 wall thickness of the DSCs at Davis-Besse, and (2) whether the legality of a j vendor's changes to a cask design can be questioned because the vendor is not

               ' a utility licensee and, therefore, cannot use the provisions of section 72.48 in making changes. Since the petition covers issues that are related to the two                      !

issues in the November 14 letter - and adds a third issue on cask unloading procedures -I have decided to include my response to the November 14 letter

                 'in this Decision.-

75

sm

DISCUSSION ne petition and associated November 14 letter raise three issues involving the DSCs at Davis Besse. First, Petitioners contend that the reduction in the DSC shell thicknes, to less than 0.625 inch compromises the safety of the DSCs. Second, Petitioners question the legal validity of the administrative and regulatory processes used by NRC after discovery of the DSC shell-thickness issue and assert that an agency rulemaking or other public process is required for the DSCs at the Davis-Besse site. Finally, Petitioners contend that NRC should have reviewed and approved and field tested the procedure for unloading the DSCs both in urgent and nonurgent circumstances prior to the operation at the Davis Besse site. In the following .iiscussion, I will address cach of these issues in turn. A. Reduction of Shell Thickness Does Not Compromise the Safety of the DSCs petitioners claim that "the reduction in the thickness of the DSC metal walls to less tha- 0.625 inch compromises the safety of the DSCs." Petition at 1. Ihr the reasons that follow, I conclude that the change will not compromise safety. I begin by discussing the safety function of the DSC. He DSC shell provides a key continement barrier for the spent fuel stored inside the NUHOMS dry cask. Thus, the DSC shell helps to ensure safety for dry cask storage and protection of public health and safety by maintaining safe continement of the stored fuel despite the forces, pressures, and stresses that are constantly acting on the cask (including the DSC shell) during normal handling, as well as during anticipated occurrences or potential cask accidents, it is logical for Petitioners to conclude that, by reducing the thickness of the DSC shell, VECTRA could adversely impact the DSC's capability as a safe confinement barrier. Indeed, it may seem obvious that a DSC having a shell thickness of 0.625 inch would have more capability to withstand cask bumps, drops, and pressure extremes than a DSC shell of reduced weld scam thickness no matter how small or limited the areas of thinning might be. Rus, at the core of Petitioners' claim is the intuitive assertion that VECTRA's change in the DSC shell thickness lessened the DSC's capability as a confinement barrier to some extent. The question raised, but not answered, by the petition is whether this reduction in capability is sufficiently great to compromise safety. I conclude that it is not. In NRC's original evaluation, when it certified the NUHOMS and accepted VECTRA's SAR in 1994, the NRC Staff reviewed a variety of potential cask accidents (e.g., a cask drop or tipover, vent blockage leading to cask heatup, low temperatures, earthquakes and tornadoes, explosions, lightning, floods) that 76

were thouFh t to cover the range of cast accidents that might reasonably be assumed to occur In the NRC review the s accident was assumed to occur (i.e., probability of occurrence was assumed to be one), and the consequences were eyeluated. Ibr each accident, the NRC Staff review found that the DSC would maintain confinernent of the spent fuel without any breach or rupture of the - DSC. Therefore, there could be no adverse impact on the public. As noted, the original NRC evaluation was based on a DSC nominal shell thickness of 0.625 inch. In NRC's evaluation of the VECTRA September 5,1995 submittal, which used a minimum DSC wall thickness of 0.500 inch to defr.onstrate a bounding case, the NRC Staff review assumed the occurrence of essentially the same range of acG ents. Again, the NRC Staff found that the DSC would maintain confinement of the spent fuel without any breach or rupture of the DSC. When VECIRA initially sought the NRC's 1994 approval of the NUHOMS, Lit provided design criteria for the DSC in the SAR as a tvisis fer NRC approval of the NUHOMS system. VECIRA's proposed design criteria for the DSC were ! certain portions of the ASME BP&V Code? Materials (such as the materials that make up the DSC) have known stress values at which they will bend or break. During an accident, if the stresses acting on a vessel such as the DSC exceed those values, then it can be assumed that the material will fail. To facilitate the design process, the Code prescribes design criteria in the form of " allowable stresses" and requires that vessels such as the DSC must be analyted under accident conditions to ensure that the stresses resulting from the accident do not exceed the allowable stresses of the materials used in the vessel. Depending on the likehhood of given design loading conditions, the Code builds into the design criteria and allowable stress values for each material a safety margin by l setting generally the allowable stress at a fraction of the stress at which the l

     . material is known to bend or break.
        'NRC approved tlw NUHOMs based on Yt.CrRA's appheanon and a supportmg SAR which. in turn pursuant so apptwable NRC regulanons, included apprepnate deugn criteria for the storage cask. See 10 C F R. I 72.2%b)

A vend #s design entena in the sAR are important because they are to be used to analyre the acceptabihty of the tenke's proposed cask deugn agams potenual stresses on the caa aber et is loaded with spent nuclear fuel The stresses to be analyzed coser a sanety of condauens that the cask may encounier dunng use, melueng thme attribusable to the dead weight or teteperature of the spent fuel in the cask. internal pressures placed on the cask

    . efter at is loaded and sealed, normal handhng of the cask dunng onute transpon or transfer. a pneennal handhng accident such as a Jammed canister when it ts being placed in or retneved from the storage module or a dropped
    ' cask dunng transport, seisnus loads that anse from ground acceleranons dunns an earthtpaake. postulated Good events and stresws from certain load combinahons.

The drugn entena in the SAR subnutted by VECrRA to NRC covered each of the cask con &uons appbcable to the proposed NUHoMS deugn noctuding the DSCK VECTRA also analysed the NUHOMS design ag.unst these design entena in the SAR. using a nonunal DSC wall unchness of 0615 inch, pnor to NRC cask approvalin December 19M Further, and as detailed in the NRC Staff s Safety Esaluanon Report (SER) wtuch supported the rulemakmg and uhimats approval of the vl CrRA NUllOMS, the NRC Saaft evaluated and accepted VECTRA's design entena and analyws before issuing VECTRA die CoC as part of the NRC's rkcember 19M approval. 77 f

VECTRA used the same ASME Code provisions for evalual ng the DSC designs

and demonstrated that the Code provisions were met by a DSC shell thickness of 0.500 inch." Thus, even with the reduction in shell thickness, VECTRA demonstrated that m ASME Code provisions will be met by the DSC shell thickness of 0.500 inch.d Herefore, I conclude that the reduction in shell thickness does not compro-mise the safety of the three DSCs at Davis Besse. VECTRA has demonstrated that a DSC with a minimum shell thickness of 0.500 inch will plovide safe confinement of spent fuelin the event of an_ accident, VECTRA's revised structural analysis assumed that the entire DSC shell thickness, including all shell plating and weld lengths, had been reduced from 0.625 to 0.500 inch. This assumption by VECTRA resulted in a calculation that underestimated the strengths of the actual DSCs at Davis-Besse that were

   - measured by VECTRA and found to have the specified 0.625-inch material thicknesses for nearly all of the shell weld lengths. Thus, the actual DSCs at Davis Desse with nonconforming weld thicknesses on only a portion of their s

weld lengths, should readily perform as well as VECTRA's revised structural

Tlw desisn enaena uwd in VtWRNs reevaluation renwuned the same tmi the countmg of the had load effects 4tfered in one respect imm the SAR. In a request for ad&uonal anformatmn (RAll dated August 17,1993. tiv Staff comnwnied that. "the deduttmn of dead meight (Dw) from normal handhng stress (l.A) kul conatmn is a change in the deugn criiens uwd in the SAR " Liter, in the Detober 5,1995 Staff safety evaluauon of VI-CTRA's sensed rakulanon Iwkage and response to the RAl. the Staff noted thas "the calculaimn package conuders the aanw design tuws and sniena as ihme in the s AR? In the 5 AR. in analyring cen,un load combinanons VEC1 R A had counted some dead weighs strenes two tunes, whereas in the reevaluauon of the DSC it &J not The StatY agreed that the double connung in the SAR was unnecessary an& ilwrefore, accepted the renoval of the &wbie counnns in Ilie retiwd analyna H

As discuned previously, after the June 1993 escmery by NRC inspectors of the DSC wall-ttuckness usue, N LCrRA was asked in the July 7,1995 NRC CAL.to pnnide an engmeenng analysts a&ltesung the potennal safety impact of tlw lack of wall ttuckness nwasurements that cmcred casks in fabncanon. most parucularly Itw three DSCs desuned for Davts-Besie VLCTRA cksse to subnut a revison to the attuctural analyus previously provided to NRC to the SAR. uung a nummum DSC shell thickness of 0 500 inch. while consi&nns the ame j design cnteria as those in the SAR. which had been found acceptable by NRC tw nwetmg NRC requirements meluJ'ng sectmn 72.2Wbk The Staff notes that, dunng tte deugn process for components such as the DSCs. vendors conununty use conservauve anurnpuona in theu cakulanons to simphfy the cakulation process. (See NRC4 Si R l 3 2.3 ).Therefore, it can and should be espected that it may be posuble to use an ahernatin method to perform dessa cakulatmn (e g . a more rehned cakulaimn thal eliminates sonw of the conservauve assumpuans) to demonstrale that a different DSC shell drugn (a 3, a deugn that uses a tManer wall thickness) will also satisfy tte deugn cntena emluhed to the AShlE Code As dncussed aNwe, tlus is euctly what VECrRA 4d. That is, to reselse the wall-ttuckness strasurement issue raswd in the July h 1995 CAL, VECTRA performed a structural reanalyus of its NUHOMS VECTRA tranalyzed the DSC with a umform wall thschness of 0 500 anch, which is th nner than the nonunal wall tNekness of 0 62$ inch used in the analysis ongmally prouded by

    %ECIRA in the SAR Further, etw structural adequacy of the DSC was denenstrated by companng the calculated suess intenserws fm the 0 500 lach DSC shell to the same Jeugn cnteria used for the D 623 inch shell O e., AShli Code Illi stress allowableak -

U wlwn tir NRC Stafr reviewed VLCrRA's rettsed structural analyus submmed in September 1995 6 e., the analyus denumstrums the structural acceptabihty of ttw DSC uung 0 5046nch DSC shell thwknessk the NRC Staff also rehed on comphance with the same AShfE Code provinons to estabhsh the relevani design cnwna for deternuning whether the 0 500 inch DSC shcIl design would provide the required safety Specihcallw in its / safety venficanon of the VECrRA cakulanon package (NUH0N 02 t A -Stan&udiard NUHohls 24P DSC Shell Mimrnum Acceptable Uniform Tluckness"). the NRC Staff concurred that all calculated stresses for the 0 500 inch DSC shell thAkness are acceptable. (See NRC 14tter to VLCTRA. dated october 12.1995) 78

analysis predicted -In either case, IN #ccted casks will perform in accordance --

          - with the pertinent, ASMB Code requirements, the operative design standard l Inherent in the NRC Staff's approval. This level of performance provides reasonable assurance that public health and safety will be protected.

Thus, while VECTRA failed to comply with its SAR commitment of 0.625

          = inch, its failure resulted in no compromise of safety. Nonetheless, the failure raised an issue of poor control durinF the fabrication process. This deliciency 3

was identified by NRC during the June 1995 inspection; and VECTRA was ;ited " for it in the NRC Notice of Nonconformance issued to VECTRA in August { 1995." H. Ru'lemakibg Should Be Conducted to Propose Changes to the NUHOMS Certificate in Light of the Weld Thinning issues and Petitioners' Claims Can Be Made in That Rulemaking Petitioners question the legal validity of the administrative and regulatory processes used by NRC after discovery of the DSC wall thickness issue, petition at 1, Specifically, Petitioners believe an NRC rulemaking (or other public proceeding) should have been held.- As set forth above, my conclusion is that the DSCs at Davis Besse are safe. However, as I will explain below, I believe an issue remains as to whether NRC should take some additional action with respect to VECTRA's COC for the NUHOMS cask. I have already referenced the NRC's action with respect to VECTRA's failure to conform to NRC requirements. In particular, the fabrication process for the DSCs did not ensure that acceptable DSC wall thickness was maintained as required by NRC. The process included an instruction that the operator manually - flush grind the welds, after welding the DSC shell seams. However, there was'no procc. lure that provided an adequate level of control in maintaining :

           ; minimum acceptable wall thickr. esse Moreover, under thc. procedures, the
           . operator did not measure the final wall thickness of the DSC in the area of the H

welds after grinding. Further, measurements were not taken in any subsequent - steps in the fabrication process to ensure that minimum wall thickness was

Pruuoners' November 14 k tter asserts tlw VICrRk vtclared NRC regulanons when 14 failed to do nwasure-enents on DsC wall %ckness and weld seams dunng fabraation. NRCs June 1995 inspection of VECrRA/Ranor and NRC's August 1995 Nc* ice of Nonconformance to vECrRA have already indicaied thm VECrRA failed to

(... !. confonn to NRC regulanons. The Petmoners' November 14 letter also questions whether VECTRA may have willfully failed to report a nonconformance or deviauon in wall thicknesses for the DsCa. The NRC inspecuan

          ; thd not 6denufy any smhcanons of a willful fadure to report. Rather the fatture on the part of VECrRA/Ranor was its failure to have adequate quahty control rnessures in pleee dunng tin abncanon process to nwasure DiC '
          - wekla aner gnnding it appea s that VECTRA /Ranor did not an apace thu gnnding the weld could resuk in -

gotng below the specified pime tluckness. Therefore. tim Premoners' concern about a imsible willful falute to - report a nonconformance cannot be substannated ' 79

maintained. VECTRA thus failed to ensure conformance to NRC's tequirement - that activities affecting quality must be prescribed by apfwopria'e, documented instructions, procedures, or drawings that include criteria for determining that important activities have been satisfactorily accomplished. See 10 C.F.R. 6 72,150, " Instructions, procedures, and drawings." As a consequence, NRC - issued VECTRA a Notice of Nonconformance on August 29, 1995, citing VECTRA for its failure." petitioners, however, seek additional action. Specifically, in their December 5,1995 petition, Petitioners state that they believe that an NRC rulemaking (or other public proceeding) was required to permit use of the three DSCs with wall thinning at Davis-Desse. Further, in their related November 14,1995 letter, petitioners question whether an NRC rulemaking was required because VECTRA's change of the three DSCs to a wall thickness of less than 0.625-

                 - inch involved a reduction in "the margin of safety" that must be approved by an NRC amenoment process.

petitioners' November 14 questions appear to be aimed at VECTRA's in . piementation of Condition C :n the NRC COC i sued to VECTRA in December

                  -1994." Condition 9 permits VECTRA to make changes in the DSC design without NRC approval provided, among other things, the change does not in-volve "an unreviewed safety question." Condidon 9 states that a change shall be dee ned to involve an unroviewed safety question "[i]f the margin of safety -

as defined in the basis for any technical specification or limit is reduced." After evaluation, VECTRA concluded that the wall thinning of the three DSCs at Davis-Desse did not involve a reduction in the " margin of safety" or "an unre- ' N NMC's I;ouce of Nonconformance cited VtCTRA 'or several other nonconformances with NRC tequaenwras unrelated to DSC mall thwkness or sa petium uln their November 14,199s letter Peninmers e, , oned VECTRA's legal authortty to make changes to the DiC in 1990, to fulAll the mandare of the Nuclear Waste polwy Act of 1982, the NRC anended 10 CF R. Part 72 no as to pus la place the regulatory precedures that authertze a nuclear power reactor heensee to store spent fuel on ute undr* a general heense without the need for an addmonal site.spectAc Commismen approval $$ Ivd Reg 29.1810990) To use the general heenw. the reactor heensee rnust store the spent fuel in a cask that has been certi6ed under the pmvismns of 10 C F R Part 72. suhpart K. See 10 C F R. 512.212(aW21 A vendor who nweis the subpan K teqmrements will be issued a CoC hy the NRC and, after a pubhc rulemskmg proceeding, the cask will tw added to the hst of apprmed spem fuel storage casks at 10 CF R 5 72.214-These regulatory procedures were und with respect to NRC's apprmal of vECrRA's NUHoMS system, on

                 - June 2 1994 the NRC pubhsted a propowd rule aikhng the NUHoMS system to the approved hat arul gave nouce that the draft CoC was available for inspection arkt conunent at the NRC Pubhc Docv ent Room. 59 led
                 . Reg 28 49ti 0944k As Peunoners are aware, Comhuon 9 of the CoC provides to the holder of the cDC the same type of authonty to maw changes as is provi&d to hcensees under section 72.48 Camhtmn 9 provides to VECrRA, anums other things, the authoruy to m4e changes in the cask drugn described in the s AR wittmut pnor Comnusuon opproval unless the proposed change involves a change in the CoC. an unreviewed safety quesnon, a sigmAcant increase in occupanonal esposure, or a sigencant unreviewed environmental irnpact The Comnisuon received a number of ponts and negame comments,includmg commenes from some of the present Petmoners, on its proposal to inctwporate seruon 72 48 type language mio Coenheion 9 of the CoC but deternuned to retain this language in the hnal rule, See 59 fed Reg. 65,898,65,984-15 0944t Cornhuon 9 was aikyted through nouce-and-comnent rulemaking, and VECrRA was entitled to utihre its provimons in consWrmg changes to the cask drugs as desenbed in the sAR 80

_u

siewed safety question." lly asserting that an NRC rulemaling was required, Petitioners inuy be effectively alguing that 1 should find these VECIRA con. clusions to be wrong. ilowever, it is not necessary to evaluate VECIRA's conclusions in order to decide that l'etitioners' request for NRC rulemaking should be granted with respcot to the wall thinning issue. As i explain below, I believe that tulemaking should be undertaken for different reasons. In this regard, I note that the NRC Staff's October 5,1995 SER (issued w hen Staff accepted VECIRA's analy61s of a minimum DSC shell wall thickness of 0.$00 inch) iricludes the conclusion that "it is prudent to require" a minimum weld inspection threshold thicktiess. As part of its respc.nse to the CAL and to address the nonconformance witt. NRC requirements described above, VECIKA had propoacd an inspection procedure to ensure that DSC weld-

 - grindit.g operations do not result in wall thinning below acceptable levels. Staff viewed (and continues to view) VECIRA's proposed inspection procedure, which invokes enhanced actions if grinding operations exceed a 0.563 inch threshold, as an acceptable quality control practice. Further, it was Staff's intent in the SER to reflect VECIKA's inspection plan as an important consideration in Staff's acceptance of VECIRA's response to the CAL llowever, although VECTRA implemented the inspection procedure as to the three Davis llesse DSCs and committed to use it in fabricating future DSCs and although the NRC Staff's SER espressly relied on the VECI'RA inspection

[ procedure as a consideratiori in accepting VECiRA's response, nothing in l the VECIRA COC explicitly requires VECTRA to conduct inspections during fabrication of the DSC. Thus, one purpose of rulemaking would be to consider whether these (and possibly other) circumstances of the Null 0MS wall thinning issue justify the step of putting a fabrication inspection requirement in the VEC1RA COC. Specifically, rulemaking could pmpose to amend the VECTRA l COC to require that, in the fabrication of the DSC, the sheti anil basket n sembly must be inspected to ensure that structural desigt, margit, associated with the ASME Code {r111 stress allowables, are not compromised. Such a requirement would serve the purpose of helping to ensure that the DSC fabrication procest,, including weld Frinding operations, produces DSC components that conform to the design criteria and safety margins apivoved by NRC,

    As NRC ampeshon team foumi vtfiR A's safety analpas fut de well stumung issue to tw te, aanunistranve conghance with Con 4hu4m 9 Tse sectuucal agects of VIGRA's safety analysis were not venewed by the team 3ce NRC Invectue Report No. 72-10044207 l nW1 note t'ei NRC pohey in dun men nught statergo (14nhcanon The regulauty language se Con huon 0 is sinulas to tanguage in 10 C l- R 150 $9, a separate and umelated gwouuca tavolung nudrar tractors NRC is conJu kng .

ivernal teurw e4 its polup gmJarwe on Mrnufung "untenewed safety quentwns' la the stiniest or sechon N. S I IntenJ to erumitor that reurw m,d, when at is complete, conudet utrdri 4twee is a need to develop clanfying. guidawe for Condiuon 9, as util sa neown 72 44 shwh governs thsnges by Part 12 bcensees 81

At this point, I am inchned to believe that VEC1KA's COC should be moddied in light of the weld thinning inue." As discuned above,I believe that thanges to VEC1RA's COC merit consideration as possible additional actions to ensure the quality of VECIRA's NUllOMS components in light of the history of this anatter. Further, rulemaking would allow us to receive and consider comments of the Petitioners and othrt members of the public who are interested in the eld thinning issue. As part of the rulemaking, NRC could include in the record the entire NRC Staff safety evaluation of VECTRA's walbthickness reculuation and the VECIRA reevaluation itself submitted la response to the NRC July 7,1995 CAL As noted, the Staff's safety evaluation and the accepti,bility of VECTRA's reevaluation both depended, in part, on a VECTRA impection that the rulemaking would propose to require in VECIRA's COC. In the rulernatinF, as i envision it, Petitioners, as well as any other inter. ested member of the public, would be gisen the opportunity to comment on any aspect of the NRC safety evaluation nuociated with this lasue At the conclu-sion of the comment period, NRC would consider all comments and provide a response. Further, if NRC determined, after considering the comments, that it should modify VECTRA's COC or change the Staff's previous determination to merpt VECTRA's 0.5(ninch unifortn walbthickness calculation, the rule-making wouhl provide a vehicle for it to du so. This <;ourse of action, which I intend to pursue, would provide Petitioners the agency rule naling they seek on the reducilon in t.ie thickness of the DSC metal walls to less than 0.625 inch, and it will provide them the oppor1 unity to esamine and comment on NRC's determination that the safety of the DSCs has not been compromised and to submit such other information as they wish on any aspect of the wall thickness issue, 'therefore, to this estent, ! um determining that the petition should be granted. I have also considered w5ther NRC should take some additional action, pending completion of the rulemaking, with respect to the three DSCs now in service at the Davis Ilene site. In Part A of this discussion, I set forth the basis for my conclusion that the reduction in the shell thickness of the DSCs at Davis Gesse does not compromise their safety. Therefore, I believe that continued storage of spent fuel in the DSCs, pending completiori of the rulemaking, would not pose an unreasonable risk to pblic health and safety and that there is no technial basis to require their unloading. Further, as I have previously summarired in this Part 11. NRC already cited VECTRA for its failure to comply with NRC requirements in August 1995. Accordingly, to the estent Petitioners scel additional action, pendmg completion of the rulemaking, their request is denied.

 "Onkt NRC internal proceduren, the staff neat requesi and obina Conmuuwa apreoval ttfore undertaking i rulemaking Thererm. l intend to seek Comrtuissoa approsal to do no l

82

4

a d-l ' C. There is No llanis to Grant Petitioners' Mequest 'that NHC Ne$lew. Apptove, and Field Test Procedures for Unloading 1'SCs Prior to Operation

                                ' Petitler.cra also present claims concerning.the unloading of the casks at                                                                             1
                     - Davis.Ilesse. Specmcally in tNs_ regard, they demand that "no loading of the canisters be authorired until there is in plac e a written, approved, and field. tested piocedure for unloading the DSCs both in urgent and nonurgent circumstances."

Petition at 12.-

!                                  There is no regulatory requirernent fm NRC to review, appmve, and field                                                                         j
                          . test a licensee's operating procedures, including urcloading of spent fuel casks                                                                           j under urgent and nonurgent circumstances. Rather, NRC's approach is to require l

that licensees have a formal process for procedure 'dewlopment and control. - , Generally, in the analogous case of a power reactor, this process is part of .

the facility license. NRC oversees the implementation of Wt process and the product (i.e., the procedures and their use) through its inspection program. This I approach to overseeing licensee operations has been effectively demonstrated by , j successful startup of power renoors following construction and the continued [ L safe operation of esisting faciliiles. NRC espects that a general licensee

                      - under Part 72'will prepare ISFSI procedures in accordance with its established procedure development process and as required by its quality assurance program.

As a general licensee, Toledo lklison is required to cornply with the terms and ; j ; conditions of the COC issued for the VECTRA NU110MS 24P. lce 10 C.F.R, i 6 72.212(b). The applicable conditions in the COC can be found in section 1.1.2 l- which requires that "[w]ritten operating procedures shall be prepared for cask ; }. handling, loading, movement, surveillance, and maintenance," This' condition is ' I broadiy written and interpreted by NRC to require the licensee to have detailed - ' 4 written procedures for loadmg and unloading a DSC. Another related condition , in the COC appears in Section 1.1.6 which requires "[p]re-operational testing" i that includes, but is not limited to, a dry run of loading and unloading a DSC. , Rus, it is the licensee's responsibility to prepare, review, approve, and test , written procedures for cask loading and unloading. Further, NRC requires a- {

                     . licensee to conduct activities related to ISFSI operation, including cusk loading                                                                              }

and u0 loading, in accordance with those written procedures once the licensee l;

has approved, tested, and put procedures in place. See 10 C.F.R. 5 72.212(bX9).

__ ne NRC also conducts periodic audits of these activities through its inspections l program._ _

i Lit is not NRC's practice to review and approve a licensee's operating proce- ; duresi it is important to understand that, just with respect to dry cask storage , [ activitier., whlch are a very small fraction of the daily activities conducted at an operating nuclear power plant, the applicable written procedures of a gen-eral licensee are libly to be voluminous. Moreover, the written procedures Il3

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    -4 + ar -p  q            y a--  -.+.p-Ww.,g,wey,.m,,-.'-.,, w.,.,, g9m   ,,ymgey,qw.          -.-

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prepared by a licensee typically are site specific in nature and thus reflect the licensee's special knowledge of its plant and how day cask storage acthities interconnect with plant personnel, as well as other plant acti.ities and procc-dures.1he written procedures are prepared according to the fortnal procedure development process and esercised during the dry run, in my judgment, there would be very littL additional value to be pained from a requirement of NRC review and approval of a licensce's written operating procedures, particularly ylven our esisting inspection activities illustrated by the Davis 13ene esample, beloW. In particular, with regard to Davis.Ilcue's ISFSI operation the Licensee de. veloped written operating procedures for dry cask handling including loading and unloading proceduies. These procedures were used by the 1icensee for the preoperational dry run testinF at the Davis Deue plant during November 30 through December 11,1995. The NRC Staff inspectors were present at the plant throughout the testing, conducted an onsite observation of the Licensce's dry run loading and unloadmg activities, and also inspected the detailed written procedures used by the 1.icensee for cask loading and unhiading. NRC Inspec-tion Report 50 346N54N documents the estensive NRC inspection activities, as well as the inspection finding that the dry run activities were conducted satis-factorily and in a safe manner. Therefore, based on the circumstances tellected in the foregoing discuuion. I conclude that there is in place at Davis Desse an adequate written procedure, appmved and field tested by the Licensee, for unloading the DSCs if needed, and that the Petitioners' request - to the estent l it seeks further NRC review and approval- should be denied. CONCLUSION As diseuned above, VliCTRA's change to the wall thickness of certain weld seams does not compromise the safety of the three DSCs at Davis-Besse. Ilowever, the NRC COC for VECTRA's Standardized NUllOMS 24P shauld be modified to require a fabrication inspection of the DSC, An aFency rulemaking is, therefore, neededa' nd should be conducted to accomplish this modification. In rulemaking, Petitioners would have the opportunity to comment on any aspect of the DSC walbthicknen issue. Ilowever, because the continued storaFe of spent fuel at the DSCs at Davis Desse does not pose an unreasonable risk to public health and safety, I find no technical basis to regtdre the DSCs to be unloaded pending completion of this rulemaking. Further, VliC1RA has already I been cited for a nonconformance with NRC regulations, and I find no basis in the petition to take other action in this regard. Toledo Edison has developed loading and unloading procedures for handling spent fuels. These procedures have been applied for the dry run testing with 84 d

NRC's oversight. Therefore, I find no basis in the petition for requiring halting of the ISI SI operation at Davis liene. Accordingly, the p;tition fiorn Toledo Coalition for Sale linergy is granted to the extent that it requests an agency rulernating and is denied in all other respects. FOR 7111! NUCl. liar RI!GUI,ATORY COMMISSION Carl J. Paperiello, Director Office of Nuclear Material Safety and Safeguards Dated at RtwLville, Maryland, this $th day of libruary 1997. 85

                                           ,m  _ _ _                                  - - , , - ,

Cite as 45 NRC 86 (1997) 00974 UN11ED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REQULATION Frank J Miraglia, Jr., Acting Director in the Matter of Docket No. 60-246 ' (License No. OPR 21) NORTHEAST NUCLEAR ENERGY COMPANY-(Milletone Nuclear Power station, Unit t) February 11,1997 De Acting Director, Office of Nuclear Reactor Regulation, has granted in part and denied in part a petition filed by Anthony J. Ross requesting action regarding hiillstone Nuclear Power Station Unit 1. The petitioner requested that the Commission tale escalated enforcement action nFainst the Licensee and certain individuals based upon the deliberate failure to comply with procedures involving sign-out of measuring and test equipment, and conduct an investigation into alleged procedural violations and audit the hiilistone Unit I maintenance department hicasuring and Test Equipment folders for widespread problems regarding procedural noncompliance. To the extent that the Petitioner requested j escalated enforcement action be taken, the petition has been denied; to the extent that the petitioner requested an investigation into the procedural violations and an audit, the petition has been granted. ENFORCEMENT POI.lCYt SEVERITY OF YlOLATIONS hiinor violations, as described in the current enforcement policy, are not the subject of formal enforcement action and are usually not cited in inspection reports. To the extent that such violations are described, they are now noted as noncited violations. 86

 -                             _ = . _

i RUI.13 OF PRACTICE: INSTITUTION OF PROCEEDINGS UNDER 10 C.F.R. 6 2.2% The institution of a proceeding pursuant to 10 C.F.R. 6 2.206 is appropriate only if substantial health and safety issues have been raised, l DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206 l; I. - INTRODUCTION On January 5.1995. Mr. Anthony J. Ross (Petitioner) filed a petition with the Esecutive Director for Operations of the Nuclear Regulatory Commission j! (NRC) pursuant to section 2.206 of Title 10 of the Code ofl'ederal Regularlons ' (10 C.F.R. 52.206). In the petition the Petitioner raised concerns regarding noncompliance with Procedure WC 8, " Control and Calibration of Measuring and Test Equipment." at Millstone Nuclear Power Station Unit 1, and requested that escalated enforcement action be taken. Specifically, the Petitioner provided several examples of what he alleged were violations of Procedure WC 8. which he stated required that measuring and tot equipment (M&TE) be signed out from, and returned to, a custodian upon completion of wak. The Petitioner requested that the NRC institute sanctions against his department manager, his first.line supervisor, and "two coworkers"8 for engaging in deliberate misconduct in violation of 10 C.F.R. 6 50.5 in failing to comply with Procedure WC. 84 The Petitioner also asserted that the NRC should conduct an investigation into violations of this procedure and audit the Millstone Unit i maintenance department M&Til folders for widespread problems regarding noncompliance with this procedure. On February 23,1995, the NRC informed the Petitioner that the petition had been referred to the Office of Nuclear Reactor Regulation pursuant to section 2.206 of the Commission's regulations. The NRC also informed the Petitioner that the Staff would take appropriate action within a reasonable time regarding the specific concerns raised in the petition. On the basis of a review of the issues raised by the Petitioner, as discussed below. I have concluded, for the - reasons explained below, that the petition is denied with regard to the request for escalated enforcement action and instituting sanctions against the depanment manager, first.line supervisor.~ and two co-workers, but granted with regard to I The *two cowirkers" are understood to t e an m.hndual itw Ivin,oner alkres millfully ratinfled nwkd.ited) an entry an the form to inbrate that etw nrter ont teturned on Ocheer D.19% and an irukvidual the IYtit,ones alkgca willfully Holded Prmedure WC 8 on Newmber 17.19% t'y sigtung out his oma MATti 87

the requests for an " investigation into the above mentioned procedure violations" and for the NRC to " audit the Unit i maintenance department hikiE folders."

11. DISCUSSION in the petition, the Petitioner raises concerns regarding numerous i.oncompli-anees with Procedure WC 8, Resision 0, at Millstone Unit 1. Specifically, the Petitioner states that (1) quality assurance (QA)2 test meter 1587 was signed out on October 13,1994, for weekly battery readings, and as of October 19,1994, the user had not retumed the meter or signed it in.1he Petitioner states that this practice was in violation of Procedure WC-8, which stated " return M&TE to custodian upon completion of work";5 (2) although he identified a problem with Procedure WC 8 (specifically, who was responsible for the actual signing in and out of M&lE) to his first line supervisor on November 7,1994, as of December 1994, the procedure still had not been changed (in accordance with Procedure DC 4, " Procedural Compliance," which requires that if a procedure conflict or interpretation problem exist.5, a change or revision should be made);

(3) on November 10, 1994, ne noticed on a station form that someone signed in the QA rneter with the return date of October 13,1994, and that this was a willful falsification (backdating) of a nuclear record; (4) on November 17,1994, l an electrician co worker was directed by their first line supervisor to willfully violate Procedure WC 8 by signing out his own M&lE, and signed out his own M&lE although both the supervisor and co-worker knew they ucre to have the custodian sign out the equipment; (5) on November 21, 1994, his department manaFer instructed the custodian to give a spare key for the QA locker to the Millstone Unit I control room so the control room could sign c.it equipment at night; and (6) on November 25,1994, a mechanic signed out M&1li without a custodian, in addition, the Petitioner states that he believes that his department manager was directly responsible for sharing the effects of a new, revised, or rewritten procedure with the employees of his department if the procedure directly af. fected day-to-day operations. The Petitioner asserts that this individual's " lack of I Quahey Assurance comprisen sluise quality assurarwe actions related to dw physical chara6tensucs or a malenal, structure, neiponent, or system that prmule a means to control the quahty or de nuienal, stru.;ture, ctmisment, is eyseem to predriernuned reqanenweis 8 Tius procedure had become erfectie on hne 20,194 h required that a %ugnated cush,dian" enter the date or issue and date or retura on de cutimly anJ usage record, and that de user or the eqwpnent return it to de custo&an pron congletue or wori la Alta6hment i to the procedure, *cunoana" mas Jchned as the indmdual desgaaied by Ow etartnwns brad to store, trad, and 6ssue the derannete's MATI 88 1

communications" regarding the procedure has caused a " widespread problem of procedure noncomphance."' In letters to Northeast Nuclear linergy Company (NN!!CO), Licensee for j hiillstone Units I,2, and 3 dated December $ and 28,1994, and fibruary 14, 1995, the NRC Staff raised a number of maintenance related issues, in those letters, the NRC Staff requested NNiiCO to resiew these issues and submit a 1 written response. AmonF these issues, the NRC tequested NN!!CO to review ' two issues associated with Procedure WC H that are now presently being raised by the l'etitioner.1hese were that: (1) the hiillstone Unit ! QA test rneter 15h7 4 was signed out on October 13,1994, to perform weekly battery readings, but as l of October 19,1994, the user had not returned the meter or sitned in the meter; and (2) many members of the hiillstone Unit I hiaintenance Department never recched training on Procedure WC 8, Rev. O. within 60 days of the effective date of June 20,1994, as required by the documentation of training requirements form of NNiiCO Procedure IX' 1. In a letter dated h1 arch 6,1995, NNiiCO responded to the issue regarding failure to return the QA meter signed out on October 13, 1994. In its letter, NNiiCO stated that on October 13,1994, a maintenance electrician signed out QA test meter l$87 to perform weekly battery surveillances and signed it back in on the ht&Tl! log on the same day. On October 19, 1994, a different maintenance electrician signed out and returned QA test meter l$E7. Sometime later that day, QA test meter 15N7 was slyned out again and subsequently returned the same day. NNIICO stated that it was unable to detennine, based on interviews with the parties involved and a review of the custody and usage record, the exact circumstances surrounding QA test meter 1587. llowever, w hat was known was that QA test meter 1587 had been signed out once on October 13 ' and twice on October 19,1994. NN!!CO's resiew further concluded that strict compliance with Procedure WC.8 was not being observed at all three hiillstone units in that a custodian was not being used to ensure that certain actions (i.e., siFning in and out ht&Tl! on the ht&Til log) were being accomplished. Ilowever, NN!!CO stated that it believed it met the " intent of the procedure"in that the user of the hi&TII stored, tracked, and issued the equipment as required by the procedure, except that the custodian was not involved. As a result of its review, NNI!CO undertook certain corrective actions. Specifically, NNFCO held a site wide meeting for all departments responsible for use or issuance of QA hi&Tl! on itbruary 21,1995, to determine corrective actions necessary to ensure procedural compliance. Subsequently, NNiiCO revised Procedure WC 8

                                                                       'NNICO hwedure (Cl requurs that the Lkenice wiect tiw temnmg reqmremems to be used in tronmg h

ent 3ers shrnrste procrJures are revised. and an.bcaic the r>pe or trainmg that mould be perfarned on Anachnent $ to pro.edure DC l Ivr proceJwe WC-6, RevNon 0, the traimng reqmred mas nwked as "vurung in be dore t'y Drpannem w Nalen 1remns tvpannwn unhin fio days or the erfecove d.ne and prior to perictmance or procedure

H9

on April 27, 1995, to specifically allow the uset of h1FI1! to slyn QA test equipment in and out.1he custodian is stiil roponuble for storing and tracking ht&TI!. In addition, hiillstone Unit I control roorn personnel responsibic for accessing QA hi&111 were made aware of the loggh., requirements.

           'Ihe NRC conducted a special safety inspection from hiay l$ through June 23,1995, at the hidtstone station. During this inspection, the Staff reviewed a number of the concerns, including the concerns about QA test meter 1$87 and the other esamp'en of noncompliance with Procedure WC.8 alleged by the Petitioner, and issued its findings in Inspection Report (IR) $0-245/95 22,50-336/95 22,50-423N5-22 (95 22h dated July 21,1995.

During the inspection, the NRC StafI reviewed the custody and usage record sheets for QA test meter 1587 from September 27 to November i1,1994. Ilased on this resiew, the Staff was unable to determine whether QA test meter 1387 was properly logged in and out in October 1994 or if the custody and usage record sheet was backdated.1hc NRC StafIdiscussed this issue with the workers involved who indicaird that they had no recollection of the esact circumstances surrounding QA test meter 1587 and that, to the best of their knowledge, QA test meter 1587 was logged in and out properly. Therefore, the Staff was unable to determine whether QA test meter 1587 was controlled improperly and whether the Petitioner's co worker willfully falsified (by backdating) a nuclear record (hi&Tl! log). 1hc Sinff also reviewed the original procedure and determined that although Procedure WC 8, Rev. 0, was not clear in specifying who was responsible for the actual signing in and out of equipment, NNECO was meeting the intent of the procedure in that hl&TE was stored, tracked, and issued in a controlled manner. The NRC StalI further concluded that NNECO's additional corrective actions (i.e., modifying the procedure) were adequate in clarifying the procedure and should prevent interpretation problems in the future. Notwithstanding the lindings of the inspection report, however, the NRC has reconsidered this matter and determined that NNECO was not in compliance with Procedure WC 8, Rev. O. 'Ihis determination is r,upported by the fact that NNECO admitted in its h1 arch 6,1995 Iciter that it was not in compliance with Procedure WC-8. In addition, the NRC has reviewed the custody and usage records for signing in and out hi&TE on NovemLer 17 and 25,1994, and determined that an electrician and rnechanic had signed out their own hi&1E, respectively, on those dates. Accordingly, the Petitioner's assertions that the procedure was violated wher' a co-worker electrician signed out his own ht&TE on November 17, 1994, and a mechanic signed out ht&TE on November 25, 1994, is substantiated. Ilowever, the NRC has been unable to confirm that either of these individuals had been " directed" by supervision to sign out the equipment. 90

i in addition NN!!CO's review, as described in its letter dated March 6, 1995, and serified by the Staff in IR 95 22, determined that Lep had been available dufing this time frame in all Millsione control ooms and were in the possession of security personnel to allow access to QA M&111 Storage k> cations. These Froups requited access to these areas in order to properly execute their duties. Therefore, since the custodian did not sign in and out the equipment, the Petitioner's additional assertion that the pnitedure was violated because security personnel and personnel in the Millstone Unit I control room could sign out M&111 at night is substantiated. Ilowever, the NRC has been unable to confirm that the department manager had instructed the custodian to give a spare Ley to the control room so the control room could sign out M&'lli at night. Ibithermort, the Staff has detennined that, since there were no safety consequences as a result of these events, the noncornpliances with Procedure WC 8 did not constitute a violation that could reasonably be expected to have been prevented by the 1.icensee's corrective action for a previous violation or a psevious Licensee finding that occuned within the past 2 years of the inspection at issue, adequate corrective actions were implemented regarding Procedure WC-8, and the violation was not willful, the violation would have been categoriicd in accordance with the enforcement policy in effect at the tirne of the inspection as a noncited severity Level V violation and would not have been the subject of formal enforcement action.' In addition, since the procedure was not cicar in describing specific respon-sibilities and NN!!CO believed it was meeting the intent of the procedure, the NRC has concluded that the Petitioner's department manager, his first line su. pervisor, and two co workers did not deliberately violate NRC regulations or the Millstone Unit I operating license and, therefore, did not violate the provi. sions of 10 C.F.R. I 50.5. Moremer NN!!CO revised Procedure WC H on April 27, 1995, and the procedure now more clearly allows the user of the M&1li to sign in and out QA test equipment. The custodian still is responsible for storing and tracking M&111. Therefore, the Staff has determined that, although the Petitioner is correct in that the procedure was not revised as of December 1994, the procedure was subsequently revised, so that Pnwedure IX'-4 was noi violated. 8 N staff he evennudried dus violauon in accced.inte wuh dw cunent enfoteenwns pohey (NURrO led 10, "Oenetal Statenwas of rVho and Ptoredures fim NRC t nimenwnl Actwn") and has concluded that dw isolanon is behre the level of sigtutuance or seventy tsvel lY viol.umns ilus descotsnahon 6 bawd on tir fact that NNico was nwenng intent of the pmedure. Hwre was neghgib6e impact on safety; NNE Co's interpretatum of de stalt. custodian's responuhihtica does en embcate a prograrmnaue poblem thai voulJ have safety or regulauvy inpact, if de violauen teeweed, u would tM be conudered a nigruhcant concern. and dw violatwa mas not willful Therefore, if conudered under the new enfiscenwns pohq. dus sk4atum would be clanufied an g sumw vioimion St mw violanona, at desenbed in the tweene enfmynwnt pohq. are eat the subiest or formal enfmenwid acuon and are usually not cited te inspecuon reptets lo de essent that such ttolatums are dracnbed. dry me new mided a noncited stolanons 91

                                                                                                     }A l

liy letter dated April 26. 1993, NNI;CO provided its resiew of whether members of the Maintenance Department received training within 60 days of Resision 0 of Procedure WC-N Oune 20,1994). In its letter, NN!!CO stated that no documentation indicating that training was conducted for Procedure WC 8, Rev. 0, had been found. While no training records were beated, NNI!CO stated that the Millstone Unit i Maintenance Manager recalled that the procedure was discuvied at a Maintenance Department meeting w..hin 60 days of its effective date. The NRC Staff reviewed Procedure DC.l and determined that since NNiiCO could not locate the training records for Procedure WC 8, Rev. O, and that training by the Maintenance Department or the Nuclear Training Department was riot conducted within 60 days of the effective date for Procedure WC 8, Rev. O, NNIICO was in violation of Procedurc DC.1, The Staff's review of NNI!CO's April 26, 1995 response to the NRC letter dated itbruary 14, 1995, was documented in IR 95-22. The Staff has reviewed NN!!CO's corrective actions that included NNiiCO management reemphasiring the importance of training on new or revised proecdures and following procedures, the revising of Procedure WC 8, and training on the l revised procedure. liased on that review, the Staff has determined that the corrective actions the IJernsee has taken are acceptable. the Staff ha. further l determined that since there were no safety consequences as a result of this event, it was not a violation that could reasonably be expected to have been prevented by the IJcensee's correctise action for a previoin violation oi a previous Licensee finding that occurred within the past 2 years of the inspection I at issue, adequate corrective actions were implemented, and the violation was not willful, the violation would have been categorlied in accordance with the enforcement policy in effect at the time of the inspection as a noncited Severity Level V violation and would not hase been the subject of formal enforcement action ' III, CONCLUSION 1he institution of a proceeding pur6uant to section 2.206 is appropriate only if substantial health and safety issues have been raised. See Consolidated Ediwn

    'Tlw biaff has recom6dered this violatma la n cerdance math tir gui4mee in Llw currem enforce nent policy and has sneluded tlut Ow notatum is below th Irvel or sigiuficance or sesenry tasel !Y uotatmas This driemunamm 6s based te de tact that ihne w a negl,gibie impact on safety. Itw violasma does nut 6tulwate a prograrntnanc ge4lem that coulJ hase safety or arguiamry impact, it sie violanon recurvet it would emi be cueusderett a ugruhcani cimcern, and tlw vudation was two etliful lherefore stus stalation as clin $ssfied as a trung uplation and as prenously discutied, nafuw uplanons are friq normally tie subiest or tornal enfortement action and are usually not cuest en inspectum repurir lo the essent that such violations are dewribed, ttwy are characterued as lumcised vudauons 92

l Co of New link (Indian Point, Units 1,2, and 3), CLi 75 8,2 NRC 173,175 i (1975), and llinhington l'uhlic Power Supply System (WPPSS Nuclear Project ! No. 2), DD 84 7.19 NRC 899,924 (1984).1his is the standard that has been applied to the concerns raised by the Petitioner to detennine whether the action tcquested by the Petitioner, or other enforcement action, in warranted. On the basis of the above assessment, I have concluded that, although certain-ininor procedural violations occurred, no substantial health and safety issues have been raised by the petition regarding hiillstone Unit I that would require initiation of enforcement action.1herefore, to the extent that the Petitioner requests that escalated enforcement action be taken against individuals and NU for violations of Procedure WC 8 or failure to train employees on the procedure, the petition has been denied. Ilowever, as described above, the NRC conducted an inspection into the alleged violation, of Procedure WC 8 from j May 15 through June 23, 1995, and conducted an audit of the custody and < usage record sheets. Therefore, to the extent that the Petitioner has requested an ! NRC " investigation into the above mentioned procedure violations" and for the ' NRC to " audit the Unit I maintenance department M&111 folders," the petition has been granted As provided in 10 C.F.R. I 2.206(c), a copy of this Decision will be filed with the Secretary of the Commission for the Commission's review.1his Decision will constitute the final action of the Comt.11ssion 25 days after luuance unless the Commission, on its own motion, institutes a review of the Dechion in that time. FOR THE NUCLEAR REGULATORY COMMISSION Frank J. Miraglia, Jr., Acting Director Office of Nuclear Reactor Regulation Dated at Rockville, M.tryland, this lith day of Febru:ry 1997. 1 93 1 1; l

i 6 Cite as 45 NRC 95 (1997)- CLl-97 4 i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1 COMMISSIONERS: i Shirley Ann Jackson, Chairman

Kenneth C. Rogers Greta J. Dieus l Nils J. Dina Edward McGeffigen, Jr. ! In the Matter of Docket No. 70 3070-ML i LOUislANA ENERGY SERVICES, L.P. , (Cla%rne Enrichment Center) March 21,1997 ( 1he Commission grants Nucient linergy Institute's motion for leave to file an r amicus curiar brief in the appeal of the Atomic Safety and Licensing Board's second Partial Initial Decision LilP 9425, 44 NRC 331 (1996), and adjusts - the briefing schedule and page limits for responsive and reply briefs, The Comtnission also grants Louisiana Energy Services' motion for the Commission i to defer filing of petitions for review of the third Partial Initial Decision, LilP. 97 3,45 NRC 99 (1997), RULES OF PRACTICE: A Af/CUS CURIAE

                                                                 "[Aln amicus curiar necessarily takes the proceeding as it. finds it                      ,

amicus curiar can neither injeu new issues into a proceeding not altci t.a content of the record developed by the parties," Public Service Co of New llampshire (Seabrook Station, Units I and 2), ALAll.862,23 NRC 144,150 , (1987)(footnote omitted). , ORDER The Commission has before it two contested motions in the proceeding on Loulslana Energy Services' (LES's) application for construction and operation 95 1 y: r M--' -'d-g-az3t-v,mWe +a--- vrm. ys yu 7- h_mw.,_qwt-.= -ep_ .-ym.i >e pry-1yp 9 9 vi-r--g-.m 7-v y y-

of the Claiborne Enrichment Center near llomer, leuisiana. ~lhe first is the Nuclear Energy institute's (NEl's) motion for leave to file an amicus curloe brief in the appeal of the Atomic Safety and 1.icensing floard's second Partial Initial Decision, LilP 96-25,44 NRC 331 (1996). The second is LES's motion for deferral of the schedule for sceling Commission review of the floard's third Partial Initial Decision,1.11P 97 3,45 NRC 99 (1991). We have decided to grant NEPs motion, and LES's mo' ion in part, and to make appropriate adjustments in the briefing schedule and page limits.

1. Attached to NErs motion is the amicus brief itself. NEl sects leave to file its brief because it believes that LDP 96 25 rests on "significant legal error which, if allowed to stand, could severely affect the interests of the nuclear energy industry." The Intervenor, Citireta Against Nuclear Trash (CANT),

opposes NEl's motion and requests that the Commission deny it. According to CANT, it would be " unduly burdensome" to require CANT, with its " extremely limited resources," to respond to yet another entity's argunwnts, w hen the license applicant is " adequately represented by two large law firms with significant resources." In the alternative, CANT requests that it be given sufficient time to respond to the NEl brief. NEl's motion for leave to file the amicus brief is granted. CANT will 6uffer no substantive prejudice from the amIrus filing: "(Aln amicus curiae necenarily takes the proceeding as it finds it. An amicus curiae can neither inject new issues ir,to a proceeding not aher the content of the record developed by es parties." Public Service Co. o/Nrw //ampshire (Seabrook Station, Units I and 2), ALAD 862,25 NRC 144,150 (1987)(footnote omitted). We adjust CANT's briefmg deuJtine and page limits as indicated below so that CANT's brief can take account of the NEl filing.

2. LES's motion requests that the Commission defer the filing of petitions for review of the third Partial initial Decision, LilP 97 3, until after a fourth Partial Initial Decision is issued sometime in the near future. LES states that "this appmach will allow LES, and indeed all parties, to evaluate whether to file a petition for review based upon both partial decisions, and would allow the two partiki decisions to be addressed simultaneously and therefore most efficiently."

CANT opposes the motion. According to CANT, LES's approach would be " unduly burdensome and unfair" because it might require CANT to simultane-ously address both LilP-97-3 and the lloard's forthcoming decision. Ilowever, a proposed filing schedule submitted by CANT indicates that CANT does not object to delaying the filing of a petition for review of LDP.97 3. We have decided against mandating simultaneous petitions, because the two decisions likely will address quite separate issues: decommissioning funding (Li1P 97 3) and " environmental justice" (the anticipated fourth Partial Initial Decision). Ilowever, to the cuent that LES's motion requests a delay in filing a petition for review, we grant the motion. We anticipate that the parties can 96

better evaluate the need for and scope of further petitions after they have the opportunity to rei.iew the !!oard's fourth Partial initial Dec4sion, which we espect to be issued by hiny 1,1997,

3. To accommodate the N!!! amicus brief, we amend the briefing schedule and p.ve lifnits with respect to LilP 96 2$ as fellows:

(1) CAM stiall file a single responsive brief on or before May 1,1997. Its brief shall not exceed $$ pages. (2) The reply briefs shall be filed on or before May l$ 1997.

       -To accommodate the delay in filing petitions for review of LilP 97 3, we establish the following schedule:

(1) Petitiom for Review of LilP 97 3 shall be illed within 7 days after the date of issuance of the fourth Partial Initial Decision. (2) Responses to any petition for review of L11P 97 3 shall be filed in accordance with 10 C.F.R. 6 2.786(b)(3). Finally, the deadline for filing petitions for review of the fourth Partial Initial l Decision is estended by 7 days beyond the deadline established by 10 C.F.R. 12.786(b)(1).' In all other tespects, all petitions and re$ponses shall be filed in accordance with 10 C.F.R. 6 2.786. IT IS SO ORDl!Rl!D. I lbr the Commission JollN C. IlOYLII Sceletary of the Commission Dated at Rockville, Maryland, this 21st day of March 1997. I We het etwned to devine a sclwdone that meds sinmitaneous fibngs However, me recognise that depending se the date of lasuance of Ow Imirth Purtti liutial Decinton etna setedule may aced to be readjusied The parues venuum free to requeil an aJpistnwm in this sclsdole if dry behese that $tteumstances wwtaal it 97

Cite as 45 NRC 99 (1997) LSP 97 3 UN11ED STATES OF AMERICA NUCLEAR REGUL ATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Sefore #,dminletrative Judges: Thor 3as 8. Moore. Chairman Michard F. Cole Frederick J. Shon in the Matter of Docket No. 70 3070-ML (ASLBP No. 9164102 ML) (Special Nuclear Msterial License) LOUISIANA ENEMOV SERVICES, L.P. (Claiborne F.nrichment Center) March 7,1997 t In this l'artial Initial Decision in the combined cons'ruction pennit-operating license proceeding for the Claiborne Enrichment Center, the Licensing floard resolves in favor of the Intervenor a portion of decominissioning funding-contemion 11.1 and environmental contention J.3 concerning the conversion component of the estimated cost of tails disposal. RUI.ES OF PRACTICEt itORDEN OF PROOF lhe Commission's rules of practice for the conduct of formal adjudicatory hearings provide in 10 C.F.R. I 2.732 that the applicant has the burden of proof in the proceeding. 'Ihus, in order for the applicant to prevail on each contested factual issue, the applicant's position must be supported by a preponderance of the evidence. Philadelphia Electric Co. (Limerick Generating Station, Units I and 2), ALAll 819,22 NRC 681. 720 (1985); Pac (fic Gas and Electric Co, (Diablo Canyon Nuclear Power Plant, Units I and 2), AIAll 763,19 NRC $71. 577 (l984). See I Chatles iI, Koch, Jr., Administratise im and Practice i 6.44 (1985). 99 I r

USEC PMlVATl7ATION ACT: DEPl.ETED URANIUM Tall.S -j ne USLC Psivattration Act 42 U.S.C. 5 2297h ll(a)(1)(II) now makes the i Department of Energy, at the request of an NRC Ilcensed enricher, responsible ; for the disposal of depleted uranlurn tails at DOE's disposal costs, including a ; pro rata thate of any of DOE's capital costs. PARTIAI, INITIAI, DECISION

                                                                                                                     -i (Mesolving C atentione il and J.3)
                            %is Partial Initial Decision addresses contentions !! and L3 dealing with -               f decommissioning funding filed by the Intervenor, Citizens Against Nuclear Trash               t

( CANT'), in this combined construction permit-operating Ilcense proceeding. ne Applicant, Louisiana Energy Services. LP. ("LES"), seeks a 30 year materials license to possess and use byproduct, source, and special nuclear material to enrich uranium using a gas centrifuge process at the Claiborne Enrichment Center (" CEC"). He Applicant intends to build the CEC on a site in Claiborne Parish, Loulslana, adjacent to and between the two unincorporated African American crmmunities of Center Springs and Forest Grove some $ miles northeast of the town of flomer, Louisiana. He hhtory of this licensing proceeding may be found in our earlier Partial Initial Decisions, LilP 96 7, 43 NRC 142 (1996), resolving contentions 11. L, and M that challenged the Applicant's emergency plan and sufcguards measures, and LilP 96 25,44 NRC 331 (1996), resolving contentions L4, K, and Q that challenged the need for the facility, the treatment of the no-action alternative in the final environmental impact statement ("IIIS"), and the Applicant's financial qualifications.

1. DECOMMISSIONING FUNDING CONTENTIONS A. Contentions Il and J.3 CANTS contention 11, titled " Decommissioning Plan Deficiencies," asserts that "[t]he !.ES decomnissioning [ funding] plan does not provide reasonable assurance that the CEC site can be cleaned up and adequately restored upsm cessation of operations." Although the Interrenor proffered a number of supporting bases for this contention, the Licensing Iloard, as then constituted, found thice bases supported the contention. In basis 11,1. CANT asserts that

                      - there is no realistic basis fot ES' then estimate (of $9.5 million per year) im the ca.t of depleted UF, tails ("DUF,") disposal because the Applicant does not have a plan for the offsite disposal of tails, The Intervenor claims in basic 11,4 that LES provides no details on how CEC decommissioning costs 100 2

5 i i I l . were determined. Finally, in basi, d.$, CANT declares that the = Applicant's ! summary of decommissioning costs fails to Indicate the facilities that will be i decontaminated and the estent to which they will be decontaminated, l.Bp 91 41,34 NRC 332,337 (1991). On the strength of dicsc three bases, the Licensing

               ' Boarf.idmitted contention B " insofar as it challenges the reasonableness of LES'                                                                                    ~
               . decommissiumng sunding plan. /d.

in admitting contention H, the Board noted that the Commission's hearing [ notice for the licensing proceeding directed that the Applicant must have a

plausible strategy" for the dispositie.i of DUP tails. 56 lid. Reg 23,310 -!

               . 23,313(1991), Additionally, the Bcard stated that the Commission's regulations,                                                                                           !

10 C F.Ri 8 70.25(a), (c), require that the Applicant submit a dccommissioning .

funding plan containing a cost estimate for decommissioning and the means I for adjusting cost estimates and funding levels periodically over the life of the '

               ' facility. Src also 10 C.F.R.- 6 40.36/s), (c)(1), (d) (c)(3). In light of these factors, the floard ruled that, although there was no regulatory requirement that the Appilcant have a " concrete plan" for the disposal of depleted uranium                                                                                           !

tails, LES must have a plausible strategy for tails disposition and, in order -! for the regulations to have any meaning, the Applicant's " cost estimate _should + contain. reasonable estimates for an-adequately described decommissioning , strategy." 34 NRC at 338. Thus, the !!oard ruled that CANTS contention B ; supported by bases B,1, B.4, and 11.5 had satisfied the Commission's contention pleading requirements by alleging that "the decommissioning funding plan does . i i not contain reasonable estimates for decommissioning nor does it adequately. describe the unde lying decommissioning strategy," 1d. CANTS contention J, titled altmdequate Assessment of Costs Under NEPA," alleges that the Applicant's environmental report ("ER") for the CEC does not ,

               , adequately describe or weigh the environmental soelal, and economic impacts                                                                                               +
                . and costs of operating the facility and that the costs of the project far outnigh                                                                                        ,

the benefits of the proposed action. In bas;s J.3, die Intervenor asserts that ; LES has not provided a sufficient foundulon for its decommissioning cost estimates and incorporates the bases it prof fered in support of contention B,'Ihe Licensing Board found that bases B.4 ael B,5 also supported contention J and admitted the contention.- Id. at 350. Althoogh CANT contention J.3 is phrased only in terms of a challenge to the Applicent's ER, thiv contention necessarily , encompasses the Staff's later filed environmental impact statement as well. See 44 NRC at 337 38. Ihrther, because the Intervenor's contention M challenges , the same decommissioning costs (albeit in the context of the Applicant's ER and the Staff's EIS) that are the sabject of contention B, all parties addressed the

                . contentions together in their testirnony. Similarly, we do not separately address -                                                                                      -

CANT's contention J,3 and our findings and conclusions on contention B also encompass contention J,3, 101 , i

 .                                                                                                                                                                                         I t

b

                      -w,+       .,c   %,., , ,-e..p.p,.-..cmy        +   -. %y.,.q_....               p - , , , , , :.m, %.g... - ,c-.,.=, p..m.-.e.- p.-ep, ,.,w #.<n,a .-e,- - -,-

B. Witneanes and Estilbits in support of its position on contentions B and J.3, the Applicant presented

                    . the testimony of a panel of witnesses consisting of Peter G. LeRoy, Bernard G. Dekker, Richard W. Dubiel, and John M. A. Donelson Due to a pretrial procedural ruling the , refiled direct testimony of this panel of wi.ncsses appears   ..

In the record in two parts, i.e., that of Mr. LeRoy and Mr. Dekker (1xRoyt Dekker foi. Tr.1016) and that of Mr. Dubici, Mr. Donelson, and Mr.- LeRoy

(Dubiel Donelson fol. Tr.1026).

Mr.1/Roy, the Licensing Manager of the CEC, was responuble for com-piling the information on decommlS$loning planning arul funding in the LES Decommissioning Ibnding Plan, the LES Safety Analysis Report, and the Ap-plicant's ER. (LeRoy Dekker at 2 fol. *h,1016.) Mr. Dekker is the Manager of Safety, Safeguards, and Licensing for Urenco Nederland HN., which operates uranium cntichment facilitics at Almelo in the Netherlands. He has held that position since 1984 and, in his over 18 years warking for Urenco Nederland. - BN., he has gained estensive experience in the operation, decontamination, and

. decommissioning of gas centrifuge uranium enrichment facilities. Mr. Dekker

                 ' was retained by the A;plicant to advise LES on various matters whh respect
                 - to planning and funding for decontamination and decommissioning of the CEC, including the development of the LES Decommissioning Funding Plan, (M)

Mr. Dubici holds a bachelor of science degree in physics and a master of science degree in nuclear engineering r.nd he currently is the Director of Special Programs at Applied Radiological Control, Inc. In that capacity he is responsible for overseeing specialty health physics and radiological decontamination services provided to the United States Departmems of Energy and Defense and various NRC licensees. lie has over 20 years of experience handling NRC licensed materials, including classifying, packaging, and shipping radioactive waste for disposal. (Dubiel-Donelson at 2 & Attach. 2 fol. Tr.- 1026.) Like Mr. Dubiel, Mr. Doncison also has carned a bachelor of science degree in physics and a master of science degree in nuclear cngineering. lie is an engineer in the Ibel Management Section of the Nuclear Engineering Division of Duke Power Company and his specific area of responsibility is uranium enrichment. Mr. Donelson is knowledgeable about the characteristics and propenics of uranium in various physical and chemical forms. (M at 3.) De prefiled direct testimony of these witnesses on contentions B and J.3 was admitted into evider.cc pursuant to a pretrial stipulation of the parties and with-out further objection at the hearing. (Tr, 1016. 1026.) Because the Applicant did not of fer these witnesses as experts and, in light of the parties' admissibility stipulation, the Board did not rule at the hearing on the qualifications of these

                     . witnesses as experts. Obviously, however, as the LES official responsible for 102

_ _ _ = ._ _ ._.

w - 4 - - . -Aa ---m-, ,, g.,-,e .s-, J L a ,--+mm a, ,a,,_,.h, compiling the information on decommissior.ing in the !.ES license application, Mr. I,cRoy is qualified to testify on that information and related submittals. Ibrther, we find that Mr. DeLLer is qualified by knowledge and experience and that Mr. Dubiel and Mr. Donelson are qualified by education. knowledge, and experience to testify as expert witnesses on the issues involved in contentions 11 and J.3.8 in support of its contentions B and J.3, the Inttrvenor presented the testimony of Dr. Arjun Mathijani, President of the Insti'.1in for Energy and Environmental Research. (Makhljani at I fol. Tr.1081.) Di. Mathijani carned his Ph.D. in engineering from the University of California. Derkeley, where his dissertation subject involved controlled nuclear fusion. Ile currently serves as a consultant to the UnPrd States Environmental protection Agency (" EPA") Science Advisory Board. Radiation Advisory Committee, and he is a member of the Subcom-mittee on Radiation Cleanup Standards . f the EPA National Advisory Council for Environmental Policy and Technology lie has also been a consultant to numerous other institutions such as the Congtersional Office of Techi. ology - Assessment,1.awrence flerkeley 1.aboratory, Ten'iessee Valley Authority. Ibrd Ibundation, and Edison Electric Institute. Dr. Makhijaril has extensive esperi- i ence in the area of nAlcar waste classification arid dii,po;al and he has published numerous books and reports on these topics, including co-authoring High level ()ollars imimel Sense: A Critique of l' resent 1%) icy for the Management of hmg l.hrd Radimictive Waste and Discussion of an Alternative Approach. Apex Press, New York (1992). (Id. at I & Attach.) ne prefiled direct tes-timony of Dr. Mathijani was admitted pursuant to a pretrial stipulation of the parties and the Intervenor offered his testimony as that of an expert in the field of nuclear engineering. (Tr.1081.) We find that Dr. Mathijani is qualified I Pursuant to a stipilatma er alw parties, the folkvwing Appinant ethibits were admitied mio ev6derne relaung to cornernions B and J 3. Apphcanfa Lahibit A si LT.91019,

thsp eitton or !\pleted Uramum Tails from larkhnem plants." Jan 23,1998 ( App l ah )h Appheant's lahibit 4. coneyuulence (with attafsnrats) tietween NRC and LIS se deromnuadomng designated 44aHqH Apr
nh 44aHg'). Appheare's 14hibH 3, letter finre ftank A, Shalla. Viiv hesident. Market twvektment, CoOI.AA, Inc., to W. Ikmard Arnold, hesiaent, I LS (oct 16.1990 i App I sh Sh Applwanfa r.shitut 6. tsties from Itank A shallo. "we heudrid, Market tweektnem,01GLMA, Inc., so W. Ihmard Arnokt. Ptesident. LL5. feb 22,1993 (Apn Lah 6h Applicasics LatubH 7. Uraruum Inrwhment Orgamratum toak Ridge, lena L Manm Manceta Laergy Systems, Inc "Ilw '

- Uhima e thspimuma or liepleted Uramurn," Dec 1990 (renst prepared rur H S IWs or Lim vgy tteretnafue Martm Manetta Repvt)( App 14h 7t, Apptwenf a LKWt s Waue Managenem lechnology thvtieon, Sciesce Appikauans laterannonal Corp, *!at eted l Uranium thsposal optmas i natuanon." May 1994 Oeport prepared he IGAO laaha. lac 4and U 5 Dep's or i nergyllhereinarier 10&G Repri)(Am [Al br Apptwam',laWt 9, Itureau or Miers U.S Dep's or tte intermr. Ahacrufs rearboot.1992, at ists9.194. 202, 208 (App. Lah 91 Prevumsly. Apphcanfo Latut ns 1, the CLC tJcenne Apphcatn*,1(at lie Cl C Sarety Analysis Report. l(et av Cl C Proposed tkener Coruttams, and lih). the CLC Environmental Report, wtuch are also selevant to these consennons, were prevtously adnuned into evidethe (rt. 31 ) 103

by education, knowledge, and experience to testify as an espert on the issues involved in contentions 11 and J.3.2 The NRC Staff presented the testimony of a panel of witnesses consisting of Yawar 11. Paraz, John W. N Ilickey, and Dr. Joseph D. Price, ahhough 3 only Mr. Pa'ai and Mr. Ilickey presented the Staff's p*cliled direct testimony. (!brar liickey fol. Tr.1106.) Mr. Parat holds a bachelor of science degree in nuclear and mechanica' engineering and be is a nuclear process engineer in the Certification Section, Enrichment Iltanch, Division of Fuel Cycle Safety and SafcFuards Office of Nuclear Material Safety and Safeguards ("NMSS"). Since April 1994, he has served as the NRC Licensing Project Manager for the CEC. (/d. at 1.) Mr. Ilickey earned a bachelor of science degree in mechanical engineering and a master of science degree in environmental health. lie in the Chief of the Enrichment 11 ranch, Division of Puel Cycle Safety and SafcTuards, NMSS, which has responsibility for all regulatory mattert ;ated to uranium enrichment. (/d. and Attach. 2.) Dr. Price earned his Ph.D. In chemical engineering and currently he is a senior chemical engineer with Science Applications International Corporation ("SAIC"). As task manaFer, he directed SAIC's effort to develop under contract to the NRC the Safety Evaluation Report for the CEC and, in over 16 years with SAIC, Dr. i* rice has had extensive experience in safety, transport, and environmental analyses of nuclear waste facilities as well as chemical-process modeling and analysis. (Staff Eth,4.)$ Pursuant to the pretrial stipulation of the parties and without further objection at the hearing, the prefiled direct testimony of Mr. Paraz and Mr. Ilickey on these contentions was admitted. (Tr. I104.) We find that Mr. Paraz, Mr. Ilickey, and Dr Price are qualified by clueation, knowledge, and experience to testify as experts on the issues involved in contentions B and J.3, As in the case of the other contentions adjudicated in this proceeding, the Commission's rules of practice for the conduct of formal hearings provide in 10 C.F.R. 6 2.732 that the Applicant has the burden of proof in the proceeding.

                             'Iherefore, in order for LES to prevail on each contested factual issue, the Applicant's position must be supported by a preponderance of the evidence.

Philadelphia Elcerric Co. (Lime.ick Generating Station, Units I and 2), ALAB-819,22 NRC 681,720 (1985); Puc(/ic Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB 763,19 NRC 571, $77 (1984). Sre,I Charles 11. Koch, Jr., Administrative la and Practiec 6 6.44 (1985), in IWaihous obi ation. Intervenat's lahitut l-AM 70, Sandia National learanties. *lyrformance Asienirnent of the Pntoned thspual of Depleted Uratuu'n as Class A twtsvel wasie." tw 1992 (I-AM 70). mas orfered tuo evidence tiy CANr to these comentums and intnetted (Tr 10881 3 Withous objeer%n, $taft's tatubat 4 (Statt 1.sh 4L a statenem or Dr PrWs pet 4csaional quahhcations, was offered truo eviaenar tiy ste staff and adnuned frr lloh) Prevenusly. the $aaf.s Safety Evaluatum Repwt ("$rA"). Start L.th. l and the staft's 11E Staff rah. 2, wluch are also televant to stwse comennons. were aJnuned 6mo evidence in the peceeding (T 144.501) 104

accordance with the Comn.luion's burden of proof rule and pursuant to the stipulation of the parties, the Applicant presented its case on these contentions first followed by the Intervenor, and then the NRC Staff. 11 ""ARD l'INDINGS ON PARTIES' POSITIONS liefore turning to contention 11, a further brief emphmation of the applicable standard for judging the Intervenor's challenge to the Applicant's funding plan is helpful. As previously mentioned, the Licensing Iloard admitted CANTS contention 11 to the extent that it challenged the reasonableness of the LES Decommissioning Funding Plan in so ruling, the Board noted that the Commission's hearing notice required the Applicant to have a plausible strategy for the disposal of DUF, tails as part of its funding plan and that the Commlulon's regulations required the funding plan to contain reasonable cost estimates for the components of the plan. Although in its hearing notlee the Commission listed a number of possible generic tails disposal strategies such as storage of tails at the plant site as a possible future resource or conversion of tails to uranium oxide for disposal, the Commission did not specifically derme what constitutes a plausible strategy. 'the plain meaning of ther.c terms, however, provides the answer, lhe dictionary defines

plausible" as " reasonable" or

  " credible," Webster's Third New International Dictionary 1736 (1911), and
  " strategy" as a " plan." /d. at 2256. Thus, in nuessing the plausible tails disposal strategy adopted by the Applicant as part of its decommissioning funding plan, we first must determine whether the funding plan contains a reasonable or credible plan to dispose of the DUF, tails generated at the CEC and then determine whether the Applicant's cost estimates for the components of the plan are reasonable.

A. LES Tails Disposal Strategy 1he Applicant's tails disposal strategy is capsuliicd in the LES Decommis-sioning Funding Plan that appears as Exhibit I to the LES License Application. In pertinent part, the Appliccat's funding plan states: The annual tails dnposal cost n estmmied to be $16175 milhon.1his is muluphed by 30 years to arrive t.t the $48s 3 millma figure. Costs are based on convert.ng UF, to U,0, wuh subsequent disposal in a facthey under cognlianw of the NRC. U30, conversion costs are based on estmiates by a vendor whkh could make this serske available to LI.S thnposal coats are based on NRC recomtrandations and a study tiy Manin Marwits De conversion and disposal costs are maled and escalated to 1996 dollars. 103 i l 1

                                                                                                               .. a

(App. Eth. I, at Eth. I, at I 4.) Further, the LES funding plan states that the Applicant intends to set aside the annual tails disposal cost component of its overall decommissioning costs in an esternal trust that meets the requirements of the Commission's funding regulations. (/d. at 12,I $.18 to 9.) Finally, the , LES plan states that tha Applicant uill update its decommissionin3 cost estimate at least once escry $ years. (/d. at 16.) At the hearing, the Applicant's witnenes, Mr. LeRoy and Mr. Dekker, provided additional details of the LES tails disposal plan. Their testirnony recognlics that there currently are no facilities in the United States to convert DUF to U,0,, but they stated that COGEMA, Inc., the American affiliate of a liench nuclear fuel company, "has indicated to LES in writing its willingness to consider providing, in the United States, conversion services for DUF,." (LeRopDeLLet at 24 fol. Tr,1016; App. Exhs. $ & 6.). These LES witnesses i asserted that, ife itt letters to LES, COGEM A indicated that the experience gained by its parent company in successfully operating a commercial 4 ire defluorination facility in France could be used as the basis for ernploying technology in the United States to convert DUF, to U,0.. As the COGEMA letter states, the

                                          " prudent m.magement of depleted UP. Should consider conversion to U,0, powder, which is insoluble in water, does not react with external chemical agents,is free of fluorine and is the most compact formror storage." (App. Exh.
                                         $.) Additionally, Mr. LeRoy and Mr. DeLLer testified that, in 1991 COGEMA estimated its charge for deconversion $ctvices to be in the range of $3 $ per kilogram er uranium and its 1995 updated estimate indicated a range of $4-

6. 'lhese witnesses stated that these estimates assume the construction and operation of a deconversion facility in the Unit 6d States under NRC standards.

(leRoy Dekker at 24 fol. Tr.1016; App. Exhs. 5 & 6) After cornersion of the DUF tails to U 0,, 3 the LES disposal strateFy provides for the U,0,, as waste, to be shipped to a final disposal site for deep land burial such as in a deep mine. Appin, the LES disposal plan recognites that currently there are no operating deep disposal sites, but Mr. LeRoy testified that it is reasonable to assume such a site will be available in the future because in the United States there are dozens of underground uranium mines and other underground mines. (LeRoy Dekker at 34 fol. Tr,1016.) Ahhough the Applicant's tails disposal strategy cdin for LES to convert the CEC tails to U,0, and then ship the 0,0, for deep burial as waste, Mr. LeRoy candidly admitted in his testimony that, "[als a practical matter, LES is holding open its options for disposition of UP.." (/d. at 19.) lie testihed that "for purposes of this beensing proceeding, in order to sausfy the Commission's requirement that the CEC license application contain a ' plausible strategy' for disposition of depleted uranium, LES has assessed, and factored into its funding plan the costs of conversion of DUF to DU,0, and land disposal (deep burial) of DU 30, as if it were a waste." (/d.) The Applicant's witnesses stated, however, 106

that LES did not necessarily plan on disposing of the depleted uranium from the CEC by burying it as waste and that there were wher potential options for the future disposition of DUF,.1 hey noted that the Department of EnetFy (" DOE") is currently analyring the tails disposition inue and that European cruichers consider depleted uranium tails a resource rather than a v aste product. Further, they testified that Urenco's long. term plan for the di> position of depleted uranium is being studied and that, at present, the plan calls only for the offsite corwersion of tails to U,0,. (M. at 20,) Finally, Mr. LeRoy readily conceded that, es a practical matter, LES will follow the same tails disposition option that DOU Aelects for its stocLpite of tails. (Tr. 1076-77, 1069 70.) The 7tRC Staff witneues, Mr. Parar and Mr. Ilickey, stated in their direct testimony that they found the Applicant's tails disposition plan calling for conversion of DUF,10. U,0,, with subr,equent deep subsurface burial, an acceptable plausible strategy. In this regard, the Staff's review of the LES decommiuloning plan in the SER states: Curtently (twre are no facihues dreigned and equipped for tte disposition of targir volunes of depleted uranium originating from entkhment farthtles. The lieparinwns of Energy (dol:) eunently possesses cuentially tie enure depleted UF, inventos y in etw United

                                            $tates in July 1993, the UNted $tates Enrichnent Corporation (U$0C) took met trum DOE low enthhed uranium pniductmn actnities unducted at the two operating gaseous diffusion plards t0DP) located in h amouth, Ohio and Padutah. Keruudy. Currently netder isOE nor USEC has in place a plan macermng final disposition of the DUF                                             y Tin Energy Poi,ey Act of 1992 requires DO!' to address this 6ssue.11w NRC starf tcheves pud le is premature to require a prescnpthe rewlution prior lo DOE's determmall n on dnpositkn or DUP, u hkh will. to a large estead, dettnnine Hw dapoution opuons for t.LS : .y lbr de purpose of esumating funding requirenents related to De dispoution of DUF                                             p ttw NRC starf finds nueptable the upphcant's estimales teed on conversion of DUP, to U,Op whkh to much tuote environnentaHy stable than UF, or uranium tetrafluoride tVF,1, and dispoutmn in a
                                          , deeper than shallow land bunal facti 6ty (for example, an abandoned mine envity)-

(Staff Exh.1, at 1512.) Additionally, in the FEIS, the Staff modeled the tespective doses for both near-surface and deep burial disposal because there currently are no disposal facilities for large quantities of depleted uranium tails. Because the projected drinking water and agricultural doses from a modeled near surface burial site consisting of an carth mounded bunker subject to the environmental character-istics of the humid southeastern United States exceeded the 10 C.F.R. part 61 limits, the Staff concluded that a deep disposal site is most likely to be selected for tails di:posal. (Staff Exh. 2, at 4-66 to -67 & Appendix A at A 9,) The Staff also modeled a hypothetical deep disposal site, it assumed the site would be an existing cavity, such as an abandoned mine, located in the United States and would have geologie characteristics similar to those of two rei.resentative sites that previously have been characterited for disposal of tr.dioactive waste, 107

le., a granite fortnation overlain by a thin layer of glacial till or a sequence of interbedded sandstone and basalt layers. (Staff fish. 2, at 4 66 to 67 & Appendix A, at A 10.) The Staff's FE!S analysis concluded that all estimated dose impacts for a deep disposal site are less than those set forth in 10 C.FA Fart 61, (Staff !!sh. 2, at L67 to 48 & Appendit A, at A-10 to 15.) 1he purpose of the Applicant's tails disposal strategy is to enable the computation of reasonable cost estimates for the various essential elements of the decornmhsloning plan, thereby ensuring compliance with the Commission's regulatory requirement that during the Clic's life LES escrows sulficient funds to cover, inter alia, the cost of tails di>posal. With this in mind, we find that the Applicant has presented a plausible disposal _ strategy. The Applicant's plan to convert DUF, to U,0, at an of faite facility in the United States and then ship that material as waste to a final site for deeper than surf ace burial is a reasonable and credible plan for tails disposal. Although no conversion facilitics currently exist in the United States, the LES materials license will give the Applicant if years before it first must move the accurnulated DUP, offsite. (App. lith. 1(c), at 12.) 1he conversion of DUF, to U,0,, as the COGEMA experience in Hance demonstrates, is a conunercially feasible process using known chemical processes that could be readily employed la the United States by COGEMA or another entity without first hasing to overcome difficult technical hurdles. (App. Esh. 7, at 18; Staff Exh. 2, at Appendix A, at A 1 to 4.) 1hus, contrary to the Interrenor's assertion,' the fact that there is no cuttently operating delluorination facility in the United States or a firm commitment by COGi!MA or some other entity to bui!d such a iacility does not wmehow make it unlikely, or unerasonable to assume, that one wi!! he built here in the future to convert DUF, tails to U,0,. Similarly, in light of the numerous exisfing uranium and other mines in the United States, it is reawnable to assume an appropriate site for deep burial of U30, will be available in the future, indeed, the reasonableness and credibility of the LES disposal strategy is enhanced by the Department of Energy's clear need to address the disposal meions for its huge imentory of DUF, that, as of mid-1992, amounted to some $34,(XK) metric tonnes (App. Exh. 8, at 3) - an amqunt of depleted uranium tails live times the amount of tails the CEC will produce under its 30-year license. Further, CANT's legal challenge to thst element of the Applicant's disposal strategy calling for deep burial of U,0, is without merit, it arFues that pursuant to the Commission's regulatmns,10 C.FA 5 61.55(a)(2)(iv), deeper than surface burial is unavailable for DUF, disposal. According to the Intervenor, DUF, waste, which CANT claims is closely comparable in radiological properties to transuranic waste, must be disposed of in a geologic repository (with a

   *(hsens Aganst Nudrw Tranh's Prgoned Reply rin.sngs or rect and Conduuons or im Regading Consennons a and 13 ilune 26. IWM at 21 itesnahet CANr kr) 108

consequent order of maFnitude increase in cost) unless the Commission first appfoves and licenses a specific disposal site. The intenenor claims, therefoa, that 1,ES does not have the option of establishinF, based on a gen:ric analysis like that in the 1115, that the tailli can be disposed of in some intermediate waste disposal facili ty.' The Intervenor's auertioris, howcwe merely repeat the same arguments CANT made to us in its pretrial " Petition for Walvet of 10 C.P.R. 4 61.$$(aK3) and 10 C.F.R. 6 01.5$(aK6) and for Classification of Depleted Uranium Tails as Greater 1han Class C Radioactive Waste" (Jan. 17. 1995). In a pretrial Memorandum and Order (Mar. 2.1995) we rejected these same arguments and denied the Intervenor's waiser petition. Our earlier ruling is the law of the case on these inues and forecloses any reexamination hefe. Thus, in accordance with our earlier ruling, we find that the Applicant's tails disposal strategy is not deficient for failure to treat the CEC tails as greater than class C waste with mandatory disposal in a geologic repository licensed under 10 C.F.R. Part 6(L Although we find that the Applicant's tails disposal plan 15 a plausible strategy for purposes of estimating LES' tails disposal costs, we note that a recent change in the law by the enactment of the USEC Privatization Act, Pub. L No.1% 134,100 Stat.1321 (1996), will most likely dictate the actual LES disposal 6tf ategy.* That Act now makes DOE, at the request of an NRC licensed enricher, responsible fof the disposal of depleted uranium tails at DOE's disposal costs,

'Otisers Againn Nuties leash's Propowd Imengs of f act and Conclushes of 14w Regedmg Cometuman n and j )(stay 26.1999s at ?tM .99 47 llwerinafier CANT Pt I
'In its entirely. 42 U s C l 2297h ll prtwedes as foHoe s (al R sponsMhty of Dol.                                                                             *

(1) The Secretary. al He eniuest of the gew .a.w, shall accept for atrosal low.lcset radoscuw waue. swiuent der'vitd utsuium af it were uhmwely delesnuned to be hew lesel raecactne waste. pet mated lay-( A) de Cawyeauca as a resull of tte operamma of the savous diffusion plame or at a resuk of ne trestrrem of such wastes at a kicanon odwo d.an the gaseous diffus6an planes, sw (It) any perum brenwd by lie Nuclear Regulakwy Comnussue to operate a uratuum ent 6hnetd facthey tendre secunna 207). 2003, and 224) of dus utle. (2)1.scept as povided in psagraph (h nie genevntw stiall reimburw the secretwy ftw the disswal of hew lewi sesoactiw wasw pursuare to pasgraph (1)la en arrums equal to de secretwy's cosas, inclueng a pro tota slwe of any rapital costs. but ta no event nuwe than an anumm equal to ttnt s hsch would te cheged by conviwrcial, state, teg6unal, or interstate compact emmes im dispaal of such waste. O) in tte evem drpleted uranmin were alumately dewenuned to be low &wl raecact4ve waste, ste geteratur shaU teamburne the Sertelary fut dw dispual of depicted uramum pursuant to paragegh H)in na semmm atual to ths tecretary's costs. kuluding a pro tata share of any captal costs (b) Agreenwnts with inhet twesons lhe gerwreur awy also emer smo agreenwes for the disposal of low & vel raeoncuve maste subject to subseruoa (a) of Hus sechun wHh any person Nter than uw $ccretary that is mulhwited by alth cable laws and tegulauona to dapwe or auch onnes (c) state a snierstaw compacts Notwitlntanding any intwt povtsion of law, so State or Imerstate contact shall be haNe for de treatnem, storage. or dnposal of any kelevel ra&oacuw waste onclueng omsed waste) attnbutable to the opeintion decontarteAatue, and deconvessiosung of any gratuum ennchnwal facehty 109

including a pro rata si rac of tany of Doll's capital coi.ts. 42 U.S.C. ( 2297h-ll(a)(1)(!! mao). As previously indicated, the Applicant s Licensir- Manager, Mr. LeRoy, testified that, as a practical matter, LES will follow t'- tlisposal option selected by Dol! for the government's DUF, stockpile. s.:nitarly, the Stalf's witnen, Mr. Ititley, testified that the NRC anticipates that t Es will ese the ume tails disposal method th t DOE selects (Tr. 1156 57.) Tne Intersenor ako apparently agrees, for in its proposed findings CANT 6tates that "LES intends to rely on DOE's disposition strategy," CANT PF at $0. 'thus, even though the USEC Privatization Act,42 U.S.C. I 2297h ll(b), provides LES with the option of using other authorited persons for tails disposal, we think il is clear, and all parties apparently a,rce, that the Applicant's actual disposal method will be to transfer the CEC tails to DOE and pay Doll's disposal charges.' H. Cost Estimates for Tails Disposal While we recognlic that Doll's future charges for tails disposal will ulti-mately determine the Applicant's tails dig osal costs, the Cormniuion's reFu-lations require that the Appheant provide reasonable cost estimates for its tails disposal plan at this ti ne in order to casure that LES sets aside sut'ficient funds during the life of the CEC te cover its dii,posal costs. Accordingly, we must determine whether the Applicant's cost estimates for the components of its cho-sen plan are reawnable on the basis of the record before us. We turn now to those cost estimates, noting that, because DOE's disposal scherne is hkely to be the same as the Applicant's plausible strategy, the current hearing record stii' is relevant to the inue of whether the Applicant's ultimate tails disposal cost estimate is reasonable. As earlier indicated, the Applicant's Decommluioning Funding Pian provides that the annual tails disposal cost for the CEC la $16.175 million, totaling $485.3 n,6!4on for 30 years of operation. (App. Exh.1, at Exh. I, at 14.) At ti.e hearing, Mr. LeRoy's direct testimony stated that the annual tails disposal figure includes $0.8 million for shipment costs, $12.0 million for conversion costs of

     ' As a pracusal anatier. de enstment of 42 O s C. I 2297h ll(a) and (d snakag (N.it respsmuble for depleted uransum tails upon ile request of dw enridwe and nuu;ating any state os interstate mmpa61 from habahty for such annes, also nu ors de inter emir's legal argunrnt thal the 1.13 tada dnposal streegy is implauuble trcause et fails to peswnle dug ow inshi Itom the Cl C inuse be dispneed or in tanuana. or within the stales of the Censral lateistale Compact of whwh I ouiuana is a netnbet under the prmiuona er the low lsvel kadmacun Waite polwy Act O'11kWpA"A 42 lls C i Mit et seg. and de practical workings of tuas law. CANT pF at 710.

4.44, CANT RF at 15-17 The Appheans already has indwaird thai na atual durmal nrihod udt be to trariifer dw ClC tads to tK10 - a new shared by the staff and the intervemu Tlwrefore, an light or de new ledraal optmo evadable to dw Acplwant H in a untual certaint). for nuiny of the reaums urged by de laserwanw sa Hs apunrnt. that no state or irdeiuate compact mill urkkriake de t nr<onsunung. espenuw. and pohtwally dirheult task or bcensing a fasshty (to Jrpleted uraniu n lads, thereby further ensuring that de Apptwant stil requent (4)L to despme or de Cl C tads Dius, Ow intervemw's elaborale ergunrni uihs r the Lt.RWpA has twen owtinken by tte passage of the U$1C privatisauon Act 110

DUF, to U 0,, and $3.375 million for disposal of U,0,. (LeRoy-Dekker at 23 3 fol. Tr.1016) in the SER, the Staff found the Applicant's estimated f#lity decommi..aioning funding, which includes the Applicant's annual tails (w sal cost of $16,175 million, adequate. (Staff Exh. I, at 15 21, 15 23.) A: the hearinF, hit. Faraz 'md hir. Ilickey stated in their direct test imony that the LES tails dispool estimates were reasonable and, mort specifically, that the Applicant's es< .ated cost for U3 0, burial was reasonable. (Faraollickey at 7, 9 fol. Tr. l106.) The Intervenor challenges each of the Applicant's component cost estimates. I. Transportation Costs in his prefiled direct testimony, Mr. LeRoy stated, without elaboration, that the LES estimate of $800,000 per year transportation costs for depleted uranium tails "is based on conn tsations with shippers of UF, and U3 0,." (LeRoy-Dekker at 25 fol. Tr,1016.) he Interrenor's witness, Dr. Makhijani, challenged the validity of the LES estimate, asserting that it implicitly assumes that the conversion facility will be located vety close to the disposal site, lie opined that, because the location of the disposal site is unknown, such an assumption is rash and that it was unlikely any community would accept both a conversion facility and a disposal site. Dr. Makhijani testified that the Applicant's transportation costs should have provided for the cost of the shipment of L'30, from the conversion facility 80 the disposal site as well as for packaging the U3 0, nor shipment. (Tr.1200.) The Applicant's testimony setting out the basis for its annual tails disposal cost estimate is spa - at best. Nevertheless, contrary to Dr. Makhijani's assertion, the reasonate iatarence from Mr. LeRoy's bare-bones testimony that the LES estimate is based upon information from shippers of UF, and U,0, is that the Applicant's estimated shipping costs are based upon the shipment of GF, tails to the converter as well as the shipment of U3 0, from the converter to a disposal facility. And, in the e d, any weakness in the Applicant's testimony about i" w ation costs is rcetitied by the transportation cost data contained in the WO V vin Marietta Report, "The Ultimate Disposition of Depleted Uranium,' y ,,ared .a Oak Ridge for DOE ( App. Exh. 7, at 17 18) and the 1994 EG&G Report, " Depleted Uranium Disposal Options Evaluation," prepared at Idaho Falls also for DOE (App. Exh. 8, at 48-50.) ne Martin Marietta Report estimated that the rail transportation cost of shipping DUF, from Faducah, Kentucky, the location of one of the gaseous diffusion plants then owned by DOE, to an unspecified West Coast location for conversion and disposal was approximately $0.15/kgU. The EG&G Report estimated tha the truck transportation cost of shipping U,0, from Piketun, Ohio, the location (another DOE facility, to the Nevada Test Site ("NTS") in Nevada 111 l A

was approximately 50.18/L F U in 1993 dollars. In additiov. the EC&G 9eport estimated that 55 gallon drum container costs added anorht M.1 I AgU to tha estimate. Obviously, precise transportation cost estimates canni t be obtained at this time because such costs are dependent on the location o' the conversion facility and the ultimate disposal site. But the application of %is same rail rate from Paducah to the same West Coast location for the CEC UF, tails yields transportation costs of less than half the amount to be set aside by I.ES for annual transportation costs. Even escalating that cost to 1996 dollars yields an amount that is a lit .c over half the LES estimate. Similarly, the application of this same truck an( container rate from Pikete i to the NTS for the CEC U3 0, yields total transportation costs that are about 90% of the amount to be set aside by LES for annual transportation costs. Even escalating that cost to 1996 dollars yicids an amount that is approximately the same as the LES estimate. Although Paducah, Kentucky, and Piketon, Ohio, obviously are not ilomer, Louisiana, this comparison serves to illustrate the dimensions of the rail transportation costs of UF, and the truck transportation costs of U3 0, from cast of the hiississippi River to the West Coast and the NTS, respectively. Accordingly, we find that the Intervenor's challenge to the Applicant's annual tails disposal transportation cost estimate is without merit and that the LES estimate of sne transoortation component cf its tails disposal estimate is a reasonable one.

2. Disposal of U,0, ne Applicant's annual tails disposal estimate also includes $3175 million for the deep disposal by burial of U3 0,. Mr. LeRoy testified that the LES estimate is based upon a June 18,1993 letter from the NRC to LES. (LeRoy-DeLLer at 25 fol. Tr.1016.) In part, the NRC letter states that "[ulntil the specific disposal site and method are identified, the estimated cost is uncertain.

Ilowever, for financial planning purposes, we believe that it is reasonable to assume a disposal cost of approximately $1.00 per kilogram of U3 0,." (App. Exh. 4h, at 1-2.) In turn, the Staff's basis for the $1.00/kg U 30, relies upon the 1990 Martin Marietta Report and the Staff's tracking of low level waste ' burial charges. (LeRoy-Dekker at 26 fol. Tr.1016; Faraz-Hickey at 9 fol. Tr. I106.) De Martin Marietta Report estimates the permanent disposal costs of U3 0, utilizing the waste disposal fees for shallow burial at the federal NTS and Hanford, Washington disposal sites. It states that, with efficient packaging, low. density U3 0, would cost about $0.25/kgU for NTS disposal and $1.tXVLgU at Hanford. The Report concludes that the higher cost disposal estimate of

                                 $1.00/kgU represents the prudent basis for current estimates. (App. Exh. 7, at 17.)

Mr. LeRoy explained that the LES estimate stated in kilograms of Up, is about 15% higher than the estimates from the Martin Marietta Report stated in 112

kilograms of uranium because U3 0, is about 85% uranium by weight. (LeRoy-

       - Dekker at 27 foi Tr.1016.) Additionally, he testified that a 1994 EG&G Report indicates that the LES burial estimate of $1.00/kg 3U 0, rmains valid. (/d. at 26.) Le EG&G Report estimates the cost of nonretrievable hirial of DU 30,, by DOE at the NTS to be 50.15/kgU in 1994 dollars and Sout 19% more, or $0.18, for a non DOE penerator, Further, the EG&G Report estimates the cost of U3 0, burial at the Hanford Site at $1.81/kgU. (App. Exh. 8, at 51; LeRoy-Dekker at 26-27 fol. T ,1016.) Thus, hit. LeRoy concluded that the LES estimate of
         $1,00/kg U3 0, in 1993 dollars, which translates to $1.27/kgU in 1994 dollars,
       . falls squarely within the range of estimates in the EG&G Report of $0.18 to
         $1.81/kgU in 1994 dollars and remains reasonable today. (LeRoy-Dekker at 27 fol. Tr.1016.)

Dr. Makhijani challenges thr reasonableness of the Applicant's U3 0, burial cost estimate asserting that the estimate of the Applicant and the NRC Staff is not based on the Applicant's own plausible strategy for tails disposal. Rather, he asserts that while the LES disposal plan calls for deeper than surface burial,

       - the two studies on which the LES and Staff estimates are based deal only with near-surface burial cous, not deep burial. (Makhijani at 4,20 fol. Tr.1081.)

While acknowledging that the disposal cost estimatas in the Martin Marietta and the EG&G Reports are based on near-surface disposal, Mr. LeRoy testified that deep disposal should be no rnore costly than near-surface disposa! because deep burial of U 30, does not require expenses for engineered bartiers and containers that are usually required for near-surface disposal. He stated that lower costs for deep disposal also would result from reduced security expenses based on the decreased likelihood of an intruder entering a deep burial site. (LeRoy Dekker at 31-32 fol. D.1016 ) Similarly, the Staff witnesses, Mr. Paraz and Mr. Hickey, indicated that several factors will tend to decrease the

       . cost of disposal for depleted uranium including the large volume and uniformity of tails; the economics of scale that will be possible if the CEC tails are buried with those from DOE; and savings in construction costs if the tails are disposed of in an existing underground cavity. (Faraz-Hickey at 10 fol. Tr.1106.)

Based on this App'..' cant and Staff testimony, we find that it was not un-reasonable for the Applicant to base its cost estimate for deep disposal on the near surface cost e+t., nates in the Martin Marietta and the 2G&G Reports. Ac-

       - cordingly, we 6d that the. LES cost estimate for burial of the CEC depleted uranium ;,.L is a reasonable one.'
         -8 1n us proposed findings, the intervenor argues that the t15 eshmate for bunal of Ugo, is also unreasonable because it fads to sche into account the costs of sning. characterians, and hcensing a disposal facihry. CANT PF at R CANT RF at 19-20. aus the argumem the Intervenor now makes in its proposed Andmss is not one n sought to support at the heanng wuh evidence in mahng its evidenuary presentation, the Laervenor sought to demonstrale that neuher L.rS nor the staff had proposed or provided for the conungency that there (Centmue,1) 113 a

4

3. IJUF, Conversion Costs

          %c Applicant's estimate of $12 million annually, or $360 million over 30 years of operation, for the conversion of DUF, to U 30, con prises the largest component of the LES tails disposal cost estimate of $16.175 million per year or $485.3 M"' .., o er 30 years of operation. In their prefiled dilect testirnony, h1r. LeRoy and hir. Dekker stated that "[t]he cost of conversion of DUF, to depleted U3 0, is based on an estimated conversion cost of $4.86 per kilogram-of uranium ($1996), which was provided to LES by COGEhtA, Inc., the U.S.

affiliate of a fiench nuclear service company." (LeRoy-Dekker at 23-24 fol.

     *lt 1016.) De Applicant's witnesses then stated that COGEh1A has indicated to LES in writing its willingness to consider providing conversion services for UF, in the United States and that, in a 1991 letter (App. Exh. 5). COGEhiA estimated that its charge for such services in 1991 dollars would be in the range of $3 to $5/kgU. (Id. at 24.) Referring to Applicant's Exhibit 6, they then stated that "[ijn its more recent letter COGEhtA provided an updated estimate of $4 to $6/kgU ($1995), which is in hne with LES' conwalon cost estimate of $4.86 ($1996) ($4.67 in $1995)."' (Id.) hey also declared that these estimates assume construction and operation of a conversion facif.ij in the United States and are based on COGEh1A's acsual experience in construction and operation of a commercial facility in fiance. (/d.) hir. LeRoy and hit.

l Dekker asserted that these cost estimates also are comparable to ac;ual costs incurred by Urenco for conversion of UF, to U3 0, in Europe Further, they testified that "[tjhe estimate provided by COGEh1A includes the understanding that COGEhtA would assume responsibility (for thel handling of any non DU3 0, material produced during conversion (e.g,, hydrofluoric acid-HF) [and] LES is responsible for dispositioning the DU 3 0, only." (/d.) Finally, the LES witnesses declared that this practice is consistent with Urenco's actual conversion experience in Europe, where HF remained with the converter. (Id. at 25.) At the hearing, the Intervenor's witness, Dr. hiakhijani, challenged the validity of the Applicant's conversion cost estimate of $4.86/kgU asserting, in tuay tw no dnposal sne available m 15 years or even 30 years at the end of the CEC heense teint The intervenor thus argued that a careful analysis of the safety and durabihty or UF, storage cyhnders was necessary (Matthapni at 22 23 fol Tr 10811 There is ample evidence in the rectwd about the safe useful hfe of UF, cyhnders that addresses the Intervenot's ctmeern about cyhnders (App- Esk 7. at 9-14 i The Apphcant and the stafr are not required to counter an evut nnary caw tliat the Intervemw never made

       'The Apphcam did not espl.un further the denvation of the LES conversion cost "estirnate" provided to LES by CoGEMA of a rather esact $4 SfogU in IW6 dollars or 54 67 in lW5 donars when the IWI CoGEMA letter (App Enh 5) and the subsequent IMS letter (App falt 6) refe red. respectively, to a charge la the range of
     $1-MsU and $4 in responding in a June 18. lW3 staff request for revtied tails disposal cost esunates (App Lah. 4h) however. the Appheans informed the staff that "ttihe cost of converuon cf DUF, to depleted uranmm oude (DU o,)is based upon an esumate of $4 00 per tulogram uraniunt Tius estimate was provided to LI3 by CoGLMA (App Exh 4o) It appears that the 54 00 is arrely the madaange of CoGEMNs 1991 estmuse of
     $3 5 escalatcJ from twI to IMS and IM6 dollars usmg the Apphcant's standard 4% per year escalator yieldmg
   , $4 67 in IMS dillars and 54 86 in 1996 dMlart 114

effect, that the' Applicant's failure to break the estimate into constituent parts . precludes any evaluation of the estimate or its seasonableness; (Tr. 1205-06.) Specifically, he testified that the Applicant's $4.86 figure understates the cost of conversion because it fails to include the considerable cost of approximately

       $1.50/kgU for neutralizing to calcium fluoride ("CaF,")_the hydro 0uoric acid

("HF") byproduct that is produced during the conversion of UF, to U3 0,. (Tr.

    -1206 09.) Such neutralization costs were necessary he asserted because his past evaluation of the demand in the United States for hydrofluoric acid showed that
    ' it was a declining market. _ According to Dr. Makhijani, a=very large use of HF is in the production of ozone-depleting chlorofluorocarbons ("CFCs") that :

now are being phased out pursuant to federal law and international agreementsi Although recognizing that HF is used in the initial production of UF., Dr. Makhijani testified that large purchases of Russian high-enriched uranium for -i reactor fuel and the additional release of American stockpiles of high-enriched

    -uranium will further drive down the domestic demand for HF by limiting the need for enrichment services. He further stated that a 1990 Oak Ridge report.
       "The Ultimate Disposition of Depleted Uranium" (DE 91-006414). that was published before the establishment of any firm deudlines for phasing out CICs

_or the American purchase of Rt'ssian high-enriched uranlun., concluded that

t. there may be no market for contaminated hydrofluoric acid in the United States.

Finally, Dr. Makhijani testified that converting high-enriched uranium in the form of uranium metal to reactor fuel can be done using conversion methods .- that either use or do not use HF and that the process for conversion in this country has yet to be selected.

          ' On the _ basis of the evidentiary record in this proceeding, we cannot find r=      that the Applicant's estimated cost of $4.86/kgU (totaling $12 million annually and $360 million over 30 years of operation) is a reasonable estimate for_-

1 L eonverting DUF, to U3 0,. The LES estimate is deficient because it fails to i

include the significant cost of neutralizing the hydrofluoric acid byproduct of-the conversion process. 'Ihe evidentiary record is clear that the Applicant's .

    . cost estimate for converting DUF, to U3 0, does not include any provision for -                                    ,j incurring the additional substantial cost of neutralizing the byproduct HF from
    - the primary conversion process. (LeRoy Tr.1055, IN9. See also App. Exh. 7 at 17.) Instead the Applicant's position assumes that the COGEMA operation

The EGao Report estabhshes that the conversion costs of neutralumg HF to CaF; are sigm6 cant and conenbute -

about st 50&gU 'o the total convenion cost of ss 40 in 1992 Mars. .(App. Exh. 8. at 4h Hickey Tr.1133-35 ) This Hi- neutrahratmn cost esiinwe 6a 1902 Mars is derived from the EGAG Report and excludes any - constrxuon or other nuscellancsms fees. h also assumes that the disposal cost for CaF 2 is immmal due to its shshe contarmnanos and hkehlmud or disposal as ordinary waste Ohchey Tr. 1134-35) The stafr's witness.

     . Mr. Ibskey, agned that the esumane of 51.504 U for the neutrahaanon of byproduct HF to CaF was 2   reasonabse and that he had no other estinwe to offer (Tr,1835 ) AAbng the conservauve 51.50 cmt cf HF neutrahannon to the Appheant's estimased casu for converting DUF, *o U3s 0 results in a more than 30% increase to the 115 (Continnd) 115

in liance, in which IIF is recycled as part of COCIEMA's extensive nuclear fuel cycle manufacturing activities or otherwise marketed, will be replicated in the United States, it has not, however, provided any supporting evidence that there will be a sufficient market in the United States for the byproduG liF allowing it to be economically recycled or otherwise sold. Without evidew to show that there will be a sufficiert market for the byproduct ilP in the United States, we - can only conclude that a domestic conversion facility, regardless of whether it is uhimately built and operated by COGEMA or some other entity, will have to neutralize the HF as an additional step in the conversion process and that the additional cost must be included in the cost of conversion. Thus, contrary to the - assertions of the Applicant's witness that the conversion of HF to CaFg is not the Applicant's concern because COGEMA's cost estimate for UF, conversion includes the understanding that COGEMA would assume respocsibility for all conversion byproducts except U3 0,(LeRoy at Tr.1050), the reasonableness of the LES conversion cost estimate component is not " converter specific" and is not de~.ndent upon COGEMA performing the service.H in making this finding, we are aware that the Applicant's witness, Mr. LeRoys testified that in "the conversations we have had with COGEMA and in the SECY paper (SECY 91 Ol9 (App. Exh. 3)), it is stated that COGEM 4, after converting the DUF, to U,0, uses the liF that is produced ither for the forward process of converting natural U3 0, to natural UF, or the HF is sold on the industrial market " (Tr.1049. See alm Tr,1050, LeRoy Dekker at 29 fol. Tr.1016.) But this proffet of the COGEMA model in France, with its extensive nuclear fuel reprocessing, manufacturing, and waste disposal activities under one government umbrella, is not sufficient to establish, without significant additional evidence, -

                     ~t he feasibility or likelihood that a conversion facility in the United States could reonomically recycle or otherwise market the byproduct HF from the conversion .

of the CEC tails,

                           . This failure of proof is especially significant in the circumstance where the domestic chemical market also will be faced with the byprmluct HF from the conversion of the huge DOE stockpile of tails as well as the ever increasing converuon costs, incressmg the Appheant's annual convernon cmis from s12 tmthon to $117 nullion and over
                     . 30 years of operanon, from $%0 rmlhon to s471 rmthon The a&htion of this increase in converuon costs to tM LES total tais &sposal cost esumane inercases it from s485 3 milhon over 30 years of operanon to almost $600 '

nuthon. H ndesd. for put same reason we rejected the Inicrvetmr's assertma en consumng the Appheant's tramportation cnst esumate ihar Itw Applicant's &sposal strategy was not plauuble became LES &d not base a firm comnutment from COGEMA. Inc., to bmlJ a conversion facihry in the Umted States The Appucant offered an evidence that CoGLMA. Inc., actually woukt inuld and operate a converuon facihry in the Umied States Rather, it only offered an eipiession of interest letter stating "CoGLMA Inc? wdhngness to conuder the possibihty of provieng, in the Umted States, converuon services" (App Enh. 6) Because the Apphesi. had no such comnatment, Ow Intervennt asterted that the LLS transportanon esunwe would have to include the costs of shippmg the DUF6 IO France and retunung the U3 0, to the Umted States. CANT RF nt 2122. The rewrd inacates those costs would add some $4-5 nuthon a year to the LES transportanon costs. (App. Exh. 4(l) at Appen&s E, at E-2. leRoy Tr. 1059 60.) 116 l l l J

accumulation of tails from the United States Enrichment Corporation. Indeed, Mr. LeRoy indicated that the Applicant's cost projections for disposal did not include any analysis .of the future market for conversion byproducts and he' , acknowledged that there could be a glut of such byproducts on the market in the future from tails conversion. (Tr.1051.) 1le further conceded that the question of the cost of neutralization of IIF is not inelevant to the LES cost estimate. (Tr.1055-56.) lie thus provided nothing to counter effectively the testimony of the Intervenor's witnes's, Dr. Makhijani, that his past analysis showed the domestic market for ilF was shrinking due to the phase out of CFCs and the decrease in demar.i for enrichment services from the introduction of Russian and American high enriched uranium, see LDF-96 25, 44 NRC at 352-60, a conclusion he further buttressed with the 1990 Oak Ridge report indicating that there may be no m.srket in the United States for byproduct ilF. Further, we note that in assessing the environmental impacts from the

    . conversion of UF, to U,0,,, the Staff's FEIS assumes that the byproduct ilF will be neutralized to CaF,. (Staff Exh. 2, at A 2 to -4.) More important, however, is the Staff's response in the FEIS to public comments on the draft environmental impact statement concerning the decline in the American market for liF. The Staff des;ribed the sale of HF as merely a ' possibility"(Staff Exh.

2, Vol. 2, at 1 198) and went on to state in responding to comments about the impacts of transporting liF that "[clonversion operations would likely result in production of calcium fluoride." (/d at 1 199.) Similarly, the 1994 EG&G Report introduced by the Applicant that evaluates the disposal options and costs for DOE's depleted uranium and estimates $8.40/kgU as the cost of conversion assumes that all byproduct ifF from the conversion of UF, to U3 0,is neutralized by converting it to CaF and disposing of it in that form. (App. Exh. 8, at 43, 47.) Accordingly, on the basis of this evidentiary record, we cannot find that the -

    - Applicant has met its burden of proof and demonstrated by a preponderance of-the evidence that the LES cost estimate for the conversion of DUF, to U3 0, is a reasonable one because it fails to include the substantial costs for neutralizing the byproduct ilF from the conversion process u u la this regard we note that uw Staff's witness. Mr. Hickey, tesufied that the Appheani's "esumaic of 54.86 per biogram lof uramum) for converston, we beheve, includes she posutuhty that the opnon of converung to calemm Auonde will t e esercised * (Tr. 1130 4 1.) Dendes bems contradicted by the Appheant's tesumony (t4Roy Tr.

105$1 Mr Hiekey's asseruon to the effec. that the 115 conwruon cost esurmue covers both the conversion or DUI', to U,o, and the converuon or Hr to CaF ts2 not supported by the record as a whole. lurther. Mr. stidey opmed that the Appheant's converuon cost esumate of $4 86 nevertheless was adequate to cover the aAhnonal cost of renvertmg byproduct HF to CaF2 8'8""8 tilhe pnces that were quoted to us from (15 that came from CoGEM A. we beheve were over.innated and included a lot of proht on ttw part of CoGEMA And in fact. a converuon facihty could be beh in the Umted states. and they could dispose of the hydrogen fluorule in the form of calemrn for less than

                $$ a biogram.

IConsmurd) 117

Finally, we note that, in contrast to the detailed final decommissioning plan that LES must submit near the end of the license term, the Applicant's Decom-missioning Ibnding Plan is requiwd only to provide a reasonabic cost estimate to ensure that the Applicant sets aside adequate funds to cover, inter alia, the cost of tails disposal, The reasonableness of the Applicant's cost estimate is necessarily dependent upon all the circumstances and the Commission has in. l dicated that "the plan must contain essential elements sufficient to ensure that a reasonable estimate of decommissioning costs can be made." Public Service Ca of New Hampshire (Seabrook Station, Units 1 and 2), CLI 8810, 2h NRC 573, 587 (1988). IIere, the largest component of the Applicant's estimate for tails disposal is that for the conversion of DUF, to U,0,. As we have found, however, the Applicant's estimate has not properly accounted for neutralizing the byproduct ilF as part of its estimate. This additional cost is substantial and it is not the type of expense, like an increase for inflation or the development of a new technology (see 50 fid. Reg. 5600,5604 (1985)), that merely should be added sometime in the future after one of the Applicant's periodic decommis-sioning funding reviews that the Applicant is committed to performing at least once every 5 years. (App. Exh. l(e), at 7-1.) Rather, the neutralization of the byptmluct ilF produced as part of the conversion of DUF, to U3 0, is clearly an essential element of the conversion cost (and hence the tails disposal cost) that reasonably can be estimated at this time. Ibrther, because the depleted uranium tails are created as the Applicant performs enrichment services, the Applicant's tails disposal funds must come

 - from a portion of the price charged by LES for the separate work units ("SWUs")

it performs. (Arnold Tr. 672-73; App. Exh. 4n, at 4; App. Exh. l(a), at i1.8-15; Staff Exh.1, at 15-21.) In order to provide reasonable assurance that there are adequate funds set aside to cover tails disposal, the Applicant must factor the realistic reasonable cost estimate of tails disposal into its market price for SWUs from the initiation of operations. (App. Exh. 4n at 4.) This is especially important in light of the nature of the enrichment market and the Applicant's financial structure. As we found in LBP-96-25,44 NRC at 355-56,359-60,361, fri in31-) Mr Hickey then used the converuon cost estimate m the EG&O Report of s3 40 ht includes byproduct HF neutrahasuon to illustrate tus assernen. (tr. 1131.1135J6, App. csh. 8. at 47.) According to Mr. Hickey, after $ years of operanon of the hypotheucal conwrstort facihty m the f.G&G Report, the istmi plana costs would have been recmered and, thereafter, the coat per kikigram for conwruon woukt amount to about s4 80 fis.11%) But Mr Eckey anempts to prove too nunch He not only failed to escalate lus estimase from the 1992 dollars of the EG&c Report to the 1996 bilars of the t_Es esumate - a step that raises tus esumate connderably - but lus assumpnons about the EG&G Report enumane (assumpoons he are not euphett in the EGAO Report) rane more quesuons than av answered negarang such things as return of capital depreciation. carrying costs, taxes, deconsanunauon coats. and profu margins. Because the record provides no corroborating supptwt for the proposmon that a future domesuc conwesion facihty is to be teilt and operated without a heahhy vernd for profits. we are unable so accept Mr Hickey's enemons regarang the cost of convet6un of depleted uramum tails. incliahng the nevernhaatam of byproduct HF. la so concludmg we are not unnunata! r4 Mr. Hickey's candid apprassal that the staff's forecasung accuracy of disresal costs has been "very pour

dr. I153.)

118

                                                                                                                     ~
  ~

the enrichment market is a fiercely competitive, international one in _which the ~ supply of enrichment production capacity and the supp!y of enriched uranium - far exceeds demand and this situation will prevail for the foreseeable future, in

     - such a competitive snarket, a significant shortfall in the funds set aside to pay for tails disposal cannot simply be remedied by a price increase without harming the
       ' Applicant's competitive position and future market prospects. _Moreover, unlike a utility reactor operator that can rely upor a public utility commission to set a rate structure adequate to recover all decommissioning costs even after the shutdown of a facility (ser 53 Fed. Reg 24,018,24,031 (1988)), the Applicant's tai 3 disposal funds can only be collected from its charges for enrichment services -
    . on an ongoing basis, in other words, LES must be totally self reliant in paying for tails disposal.

As we detailed in LBP.96-25,44 NRC at 378-80 LES is a newly formed entity _ created to build and operat,e the CEC It is structured as a limited partnership

    - and LES has' no significant independent assets. : /d. at 398-99. _ Similarly, _

none of the LES general _ or. limited partners are corporations of worth. Id. . Further, under the LES Partnership Agreement, as well as general principles of xcorporate and partnership law, the co7 crate parents and other affiliates of the l --LES general and limited partners have no liability for the obligations of the

partnershipi Id. at 402 n.30. In these circumstances, ~we cannot conclude that

!~ the Applicant's tails disposal estimate need only be a rough approximation that can be adjusted in the future upon periodic reviews by the Applicant. Rather, _ for the LES tails disposal estimate to be a reasonable one, it must include the substantial cost of neutralizing the HF from the conserr.lon af DUF, to U3 0,, Our finding in this regard is without prejudice to the Applicant acting to amend -

     - the LES Decommissioning ihnding Plan consistent with this Decision and the Commission's regulations;.

C. - Intervenor's Other Challenges -

              - In addition to its. direct _ challenge to the Applicant's tails disposal cost estimate," the Intervenor also challenges the Staff's FEIS alleging that a number of technical deficiencies and other shortcomings undermine its validity, thereby
                           ~

discrediting the LES tails disposal estimate for deep burial of ti,e CEC tails.

      ; According to the latervenor, these various deficiencies so eviscerate the Staff's -

analysis that the FEIS cannot support the conclusion that deep burial of the U As the heatng, the Imerwner did not punue 1"w specinc aswmons ut forth in CANT's original bases B 4 and B 5 and the laserwoor did nos include 6m&ngs on these bases la Abng its proposed 6ndings. Hence, the lecrwnor - has waned thew clama and, pursuant to 10 CF.R. 4 2.754(bk is in default as to these claims. la any ewns, the Apphcant and the staff prenewed temmony and other evidence on these matters. ttzRoy DAs at 15-18. 4L47 fol. Tr.1016; App. Exh. l(at as 11810 to .16; FaraoHickey at 11-12 fol. Tr.1106) and the Apphcant has met 6ts burden of proof en thew clems. Hence, the claims in Interwoori bases B 4 and B.5 cannot be sustaned. 119 l

CEC depleted uranium tails will provide adequate protection to the public and the environment. Consequently, the Intervenor asserts that the CEC tails must . be disposed of in a licensed geologic repository at a cost likely to be no less than $10/kg U3 0, and perhaps much more. (Makhijani at 4-7,1617,20-21 fol. Tr.1081.)'4 - We summarily address below the deficiencies in the FEIS alleged by the Intervenor and find them without merit..

1. Use ofinappropriate pil, Retardation Factor, and Redox Potential Values Dr. Makhijani asserts that the values chosen by the Staff for groundwater re-garding pil, retaldation factor, and redox potential for use in its FEIS analysis of the environmental impacts of deep disposal of depleted uranium tails at two rep, resentative sites (see supra pp.107-08) could result in a serious underestimation of the doses to the public. (Makhijani at 8-13 fol. Tr.1081.) Specifically, Dr.

Makhijani claims that the pil value - an important factor governing uranium solubility and subsequent uranium transport - of 7.8 that was used by the Staff came from near surface water data from a location in New York. (See Staff Exh. 2, Appendix A, at A-12.) According to Dr. Makhijani, the pH of groundwater in the basalt rock formations for repository locations has been found to be greater than 9. (Makhijani at 910 fol. Tr.1081.) Contrary to Dr. Makhijani's assertion, however, we find that the Staff's use of a pil value of 7.8 based on New York data was not unreasonable in light of the reference literature for groundwater showing a pli range of 7.2 to 8.5. (Price Tr.1115; LeRoy Tr. 1164-65.) 'Dius, the Staff's use of a pil value falling within the reference range was appropriate and reasonable. Dr. Makhijani also argues that a retardation factor of 1200 should not have been used by the Staff in the FEIS (Staff Exh. 2, Appendix A, at A 13) because it is considerably higher than the retardation factors for granite and basalt rock formations recommended in a report of the National Academy of Sciences. (Makhijani at 10 fol. Tr.1081.) The retardation factor is determined by dividing the ratio of water velocity by the radionuclide transportation velocity. Radionuclides dissolved in groundwater are adsorbed and exchanged through contact with the surrounding solid phase and thus travel at a lower velocity than '4 The Apphcans argues that its tails disposal cost einmate was devekred before the environrnental impact statement was prepared and was not based on any informauon in the ITIS h imphes, therefore, that the Intervenor's challenges to the techmcal underpinnings of the FEIS are irrelevant to the LES disposal cost estimate for deep bunat (Tr.1066. Appheant's Proposed Fimiings of Fact and Conclunons of Law (May 26.1995) at 402-03 ) But the Appheant's puntion ignores the thrust of the intervenor's argunent that because of numerous de6ciencies in the Staff's analyus deep bunal or U 3og h a tiot been shows to protect the environurnt theret'y mandaunt duposalin a geologic repondary at a much higher cost. De Appheant's wunesses also testified, however, thrit on the bans of their review of the staff's analyus of deep disposalin the FEIS they found the analysis sausfactory. (Dubiel-Donelson at ll.t5 fot Tr 1026.) 120

the Froundwater. (Staff Exh. 2 Appendis A, at A 13.) The Staff's witness, Dr, Price, as well as the Applicant's witness, Mr. Dubiel, both testified that the value used by the Staff, which was based on a Swedish study, was appropriate because the data were from actual experimental observation for a comparable medium and were corroborated by a second study using kuch data. (Price Tr. 1115 17.- 1235; Dubiel Tr. 1164 65.) Based on this testimony, we cannot find that the Staff's use of a retardation factor of 1200 drawn from actual experimental date, in contrast to theoretical evaluations, was unreasonable. Dr. Mathijani next claims that the redox potential value (" ell") of minus 100 millivolts used by the Staff in its FEIS analysis (Staff Exh. 2, Appendix A, at A 12) is outside the range of values that the Staff otherwise lists in the FEIS for uranium mines and the FEIS contains no other comparative groundwater eli values, lie asserts that the solubility of uranium is critical to the determination of the amount of uranium in groundwater and that the Staff has made arbitrary assumptions that tend to minimize the amount of uratuum in solution, (Makhijani at 10-12 fol. Tr.1081.)- Redox potential, measured in volts or millivolts ("mV"), is a measure of the potential of groundwater to oxidire or reduce (i.e., to change chemically materials disposed of in groundwater). An increased ndox potential increases the potential for uranium 'o dissolve in water. (Id. at lit Price Tr.1118.) Although the Staff's comparative table of eli values in the FEIS and the Staf f's choice of an eli value of minus 100 mV certainly could have been more clearly explained in the Fels (Price Tr. I148-49), we find Dr. Mathijani's criticism without merit. As Dr. Price testified, the Staff chose an cH value of minus 100 mV because it was representative of deep groundwater from experimental observations showing redox potentials of minus 26 mV to minus 210 millivolts, with some reference data going esen lower; (Tr. 1118-19.). He stated that the data set forth in the FEIS for uranium mines are not fully representative of deep groundwater and the conditions that will be chosen and prevail for the deep burial of depleted uranium tails will be a reducing environment. (Tr. I145-49.) The Applicant's witness, Mr. Dubiel, also testified that the reference literature supported the Staff choice of eli value for the groundwater depths involved in the FEIS evaluation. (Tr. 1165-66.) Based on this testimony, we find that the eli value used by the Staff in its analysis is a reasonable one. 2, Failure to Perform Lincerainty Analysis, Consider Range of Geologic Se* tings, and Fully Analy:e Appropriate Chemical Form of Tailsfor Disposal Dr. Makhijani next asserts that, contrary to sound scientific practice, the . Staff failed to perform an uncertainty analysis of deep burial as part of its environmental impact analysis so that upper and lower bounds for estimated 121

l-doses could be obtained. Because of this failure, he asserts that the resulting Staff analysis fails to meet the minimal test of sound science, (Makhijani at 1316 fol. Tr.1081.) In response to this criticism, Dr. Price testified that an uncertainty analysis was impractical and unnecessary here because an actual deep hurial site was not being characterited. Rather, he stated that the objective of the Staff's analysis in the FELS was not to support a Ernsing position on a disposal site i but merely to deterndue the plausibility of deep burial of depleted uranium as I a ' disposal strategy. Indeed, Dr, Price noted that the analogous NRC branch technical position for low-level waste facilities requires significant site-specific data for the performance of an uncertainty analysis. (Tr. 1120-21.) in these circumstances, we cannot find that an uncertainty analysis was necessary for the Staff's evaluation of the impacts from two representative hypothetical disposal sites. Further, the Intervenor's witness claimed that the FEIS analysis is deficient for considering only two geologic settings, a granite fonnation and a basalt formation, instead of considering a wide range of potential geologic settings. Dr. Makhijani indicated that the Staff first should have performed a preliminary screening of all potential geologic settings for their respective advantages and disadvantages and only then selected particular rock types for study. (Makhijani at 9 fol. Tr.1081.) He Staff witnesses, Dr. Price ar.d Mr. Paraz, both testified that the use of two representative geologic settingc was appropriate because the objective of the FEIS analysis was to determine whether deep burial of depleted uranium tails was plausible. (Tr. 1112-13.) All of the Applicant's witnesses concurred in this same view. (Tr. I163.) Contrary to Dr. Makhijani's charge, we find that the Staff's use of two representative geologic settings was reasonable in light of the purpose of the FEIS evalua6ca. Finally, Dr. Makhijani asserts that the Staff's analysis is deficient for failing consider the appropriateness of converting.UF, to UO, instead of U3 0, for disposal. Although he concedes that both uranium oxide forms are insoluble in water, Dr. Makhijani asserts that the complexes they form with other chemicals in specific geologic environments could be different, depending on the particular - conditions. Herefore, he claims the Staff should have considered UO, in addition to U 30, and presented a comparative analysis showing the legitimacy of its choice of U3 0,. (Makhijani at 7 8 fol. Tr.1081.) Dr. Makhijani's assertion is without merit. The record evidence overwhelm-ingly demonsttates that U3 0,is the prefened form of uranium oxide for disposal. (App. Exh. 41, at 18-19 & Appendix D, at D-1; App. Exh. 7, at 14-15; App. Exh. 8, at 11 13; LeRoy-Dekker at 30 fol. Tr.1016.) Further, as Dr. Price testified, it is also necessary to consider how to manage and handle the uranium oxide as it is produced, stored, and transported for burial, and U3 0, is more stable upon exposure to the atmosphere than UO,. (Tr.1111.) Indeed, as Applicant's 122 9

 , Exhibit ? states "U0l will ignite spontaneously in heated air and burn bril-liantly,"-( App, Exh..7, at 36.) .

Finally, m addition ta the foregoing findings, we have carefully considered

  .all of the c'her arguments, claims, and proposed findings of the parties relative to cor.tentions B and I 3 and find that they are either without merit, immaterial,

_ or unnecessary to this Decision.

 ' D, - Concerns of the State of Louisiana -
      . Pursuant to 10 C.F.R. 5 2,715(c) of the Commission's Rules of Practice, the .

State of Louisiana has participated in this proceeding as an interested State. In its proposed findings, the State has requested that we condition any LES license - for the CEC to ensure that Louisiana does not have to take responsibility for

   ~an/ radioactive ivaste from the CEC, Additionally, the State requests a number -

of corollary conditions designed to ensure that no financial obligations fall on

 - Louisiana from any of the CEC radioactive waste,t8
     - De State's concern that any LES license authorization be conditioned so that -                                -

q the State cannot be held respensible fun any radioactive waste from the CEC has - now been resolved by the recent enactment of the USEC Privatization Act. The

 - Act specifically provides that_"[nlotwithstanding any other provision of law, no State or interstate compact shall be liable for the treatment, storage, or disposal of any low-level waste , , attributable to the operation, decontamination, or
 - decommissioning of any uranium enrichment facility," 42 U.S.C I 2297h-l1(c).

With the enactment of this federal statute, no further con @r tion of the State's request for license conditions is necessary, l l C 111. CONCLUSION For the reasons detailed in Part II.B.3, we conclude that the Applicant's cost estimate of $12 million annually for the conversion of DUF, to U3 0, is not a L reasonable one given its failure to include the substantial costs of neutralizing ; the conversion process byproduct hydrofluoric acid. Hus, to this extent, the I Intervenor's contention B.I is sustained, For the same reason and to the same j

 ' extent, the intervenor's contention J.3 is sustained and, pursuant to 10 C.F.R.
  -651,102, the FEIS is hereby supplemented by the discussion of the economic costs of tails disposal in this Decision and the undsflying adjudicatory record.

Sec PhiladcIphia Electric Coi (Limerick Generating Station, Units I and 2), ALAB 819,22 NRC 681,706 (1985).' d tadsiana's Proposed Finengs or het and Conclusions at Law in the Form or an 1. .ral Decision Relative to DUF6Waste Generaard at the Proposed LES Facihty Oune 23,1995) at 3-5. 123

Pursusnt to 10 C.F.R. 5 2.760 of the Commission's Rules of Practice, this l ' Partial Initial Decision will constitute the final Decision of the Co:nmission on these contentions forty (40) days from the date of its issuance unless a petition for review is filed in accordance with 10 C.F.R.12.786, or the Commission directs otherwise. Within fifteen (15) days after service of tlus Partial initial i- ' Decision, any party may file a petition for review with the Commission on the grounds specified in 10 C.F.R I 2.786(b)(4). The filing of a petition for review is mandatory in order for a party to have exhausted its t.dministrative remedies - ,_ before seeking judicial review at the appropriate time, Within ten (10) days l after service of a petition for review, any party to the proceeding may file an l answer supporting or opposing Commission review. The petition for review and any answers shall conform to the requirements of 10 C.F.R.12.786(b)(2)-(3). It is so ORDERED. Ti1E ATOh11C SAFETY AND LICENSING BOARD 1homas S. hicore, Chairnian ADh11NISTRATIVE JUDGE Richard F. Cole ADh11NISTRATIVE JUDGE Frederick J. Shon ADh11NISTRATIVE JUDGE hiarch 7,1997 Rockville, hlaryland 124 I a

Cite as 45 NRC 125 (1997) LBP-97-4 UNITED STATES OF AMERICA NUCLEAR REGULATORY CQMMISSION

~~

ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: G. Paul Bollwerk, Ill, Chairman Peter B. Bloch Thomas D. Murphy In the Matter of Docket No. 50-461 OLA (ASLBP No. 97 72541 OLA) l lLLINOIS PCWER COMPANY and ! SOYLAND POWER COOPERATIVE , (Clinton Power Station Unit 1) March 11,1997 in this proceeding regarding the proposed transfer of the ownership share of Clinton Power Station minority owner Soyland Power Cooperative to majority owner Illinois Power Company, the Licensing Board grants the unopposed ' t - request of Petitioner Southwestern Electric Cooperative, Inc., to dismiss its protective intervention petition and terminate the proceeding. RULES OF PRACTICE: INTERVENTION PETITION

                                . Simply because a filing is labeled a petition to intervene does not prevent the presiding officer from treating it as a request to initiate a hearing if this, in fact, is what the petitioner is seeking. See ranker Atomic Electric Co. (Yankee Nuclear Power Statior.), CLI 06-1,43 NRC 1,5 (1996).

125

MEMORANDUM AND ORDER (Terminating Proceeding) Responding to a January 23, 1997 notice of opportunity for hearing, see 62 Rd. Reg. 4437 (1997), in a liebruary 28, 1997 filing entitled " Petition for Leave 'n '**ervene," Pctitioner Southwestern Electric Cooperative, Inc. (Southwestern), sought leave to participate in taiy adjudicatory proceeding convened in connection with an October 17,1996 application (as supplemented and modified by letter dated December 31, 1996) for agency approval of an operating licen',e amendment for the Clinton Power Station, Unit No.1 (CPS). The proposed license revision would permit the t*ansfer of Soyland Power Cooperative's (Soyland) minority ownership in CPS to Illinois Power Company (Illinois Power), the facility's majority owner and operator. On March 7,1997, this Licensing Iloard was established to rule on Southwestern's petition. Sec 62 l'ed. Reg. I1,933 (1997), Subsequently, on March 11, 1997, Petitioner Southwestern filed a letter addressed to the Licensing floard requesting that this proceeding be terminated, in support of its motion Southwestern asserts that its original petition was intended only to preserve its interests in the event that Illinois Power, Soyland, or some other party sought and was granted a hearing.' No other party apparently having filed a timely hearing request, Southwestern now wishes to have this proceeding terminated.2 Under the circumstances, we grant Southwestern's request, Ibr the foregoing reasons, it is, this lith day of March 1997, ORDERED that:

1. The March 11,1997 motion of Southwestern to terminate this proceeding is granted; and 3

Ahhough Southwcatern's f^ctruary 28 6hn; was labeled as a "petitma to intervene," tius would not prevent un front treatine it as a request to initiate a heanng if this in fact. was trhat Southwestern was scelung. See rakee .4smur Dectric Co. (Yankee Nuclear Ivwer Statiorit CLl-El,41 NRC l. 5 (1996). 2 By teleph 's this date, we were adsited by counsel for southwestern that neither Uhnoss Power not Soyland objects to tm ternunation or stus procee&ng. Also, upon ingwy, counsel for the NRC Staff advued the Boad that the Staft te no objection to ternunasion of this prorec&ng. 126

2. Southwestern's Ibbruary 28, 1997 petition for leave to intervene is dismissed and this proceeding is teiminated.- .,

TIIE ATOMIC SAFETY AND LICENSING DOARD' O. Paul Dollwerk, III, Chainnan ADMINISTRATIVE JUDGE Thomas D. Murphy ADMINISTRATIVE JUDGE Rockville, Maryland March 11,1997 3 Adrmmstrative Judge Bkwh was not available to sign this Menawandum and Order. 6L was, however, advised of hs contems ami artvowed les lamaance. 127

Cite as 45 NRC 128 (1997) LBP 97 5 l l UNITED STATES OF AMERICA NUCLEAR REGUil, TORY COMMISSION ATOMIC SAFETY ANC LK:ENSING BOARD PANEL Before Administrative Judges: G. Paul Bollwerk,111. Presiding Officer Jerry R. Kline, Special Assistant in the Matter of Docket No. 30-02764-MLA (ASLBP No. 97 722-01 MLA) . UNIVERSITY OF CINCINNATI (Dental of License Amendment). March 27,1997 MEMORANDUM AND ORDER (Dismissing Proceeding) In this proceeding, Licensee University of Cincinnati (University) has chal-

  ' lenged the December 12,1996 action of the NR~ Staff denying the University's January 5,1996 application for an amendment to its 10 C.F.R. Part 30 byproduct materials license. The requested amendment would allow specified visitors of radiation therapy patients to receive a dose of up to 500 millirem (mrem) total effective dose equivalent (TEDE) per year instead of the current public dose limit of 100 mrem per year provided for in 10 C.F.R. 5 20.1301(a)(1).

Now pending before me is the March 13, 1997 rnotion of the University requesting that I dismiss this proceeding. In its motion, the University dec' ares that on libruary 14, 1997, the NRC Staff issued Amendment No. S0 to the University's license (NRC License No. 34-06903-05), a copy of which was provided on March 20, 1907. See Presiding Officer Memorandum (Mar. 26, 1997), attachs. 1 2. Under License Condition 27 provided for by that

  - amendment, an individual visiting a patient is permitted to receive 500 mrem during the patient's confinement period provided:

128 4

       .         ~. -               -     .         -     ..

(1) N vhitor has teen deterpuned by a physician to be necenary for the emotional and/or physical suppon of the panent; (2) the visitor is 18 years of age or older and,if female, is not pregnant; (h the visttor (a) is instructed to maintain exposuresG tow ps is reasonably achievable (ALARA), emphasizing the bmic radiaHon safety precautions u o ne, distance. and shieldmg, , and (b) is advised (i) that the exposures received may exceed the general pubhe's regulatory hmit, and Oil of the risks of raJiation exposure, and (4) a visitor's exposures recched under the license condition are estimated by appropriate means to ensure the 500 mrem dose hmit is not exceeded, with records documenting comphance maintained for three years. The University's motion also states that the Staff has no objection to the University's dismissal request, The controversy in this proceeding has been mooted by the issuance of the February 14,1997 license amendment Accordingly, the University's dismissal request is granted and this proceeding is terminated. For the foregoing reasons, it is, this 27th day of }tarch 1997, ORDERED that:

1. Tlie March 13,1997 motion of the University to" dismiss this proceeding is granted.

  ~ 2,   This proceeding is dismissed.

G. Paul Bollwerk, lit, Presiding Officer - ADMINISTRATIVE JUDGE Rockville, Maryland March 27,1997 129 i I

Cite as 45 NRC 130 (1997) LBP 97 6 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL Before Administrative Judges: Peter B. Bloch, Presiding Officer Peter Lam, Special Assistant in the Matter of Docket No. 55 20726-SP (ASLBP No. 96 72101 SP) (Re: Operator License) RALPH L, TETRICK

          - (Dental of Application for Heactor Operator License)                                            March 27,1997 l

He Presiding Officer denied the Staff's motion for reconsideration. He ruled that the Staff should reasonably have foreseen the imporrn ce of whether or not to round up applicant's examination score. Consequently, Staff should have raised this question earlier and it was untimely to do so in a Motion for

             - Reconsideration. Since the Presiding Officer also concluded that there was no important safety issue involved, he used his discretion to deny the untimely motion.

CORRECTED COPY OF MEMORANDUM AND ORDER (Denial of Reconsideration, Stay) - On March 10,1997, the Staff of the Nuclear Regulatory Commission filed a motion "NRC Staff's Request for Issuance of an Order Staying the Effectiveness - of the Presiding Officer's Initial Decision (LBP-97 2)"(Motion for a Stay). The Staff asked that the Presiding Officer issue an order staying the effectiveness 130

L t. of his Initial Decision in _ this proceeding,' pending the Presiding Officer's review and consideration of the Staff's Motion for keconsideration (Motion for Reconsideration), filed simultaneously. Ralph L Tetrick filed his response to the Staff motions on March 17, 1997.' Because the Motien for Reconsideration has been filed, we retain jurisdiction over this case. Set 10 C.F.R. ( 2.77lt Consumtrs Power Co. (Midland Plant. Units 1 and 2), ALAB-235,8 AEC 645 (1974). I have de;ided that the Motion for Reconsideration shall be denied because it improperly raises an argument based on evidence that should have been incorporated in the record earlier in this case. De Motion for a Stay also shall be denied. %c Motion for a Stay stated, in part, that it was pending "the Presiding Officer's review and consideration of the Staff's Motion for Reconsideration. " Upon denial of the Motion for Reconsideration, I no longer have jurisdiction of this case, so it would be inappropriate to grant a stay "pending consideration oy the Commission.," as the Staff ilso requests. With respect to the Motion for Reconsideration, I note that: A motwn for recon.sideratton should rwt b.stude new w;ununn or evidence unten a party demon.strates that m new material relates to a Board concern that coulJ nor rea,wnably kne been anticupated Tc.tas Utilitics Electric Co. (Comanche Peak Steam Electric Station, Units I and 2), LBP 8410.19 NRC 509,517-18 (1984). (Emphasis added to the quoted paraFraph by the Staff. See "NRC Staff's Response to Memorandum and Order of March 21,1997." March 25,1997 [ Staff Responsej u 2.) In this case, Staff opposed Mr. Tetrick's challenges to three questions on its Senior Reactor Operator's examination. It now argues that it could not anticipate that one of ' these three questions micht be struck, forcing the Presiding Officer to decide whether or not a score of 79.59% should be considered passing or failing.2 NRC Response at 3-4. We reject Staff's argument that it "did not yet have any reason to anticipate that the Presiding Officer would strike Question 96. . , ," (NRC Response at 4.) he key question being litigated was the validity of each of the challenged questions and whether or not Mr. Tetrick would pass the examination. I conclude that the Staff shouhl have anticipated this contingency and presented arguments about how it should be resolved. In the interest of finality in decision making, I do not consider it appropriate to permit the Staff l to raise this argument at this stage of the proceeding. I AatpA L. Tesra A (Den at of Applicanon for Reactor operator Licenu A LBP 912. 45 NRC $10997) (initial Decisiont 2 tt was necessary to the dedsson in this case for the Presiding Ofncer to detenene wi. ether or not to round oft the etapunanoa score The staft suggestion that u.is decismn was "smo sponse" is involous. 131 l

                                                                                                                                                  .. a

In making this ruling, I recognize that Mr. Tetrick will be granted a license while other candidates, with scores between 79.5% and 80.0%, were denied a license. NUREG-1021, " Operator Licensing Examiner Standards," sets forth that "80% of the questions must be correctly answerei" Motion for Reconsideration at 5. Only recently, the Staff has amended its NUREG to require a passing score of "80RT' percent, changing the number of significant digits in - the NUi1EG itself from a whole percentage to 1/100th of a percentage point. Motion for Reconside;ation, attached Supplemental Affiaavit of Bil.m ilughes at 5,110. At the time that Mr. Tetrick took his examination, the revised NUREG was not in effect and there was no published guidance, other than the NUREG itself, concerning the number of significant digits ir. an examination score or how a score should be rounded. I find, as the Staff suggests, that the Staff had an established practice -first presented to the Presiding Offcer only af1er issuance of the Initial Decision. The Staff practice, which may be inconsistent with the use of a whole percentage point standard ("80%")in the NUREG,2 hs required applicants to achieve a grade of 80% or greater - without rounding off

              -in order to pass their written examination. Staff Motion for Rsconsideration at 5; Supplemental Affidavit of Brian Hughes at 8-10.

If this matter seriously affected public safety, I would ccnsider this evidentiary point even though it is untimely. See Midland, supra. However, I have no reason to believe that a OAl% difference in the score of a candidate on one portion of his examination is a valid reason for concern that his performance will be inadequate. This decision also will have little effect on the Staff's use of a unif-m passing

             - grade . It is necessary to establish and coasistently apply a passing grade for f
             - examinations, and the Staff has clarified the precise passing grade by amending the NUREG. Candidates whose scores fall even a fraction of a point below the passing grade should fail, even though they are not measurably inferior to candidates who pass by a fraction of a point. In this case, I have not decided the merits of the Staff argument about the interpretation of"80%" in a NUREG that is no longer current. My decision is based on the untimeliness of the argument and does not affect future cases. There is no reason to suspect a substantial negative effect on public safety because Mr. Tetrick had a written examination score of 79.59%, rounded off to 80% through a permissible interpretation of the language of the applicable version of NUREG-1021. I am confident that Mr.

Tetrick, who has capably and respectfully conducted himself in this proceeding, ; will continue to improve his skills and that he will not permit his marginal score 3 Tirre is a strong presunenon that the plain language of a statute or, tn analogy, of regulatory surJance espresses

             ~the intent of its drahert ArJestani v, IN1112 s. Cl 515.116 L Ed 2d 496 (19911 It is appropnate to kmk to an esmanic and, such as Staff pra'uce, only if the language of the regulatory guiJ.uwe is uncir:ar or if its apparent clanty leads to absurd rewits. Sfar Crass and 8!=r sAwfd af Alduma v. West; 915 F 2d 1544,1548. ren's Jrnwd. 92L F.2d 283 (1990k 132 J

on the written examination to interfere with his being an outstanding Senior Reactor Operator. ORDER + For all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 27th day of March 1997. ORDERED that;

1. The "NRC Staff's Motion for Reconsideration," March 10,1997, is denied.

2. He "NRC Staff's Request for Issuance of an Order Steying the Ef-fectiveness of the Presiding Officer's luitial Decision (L.BP-97 2)," March 10, 1997, is denied.

3. He Staff of the Nuclear Regulatory Commission may issue to Mr.

Ralph L Tetrick a Senior Reactor Operator License for %rkey Point Nuclear Genenuing Plant, Units 3 and 4.

4. Because of the issuance of housekeeping stays in this case, March 27, 1997, shall be considered the date of issuance of the initial Decision (LDP 2) for the purpose of c.lculating parties' rights and o ilipations concerning an appealc

5. Pursuant to 10 C.F.R. 6 2.1251, this initial Decision constitutes the final action of the Commission thirty (30) days after March 27, 1997, unless any pm,y petitions for Commission review in accordance with section 2.786 or the Commission takes review of the Decision sua sponte. If there is no petition for review, the date on which this decision will become final is Monday, Apnl 28, 1997.

6. Pursuant to 10 C.F.R. 6 2.786, a petition for review must be filed within fificen (15) days after service of this Memorandum and Order, which l is considered served on the date it is mailed, pursuant to 10 C.F.R. 9 2.712(e).

flowever, since service of this Decision is by mail, five days shall be ndded to l the prescribed period of response, pursuant to 10 C.F.R. 6 2.710, which governs the computation of time. Consequently, the date the petition for review must be sened is Wednesday, April 16,1997. Service of the petition for review must, pursuant to this Order, be made by express mail.

7. A petiiion for review and a response to a petition for review must meet the requirements of 10 C.F.R. 9 2.786.

8. If a petition for review is filed, the answer must be filed within 10 days.

Since the petition for review shall be filed by express mail, two days shall be added to the period of response pursuant to 10 C.F.R. I2.710, which governs the computation of time. Consequently, the date the answer must be served is 133

Monday April 28,1997. Service of the answer must, pursuant to this Order, be made by express mail. Peter B.111och, Presiding Ofticer ADMINISTRATIVE JUDGE Rockville, Maryl2nd l l 134 4 s .

Cite as 45 NRC 135 (1997) DD-97 5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Samuel J Collins, Director in the batter of CONSUMERS POWER COMPANY Docket Nos,50G5 (Palleedes Nuclear Plant) 72-. ENTERGY OPERATIONS, INC, Docket Nos. 50-313 (Arkansas Nuclear One, Units 1 50-358-and 2) 72 13 -

WISCONSIN ELECTRIC POWER Docket Nos. 50-266 COMPANY - 50 301 L (Point Beach Nuclear Plant, 72-5 l Units 1 and 2) March 4,1997 i

                     'lhe Director of the Office of Nuclear Reactor Regulation denies the request by Petitioner Fawn Shillinglaw, filed pursuant to 10 C.F.R. 6 2.206, that the NRC take action to prohibit loading of VSC-24 casks at any nuclear site until the multiassembly sealed basket #4 at the Palisades nuclear plant has been unloaded and the experience evaluated for potential safety improvements. The Director
               - concludes that the NRC will not permit unloading of any casks until it obtains reasonable assurance, through a variety of means, of each licensee's ability to.

do so safely, and therefore need not suspend any licensce's use of the general license for dry cask storage until the multiassembly scaled basket at Palisades has been unloadedi 135 m -

r - n 4' I DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2,206 1

                                                          - 1. - INTRODUCTION -
                                                                                   ,r                                                                     ,

On November 17, 1995. Ms. Fawn Shillinglawirttitioner) filed a petition 9 : pursuant to section 2.206_of Title ~ 10 of the Code of Federal Regulations (10- : P 1 C.P.R. I 2.206) requesting that the U.S. Nuclear Regulatory Commission (NRC) take action to prohibit loading of VSC 24 casks at any nuclear site until the multiassembly scaled basket (MSB) #4 at the Palisades plant has been unloaded - ' and the experience evaluated for potential safety improvements. In addition to-

- Consumers power Company, the Licensee for Palisades, other licensees that use ,

a - the VSC 24 cask system are _ Wisconsin Electric Power Company at its Point Beach Nuclear Plant, Units.1 and 2, and Entergy Operations, Inc., at Arkansas : , ~ 1 Nuclear One, Units I and 2. . He petition' has been referred to me pursuant to section 2.206. The NRC ; i; letter to the Petitioner dated January 18, 1996, acknowledged receipt of the 4 petition. Notice of receipt was published in the Federal Register on January 25, 6 r - 1996 (6I Itd. Reg. 2269). _,, , On the basis of the NRC Staff's evaluation of the issues and for the reasons

                 - given below, the Petitioner's request is denied.

p II. IIACKGROUND -

_ _ NRC regulations contain a general license that authorizes nuclear power plants -

licensed by the NRC to store spent nuclear fuel at the reactor site in storage casks approved by the NRC, (Sec 10 C.F.R. Part 72, Subpart K.) In regard to dry cask'

storage of spent nuclear fuel at Palisades, Point Beach, and Arkansas Nuclear -

                 ^ One, the Licensees opted to use the VSC-24 Cask Storage System designed by                                                             ,
                   . Sierra Nuclear Corporation. The VSC 24 Cask Storage System was added to the list of NRC-certified casks in May.1993 (58 Fed. Reg.17,948). %c associated

, . certificate of compliance, Certificate No.1007, specifies the conditions for use of VSC-24 casks under the general license provisions of Part 72. Section 1,l.2,

                   " Operating Procedures," in the certificate of compliance for the VSC 24 casks requires that licensees prepare an operating procedure related to cask unloading.

Specifically, the condition stetes: , Written operating procedures shall tw prepared for cask handhng. loading movement, F . surveitlance. and numtenance. The operating procedures suggested generically in the SAR - (safety analysis reportl are considered appropriate, as discussed in Section i1.0 of the SER ~

[ safety evaluation report], and should provide the basis for the user's written operatmg procedures. The following additional written procedures shall also be developed as part or
the user operaung procedures

I 136-i 4 i i l

                  ' I, /. procedure shall be deseksped for cask unloading, assuming damaged fuel If fuel needs to be removed from the nudteassembly scaled tiasket (MSit h either at tiz end of service hfe or for inspection after an accident, precautions must he taken against the potential for the presence of otidued fuct and to prevent radiological exposure to personnel during this operatiott This activity can he achieved by the use of i5e ec'k vbes, wtuch permit a deternunanon of the atmosphere Ghn the NISI.

before the removal of the structural and shield lids If the etnaphere wnhin the MSil is hehum, then operations should proceed normally, with fuel temoval, either via the transfer cask or in the pool llowever, if air is present within the MSli, then appropriate hiters shuld be in place to permit the flushing of any potential mirt.orne rwhoactive particulate from the MSil, via the Swagelok vahes, This acuon - will 9tc'ect both personnel and the operations area from potential contamination. Tbr the kctdent case, personnel prteculon in the form of respirators or supphed air should be considered in accordance with the hernsee's Radiation Protection program. In July 1994, the Licensee for Palisades discovered radiogaphic indications of possible defects in a weld in MSB #4. MSB #4 had been loaded with spent fuel earlier that month and placed inside a ventdated concrete cask on the independent spent fuel storage installation (ISFSI) storage pad, The Licensee evaluated the flaw indications and determined that the MSB con:inued to meet its design Nasis and was capable of safely storing spent fuel for the duration of the certificate (20 years). Nevertheless, the Licensee stated that MSB #4 would be unloaded to support additional inspections and evaluations related to its future use.' in preparation for the unloading of MSB #4, the Licensee reviewed the unloading procedure issued in May 1993 (Revision 0) and identified several technical deficiencies. A revision of the unloading procedure (Revision 1) was subsequently developed to resolve.the identified echnical deficiencies. Ti.e fevised unloading procedure is the subject of an ongoing, NRC mspection.2 Through inspections at Palisades ano other facilitics, the NRC Staff identi-fied a number of concerns regarding licensees' procedures for unloading spent fuel from dry storage casks. The NRC Statf identified examples of procedural l l

        'The unkiading of MSD #4 was crismally planned for several truimbs after the checovery of the rt jtograpluc indicauons of possible wekt defects in July IM4 However, the unloading has been delayed neural nmes and in its letter of Amuary 17,1997, the beensee informed the NRC Staff that the unkhng has been postponed until the fuel in MsB a4 can be reloaled into a cemAed snwage and wansportation cask. The Usensee also indicaed it intends to punue development and beensius of such a cank, has sohcited and received tuds from vendors, and glans to awstd a contract iefore the end of the erst quarter of 1997, in regard to the wiginal tRevisbn 0) unlomhng procedwe a Pahsa<is, the NRC Staff concluded that, had the
      , LAensee attempted to unlo J a cask using the original unloeibng prwedure, the LJcensee woukt have needed to suspend acuvmes at one or more times duttag the unlombng process in order to irnplement levisions to the prwedure The NRC Staff found that ttus was a violation of requuements that all acovines affecung quahty be presenbed tiy procedares appropriate for the circumstances and that procedures are reviewed for adequacy.

However, given the bauted safety sigm Acance of the procedural denciencies and the fact that the 1.icensee idemified and corrected the deAciencies, the NRC disposinoned the violanon as a Non-Oted Viotauon in accordance with the NRC Enforcement Pokey (Jeg NRC laspecuon Report 54255/96014 and threetor's Decision DD-97-1,45 NRC 33 (1997).) 137

inadequacies and quality assurance shortcomings experienced during ptcopera-tional tests and actual cask loading operations at sevetal facilities. In addition, the Staff observed that some unloading procedures implemented by licensees ne-glected to consider contingencies and assumptions on possible fuel degradation, gas sampling techniques, cask design issues, radiation protection requirements, and the thermal-hydraulic behavior of a cask during the gocess of cooling and filling it with water from the spent fuel pool. To address these concerns, the following item titled " Cask Loading and Unloading," was included in the NRC dry msk storage action plan implemented in July 1995 5 issue: Cask Loadmg and Unloading As hcensees have implena nted their ISI'SI plans. sescrat issues have been idennfied related to the loadmg and unloading of casks. Loadmg issues have centered on procedural inadequacies and quahty assurance shonconungs. The unloadmg proceduret devchiped by hcensces tend to be simplistic, This has resulted in neglectmg to consider contingencies and assumptions on failed fuel, air sampimg tectmiques, disassembly requirements, design problems, and radianon protection requirements. The importance of these proceduies should be emphassied to heenwes. and technient issues related to unloading probtems assolved. This iss,w should aba be .nidressed for shippmg casks. Le NRC action plan developed for dry cask storage was formulated to manage the resolution of a variety of technical and process issues asrnciated with the expanding use of that technology for the storage of spent nuclear fuel. The item related to the loading and unloading of dry storage casks was added to the action plan, in part, to ensure that the importance of tW nr. loading procedures was emphasiicd to licensees and technical issues related to unloading problems were resolved. W implement the plan, the NRC Staff formed a working group to identify issues associated with loading and unloading processes fer dry storage casks and to propose means of informing the industry and the NRC Staff of those issues. He working group considered industiy experiences, concerns identified during reviews and inspections, and other issues related to loading and unloading

                                 . procedures. The working group compl:ted its reviews in April 1996. The concerns related to unloading procedures reviewed by the working group were found to involve either (1) isolated occurrences that had been adequately resolved by site-specific conective actions or (2) generic issues that were addressed by incorporating remedial measures into ongd.ng Staff activities, such as the
                                 - preparation of revised inspection procedures or other guidance documents.

I Action plans are used ty the NRC staff to m' mage the resoluuon of sigrufkant genene issues. Such plans are prepared when the annetpated resources that mill be requer.d to resolve genene or puientally genene suues eseced certan thresholds or when the NRC staff derernunes that an accon plan would improve its effwiency and enecawnese 138 i ( e

in May 1996, an esent occuned at the Point !!cach plant involving the irmtion of hydrogen gas during the loading of a VSC-24 cask.' Cornpletion of the NRC inspection of the revised unloading procedure for Palisades was postponed following the event at Point Iltach in order to allow licensees and the NRC Staff to identify the cause of the hydrogen ignition and implement approptlate corrective actions. Ibliowing the event, the NRC issued confirmatory, action letters (CALs) to those lice.15ces using or planning to use VSC 24 casks for the storage of spent nuclear fuel (i.e., Licensees for Point Ileach. Palisades, anJ Arkansas Nuclear one).1he CALs docume.ed the Licensecs' commitments not to load or unload a VSC 24 cast without resolution of material compa4bility issues identified in NRC llulletin 9644, " Chemical, Galvanic, or Other Rwtions in Spent Puel Storage and Transportation Casks," cnd sub$cquent confirmation of conective actions by the NRC. On December 3,19n6, the NRC Staff informed the Licensee for Arkansas Nucleae One that it had completed its reviews and inspections associated l vith dat facility and found that the Licensee had satisfactorily completed the commitments documented in the CAL. Shonly thereafter, the Licensee initiated ca>L loading activitieri. The review of responses to the bulletin related to Palisades and Point Ileach is ongoing and cast operations at those facdities cont;nue to be 'imited by the Licensecs' commitments described in CALs. 111. IllSCUSSION in support of the Pethioner's request that VSC 24 casks not be loaded until MSil #4 at Paliwdes has been untaaded and the unloading process has been evaluated, the Petitioner cites the action plar rpated by the NRC Staff that included the Staff's observation that some un.oading procedures developed by licensees tended to be simplistic. 'ihe Petitioner asserts that because poblems are discovered through esperience, the proper way to unload casks will not be known until a cast is actually unloaded. The Petition (r also claims that the unloading procedures should not be left to the Licensees to develop and implement but should be the subject of detailed NRC evaluations. 1he NRC Staff's concerns about the quality of Licensecs' unloading pro-cedures led it to include the issue in the dry cask storage action plan. The action plan provided a framework for the iden:ification and resolution of various technical and administrative inues related to the use of dry storage casks. The previously mentioned actions taken by the NRC Staff and Licensees adequately d on May 2s 19e a hy husen pas istution occumd . luring itw mekbas or ne ahiclJ bd on a YsC 24 cask at HW has nemh Nudcar Plant The hydrogen ons fiwnN t.) a stenucal teactma tw *a a annc based conting (Carbo Lac ll) and the b(wwed esser to the spent f 4 pel 139

- tesolved the identified issues pertaining to cask ut.foading procedures. In the specific case of the unloading procedurs at palisades. the 1.icensee's revised procedure addressed many of the generie Staff activities on cask unloading and is cunently the subject of a thorough NRC inspection that will be completed in the near future. To fulfill some of the goals included in the action plan, the NRC Staff has - crnphasired the importance of unloading procedures and shnted ebservations with licensees using or considering dry cask storaFe durirg oppoa . ities such as the Spent Puel Storage and *lransportation Workshop held in . *1y 1995 and meetings with individual licensees. On the bask that these discussions with the industry and other Staff actions had conveyed importar.t operating etretiences to NRC licensees, the Staff defened issuance of an NRC information notice on the subject of loading and unloadmg of dry storage casks. The Staff revked inspection procedures to rpecifically instruct NRC inspectors to review unloading procedures developed by licensees and to identify those issues that warrant part:cular attention. Guidance included in NRC Inspection Procedure 60855, " Operation of an ISFSI," issued fibruary 1,1996, states: her unlomhng amvilles, anenhon should be paid to imw the licewe has prepared to deal utth the potential hazards auxsaled unth that tad, fione potenthd luurs may include. tlw radiation esposure a.nociated with drawing and analping a sample of ele caninet's ptdenttally radmacuse snephere. steam flashing and prenure tontrol ni water la nuded to ite hot canister, and hitenng or scrubbing sie lud steans' gas mixture vented trom tlw tani9et, as il 6 tilled with mater. . Similar guidance was included io NURIIO 1536, " Standard Review Plan for Dry Cask Storage Systerns Draft Report for Comment," issued in libruary 1996 and will be included in the final version of the standard review plan that is cunently being prepared. *Ihe revised guidance documents ensure that recent and future reviews will address the adequacy of unloading procedures developed by licensees.

   the NRC Staff also revlued the inspection history for edsting ISFSis to -

determine if unloading procedures were reviewed with due consideration given to the potential complications that may arise during the unloading process. The NRC Staff performed audits or inspections of those licensee progran.s for which the inspection record did not document wicher the unloading procedures adequately addressed the major issues included in the action plan. In rcFard to the users of the VSC.24 cask system, inspections of unkiading procedures at Arkansas Nuclear One (NRC Inspection Report 50 313N6-16, 50-368N6-16,' 7213N6-01 and Notice of Violation, dated July 31, 1996) and Point lleach (NRC Inspection Report 50 26N950ll, 50-30lN50ll, dated November 15, 1995) considered the concerns included in the NRC action plan. 140

                                                                                               ,,-.,y --- - ,-

As previously mentioned, the revised unloading procedure at Palisades is the subject of an ongoing inspection. completion of which was delayed as a result of the hydroFen fi nition event at Point Beach.1hc NRC inspection of the tesised < unloading procedure at Palisades is being coordinated with the StafI's review of the I icensee's rnnon'c to NRC llulletin 9MM and is espected to be completed in the near futt.re, notwithstanding the Licensee's decision to retpone unloading

MSD #4 pending the availability of a certified storage and transportation cask.'

Purther, the NRC has comrnitted to state officials and enemhers of the public that the esit meeting for the inspection of the revised unloading procedure at Palisades will be open to the public, the meeting will be noticed sufficiently ir advance to allow interested parties to atten<t, and the NRC Staff will allocate time to discuss issues with the public following the meeting with the Licensee. The NRC Staff agrees with the Petitioner that learning from esperience is an essential part of improving the safety of nuclear power plant activitics, including those associated with dry cask storage of spent nuclear fuel.1his princip;c is tellected in the regulatory requirements pertaining to preoperational testing of dry cask storage activities, as well as various provisions of NRC approved quality assurance programs, lhe issuance of Dulletin 9404 and the CALs for licensees using VSC 24 casks is another esample of the NRC Staft's efforts to ensure that applicable operating experience is incorporated into procedures at facilities licensed by tb NRC. In this case, the licensees using the VSC 24 cask revised procedures to address the technical concerns identified after the neht at Point Beach and agreed to defer cask operations pending the NRC's review of responses to the bulletin and confirmation of corrective actions. As previously mentioned, the Licensee for Atkansas Nuclear one loaded VSC 24 casks following the NRC Staff's determination that the Lkensee had satisfactorily completed the commitments documented in the CAL. On the basis of reviews and inspections performed to verify corrective actions av.ociated with the bulletin. in combination with reviews performed for cask certification and presious inspections of preoperational testinr and other aspects of the Licensee's dry cask storage program, the NRC Staff determined that the Licensee for Arkansas Nuclear One could perform either cask loading or unloading operations without undue risk to the health and safety of the public or its own persnnnel.

        'Ihe NRC Staff, through reviews and inspections to verify corrective actions associated with NRC Dulletin 9MM, must have confidence in the proce: lures implemented by the Licensee for Point Deach before the NRC permits that Licensee to resume loading or unloading of VSC 24 casks.1he Staff must also obtain the necess ty confideoce that the Licensee for Palisades has implemented 8

The licemee for PahsaJes respnaded to NRC flulieun 404 t y letteri dated Aurust 19 and Nmernber 12.1996 1he NkC starf is amasting the !.keuce's response to a request for inrarmauon .hal was 6uurd on letmary 12, 1997. 141 l l l - _ - - . . .. . - - . - . . . - - _ -

the corrective actions related to NRC Dulletin 9M4 as well as the issues included in the NRC action plan before permitting the Licensee to resume loading or unloading VSC 24 casts.

   'Ihus, only after resolution of the issues identified in NRC flulletin 9MM and other questions ' hat mav arke during the inspections of the 1.icensecs' revised procedures at Point Ileach and Palisades, will the NRC permit them to unload casks. As part of its review, the NRC Staff will consider matters such as the dry run esercises licensees perfortned to verify key aspects of unloading procedures, ns well as licensees' actual esperience in the loading and unloading of transportation casLs, loading of storage casks, handling of spent fuel nuemblics under various conditions, and performing relevant maintenance and engineering activities anoriated with teactor facilities. Given that the NRC Staf f will not permit unloading of any casks unless it obtains reasonable assurance of each licenste's ability to do so safely, the N!!C does not have reason to require unloading of MSil #4 at Palisades before allowing resumption of normal activities under the general licenses at Arkaraan Nuclear One Point ficach, or Palisades.

The Petitioner's request is, therelo.e, denied. 15/. CONCI.USION

  *lhe Petitioner requested that the NRC prohibit loading of VSC 24 casks at rny nuclear site until MSil #4 at the Palisades plant has been unloaded and the esperience evaluated for potential safety concerns. Each of the claims by the Petitioner has been reviewed. I conclude that, for the reasons discussed above, no adequate basis esists for granting Petitioner's request for suspension of the

.scensecs' use of the general licenses for dry cask storare of spent nuclear fuel at Palisades. Poir.1 Beach, or A Lansas Nuclear One until the MSil at Palisades has been unloaded and the esperience evaluated for potential safety improvements. A copy of this Decision will be filed with the Secretary of the Commission for the Commission to review in accordance with 10 C.F.R. 6 2.206(c). 142 e

l l i As provided by this regulation, this Decision will constitute the final action l of the Comminion 25 dap after issuance, unless the Commission, on its own motion, institutes a resiew of the decision within that time. 1:OR Till! NUCl.1:AR RIIGUI.ATORY COMMISSION Samuel J. Collins, Director

Office of Nuclear Reactor ! Regulation i D.,ted at Rodville, Mar > land, this 4th day of March 1997. IJ3

4 Cite as 45 NRC 144 (1997) 0D 974 i UNITED STATES OF AMERICA NUCLEAH REGULATORY CQ4 MISSION j OFFICE OF NUCLEAR REACTOR REGULATION t Frank J. Miraglia, Jr., Acting Director in the Matter of Docket Nos. 60 321 , 60 366 60-424 60 426 GEORQlA POWER COMPANY, et at , (Vogtle Electric Generating Plant, 1 Units 1 and 2; Hatch Nuclear Plant, Unite 1 and 2) March 18,1997 1hc Acting Director, Officc of Nuclear Reactor Regulation, has granted in

,                           part and denied in part a petition filed by hilchael D. Kohn, Esquire, on behalf of                                                  !

i hiessrs. hiarvin B. Ilobby and Allen L. hiosbaugh wquesting action regarding > the Vogtle and llatch nuclear facilities operated by Georgia Power Company 9t.,1 i allegedly by the Southern Nuclear Operating Company (SONOPCO or South.rn Nuclear). The petition raised concerns about the management practices of Git and Southern Nuclear with respect to operation of the facilities, treatment of , employees who raise concerns, provision of infennation to the NRC, and alleged . false testimony before the Department of Labor, lYtitioners requested the NRC

                          - to take immediate steps to determine if Git's current management has the                                                            ;

'~ requisite character, competence, fundamental trustwortl.iness, and commitment -

                          . to safety to continue operating e nuclear facility.

4

                             . Some concerns raised by the petition were partially substantiated. Violations of regulatory requirements ocented. The petition was granted to the extent that:                                                    r the hRC hsued three Notices of Violation and civil penalties to GPC for certain                                                     >

violations, the NRC issued letters to GPC (and GPC and SONOPCO employees) reFarding the requirements of 10 C.F.R. 56 50.7 and 50.9, the license transfer ; amendment proceeding evaluated many of the concerns, and the license transfer ;

                          - amendments issued for the facilities were conditioned to address concerns about t

144

l 1 managernent. 'Ihe petition was denied to the extent that the Acting Director I determined that no unauthorired transfer of the Yogtle operating licenses has j occurred, and conduded that none of the issues call into question the Licensee's diaracter, competence, fundamental trustworthiness, or commitment to safety in the operation of its nuclear facilities. "lherefore, further action with respect to the issues tai $cd in the petition was denied. ATOMIC ENERGY ACT: LICENSING STANDARDS

                                                                              'Ihe general standard for integrity is whether there is reasonable assurance that the licensee has sufficient character to operate the plant in a manner consistent with public health and safety and applicable NRC requirements. The Commhsion may consider the acts of the licensee (and its employees) the: have a rational connection to safe operation of a nuclear power plant.

TAllt.E OF CONTENTS

1. I NTR ODUCrlON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...... 147

11. II AC K G R O U N D . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . 14 8 A. NRC Staff and Commission Action on the petition . . . . . . 148

11. DO En for cement Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 C. 1.icensing llearing . . . . . . . . . . . . . ....... .. ... . 152 D. Standard, for Character and Integrity . . . . . . . . . . . . . . . 155 Ill. D I S C U S S I ON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 6 A. Alleged Unsafe Operating practices . . . . . . . . . . . . . . . , , . 156

1. Alleged Routine Entering into " Motherhood" . . . . . . . . 156

2. Alleged Ignoring of Technical Specifications. . . . . . . . . 159 Example (1): Opening Dilution Valves When Regired to lic Locked Closed . . . . . . . . . . . . . . 159 Example (2): Failure to Secure Dilution Valves as Required by TSs . . . . . . . . . . . . . . . . . . . . . . . 162 Esample (3): Miscalculation of Shutdown M arg in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 3 Example (4 E "Taking" LERs , . . . . . . . . . . . . . . . . . . 165 Example (5): Surveillance Testing of Containment Isolation Valves . . . . . . . . . . . . . . 16i Example (6): Changing Modes with Required Equipment inoperable . . . . . . . . . . . . . . . . . . . . . 167 Exampic (1): Failure to Declare RilR Pump Inoperable and Enter LCO . . . . . . . . . . . . . . . . . . 168 145

3. Alleged Concealment of Safeguards Problems . . . . . 169

4. Alleged Operation of Radioactive Waste Systems and Intimidation of Plant Review 11oard hiembers . . . . 171

11. Alleged lilegal Transfer of Licenses . . . . . . . . . . . . . .... 176

1. ItackFround: Formation of Southern Nuclear . .... 176

2. lilegal Transfer llearing and Petition im:s. , . . . . . . 179

3. NRC Staff Testimony During llearing on filegal Transfer issue . . . . . . . . . .......... .......... 182

4. Conc l u sion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 3 C. Diesel Generator Reporting and Reliability issues . . . . . . . . 184

1. March 20.1990 Site Area Emergency . . . . . . . . . . . . 185

2. Diesel Generator Statements . . . . . . . . . . . . . . . . . . . . . 188

a. April 9.1990 Presentation and letter . . . . . . . . . 188

b. April 19.1990 Licensee Event Report . . . . . . . . . . 191

c. June 29.1990 Cover Letter and Revised LER . . . . 195 (1) " Prior" Knowledge of Messrs. llairston and McCoy and Narrow Scope Audit . . . . . . . . . 197 (2) GPC Notvied That 'he LER Cover Letter Was False and incompletc . . . . . . . . . . . . . 2 01

(.4) hiultiple Explanations for DG Start Count Error s . . . . . . , . . . . ................ 203 (4) S u mmary . . . . . . . . . . . . . . . . , . . . . . . . . . . 2N

d. August 30, i990 Letter . . . . . . . . . . . . . . . . . . . .2N (1) " Top-Down" Drafting of Auzust 10 Letter . 206 (2) Steering of PRIl Meeting . . . . . . . . . . . . 206 (3) Inaccurate Public Statements by Mr. McCoy . . . . ................ .. 207

c. OSI White Papers. Response to Section 2.206 Petition, and SSPI Data . . . . . . . . . . . . . . . . . . . . . . 208 (1) White Papers to NRC Inspection Team . . . . 208 (2) Statements in Response to Section 2.206 Pe tition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 .

(3) SS PI Data . . . . . . . . . . . . . . . . . . . . . . . . . . 209 (4) Conclusions Regarding White Papers. Section 2.206 Response and SSil Data . . . . 210

f. Statements Concerning Air Quality in the April 9 Letter and to the IIT . . . . . . . . . . . . . . . . . . . . . . 211 (1) Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . 211 (2) Accuracy of Statement That Air Quality Was Sati s factory . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 (3) Incomplete Reasons for liigh Dewpoint Reading s . . . . . . . . . . . . . . . . . . . . . . . . 214 146 h -

(4) Concl u s ion s . . . . . . . . . . . . . . . . . . . . . . . . . . . 218

g. Conclusions Regarding Diesel Generator Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 D. hinnagement Attitudes and GPC Credibility . . . . . . . . . . . . 221

            !!. Discrimienting Against limployees for Engaging in Protected Activities . . . ............ ............... 223 F. Conclusions Heparding GPC's Character . . . . . . . . . . . . . . . 226 IV. CONCLUSION              .......... ....                 ....................229 APPENDIX: ALLEGED ILLl! GAL LICENSE 1RANS111R ISSUES. . 230

1. ALLEGED INACCURACIES AllOUT hiR. FAltLEY'S ROLil IN lilE CONTROL OF Tile VOG1LE FACILITY . . . . . 231 A. Controlling Daily Operations . . . . . . . . . . . . . . . . . . . . . . . . 231 II. Establishing and Implementing Nuclear Policy Decisions . 241 C. Employing. Supervising, and Dismissing Nuclear Personnd . . . . . . . . . . . .................... 244 D. Controlling Cost s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 8

11. OTilER ALLEGED INACCURACIES COhihiUNICATED TO N R C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 0

    ;11. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256 DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206

1. INTRODUCTION 1his is the final Director's Decision on the petition of hiessrs hiarvin II.

Ilobby and Allen L. hiosbaugh (petitioners) dated September 11,1990, as supplemented Detober I,1990, and July 8.1991, pursuant to 10 C.F.R.12.206 (petition), in CLI.9315, 38 NRC 1 (1941), the Commission vacated and remanded a partial decision on the petition. DD 93 8. 37 NRC 314 (1993), dated April 23, 1993, and directed that the NRC Staff consider the outcome of a pending license transfer proceeding on the Vogtle facility before acting on the petition, due to the overlap in issues. After closure of the evidentiary record and before issuance of a decision, the 1.icensing Board terminated the Vogtle license transfer proceeding based upon a settlement agreement between Georgia Power Company (GPC or the Licensee) and the sole intervenor, h1r. hiosbaugh. Consistent with the Commission's guidance in CLI 9315, this Director's Decision addresses the matters considered in the partial Director's Decision and the balance of the petition in light of the information disclosed in the license transfer amendments proceeding, in NRC inspections, investigations, and enforcemem actions, and decisions by the Department of Labor. 147

Although Mr. Mosbaugh has withdrawn his interest in the scetion 2.206 petition,' Mr. Ilobby's request is still pending before the NRC. Inasmuch as the l

                                                   - petition was jointly Gled by Messrs. Mosbaugh and Hobby and it in dif0 cult to                                                                                                                            i segregate their concerns, this Director's Decision addresses all matters raised in                                                                                                                     i the petition, as supplernented by the hearing record.8                                                                                                                                                 1

11. IIACKGROUND i

A. NNC Staff and Commlanton Action on the Petition l On September 11,1990. Michael D. Kohn,'!! squire, on behalf of Messrs. l

                                                   - Hobby and Mosbaugh,. filed with the U.S. Nuclear Regulatory Commission (NRC) a " Request for Proceedings and imposition of Civil Penaltif a for Im-                                                                                                                        1 properly 11ansferring Control of Ocorgia Power Cornpary's Licenses to the                                                                                                                               j
                                                   ' SONOICO Project and for the Unsafe and improper Operation of Ocorgia _                                                                                                                                   ;

Power Cornpany Licensed Facilities"(petition). The Petitioners were formerly ; employed by 01C, which operates and is part owner of the Vogtle Electric Generating Plant and the flatch Nuclear Plant. ~ 1he petition was referred to ! the Director, Ofuce of Nuclear Reactor Regulation (NRR). for the preparation i of a Director's Decision in accordance with section 2.206. The NRC received ; ! eshibits to support the petition on September 21,1990, and a supplement to the ' petition on October 1,1990, _

                                                           - The Petitioners made a number of allegations concerning the management
                                                 ~ of the GPC nuclear. facilities.8 Speci0cally, the Petitioners alleged that (1)

GlC illegally transferred its operating licenses to Southern Nuclear Operating Company (SONOPCO);d (2) Gl0 knowingly made misrepresentations in its ! response to concerns of a Commissioner about the chain of command for the - Vogtle facility; (3) 010 made intentional false statemeros to the NRC about the reliability of a diesel generator (DO) whose failure had resulted in a Site Area Emergency at Vogtle; (4) a GIC esecutive submitted perjured testimony t during a U.S. Department of Labor (DOL) proceeding under section 210 of the . Energy Reorganization Act; (5) OIC repeatedly atsused Technical Speciacation 3 By besiet' dawd August 2. IM. Mr, Mosbaugh withdrew from ele 2 206 peuuosi. ancimhng all requests -I (<e twther prnrmhngs and impossine of penatues relating to ocurgia power Coiminy and southere Nuclear _ operaung Company, as mell as shew directws, ortwers, empk 9 ees. and affibales* Jee Weituirewal or Allra L = 1 Membaugh, dated August 2. IM. 'f 3 Sitwe this thrector's twisum prinwdy alkeswa events that onurred prior to Mr Mastmugh's mittukawal. the Pnn *petinoners" scfm to bush tw and Mr Hot +y (However, etw term "Intervesue trim only to Mr MosbaugM. .

                                                          # Prestioners' concerns about sourtwra Nuclear and OpC manntenrnt procures are pnmarily tuned on Vogine-
                                                 . specisc information The l'eauoners offered no allegatums bued on observauons or opersticas as itw Hatch tacthey 4

Before its samrpwsion ce january I. lWl, Souttwra Nuclear operming Company was kanna as *soPopCO project

Aftamards, H nas conummly seferred to as ' southern Nuclear
i 148 .

       ,,~,,.,v-               , + . , - - ,                    wo.-r           ..%,,.r-._-,,,-c.,=w..e*        :,  ,e    or, we        ,.            -m , % ew ,  %--- e  s    ,-    ,# .-v.-.-..em-.=.-3:---. w.~,-- + - - , . _ - , _ - . ,, ~ . - - ,

(TS) 3.0.3 at the Vogtle facihty; (6) Git repeatedly and willfully siolated TS at the Vogtle f acility; (7) GPC repeatedly concealed safeguards problems from the NRC;(8) GPC operated radioactive waste systerns and facilities at Vogtle in gross violation of NRC requirements;(9) OPC routinely used nonconservative and @cstionable inanagement practices at its nuclear facilities; and (10) GPC retaliated agamst managers who made their regulatory conecins known to GPC or SONOPCO management.' ne lYtitioners requested that the NRC institute proceedings and take swift and immediate action based on these allegations. On October 23, 1990, Dr. Thomas H. Mulley, who was then Director of NRR, acknowledged receipt of the petition and concluded that no immediate action was necessary regarding these matters, %1s determination was based on completed and continuing NRC inspections and irnestigations of the Licensee, particularly those related to the operation of the Vogtle facility, On libruary 28, 1991, the NRC requested the Licensee to respond to the - petition. %e Licensee responded on April 1,1991 (response). On July 8,1991, the letitioners submitted to the NRC " Amendments to Petitioners Marvin llobby's and Allen Mosbaugh's September i1,1990Ittition; and Response to Georgia Power Company's April 1,1991 Submission by its Esecutive Vice President, Mr. R.P. Mcdonald"(supplement). In the supplement, the Petitioners alleged that GPC's Esecutive Vice President (1) made material false statements in GICs April 1,1991 submittal to the NRC regarding the participants in an April 19,1990 telephone conference call, and that the submittal attempts to cover up the improper conduct by shifting blame to Petitioner Mosbaugh; and (2) made false statements to the NRC at a transcribed meeting on January 11,1991, discuuing the formation and operation of Southern Nuclear. The supplement also contained a request for a variety of relief, including thet the NRC take immediate steps to determine if GICs current management has the requisite character und competence to continue operating a nuclear facility. On August 26,1991, Dr. Murley acknowledged receiving the supplement and infonned the Petitioners tht.t no immediate action was required and that the specific issues raised in the sup;lement would be addressed in his Director's Decision. On August 22, 1991, the NRC tequested the Licensee to respond to the >upplement. The Licensee submitted its response on October 3,1991 (supplemental response). On September 18. 1992, GPC filed an application to amend its liccnses to transfer to Southern Nuclear its authority to operate the Vogtle unia/ In response to notices of the proposed issuance of amendments and opportunity te request a 8 rVutwner sl<mbaugh had snromed NRC's of rece of imentigatwns (on or 84wne or the e ahegnimas begshtung in January 199n

                                   ' a) separsee appheatmo dated septendes is.1992. oPC also requeurd b,rnte anrnihnrnis to Wamter tierstmg authinity rat the Hatch radhty to southera % lear.

149

hearing that were published in the hderalRrghter (57 Fed. Reg. 47,127,47.135 (Oct.14,1992)), Messrs, Mosbat.gh and llobby filed, on October 22,1992, a petition for hearing and lease to intervene. In a Memorandum and Order issued November 17,1992, the Atomic Safety and Licensing board (floard) denied Mr. Ilobby intervenor status for lack of standing. On libruary 18,1993 (l.11P-93 5, 37 NRC 96,111 (1993)), the !!oard granted the intervention petinon of Mr. Moshaugh (Intervenor) and consohdated issues raised in the petition into the following single contention: The hcense to egwtale the Vogtle 1;tedrk OcLeraung plant, Untis I and 2, should mit be leanArted to Soudern Nudca Operaung Company, Inc., because it lads the sequisite c6 aracks, cotupetence, and integnty, as well am the sumsary candot, truthfulness, and wtilmynen to abide by regulatory requitettants

                     *Ihe admitted bases for the character and integrity contention were Inter.

venor's allegations that (1) GIC knowingly misled the NRC about who con. trolled licensed activities at the Vogtle facility by omission or misstatements of information (thus concealing a drfacto transfer of control of the Vogtle facility to SONOPCO Project) and (2) GIC knowingly provided inaccuraie, incomplete, or misleading information regarding diesel generator (DG) starts and reliability in 1990 statements, as well as in April 1991 staternents regarding the knowl. edge and involvement of senior GlC officials with respect to the inaccurate 1990 DO information.' LilP 93 5,37 NRC at 1(M llt tilP.94 37,40 NRC 288 (1994) (partial summary disposition of illeFal transfer issue); LilP.93 21, 38 NRC 143,148 (1993). Some of the issues raised by the petition, as supple. mented, were also considered in this proceeding concerning GIC's application to transfer authority to operate the Vogtle facility to Southern Nuclear (license transfer amendments proceeding), in a partial decision on the petition, dated April 23,1993, DD 93 8,37 NRC 314 (1993), wroted and trmanded CL19315,38 NRC 1 (1993), the Director, NRR, addressed each issue raised in the petition except for the allegations of discrimination and perjured testimony that were pending before the Department i Twnh respect to alw DG returting issue, Inrivvemw alluded to alleged falsetumds in oPC" Al ml 19. lWO tAenter lAent Repst 50te (1.LR) to itw NRC nhar trewted a DO start count alwr tie Mrch 2a, IND Site Area 1.nergency (1Ali)) and a related ol insestigat ca See Amendments to Petitmn ?o intervene and kcquent f,w Heanng. daad December 9 lW2 (Anrnded Petmoet at 15 16, 18-19. Intersenor aim asserted (twa in oPCs Aptti 1. iW1 respose to lawrvenda sectma 2 206 peinmn Mr R Patrd hkDonald. I neeutive vke Piesidrne-Nuclear operstmns, knowsngly suberutted false informalma o) concermng the partw: palma or Mr W. Cmuse Hairsna lit senkw Vwe Paes drne-Niklear operaimns. In devekipng the April 19. lWO LAemce I' vent krpwt > 90-Olm (L1.RI, arid (2) then oPC managers tietame aware of ernws in the L1R. Amended retmor ni 1619. la the amendrJ prutma, Intersenu rmied shal these and other allegatmns were subtrutted to ol beginmng in June IWO and were Itw notgect of a eetuna 2 2io peimon filed on Sepember ll, IMO, and supplenewed 5cpember 28 and october I 1990, thahrnging the etwa,ter mmpeeance, and inorgruy of GPC anJ the propaed transfesee, Southern Nuclear. 150

l of Labor

and the allegedly false GPC statements to the NRC about the DG stants.

The NRC Staff determined that certain concerns raised by the Petitioners were partially substantiated, and Notices of Violation and a civil penalty were asued in response to these issues lhe Ditector declined to take further action with respect to the matters resolved and concluded that (1) there was no unauthorised transfer cf the Vogtle operating licenses, (2) GIC facilities "are now being operated in accordance with NRC regulations and do not endanfer the health and safety of the public." and (3) the information asailable as of that date did not " cull into question the Licensee's character, competence, fundamental trustworthiness, and commitment to safety with respect to operation of its r:u; lear facilities." 37 NRC at 345. On July 14,1993, the Commission vacated and remanded to the NRC Staff "those portions of the section 2.206 petition decided [in DD.93 8) for the Staff's futther evaluation and final decision in conjunction with the Staff's resolution of the other remaining matters in the petition and in light of the outcome of the transfer proceeding." CLI 9315,3'l NRC at 3.1he Commission indicated that its decision was based on the overlap and similarity of some inuer between the section 2.206 petition and the transfer proceeding" which warranted that "the Staff'ri final determination of the cominon issues shou ld take into account the Licensing llord's findings and the outcome of the tiansfer proceeding " 1he Commission further indicated that the common concern raised by the aijegations that GPC or Southerr, Nuclear officers (and the corporate organization responsible for operation of the llatch and Vogde facilities) lack integrity should not be addressed in a piecemeal fashion, but determined in an integrated manner after consideration of the remaining matters in the petition and the outcome of the transfer proceedmg. The Commission, however, did not express any view on the soundness of the NRC Staff's anaiysis of the inues addressed in DD-93-8 and did not bar the NRC Staff from taking prompt enforcement action at any tiene during the ongoing review of the matters raised in the petition. /d. at 3 4. Inasmuch as the hearing record supplements inues raised in the petition, and consistent with Commission guidance, these matters are addressed as part of this Director's Decision.

11. DG Enforcement Actions

      'the NRC Office of Investigathns (01) documented the results of its investi-gation of the DG issues in a report on 01 Case No. 90-020R, dated December 17,1993 (01 Report). 01 found that some GPC officials had either deliberately, or with careless disregard, submitted false or misleading inforiration to the NRC
    'Wma # #4 v Gaerps Amer Cn. (101. Caw Na 90 iRMO. Allen Wilmg4 t Cecrgia Amer Co.

tiot Case N<m 91 t R44101 and el I RA-Cli 151

I danng an April 9,1990 prewntation and in a related April 9,1990 letter; in an ! Apnl 19,1990 LI!R: in a June 29,1990 cover letter to the revised LliR; and in . an August 30,1990 letter reFarding DG start count infor: nation. l

                                                                                    ~Ihe NRC Staff evaluated Interver.or's allegations and inforination in the                     '

01 Report and, on May 9,1994, issued a Notice of Violation and l'roposed I imposition of Civil Penalties (NOV) and Demands for Information (DFis) to 010 and sin GPC employees. After cont,idering the GPC reply to the NOV, amd the GIC and individual responses to the Di'Is, the NRC Staff issued a Madified Notice of Violation and Proposed imposition of Civil Penalties ! (Modified NOV) on laruary 13,1995? In the Mod.fied NOV, the NRC Staff ! concluded, among other thinFs, that subject to commitments made by GIC and Mr. Ocorre !!ockhold (Vogtle General Manager during 1990), the NRC "has no present concerns with the character and integrity of GlC or the individuals identified in Demands for Information." C. l leensing flearing in January 1995, after complction of the discovery period concerning the illegal transfer issue, evidentiary sessions of the amendment proceeding on the proposed license transfer were held. Intervenor's case consisted of (1) his own prefiled testimony; (2) the testimony of Messrs. Marvin llobby, William Shipman (who in October 1988 was the Vogtle General Manager for Support and became General Manager in January 1991), Red D. Williams (GIC Vice President of Ilulk Power Markets); (3) escerpts of prior testimony (e.g., DOL proceedmps llobby r. Gl'c and limAct and FuchAn v, GPC), see Transcript (~n.) 10,134 66,10,170-99,2757 5H; and (4) deposition excerpts. I!vidence received adJressed (1) control of daily nuclear operations; (2) the development and implementation of nuelcar policy decisions; (3) the ernployment, supervision, und dismissal of nuclear personnel; and (4) responsibihty for nuclear costs. The hearing was to deterraine whether Git, either through omissions or misrepresentations, misled the NRC about who was in control of the Vogtle facility. Lt1P-94 37, supra.

                                                                            'the NoV ($4r i th 1844 found GPC's fadure ton Apni 9, Apnl 19. June 29. and August 30.19WH to tw 6de 6nformnuon to tie NRC that was complete and auurare en all matenal respects as required tiy 10 C F lt.

4 $0 9 nanutmed a seventy 1swl it protdem and prope,cd a s2Mdaio ovat penalty la response. GPC generally adnutted each v6c41 hon esecpe the violatmn tesarding air quahty statements in etw Aptd 9 lence See GPC iterly to NoY and DIts, dated July 31, tW4 Ontervenne 1.sh 1110$t The khwhhed NoV tstart I th Il SI) withdrew ste vmlation anweased moth air quahty. tiut ensniamed h the ecmaining violatums comtituted a Seventy 14wl n protdem GPC pad the civd penahy on htarch t,1995 Jre tenet from ktr J. khthoan to kir. CL hkCt9 dated klarch 11,1993 oniervennt fah 11 No. at t

                                                                                                                                        , 152

llearings on the DG luucs were held fronn April throuFh September 1995, and generated a transcript record of over 12,5(o pages, prehled testimony of ovec 3$ witneues, and nearly 6(O eshibits.* 1he lloard ruled that (1) the allegations in the NOV were important to the smitted contention and were within the scope of the license amendments l- proceeding, and (2) Interrenor could inquire as to whether Git withheld pertinent facts from the NRC with respect to the DGs. LilP 9415,39 NRC 234,23$.56 (1994). The lloatd allowed evidence on w hether CIC officials were l willful or ted 'caly careless of the facts (as opposed to complete and accurate): l (1)in the April 9 letter statement that air quality was satisfactory;(2)in the April l 9 letter statement that recently obtained high dewpoint readings resulted from , faulty instrumentation; and (3)in other communications with the NRC regarding high dewpoints." - Ser Memorandum and Order (Summary Disposition: Air Quality), dated April 27.1993 (unpublished), at 6-9. Some of the issues raised in the section 2.206 petition were also heard during the hearing to gi e Intervenor latitude in establishing that certain communica-tions from Git to the NRC were fate and misleadmg and, circumstantiallys to show a pattern of deception and falsehood associated with the oriF inal rep-reaentations to the NRC. Memorandum and Order (Motion to Strike Mosbaugh Testimony), dated May ll,1993, at 4 6.n Intervenor's direct case included his written testimony and crou esamination ( of adverse witneues (present and former employees of GlC). GIC's case in-cluded the testimony of site and corporate management regarding the Vogtle f a-cility, including Meurs. R. Patrick Mcdonald (GIC thecutive Vice President-Nuclear Operationi), W. George llairston,111 (GIC Senior Vice Prei.ident. Nuclear Operations), C. Kenneth McCoy (GIC Vice President-Vogtle Project),

    "'isluded armeg etwee eshitute wee the transcripts or audio hipe recordings (and two audio tapest sawretly nukte by Mr Mostmugh 1a letwuary through August 1990 at lie Vogele sits Mr Mosbaugh gate Dj 277 audm tape resor&ngs in connestsoa m uh his allegauons ol tetanrd 76 tapes, s sting conversations on 22 tapes la ilw of lleptet Ttw Mashaugh tape rensisngs wm akin to a conteng*twaneous emed or sonw ewats related to triatters 4 the twanag, but sonw tau gerp.: pged in the ecurtstuun stwaained aumtetes ta.untable t.cruunn and die umeese. omnest, and tone ci de temuka emeded mete disputed, a g, lape 58. dated 4/19/90 interd I sh 13-12)

Unnecteuful tw itwomrkw enernpts to arnve at agreenwms as tape uanscitpes bd to efferem setshes of sonw tape transettets bemg prorfered by the partws. D Mr Minbaugh's ait quahey alletainoa assefwd that Mr oeurge llocaleM. Vorite oenesal Manager, deliberately misreprearewed no su quahty sa de Apnl 9 Irnet by withhokhng dws, recent tira mahme of-k&tance 180 twurol est dropnam tenants, as well as enorw<maly suerting that high rea&ogs were due to farliy euanunwms arut that au quakey was saltalactory ol llepun unterwmg 1.sh 11.191 at 95 of substatniated pain and ow intus allegatumn concermng tiO taformanon and cosahaled that Messrs oeinge flockhold. oeiege Hairsitut. Kenneth McCcy (Yne presidese4Vogtle projeco and Weiham Shiprnan (oeneral Manager-plant suppmo drhberately (or wHh tartless esteguds had subnutted falst and eneunglete infivmanon to ow NRC ol <bd not sutzt ranate,lumsver, that Mr M(thmakt debberately provedrd ralee mhwmatum to tie NRC la Ow opC tesponse to is.terwtur's se6tum 12tri pebtum. Set ol Itepon a 13 4 These neum swiuded ilw I AVA to talmanie sectohltealue system) and *thlutam %)ve allegames provuted to of gwww to de March 20.1990 Sue Area t_nwegency and also eased in alw sectna 2 2(We retuum 11w teshmtal mature cased by tlw allegauotis were act adnuned imo ow heente uansfer promeng May il ordes at 7-s 153

Dockhold, John G. Aufdenkampe (GPC hianager of Technical Support), Jimmy Paul Cash (a Unit Superintendent for the Vogtle facility and a degreed Senior Reactor OperatDr), Georgie R. liederick (Supervisor-Safety AuJit and Engl. necting Resiew)," and the testimony of two former NRC employees." The NRC Staff witnesses were hiessrs. David 11. hiatthews (NRR Project Director for the flatch and Vogtle facihties (foni 1988 through 1993), Pierce 11. Skinner (Region 11 Section Chief of Reactor Projects since 1991), Darl S. Ilood (NRR Licensing Project blanager for the Vogtle facility from August 1990 through 1995), lidward 11. Tomlinson (an NRR Senior Reactor Engineer for DGs and supporting systems since 1981), Luis A. Reyes (Region il Director of Division of Reactor Projects from 1987 to 1992, and Deputy Regional Administrator for Region 11 through 1997), and Roy P. Zimmerman (NRR Associate Director for Projects since June 1994). After proposed findings of fact and conclusions of law were filed in the pro-i ceeding," hir. hiosbaugh and GPC filed a joint motion acquesting that the lloard l dismin the proceeding and refrain from issuing an initial Decision. On August 19,1996, the lloard issued a hiemorandum and Order (L11P.9616,44 NRC $')) terminating the license amendments proceeding based on hir, hiosbaugh's with-l drawal as the sole intervenor pursuant to a settlement agreement with GPC. in l

1. IIP 9616, the lloard fecognised that the Commission encourages Settlements and stated:

U Aneng the otter mitnesws that teshhed for oPC mere Thornas V oreene Jr (Asuuais octeral Manager. Plant sugeott hhchat? w. Histon (Manager-1 ngneering supportt Hary w Mgwri ttacenung t.ngmeer-Vogile 1%ent 1 tenuis l~ webb itkenung i agireer-Vogtie inct kenny C. Staes (a scruit system 1.ngmeer in tie i nginecemssupport Departmrw miih pruaary responubihty fis de DGst Lamin A ward (Manager of Nudrar Maintenance and hufpett and w l . *hkip" Aitchens (Asusta#w General Manager-operauma and Chauman of tte Vogtle Plant Revww therdt and Mask 14rmry tan achng intrunentatwo and Coserol(l&C) superinnen&m in March-Apnl 1990) H in 197L Mr Mihm D Hunt was an NRC Impector, and Mr kwhud A 8(endall was a nrmber or the NkC Indderd Inwangauon leam (Irrl D Octagia Pown Contany's Pnymied l andings of led and Conduinons of 1.am on thenel Ornermor Repwung tenues, dated Nmendier 6,1999. Irwervcew(s I mal sisement of Inct and Conduuoni of law, dated Nmembe XI.1999. NRC staff Prnpoacd imaings of reet and Conduuons of Lee in the term of an in ual Decinon, daied Decendes 12,1991, oewria Pomet Contam)'s Reply to Interwtuv's and the NRC stafr's proposed landmgs of Iad and Coeutumons of L.im. daird tiecember 22,1991

               " Although tie settlenets agreenere mas not nuik availalw to the 14 pard or NRC, both Mt Mosbaugh and GPC auured the Ituard that tothmg in de actilenent agreenwns would prciabit, restnct, er ottiermise dmourage Mr Mosbaugh fetun raining safety roncerns to ite Nkc in sie future Mr Mmbaugh also stated that all of tus safety w segulatory lieues had bera prescreed to the NRC lieni Mahon of Ternunation. dated August 2,1996, W 10 Mr Mosbaugh also mahdren lui complaint beftse Dol on August 211996, a Dol Adriumstrauwe Revww            '

litsud insurd a "linal (kdei Appiming settleneni and thinuinng Comptant" afwr reinewmg the conhknual sentirmens agreenwww tegaidmg He dmrtnunanon sau of Mr Mombaugh(DolCase Nos 91.f,R A 1,98 ELRA.llt findmg the agreenent to be "a fair, adequase and reaumable arttlenwrd of de complamts

on August 29.1996.

Die Dol Adnunuttouve tan Judge Oc whom Uw suit had been remanded by the secretar) of labor on Nmember 20, 1991 fte a driernunatum regsd.ng Mr Mosbaugh's damagent took now of ele orer by or Adtrumstem,t Rev6cm thard arul tinied an "(kke of thamissal" 154

We are satisfied, bawd on out analysis of tte seued, that the $taff has tiren an attive guardian of the putilic interest al Ptard Vogtle and, to itw estent that ttwy may hase not already dime so, that lie htaff will take ite re4,urd we hase deseloped snen enount in escronirig tis continuing authority $re Notke of Violation and Propowd Imfesition of Coil lynally tNOV) and ikmands for informanon (l>ll), htay 9,1994. Modihed Notke of Violanon and Proposed Irnposititm of CMI Itnalties. Irbruary 13,1993. Nouce of Violation (Ikpartment of 1. abor Case Nos 40 LRA 30, and 911.RA Cllt. May 29,1996 44 NRC at 66. D. Standaf ds for Character and Int /grity In fenching this decision on the chtfacter and integrity contention, I have considered the following Commission guidance and precedent. In Mrfropolitan Edimn Co. (Three Mile Island Nuclear Station, Unit I), CLt.R$ 9. 21 NRC 1818,1136 37 (1985)(footnotes omitted), the Commission stated: A generally appikable standard for integnty it whether there is reasonable assurance that itw Lkemee has sufhdent character to operate ate plard 6n a nuumet umsistent with ttw putilic l+akh and arfety and appheatde NRC tequirenwnis Tte Commiukm in making this deternunatum trwy comider ev6dence regarding htenwe tehavior Undudt93 ttw acts of inenwe employees since all organiranons carry out their actnuien through individualsi hming a rational umswchon to etw safe operanon of a nudrar power plant.1 hts does not nean. however, that every act of becance is relevant Actions tuust have s4mw teamonable relatmmhip to h ensee's duumter, ie., its tandot, truthfulness, withngness to atmle t>y regulatory requirenwnts, and acceptarwe of responubihty to protest pubhc twahh and safety. In addmon, acts beanns on (haracter should not be comidered in isolanon Tlw pattern of hcensce's twhai6at, includmg corrective actions, should be cons 6dered in //ouston I.ighting and fouer Co. (South Tesas Project. Units I and 2), CL1-80-32,12 NRC 281,291 (1980), the Commission stated that lchthes abdwalion of resptmstbihty of abdwation of knowledyr, wtwther at the comtruction ut operating phase, could forta an mdependent and authcient liasis fut revoling a heense or den) lng a heenie apphtat6on on grounds of last of competence 0 e., technkal) or character quahfkation on the pan of the htenwe or twense appikant. 42 USC 2232a Licensee communications to the NRC, whether written or oral, must be complete and accurate as rnpired by section 50.9. In promulgating section 50.9, the Commission emphasited that fonbrightness in wmmtmitations with the NRC is essential if the NRC is to fulfill its responsibilities to ensure that the use of radioactive material and operation of nuclear facilities are consistent ! with public health and safety. Completeness and Accuracy of Information: Final Rule and Statement of Policy, 52 red. Reg. 49,362 (Dec. 31,1987). A determination of whether information is " complete and accurate in all material

155 i

l i _ _ _ , . _-m. ._ ,_. _ _ . , . _ . . , , , - . . , , . -

respects" is to be judged by whether information has a natural tendency or capability to influence an agency decisionmaker and ominions are actionable to , the same estent as affirmative inaterial false statements. 52 lbd. Reg. 49,363. l - Dus a staternent is anaterial if a reawnable Staff inember should consider the , infortnation in question in doing his job, but the NRC need not rely on a false statement for it to be material. Ser Randall C. Ottm.110., C1.19314, 37 NRC 423,42? 28 (1993)(whether a statement induced the agency to grant an application has no bearing on materiality) and cases cited therein.

     %c term " material false statement" (which was often used by Intervenor in the license amendments proceeding) is limited "to situations where there is an clernent of intent," i.e.. egreF          i ous situations. 52 Itd. Reg. 49,36$. %c Commission also esplained that intent is also indicated by careless dit,tegard as:

[Tjtw toncept of *(arriras dtstrgard' goes tgmd stenple ncghcence, as tie term has twn apphed to judwial dettitons dehning willful (nnduct as it han tan apphrd ty this agency. Sur, e g., Trens %rld Aulvies. Inc. v %rsum. K1 L E4 2d $2). $31 (1955); kekh Gen /'hysiml. Inc.. A11BS.1, 22 NRC 941, 96241 (19sh 'Carcicss disterard' connoles redlein regard or callous indifferen6e louard's enr's responubthnes or the consequences of one's actions"

$2 Itd. Reg. at 49,365.

In light of the importance of licensee wmmunications and their role in enabling the NRC to discharge its responsibilities, this Director's Decision esamines whether GPC acted with candor and endeavored to ensure that, subminions to the NRC were accurate. See Virginia ricctric and l'ower Co. (North Anna Power Station, Units 1 and 2), CLI 76 22,4 N.9C 480. 486,491 (1976)("nothing less than simple candor is sullicient"), off'd sub nom. Virginia Electric and l'ower Co. v. NRC, 571 F.2d 1289 (4th Cir.1978). til. DISCUSSION A. Alleged Unsafe Operating Practices (Petition il111.5. 8) De petition included several concerns reFarding unsafe operating practices at the Vogtle facility. Dese concerns were initially addressed in the vacated partial Director's Decision (DD 93 8) and are presented below with supplementation based on the license amendments hearing record and minor editing.

1. Alleged Routine Entering into " Motherhood" ne Petitioners allege (scr Petition ll!!.$) that G1C routinely threatens the safe operation of GlC's nuclear facilities by allowing them to enter TS 3.0.3, 156 1

_,v - _ , . . -

i 4 referred to in the petition as " motherhood." Specifically, the Pctitioners state that ! (1) GPC repeatedly allowed the Vogtle facility to enter TS 3.0.3 by rendering both trains of safety related load Sequencers for the dos inoperable, and (2) GPC did not make the required notifications to the NRC when TS 3.0.3 was enten J. Vogtle 'f a Av.; tequires that, w hen a limiting condition for operation (LCO) is not met, except as provided in the associated action requirements, action shall be taken within I hout to place the unit in a mode in which the TS do not apply by placing it in hot standby within the next 6 hours, in hot shutdown within the following 6 hours, and at least in cold shutdown within the subsequent 24 hours. The NRC established TS 3.0.3 to ensure that the reactor plant is shut down in a timely and orderly manner when the LCO in the TS for the specific component or system is exceeded or when a condition exists that is not addressed by TS requirements. The Licensee has satisfied the TS if it performs the final action within the time specified in the TS. If the condition requiring entry into TS 3.0.3 is corrected before commencing or completing the shuidown, the Licensee , need not initiate a shutdown, on if a shutdown is already initiated, raay end the shutdown and return the plant to the previous conditions. In accordance with 10 C.F.R. 650.72,immediate Notification Requirements for Operating Nuclear Power Reactors. licensees are required to make immediate (i.e., within 1 or 4 hours, depending on the circumstances) reports to the NRC of any declaration of an emergency clau specified in the Emergency Plan, and certain non-emergency events. Non-cmergency events include such items as the initiation of any nuclear plant shutdown required by the TS, any deviation from . the TS authorised by 10 C.F.R.150.54(x), any condition w hele the nuclear l powei plant (including its principal safety barricts) becomes senously degraded, and any natural phenomenon or other extesnal condition that poses un actual threat to the safety of the nuclear plant or significantly hampers site personnel in the performance of duties necessary for the safe operation of the plant, in 10 C.F.R.150.73, Licensee Event Report System, events are identified for which written reports will be made to the NRC within 30 days. %ese events include several of the events requiring immediate reports pursuant to section 50.72, plus additional events such as any event or condition that alo.ie could have prevented the fulfillment of the safety function of certain structures or systems. De NRC's notification and reporting regulations do not contain an explicit tsluirement that an entry into TS 3.0.3, in and of itself, be reported. Licensees are required by section 50,72 to notify the NRC within I hour of the initiation of any plant rhutdown required by the plant's TS, Rus, the NRC is promptly notified of entries into TS 3.0.3 if the plant initiates a shutdown as a result of the problem that caused entry into the TS. Ilowever, there is no requirement to notify the NRC of entries into TS 3.0.3 if a shutdown is not initiated. The NRC Staff has 157

no basis to conclude that the Licerisce's activities constituted unsafe practices or that these activities indicated that the character of the Licentec, including i those GlC individuals employed by Southern Nuclear in conjunction with the transfer of operating licenses to Southern Nuclear, is unsuitable for operating a nuclear power plant. 1he NRC Staff has reviewed GlC's entry into TS 3.0.3 through various inspections conducted by region-based inspectors and through the observations of the permanently nulgned resident inspection staff and concludes that GPC does not routinely enter TS 3.0.3. In inspection Report 50 424, 425NO 19, January 11, 1991, the NRC Staff documented that GlC rnanagement indicated that actions for an t-derly shut-down would not be initiated until at least 3 hours after entry into TS 3.0.3. GPC management also indicated that it could perform an orderly, controlled shutdown within I hour,if necessary, GPC interpreted the action statement of TS 3.0.3 to allow 7 hours to be in hot standby, and to accomplish this,6 t

Sift crew could wait for at least 3 hours after entering the LCO before commencing a shutdown, it was also GlC's position that no notifications to the NRC were required uru er these circumstances. GlC's actions in this area did not differ siF nificantly from those of other licensees, etrept that GPC did not immediately notify the load dispatcher" and did not proside written guidance to the operations personnel.

In inspection Report 50-424,425No.19, the NRC Staff identified the lack of immediate notification as a weakness. On libruary 2N,1991, GIC responded to this finding by providing written guidance for the operators to use upon entering TS 3.0.3. The NRC Staff reviewed thi$ ruidance and, as noted in Inspection Repor 50-424,425NI 14 dated July 19, 1991, found it acceptable.

                        'the specific example identified by the Petitioners regarding this issue con-cerned GIC's practice in the area of safety related load sequencers for Vogtle's DGs. The Petitioners claim that the Licensee failed to recognire that the loss of

, a load sequencer resulted in the entry into TS 3.0.3 and thus required notification of the NRC. U its NkC con 6rnwd that. while opC did nos rollom the acuima recornnended in octenc letter stois o e , inehcanie nf Ow het dnpantwr mutun Ow first kiur and perfonnance of a contentled shiname puiwgtume de ness 6 hours). the NRC sould And no 6nstante or off ewt estee&ng the Lluwt une bnut to be in hw stamlby es t he Ucensee's trusen guidance for is ) 0 ) ewry m as issued as 1 s GenAcanont s tuch we aabtamal pures piat the thennee muuniams muh d,e is in de main conirol termi The guidance preve&d thai urim entry in 15 3 01, etw Unit slurt superviour stumid esakaie plans voikhisons and fornwlaie a coutw or actiim inclueng acimns to prepare fue armi arnghie a safe and controlled thuiAima in taics where a high degree of conhdence esms dwei dw techmcal Assiwa tan he ersolved av repairs ena& protnptly to reshee cunponens gerabihty. an ) snurweate pimer rediutma la not aihisshis Hamewt adums are to be taken to ensure than an orJerly stwt&sma min he comgeted miika de allomate uns while repairs ut astetnpts to resolve operaNhty are under way. Withne dw hast lume, tumheahons to tie load dispatctet and pianagenent 6kuld be cande, ir de corubium shll etsits, pomer teductma should begia no lasse than 4 kwra into ttw accon n e 3 kwrs of dw allomable t nw remaining) in ikwe cases stwre n 6s apparens that resoluuon or the con & tion mill tot occur untua time allomate unw. en tw&rly shutawa wdl tegia inwrweniety 158

Each unit at 'lle has two Engineering Safety l'eature Actuation Sptems (ESI' ass) sequen, s and both must be operable during Modes I, 2, 3, and

4. NRC and GIC personnel determined that ternoving the load sequencers from service could result in entering the LCO for TS 3,0.3 or in entering TS Table 3.3-2, depending on which portion of the sequencer system was removed.

Some of the circuits were included in Table 3.3-2, but the TS did not address the remainder of the syttern. He Operations Department had historically linked load sequencer outages to the einergency DO LCO of T5 3Al,l.b (78 hours to hot standby). During the NRC's special team inspection documented in Inspection Report 50-424,425/90-19, GlC determined that TS Table 3.3 2 and TS 3.0.3 should have applied to sequencer outages. When this determination was made, GPC informed the NRC Staff that it had not reviewed past work orders for load sequencers. At that time, the NRC Staff reviewed both the completed maintenance work orders that were performed on the sequencers on Units I and 2 and the related surveillance tests by the Instrumentation and Control Engineering and the operations Departments. %e NRC St:ff found several instances where the work performed would have required the load sequencers to be de eneigired. llowever, the asso(lated unit was found not to have been in Modes I,2,3, or 4 at the time this work was performed and therefore, no TS LCO applied. Similar to the maintenance work order review, the NRC Staff reviewed re-lated Instrumentation and Control Engineering and the Operations Departments' surveillance tests. This review did not reveal any examples of the load sc. quencers having been de energired while in Modes I through 4 at the time the work was performed and thus no TS LCOs applied. Accordingly, I conclude that Git does not routinely threaten the safe operation of the Vogtle facility by allowing entry into TS 3.0.3. The Petitioners' claim that NRC notification requirements were violated upon entry into TS 3.0.3 was not substantiated.

2. Alleged ignoring of Technical Spec (fications

   %c Petitioners claim (see petition lill.6) that Git routinely endangers the public's safety by ignoring TSs and that this is illustrated by seven cited examples.

Esarsple fik Opening !)ilution %Isrs When Required to Be lodled Closed (Petition iIII.6a) De Petitioners state that the Licensee willfully and knowiogly violated Vogtle Unit 1 TSs by opening dilution valves required to be kicked closed by TSs. De 159

Petitioners claim that the valves were opened while the reactor coolant system (RCS) was at mid loop, and that this placed the plant in an unanalyicd condition and created the risk of an uncontrolled boron dilution accident and an inadvertent reactor criticality. The iYtitioners allege that the valves were opened to expedite an outage so that the plant could be placed back on line according to the outage schedule.

                ; 01 investigated this event, which occurred in October 1988 during the first refueling outage for Vogtle Unit 1, 'Ihe results of that investigation are documented in 01 Report 2M00lc 'lhe Of Investigators concluded that TS 3.4.1.4.2 was knowingly and intentionally violated by Vogtle Operations shift supervisors, with the express knowledge and concurrence of the Operations Manager." In its Report,01 also concluded that a violation of the reporting requirements of section $0.73 occurred, but that the evidence was insufficient to conclude that this was a deliberate violation of reporting requirements.

On June 3,1991, after reviewing the 01 findings, the NRC Staff issued a Notice of $nforcement Conference and Demands for Information to Git and the Orcrations Manager at the time of the incident. The NRC Staff also issued INmands for Information to the Operations Superintendent and the Shift

         - Supvisor at the time of the incident.

After reviewing the responses to the four Demands for Information (De-mands), the NRC StafI held an linforcement Conference on September 19,' 1991, with Olt and the Operations Manager. Subsequently, the NRC Staff sent letters

to the Operations Manager, the Operations Superintendent, and the Shift Super.

visor stating that no additional actions would be taken regarding their individual NRC licenses. The NRC Staff also stated that, although the actions of these individuals did not meet NRC expectations, there was insufficient evidence to support a conclusion that _their actions in 1988 constituted a deliberate attempt to disregard and intentionally circumvent the requirements of the TSs. On December 31,1991, after consultation with the Lommission, the NRC

         . Staff issued a Notice of Violation and Proposed imposition of Civil Penalty of
           $100h00 (Notice) to GPC. The Notice set out several violations identified during

the NRC investigation conducted between IWruary 1,1990, and March 19, 1991, including a violation that, contrary to the requirements of TS 3.4.1.4.2, on October 12 and 13,1988, with Unit 1 in Mode $, loops not filled, reactor makeup water storage tank valves 1208 U4176 and 1208 U4-177 were opened in order to add chemicals to the RCS. On January 30,1992, the Licensee responded to the Notlee, denied the violations, and protested the proposed imposition of the N Mr. Wilham F. *Sbp" Knciens. or operauons Manager and a Pitil charman. and Mr. Jimmf P, Cash, a senior keecks operator nerving a the operaunm surenmendent on stun. are sino nenuoted in this Direcint's tkvision in tte discumuou or the Do tasue. $n she section illD heren regading a January IWD nweting tietmen Menars. DocMiohl Krachens. anil Mantiaugh 160

civil penalty.8' The NRC Staff reviewed GIC's response and, on June 12.1992, issued an Order imposing Civil Monetary Penalty of $100.000 (Order). On July 9,1992, GlC sesponded to the Order, submi tted payment of #he penalty, and noted that it did not plan to appeal this action. T... NRC Staff has also evaluated the Petitioners' concern that the plant was placed su a wndition that could have resulted in an uncontrolled dilution esent and inadvertent reactor criticality. The NRC Staff reviewed an analysis of this event that Westinghouse subsequently performed and Git provided on November 21, 1989, to support proposed license amendments to change Vogtle TS 3.4.1.4.2. The change would allow the valves to be opened under administrative control to enable nonborated chemical additions to be made to the RCS during Mode $b (cold shutdown with coolant inventory reduced to the extent that the reactor coolant loops are not filled) and Mode 6 (refueling), using a flow path via the reactor makeup water storage tank. *Ihe results of the Westinghouse analysis indicated that the minimurn acceptable operator action times of 15 n.inutes for Mode $b and 30 minutes for Mode 6, as specified in-the NRC's Standard Review Plan (NUREG-0800), v.ould be met. On the basis , of this analysis, the NRC Staff concluded that the opening of these valves under administrative controls with the RCS in a loops.not. filled condition, including the mid loop condition, would not result in an unsafe condition 1his conclusion formed the basis for the NRC Staff's approval of License Amendment No. 28 for Vogtle Unit I and License Amendment No. 9 for Vogtle Unit 2, each dated

liebruary 20,1990. The responses by GIC and specific individuals indicated that precautions were taken when the valves were opened in 1988 to ensure that the valves would remain open for no more than 5 minutes. While the NRC Staff is unable to conclude that these undocumented controls were in place, the NRC Staff does find that the actual amount of time the valves were open was of insufficient duration to create a criticality event. Therefore, the NRC Staff concludes that, althourn the TSs in ef fect at the time were violated, the actual opening of the valves in 198N did not endanger the health and safety of the public.

Thus, to the extent that Petitioners allege that a walation associated with the operation of these dilution valves occurred, the allegation is substantiated and the NRC has taken appropriate enforcement action. Ilowever, the evidence does not substantiate that this action was willful. Rather, as indicated by the responses of the Operations Manager, the Operations Superintendent, the Shift Supervisor, and Opc to the NRC's Demands for Information and during the

   #'It oas offs piminom that etw Aetma Statenwns in the is stating that str valve should tv closed smnediately                                                                                                  .

if round cgwa encant that stw valve could be stened fut about 5 nrunutes Git bawd stus poimun upon earlet correspondence between NRC and the nudear indunny which had espkwed potennal definitwns fot *minediaie" neuona 161 r m .., , . .-, - -_ .s... ..

1 l Enforcernent Conference, the action resulted from an inconect interpretation of the "lS tequirement by the Operationi Manager in 1988. Ewmple (2k l' allure te Secure Dilutivro Yahr.: as Required by 75s (Petition iIll3b) On libruary 26.1990, the NRC Stalf found that the dilution valves, identified , in lisample I above, were required to be locked closed, but were not locked while at inid hop, in vioktion of 15s. 'the Petitioners assert that this is another esample of a willful violation of TSs by Vogtle senior managernent. On libruary 26,1990, w hile Unit I was in Mode 5 with reactor coolant loops not filled (mid loop), the NRC Staff found that discharre valve 1 1208.U4176 ' of the refueling makeup water storage tank was closed but was not Secured in position as required by Action Staternent (c) of TS 3.4.1.4.2. Instead of installing a inechat, ism to mechanically secure this valve, the Licensee placed a ;

                                                                                       " hold tag"H on the valve, w hich provided only administrative control to preclude valve operation. When the NRC Staff described this condition to the Licenser.

Vogtle pen.onnel contended that the adininistrative ccitrols were acceptable to fulfill the acquirements of the TS that the valve be secured in position. GlC later agreed that this method was an unacc:ptable interpretation of the TS and took action to install a mechanical locking device. On April 26,1990, the NRC Stalf issued Notice of Violation,50-424,425/90 05 01,

Failure to Mechanically Secure Wlve 1 120H U4176 During Mode 5 as Required by TS 3.4,l.4.2.C."

During a subsequent NRC inspection (Inspection Report 50-424,425/91 14), the NRC Staff reviewed the 1icensee's associated actions in connecti<m with this issue and closed this violation. 'the inspectors reviewed the locked. valve procedure 10019-C, which had been revised to climinate using a hold tag on valves that are required by TSs to be secured in position. To secure the valve, the Licensee routed a steel cable through drilled holes in the valve handle and mechanically secured the cable to prevent persennd from operating the valve, OpC conducted a comprehensive review of all teinaining valves required by TSs to be secured to ensure that each had a kicking mechanism in place. 01C committed to providing an appropriate locking mechanism for any valve secured by a hold tag and required to be secured by TSs. Ilowever, GpC found no other valves in that category. -

                                                                                                          'the NRC Staff concludes that, although a violation was issued, it resulted from the Licensee's enoncous belief that use of a hold tag was an acceptable II A %ld tag" is a hh by S-inth red tag thalis artshrJ to a p6ese of equipnew to in,bcais shas 6 is not to te opermed 1he amem or the %ld tag"is isntwaned by % gile's Adrenatrauvr Pimedure NC. *tquipment Clearance and Tagging Procedure," wlwh states ihat "A hWJ tag, m hen atta twd to a gwe or equirnent. prdutma tte spesanon or that equipawm in all circumnarwes

162

means of satisfying the TS requirement that the vahe be secured No evidence was found of a willful violation of TSs by Vogtle senior inanagernent or other personnel. Therefore, the allegation was not substantiated. Esample f3): Aliscalculation of Shutdown Alargin (Petition iIll.6e) The Petitioners allege that in January 19h9, two shifts of licensed operators miscalculated, because of procedural crtors, the shutdown margin for Vogtle Unit I, which was shut down at the time, and consequently that the RCS boron concentration became " dangerously low" and that the Licentcc did not write a de: i ency report, conduct a critique, review its actions for conformance to TSn, or submit a report to the NRC, Vogtle TS 3.1.1.2 requires that a kpecified minimum shutdown margin be maintained when the reactor is in Mode 3 (llot Standby),4 (flot Shutdown), or $ (Cold Shutdown). ne required minimum value is specified by graphs of shutdown margin at a function of RCS teron concentration. ne minimum i shutdown margin specified in TS 3.1.1.2 is sufficient to emure, as a most restrictive condition, that if a boron dilution accident were to occur during the beginning of core life, the operator would have at least 15 minutes to take corrective action after the initiation of an alarm caused by source range high flus to amid total loss of shutdown margin. An operator reaction time of at least 15 minutes is consistent with the associated accident analyses of the boron dilution event in the Final Safety Analysis Report (FSAR). He corresponding surveillance requirement in TS 4.1.1.2 requires that the shutdown margin be determined to be greater than or equal to the required value at least once every 24 hours by considering several factors, including RCS boron concentration, RCS average temperature, and renon concentration. At 5:35 p.m. on January 19.1989, control room operators at Vogtle manually tripped the Unit I turbine and reactor to enter a planned outage to repair a leaking mcket weld for the drain line in the loop seal downstream of the pressuriier safety relief valve. After the unit was shut down, an extra shift supervisor on shift completed Procedure 140051, " Shutdown Margin Calculation," which must be completed every 24 hours when the plant is in Mode 3,4 or 5. lic siFned the procedure at 7:13 p.m. on January 19, 1989, llowever, the extra shift supervisor incorrectly completed Data Sheet 2, which applies to conditions where the average RCS temperature is equal to or greater than 557 degrees Fahrenheit (*F). This action was incorrect because he should have completed Data Sheet 4, which applies to conditions related to entering Cold Shutdown (Mode $) He shutdown margin calculation that was completed by the shift supervisor was based upon the wrong data sheet, and resulicd in a calculated 163

shutdown margiri of 6.69- reactivity (i.e., delta M)n and a required shutdown margin of 2.58% delta M. These results indicated to the operators that no boron addition to the RCS was required in order to enter Cold Shutdown. On January 20,19N9, at approximately 9;00 a m , a reactor engineer ques. tioned the apparently low RCS horon concentration of 1333 parts per million (ppm). !!is concern prornpted the f icensee to stop the unit cooldown until the shutdown margin calculation was verified. At 10:22 a.m., the reactor engineer completed a shutdown margin calculation that assumed an RCS temperature of 68'F and 01 reacthity for xenon worth. Ilis calculation, which did not take into account. xenon worth, showed that 1800-ppm boron concentration was nee-essary to obtain a shutdown margin of 4.0l$9 delta M compared to a required shutdown margin of 3.479 delta M. This calculation failed to include credit for xenon worth, which would have added upproximately 3.8% detta M to the shutdown margin and provided more than an adequate margin above TS require-ments without further boration. Since no TS limit was exceeded, GPC was not required to submit, and did not submit, a written report to the NRC. On January 20,1989, at 1:38 p.m., the on shift operations supervisor recalculated the Shutdown margin that had been inconectly calculated at 7:13 p.m. on January 19,1989 the new calculation relied upon plant data in effect on January 19 and was based upon Data Sheet 4. *!he new calculation determined that the shutdown margin was 4.185% delta M while the required shutdown margin was 1.929 delta M. 1hc NRC Resident inspector 4 reviewed Procedure 14005 1, Data Sheets 2 and 4, the calculations concerning the data sheets dated January 19 and 20, 1989, and control rom bps for that period. The NRC Staff discussed the inspection findings so ingtion Report 50-424, 425/91 20, dated September 12,1991. The NRC Sinff found that the shutdown margin calculation perfonned at 7:13 p.m. on January 19,1989, was incorrect in that the wrong Data Sheet of Procedure 14005 1 was used. Ilowever, the inspector found no evidence that the TS limits on shutdown margin were ever exceeded or that an inadvertent criticahiy could have occurred because the wrong data sheet was used. The confusing instructions on Data Sheet 2 of Procedure 14005 1 contributed to this error. On March 26,1989, the 1 icensee revised this procedure to simplify, consolidate, and clarify the data sheets. The NRC Staff also confirmed that OpC failed to write a Deficiency Card for this event which would have prompted the 1.icensee to perform a followup seview of the error. The inspectors reviewed U keectmt) 6s dehned as die haetumal change in trutne perulaine from orw trutton generaims to the sutwquent generaima Stractmty is espressed snailenmiscally as e(K nwiin tFKeHa. . or as deha UA, where K,n 6s dw ciuhipheatmn factor in a pueiras system empressmg de shat.; en the hswm frutram population per generatum. 164 7 - 7- ~ , n-.- . ,,

GPC's Deficiency Card program and found it to be adequate. *lhey could find no other instances of a failure to write a Deficiency Card, hus, the NRC l<csident inspectorri deterrnined that violations occurred. %c estra shift supervisor failed to follow procedures in selecting the data sheet. AddiWaally, a shift supervisor made an error and failed to write a Deficiency Card. Ilawd on its review of Inspection Report 50424,425/9120, the NRC Staff has determined that these violations meet the criteria contained in sections V.A and V.G.I of the then in effect General Statement of Policy al.d Procedure for NRC Enforcement Actions (10 C.F.R.' Part 2. Appendix C) for violations for which a Notice of Violation need not be issued. Section V.A allowed the NRC to exercise discretion in issuing a Notice of Violation for isolated Severity Level V violations, regardless of who identified them, provided the Licensee had initiated appropriate corrective actions before the end of the inspection. Undet socilon V.G.I. the NRC need not issue a Hotice of Violation if the violation was identified by the Licensee, is normally classified at a Severity Level IV or V, was reported if required, was or will be conected (including measures to prevent recurrence) within a reasonable time, was not a willful violation, and was not a v!olation that could reasonably be expected to have been prevented by the Licensee's corrective action for a previous violation. his practice of not requiring the issuance of a Notice of Violation when a violation meets the aforementioned criteria was adopted by the NRC as a means of encouraging licensees to identify and concet violations and to avoid expenditure of limited resources for both the NRC and the licensee - resources that could be better used in improving safety. In summary, the Licensee identified and conected the shutdown margin calculation error, which did not result in the violation of a TS limit and did not require a written report to the NRC. Moreover, the conected calculations of the shutdown margin do not support the allegation that the error resulted in " dangerously low" boron concentrations in the RCS or teat it endangered the health and safety of the public. %e NRC inspectors detenn'ned that, even though a Deficiency Card was not written, the Licensee's followup review of the error was prompt and had been completed before the end of the inspection. Dample f4): "Taling" LERs (Petition iIll.6d)

   %c Petitioners claim that GPC employees were told, on March 22,1990, to keep planned shutdowns on schedule by "taking" LERs." he ittitioners U 1mbag" ti Rs 6nehes that pmonnel insennonally do not pertwm acimas requued tiy a TS e tie spensed tine reymred tiy de i s actma M a Wer unw, they sutincquently adnowledge this actma was not perfwned and t Crossnweth 165

also contend that prenure to remain on schedule would necessarily result in an intentional violation of TS and "taking" 1.ER$ in order to remain on schedule. This issue was resiewed as part of Ol's investigation of an alleged intentional TS violation with regard to a mode change with an inoperable neutron source range ruonitor Dec I!sampic 6 heremafter). Ol's review and findings in this area are documented in 01 Report 26012. *Ihc 01 investigation did not substantiate the alleged "taking" of LEHs. The personnel interviewed stated that they had never been instructed to do "whatever it tales" to stay on schedule. On the basis of this investigation, the NRC Staff was unable io conclude that Vogtle personnel either had a deliberate practice of, or were instructed to, "take" LERs to stay on schedule. Similarly, statements inade by the Petitioners that SONOPCO's philosophy would necessarily result in manages. intentionally violating TS and "taking" LliRs to remain on schedule were not substantiated by the NRC Staff", review.1herefore, the allegation was not substantiated. Esample U): Surveillance Testing of Containment Isolation Valres (Petition I!!!.6.c.i) 1he Petitioners claim that the Licensee knowingly concealed a viol, tion which, if uncovered, would have resulted in a safety related shutdown of Vogile Unit 1. The violation allegedly concerned the failure to properly test approximately thiny.nine containment isolation valves in violation of TS surveulance requirement 4.6.l.l.a. In Rbruary 1990, after operations personnel performed a monthly TS surveil-lance on containment isolation valves and turned in their paperwork, the Shift Superviwr recognised an error in that only two of thirty rine valves had been checked. The Shift Supervisor directed that all necessary surveillances be per-formed imraediately 1hc Shift Supervisor then esamined presious records and found that the same error had also been made the previous month, and therefore, that another violation of TS 4.6.l.l.a had occurred. The Shift Supervisor then informed the Work Planning Group of the error and this group prepared and delivered a Deficiency Card to the control room. Since the missed surveillances had already been completed by this time, no action was initiated under the TS's if0 (Shutdown within I hour).1he Petitioners state that the Deliciency Card should have been initiated earlier by the individual discovering the deficiency and that the event was mishandled to coe. cal the discovery time and to avid the shutdown requirement of the LCO. den utne e report (t.1 rho de NRC as speuhed sa sectma .40 71 ha, dus %bng" Lt Ra would allegedly be done te order to forgo perfomsg dw actmey required by a 15 at a tmr dust sculd sauw a n.tedule delay 166 l l l l l

GPC reported this issue in a timely LER 50-425/90-01, dated March 27,1990.

 ' NRC resident inspectors reviewed the LER, as documented in !nspection Report 50-424, 425/90-10, and found that the task sheet contained in the procedure for performing this surveillance was iradequate. The format of the task sheet resulted in cognitive personnel errors because the task sheet was unclear as to the number of salves required to be tested. De NRC Staff categorized this c<ent as a noncited violation because the criteria for exercising discretion specified in section V.G.! of the then-in-effect Enforcement Policy (10 C.F.R. Part 2, Appendix C) were met (NCV 50-425/90-10-01).

An 01 insestigation did not substantiate that this violation was willful. 01 concluded in O! Report 2-90-012, that the missed surveillance had been reported in an LER and resulted from an inadequate Surveillance Task Sheet that hal listed equipment identification numbers of only two valves for the monthly containment integrity check. 01 noted that the NRC resident inspectors had reviewed the LER and documented the event without issuing a Notice of P Violation. 01 also noted that the circumstances of this event were reviewed during the NRC's special team inspection at Vogtle in August 1990, which found that the Shift Supervisor did not conceal the true discovery time of

   'he missed surveith nee in order to avoid a unit shutdown arol thet the Shift Supervisor's actions to initiate an investigation into the adequacy of the previous month's surveillance and to concurrently perform the missed surveillances were g   appropriate. Since the surveillance test is of short de ction, it was completed before the determination was made that the previous te:.t had not been completed correctly. Since the surveillance test had already been repeated once the inadequacy of the previous test became known, a shutdown of the unit at that point was not required.

On the basis of the NRC Staff's inspections and the 01 investigation, the Petitioners' claim that the Licensee knowingly concealed a technical violation was not substantiated. Etwnple (6): Changing Afedes with Required Equipment inoperable (h:tition ill!.6.c.ii) De Petitioners claim that the Licensee knowingly concealed another violation on March 1,1990, when a change from Mode 5 to Mode 6 occurred even though required equipment was not op: rable. Petitioners assert that the failute to comply with th. TS translated into a 12 hour schedule enhancement at a critical juncture and was a willful violation. The NRC retident inspectors, an NRC special inspection team, and 01 investigators reviewed this issue. Results of these efforts are documented in NRC Inspection Report 50-424/90-10 dated June 14,1990, and O! Report 2 012. GPC also documented this event in LER 424/90-004 dated May i1,1990. 167

                                                                                  ,    . . _o

his LER described the 1icensee-identified violation of TS 3.0.4 on March 1, 1990, when Unit i entead Mode 6 from Mode $ with an LCO in effect for a neutron source range channel. ne LER attributed he mot cause to cognitive personnel error by the Shift Superintendent who failed to review the back v < f the relevant LCO Status Sheet that noted the mode chance was prohibit t 4 the source range monitor was inoperable. Moreover, the Shift Superini s a ' had not otherwise recognized the prohibition before authotizing the mode entry. De NRC Staff interviewed various personnel involved in the review of plant onditions and involved with documentation necessary to change modes. He interviews indicated that the Shif t Superintendent and the Unit Shift Supervisor were aware of an active LCO at the time of the mode change, but neither had connected the LCO to a mode restriction. Both of these individuals indicated - that there had been no unreasonable emphasis on the critical path schedule. both denied that they had ever been givu any ii.dication or instruction to do whatever it takes to stay on schedule. They also indicated that they did not feel undue pressure to stay on schedule or any pree.ure to compromise plant safety even though the mode change resulted in a reouction of the critical path wtage time. He NRC Staff expressed concern that the format of the LCO status sheet contributed to the problem. Because the status sheet is a two-sided form with the remarks section on the back of the form, a cursory review of the sheet could result in any remarks entered on the back of the form being overlooked. On the basis of the NRC resident inspectors' review, the NRC determined that a violation occurred as discussed in Inspection Report 50-424/90-10. This violation vas categorized aa a noncited siolation because the criteria for exercising discretion specificJ i 'section V.G.! of the then-effective Enforcement Policy (10 C.F.R. Part 2, Appendix C) were met (NCV 50-424/90-10-03). On the basis of evidence developed during the NRL inspections awl O! investigation, the allegation of an intentional violation was not substantiana Example (7): Failure to Declare RiiR Pump inoperable and Enter LCO (Petition 5 Ill.6.e.iii) The Petitioners allege that GPC knowingly concealed a TS violation when the "B" residual heat removal (RHR) pump was not declared inoperable after cracking of the nuclear service cooling water (NSCW) line. Specifically, the & Petnionets allege that, during the second refueling outage at Unit 1 (IR2), Yg with RHR trant "A" out of service foi maintenance, the RHR train "B" pump experienced excessive vibration and the NSCW motor coolei experienced a leak at its outlet. TS 3.9.8.1, "RHR and Coolant Circulation," was allegedly 168

viotated because the Operations Department chose not to declare RHR pump "lH" inoperable in an effort to mitigate the effect on the critical work path. The NRC Staff addressed this item in the Special Team inspection docu-mented in Supplement I to NRC Inspection R, port 50 424, 425/90-19. dated Nove Oct I,1991. In section 2.2 of the Inspectic i Report. the NRC Staff concluded tl. . ..~ Vogtle Operations Department had an adequate engineering basis for accepting operability of the RiiR pump even with the pump's high vibretion and the NSCW leak. He inspection team also concluded that declaring the pump inoperable would not have affected the critical work path. The LCO actions would not have been restricted because the containment, except for ventilation, had been isolated as required by TS 3.9.4. The LCO actions would not have prevented the Licensee from continuing refueling activities in that the actions to close all containment-penetrations providing direct access from the containment atmosphere to the outside atmosphere would have required only closing the containment ventilation purge valve, which has an automatic closure signal. Thus, there is no evidence that schedule considerations motisated the Licensee in this matter. On the basis of evidence developed during NRC inspections, the allegation that GPC knowingly concealed a TS violation when the "U RHR" was not declared inoperable was not substantiated.

3. Alleged Concealment of Safeguards Problems Tne Petitioners allege (see Petition ilIll.7a and UI.7b) tiat GPC peron-nel, including a Vice President and General Manager, and a Southern Company Services Manager, knowingly and repeatedly hid safeguards problems from the NRC and villfully refused to comply with mandatory reporting requirements.

The Petitioners further allege that the GPC Vice President made false statements to the NRC durin < an Enforcement Conference about the status of safeguards materials in Birmingham, Alabama. and that the alleged false statements proba. bly influenced a subsequent civil penalty action taken by the NRC. The Petition-ers claim that the false and misicading information presented at the Enforcement Conference and other information withheld from the NRC were highly signili-cant. The Petitioners assert that,if the NRC had the bendit of complete, factual information, the NRC would likely have increased the Notice of Violation and Proposed Imposition of Civil Penalty in the amount of $50,000 Nued to the Licensee on June 27,1990, into the hundreds of thousands of dollars. 169

he Petitioners also allege that on July 23,1990, plant and SONOPCO senior management prevented the Site Security Manager from making a od Phone" notification within I hour as required by section 73.71, ne Petitioners alleFe that the manager was prevented from making the call in orde. to delay or defuse the NRC's knowledge of programmatic problems on the part of the Licensee regardinF the handling of safeguards documents. 01 investigated the allegation that (1) GlC knowinyly and repeatedly hid safe-guards problems from the NRC and willfully refused to comply with mandatory reporting requirements, and (2) the GPC Vice President made false statements to the NRC in an Enforcement Conference concerning the states of safeguards material in Binningham, Alabama. De results of these investigations are doc. umented in 01 Report 2-91-003. De 01 investigations did not substantiate that GIC withheld pertinent information from the NRC at the time of the En-forcement Conference on May 22.1990, or that GPC management impeded the reporting of safeguards events. On the baus of the 01 investigations, the NRC Staff concluded that the Notice of Violation and Proposed imposition of Civil Penalty of $50,000 were appropriate. 01 also investigated the allegation that on July 23,1990, plant and SONOPCO senior management prevented the Site Security Manager from makinF a Red Phone notification within I hour as required by section 73.71. The results of this investigation are also documented in 01 Report 2 91403. Specifically, the concern was that the Site Security Manager was allegedly preventcd from making a Red Phone notification fs - two events. The first event was that a safeguards container had been found open and uncontrolled for half an hour in Birmingham, Alabama, in November 1989. The second event involved fourteen safeguards documents that had been found uncontrolled in the SONOPCO offices on June 15,1990. The first event constituted a violation of the reporting requirements of section 73.71, in 1989, when the uncontrolled container was discovered and not reported to the NRC within I hour. In 1990, as part of .ts corrective actions in response to an NRC enforcement action, GPC identified the fact that a requited report for this event might not have been made in 1989. GPC's corrective actions in response to the NRC enforcement action also identtlied the second event. GPC's consideration of the reporting requirements for the first event was subsequently combined with a similar consideration of the need to report the second event. The second event also was not reported within I hour as required by section 73.71. Af ter reviewing Ol's investigation results, the NRC Staff concluded that the failure to make a timely report on the second event and the delay in informing N A Red l' hone refers to a Lacensee's I:mergency Nouficanon sptem and is used for immediate telephone nenhcanons to the NRC's operauons Center in accordance with 10 C F R.18 50.72 and 73 71. 170

the NRC Staff of the discovery of the failure to tqort the first event were due to the GPC"s cumbersome system for evaluating corporate security fmdings through the site security organization, rather than any willful attempt to impede the reporting process. The NRC Staff decHed to take no additional enforcement ac ion for these two issues. De decision to refrain from issuing a Notice of Violation for the delay in reporting the first event was based upon section V.G.5 of the then-in. effect Enforcement Policy (10 C.F.R. Part 2, Appendix C). His provision of the policy allowed the NRC Staff to forego a Notice of Violation when a violation is discavered as the result of corrective action for a previous enforcement action. The NRC Staff considered the violation for the delay in reporting the second event to be an additional example of a violation that the Licensee had identified previously and for which it was, at the time, taking corrective actions. Therefore, as provided by the aforementioned section V.G.5, the NRC Staff issued na Notice of Violation. Based on the O! investigation and NRC Staff review, the allegation was not substantiated.

4. Alleged Operation of Radioactive Waste Systems and intimidation of Plant Review Board Members The Petitioners assert (see i etition i111.8) that GPC cndangered the public's health and safety by operating radioactise waste systems and facilities known to Ie in gross violation of NRC requirements. De Petitioners also state that !

Vogtle's General Manager, hir. George Dockhold, intimidated members of th F. ant Review Iloard (PRB) when they attempted to consider if the use of the waste system should oc resumed. The NRC's Special Inspection Team reviewed this item and discussed its findings in Supplement I to inspection Report 50-424, 425/90-19, dated November 1,1991. The alleged improper installation and operation of the radioactive waste system is discussed in section 2.1 of the Inspection Report and the alleged intimidation of PRB members is discussed in section 2.7 of the inspection Report. He Petitioners allege that GPC installed and operated a radioactive waste microfiltration system w' hout performing an adequate engineering and safety evaluation in accordance with 10 C.F.R. 9 50.59.2s This specific system is known as the FAVA system because it is supplied by FAVA Control Systems (FAVA). 25 Tide 10 of the Ccde of federal Regularwa,. secuon 50 59. allows beenwes to nake changes in the raethry and procedures, or conduct tests or expenrnents as desenbed in the safety analysis report. without pnor Comnussion approval. unless the proposed changes involve a change in the Techmcal SpeaAcanons or an unreviewed safety question 171

De Petitioners further alleged that the material configuration, fabrication, and quality of the system did not meet the Fuidance of Regulatary Guide (RG) 1.143,

         " Control of Stainless Steel Weld Cladding of 1.ow Alloy Steel Components,"

and the requirements of the American Society of Mechanical Engineers (ASME) Code, in late 1987. GPC temporardy installed and operated a :ystem at Vogtle for removing niobium 95. GPC planned to replace this temporary modification with a permanent system in the future, in libruary 1988, GPC experienced difficulty m removing colloidal niobium-95 with the temporary system following a reactor shutdown for maintenance work. GPC contracted FAVA to help rectify this problem. The Licensee corrected the situation by installing a 0.35-micron filte, system downstream of the existing prefilters. Ilowever, a large volume of radioactive waste was generated because the 0.35-micron filters rapidly exhibited high differential pressure and had to be changed frequently. The need to change filters frequently [ also resulted in Radwaste Department personnel receiving additional radiation exposure. Upon evaluating the performance of the 015-micron filter system, the Radwaste Department determined that the best approach to th: problem was to install a backflush, precoat filter system. Ilowever, no operatienal data were available for a system of this type in this specific application. FAVA supplied l- a proprietary Ultra Filtration System (Model No. 5FD/E) for testing to evaluate l whether this was a practical and effective solution to the problem. GPC installed the temporary FAVA system before the Unit I refueling outage and operated it under Test hocedure T-OPER 8801. The test system kept liquid effluent t releases well below the TS limits. The Radwaste, Chemistry, and Engineering ! Depart?nents evaluated the test results, and GPC issued a general work orden to purchase a permanent system. In the early part of 1989, the Quality Assurance (QA) Department performed an audit and identified a significant finding involving a programmatic breakdown in the procurement of the temporary FAVA system and a failure to meet commitments of the FSAR. That finding prompted the Licensee to remove the temporary FAVA system from service. In late 1989, the Licensee sought to reinstall the FAVA system under a temporary modification because colloidal cobalt 59 and cobalt 60 had to be removed. The PRB reviewed this temporary modification and several members expressed strong objections to it based on the previous QA audit finding. Rese objections prompted the Licensee to submit a Request for Engineering Assistance (REA) and perform a safety evaluation in accordance with section 50.59 in November 1989. The Licensee's engineering staff subsequently reviewed the November 1989 safety evaluation and found it to be adequate, except that it did not properly address the guidance of RG 1.143 regarding 172

the use of polyvinyl chloride (PVC) piping. GIC performed another safety evaluation in Itbruary 1990 to address this issue and the vulnerability of the

   - PVC pipes to radiation deFradation. In the libruary 1990 aafety esaluation, the Licensee specifically stated that the FAVA system did not conform to the
   - criteria of RG 1.143. Ilowever, this deviation was found to be technically acceptable for several reasons: (1) He design of the FAVA system had been previously evaluated and found to be adequate in the REA response of November 1989, except for the PVC pipes; (2) the location of the FAVA system was inside a shielded watertight vault, which provided adequate assurance that any system failures would be contained and would not create the potential for offsite releases; and (3) the presence of PVC pipe in the FAVA system, although contrary to RG l.143, was acceptable based on subsequent design reviews                 ;

because the radiation exposure of the plastic was found to be withir ceptable

   . limits.

Although the testimony of one of the PRB members indicateu that the temperature effects on the use of PVC in the FAVA system were not adequately evaluated before the system was installed, the testimony of the corporate system engineer indicated that GPC had considerv ,is before installing the system, ahhough it was not specifically documents the safety evaluation. , Vogtle management subsequently cons I the NRC resident inspector to l - seek an NRC position on plac ng the FA,a system back in service. He j inspector was also provided add ional information by other Vogtle management ' acrsonnel documenting reasons why it should not be placed in service. The ulcensee forwarded this package to Region 11 and NRR for review, in March 1990, following Region 11 and NRR concurrence during a telephone conference, the Licensee placed the FAVA system in service with the following NRC stipulations:

          - (1) hat procedures for operating the FAVA system require that an operator be present any time the system is in operation; (2) That all hoses to and from the FAVA system be verified to conform to RG 1.143; (3) nat the cover over the FAVA system be securely fastened when the system is in operation to ensure that if a spraying leak developed,it would be contained in the concrete vault; and .

(4) Dat the design of the walls of the auxiliary radwaste building be evaluated to determine if a design change was needed to reduce the possibility of wall leakage if a hose develops a leak and sprays its contents on the walls. He Licensee complied with these stipulations upon returning the system to ' operation. He review by the NRC indicated that the FAVA system was originally installed and operated by the Licensee without an adequate safety evaluation 173 I { J

and did not meet the Fuidance in RG 1.143 in that PVC piping was used in this system. Ilowever, this deliciency was oflimited duration and the Licensee, upon performing subsequent safety evaluations that were forwarded to and a cepted by the NRC Staff, concluded that the system was acceptable for use. He NRC's extensive review developed no facts to support a concl.nion that the Licensee willfully violated NRC requirements or willfully operated the facili'y in a manner to endanger the public health or safety. The Petitioners also contend that Vogtle's General Manager intimiAted and pressured PRD members during a PRB meeting. The rnecting occurred in Rbruary 1970 and was for the purpose of determining the seceptability of the safety analysis for installing the FAVA microfiltration system. As previously discussed 'he Licensee performed several safety evaluations i,. tl.c temporary mc ... non to install the FAVA microfiltration system. De NRC Special Inspection Team found, through its discussions with PRB members, that, while reviewing these safety evaluations, various PRD members had expressed reservations on several occasions concerning the acceptability of the FAVA system. Although various PRB members may have expressed reservations, the in-spection team, in revie wing the PRB meeting minutes regarding this temporary modification, identified few instances of the PRB members documentiag their dissentinF opinions. Specifically, the trinutes of PRB meeting 90-15, on Febru. ary 8,1990, documented one PRB member's negative vote and dissenting opin-ions regarding the acceptability of exempting the temporary modification from regulatory requirements and the adequacy of the system's safety evaluation. The only other example of a dissenting opinion was in the minutes for PRii Meet;ng 90-32, on March 6,1990. This dissenting opinion related to the accentability of voting on the FAVA system installation when the PRB member s ho raised the initial questions and concerns on the operation of the FAVA syste n was not ' present. During discussions with NRC inspectors, PRB members indicated that, during the various PRB meetings concerning installing the FAVA system, they felt intimidated and pressured by the presence of the General Manager at the PRB meeting. On one occasion, an alternate voting member felt intimidated and feared retribution or retaliation because the General Manager was present at the meeting and the PRB member knew the General Manager wanted to have the temporary modification approved. However, the PRB member stated that he did not alter his vote and felt comfortable with how he had voted. This PRB member also stated that he was not aware of any occasions where he or any other PRB member succumbed to intimidatioa or any other occasions where he or they feared retribution. 9 De PRB members informed the General Manager following the meeting (PRB 9015) that several of them viewed his presence as intimidating. On March 174 i __ . 1

i 1,1990, the General hianaget addressed this. concern by meeting with all PRB members to reiterate each member's duties and responsibilities. He specifically told the members that his presence at PRB meetings must not influence them and that alternates should be selected who would feel comfortable with this responsibility, lie aise addressed the difference between professi nal 6fferences of opinion and safety or quality concerns, and methods for resolving each. Thus, the NRC Staff has found that, in one case, a PRD voting member felt intimidated and feared retribution because the General hianager was present at the PRB meeting. However, this member stated that he did not change his vote in response to the General hianager'r presence.2' He stated that the General blanager was informed of this issue and met with the PRB to allay fears. , The information obtained by the NRC Staff indicated that retribution did not occur against any PRB member for revealing a concern about intimidation. The l inspection found that the instance involving a member fearing retribution was confirmed, and the absence of dissenting opinions in the PRB meeting minutes called into question the openn ss of discussions at PRD meetings. Further discussions with PRB members, however, indicated that the lack of dissenting opinions was due to items being discussed and reviewed until all members were comfortable with PRD decisions. NRC resident irispectors at Vogtle frequently attend PRB meetings and have found that the subjects are candidly discussed and the issues resolved without apparent intimidation. In summary, the allegation that GPC endangered the public health s.nd safety by operating the FAVA system in gross violation of NRC requirements was not substantiated The allegation that a PRD member felt iritimidated by the General hianager during the meeting on the FAVA system was substantiated, but the reaction did not affect the PRB member's decision regarding safety? 2*Dunng the beense amendnwnts lwanng on the DG inue the Board he*ard endence on ttw FAVA iuue in the procee&ng to driernune whether or not inimudanon of PRB nwmbers occurred The PRB nwneer who feh anunudated was not called as a witness and provtJed no tesnmony The interyww notes of Mr Bdl1-yon of the Quahty Concerns Program for the Vogtle facihty on february 3,19u0. conhrm that at the erne of the PRB's voie on FAYA the PRR tuernber fek undue prenure to mee early, and probably would have voted *no" had Mr Beckhold ant been present because he thought that FAYA &J not nwet Regulatory Guide c*itena, but that, given his PRB role as a health and safety retwwer. and conudenng the placenent of impmgement barrers, there was no heakh and safety problena. He a.so stated that he would be wilhng to meet with the Yogile General Manager to &scuss the matter further. tmervenor Exh ti-Ul at F 9 (marked but not received in eudencet The notes of the ifuerview are consisum with the NRC laspecuan Andmg regarang miinadauon. 27 The incident. however,is another esample of how the managemem style of the Vogtle General Manager could resch in disecuraging ineviduals from voicmg concerns. See e g., Secnon tit C of this thrector's Decinon . regar&ng the role of the Vogtle General Manager m the inaccurate and incompicie reporting of DG informanen to the NRC. ' 175 l l

m Ill. - Alleged Illegal Transfer of Lleenses (Petition Allt.1 with Supplement

             ; Dated October I,- 1990; July 8,1991 Supplement ilVt I.icense T Amendment Proceeding on lileFat Transfer issue) ne Petitioners a.llege that GPC improperly tr sferred control of its licen3es to operate the flatch and Vogtle facilities to SONOPLi ihe Peutioners contend -

that Mr. Joseph M. Farley -yho was an officer of GPC's parent company, The Southern Compcnyi- and its subsidiary,1 Southern Company Services '- was really the Chief Executive Officer (C810) of SONOPCO and was, in fact,

responsibic for operating the _GPC n'uclear facilities, beginning with~ the first

    ~o f three phases in the planned transition to" Southern Nuclear. Petitioners -
   = contend that Mr. Mcdonald, GPC Executive Vice President-Nuclear Operations, Lreceived management direction from Mr. Parley regarding Vogtle facility matters
   ? ar d that_ numerous oral and written statements regarding the organization were
 - intentionally false to conceal Mr. Farley't. role from the NdC.                       .      _
       ' he Petitioners contend that during Phase I of the transition to Southerri Nu-clear, GPC, in effect, transferred control of its NRC licenses to the SONOPCO
 . Project, ucy base their claim, in part, on Mr. Mosbaugh having witnessed the daily operation of GPC's nuclear facilities at the site and Mr; Hobby at GPC's -                    '

corporate offices. He Petitionets alleged that (Petition at 6): The actual chain of command fwas Vortlel General Plat Manager George Bockhold to SONOPCO Vice President McCoy; McCoy to SONOPCO's Senor Vice President. George Itairston: Hairuon 10 SONOPCO's fixecume Vice President and Chief Operations Otheer,- R. Pamsk Mcdonald hkDonalJ to SONOPCO's Chief laecutive Otheer, Mr. Farley. . In a scpplementary filing of October I, l990, the Petitioners further contended : that M tiey," chose ,he GPC Corporate' Officers which would be staffing the - SONC J Project esen though he is not an officer or employee of GPC," In the July E,1991 Supplement (at 20), the Petitioners asserted that Mr. Mcdonald-reported' to Mr. Farley on administrative matters .since the formation of the SONOPCO Project. He focus of the license amendment proceeding on'the illegal transfer issue was whether GPC, either through omissions or misrepresentations, misled the . NRC about who was in control of the Vogtle facility, particularly in the context - of the extensive communications with the NRC. LBP-94 37,37 NRC at 291. A revicw of the history and background of the formation of Southern Nuclear - 1 Twill assist in understanding thi.; issue. j l

 - 1.

Background:

Formation of Southern Ned r i i ne Southern Company is the parent firm of five electric utilities: Alabama - Power Company (APC), GPC, Gulf Power, Mississippi Power, and Savannah-

                                                .e 176

Electrie. Two of these utilities are associated with nuclear faciliti:s at threr ddierent sites. GlC is the principal owner and the holder of iieenses from th: NRC to operate the Vogtle nucl:ar facility near Augusta, Georgia, anc the flatcl nuclear facility near Baxley, Georgia. Alt owns the Parley nuclear fadity near Doth.ui, Al,hama. The Southern Company all inclida Southem C'Inpany Services, Inc., a v/ holly owned service organuation. In 1988, The Southern Company established the SONOPCO Project for the long-term purpose of establishing an operating company to eventually o) crate the nuclear power pe:ierating plants that were then operated by GPC and AiU The establishment of a single operating company was to be accomplished in three phases. During Phase I, SONOPCO - which had not yet received the approval of the Securities and Exchange Commission (SEC) - was formed by The Southern Company as a " project" to provide support services to the operating companies (GIC and AIC). In Phase 11, which is now in effect for the Vcgtle and llatch facilities, SONOPCO (now called Souti,crn Nuclear) continues to provide support services to the operating companies, but ha.s become a legal entity, having oMained the approval of the SEC, and thereafter being incorporated by The Southern Company. Phase 111 beFi ns for the Vogtle and llatch facilities (and is currently in eIfect for the Farle) facility) when Southern Nuclear acquire.; NRC licenses to operate the nuclear f acilities. ; llecause of delays associated with reaching agreement with one of the co-E owners, the iransition occurred more slowly than first anticipated, and Phase I of the project lasted for approsimately 2 years (1989 and 1990). Dunng this phase, Mr. Farley was responsible for the dministrative aspects of torir i; the new operating company. On February 24. 1989, Mr. Farley was cle' .ed Executive Vice President-Nuclear of The Southern Company and Executive Vice President of Southern Company Services. Inc. Before these elections, he had been President and Chief Executive Officer (CEO) of APC for almost 20 years. Until Southern Nucicar acquired the NRC licenses, the GPC nuclear facilities were to remain under the direction of GPC President, Mr. A. William Dahlberg, 111, with a reporting chain downward of Executive Vice President-Nuclear Operations (Mr. R.P. Mcdonald), Senior Vice President-Nuclear Operations Jala March 19tt8. OS'C and APC rnet wah NRC to Jacun their plans to toim a sepsare uperaung cornpany. SoNoPCo On July 25, 1988. NRC nwt uth GPC to discuss the corporate orgma.non or sONOPCO and GPC. including the genene ac*ivmes and uuuauves involving the Vogtle and Hatch facil. ties Enclosure ? to the rneeung surnnury prepared by NRC Region 11. August II.1988. a Nuclear operanom-Tranunon organnai on chart shows the Vice Presniem-Nuclear (Hatch), and d,e Vue Preudens-Nuclear (Vogt'es reparung to Mr w 0 Harston, the 5emot Vice Prendem-Nuclear Operanons and Mr. W G. Hairston reporung to Mr. R P. Mcdonald. the Execurre Vice Preudent-Nuclear Operanons on March I,1988. Mr. Mcdonald was elected a semor ofricer of GPC and named Executne Vwe Preudens-Nuclear. effestne Apnl 25. 1988 On May 4,1988, Mr W G. Harsine wts elected Semor Vice Presidens-Nuclear Operanone or GPC and Mr C IL McCoy was elected Vice Preudem-Nuclear of GPC (GPC subrruual Apnl I.1991. Anachmem I. Exh 4).

177

                                                                                                                 --_.I

(Mr. W.G. Itairston, til), and the v'ce i presidents for tne Vogtle and Hatch facihties (Messrs. CK McCoy and T.L Beckham, respectisely). The APC plants were to remain under the direction of the APC President, with a similar chain downward of Mr. Mcdonald, Mr. Hairston, and the vice president for the l'arief*iacility. Mr. Mcdonald and Mr. Ilairston were officers if both APC and D GPC. During Phase I, w hich began on or about November I,1988, technical support was provided to all_ three nuclear facilities by a cornmon Technical Services 1 Group under a Vice President of Southern Company Services, luc., who reported to the Executive Vice President, Mr. Mcdonald. Administrative support to all three facilities was provided by a common Administrative Services Group under another Vice President of Southern Company Services, Inc., w ho also reported to Mr. Mcdonald. Phase I was to be effective until the SEC approved the creation of Southern Nuclear. Mr. Farley was not identified as having any responsibility for operating the GPC nuclear facilities during this phase. He was responsible for poviding administrative services through Southern Company Services, Inc., and was also respcasible for the formation of SONOPCO. Ahhough not in effect j during Phase 1, Mr. Farley had been designated to become the President and CEO of Sourhern Nuclear when it was established. Phase 11 began on Decembei 14,1990, with SEC's approval of The Southern Company's request of June 22, 1988, to form Southern Nuclear, and the election of officers on December 18, 1990; the Southern Nuclear organizati;n was effectively implemented January 1,1991. As part of Phase 11 GPC's 1 Executive Vice President (Mr. Mcdonald) and Senior Vice President-Nuclear Operations (Mr. Hairston) became officers of Southern Nuclear and reported-administratively to the President and CEO of Southern Nuclear, Mr. Farley. The vice presidents of each nuclear facility. also became officers of Southern i i4uclear. The Vice President of Technical Services and the Vice President ! if Administratise Services, respectively, for Southern Company Services, Inc., t -came officers of Southern Nuclear, rather than officers of Southern Company Si tvices, Inc. During this phase, GPC and APC retained their NRC licenses ard ,M responsibility for operating their respective nuclear facilities.

In Phase 111 Southern Nuclear has operating responsibility for the Hatch and Vogtle facilitico in accordance with the provisions of the ORC operating licenses for those facilities.'

   The NRC appnwed IKenw anwndmenes on November 22. 1991, that authomed the transfer of licenws ror the Farley ranlny from APC to southern Nuciear 178 L                                                                                                        J

2. filegal Transfer llearing and Petition issues "Intervenor's Prehearing Statement of issues" (Statement of issuesh dated December 12, 1994, raised twenty-eight issues to support Interrenor's illegal transfer issue for the license amendments proceedinF.'" The issues were submitted la $"~rti f IMervenor's contcntion that the Vogtle o. ning license -

should not be transferred to Southern Nuclear because it lacks the requisite character and integrity. The twenty eight issues repeat and further supplement assertions in the petition reFarding an illegal transfer of control of GPC nuclear facihties. 'Ihese issues are summarized below based upon the more detailed discussion of each issue in the Appendix to this Director's Decision. The gravamen of Intervenor's twenty-eight issues, like the related issues in the pethion, as supplemented, is that the nuclear officers in SONOPCO Project terorted to Mr. Farley, rather than to Mr. Dahlberg, GPC's CEO, and that Mr. IV,rley controlled the Vogtle facility based upon his invohement in (1) contru!!ing daily operations; (2) establishing and implementing nuclear policy decisions; (3) employing, supervising, and dismissing nuclear personnel; and (4) cutrolling costs. Interrenor also asserts that numerous documen'; and statemeias provided to the NRC regarding the organizational structure and responsibilkies for managerial control of the Vogtle facility were inaccurate or incomplete because they do not show Mr. Mcdonald reporting to Mr. Farley or Mr. Farley functioning as the defacro Chief Executive Officer of the SONOPCO Project. Issues 1,3 5,7,10,11,15,16,18, and 20-24 in Intervenof> Statement of Issues assert Mr. Farley's role with daily operations of the Vogtle facility and allege that GPC concealed this role and a defarro organization by providing the NRC inaccurate and incomplete informatior. As discussed in the Appendix to this Director's Decision, Intersenor's assertion that Mr. Farley functioned as the defarro Chief Executive Officer of the SONOPCO Project is not supported by the hearing record. Mr. Mcdonald did not report to Mr. Farley regarding GPC licensed activities. The items cited do not demonstrate that Mr. F.utey crercised control over licensed activities at GPC's auclear facilities during his involvement in the SONOPCO Project. Rather, the record shows that GPC contrciled the daily operations of the Vogtle facility in accordance with a chain of command extending from the Vogtle General Manager, through the Vice President of the Vogtle facility, through the Senior Vice President-Nuclear Operations, through the Executive Vice Fresident-Nuclear Operations, to the President and CEO of GPC, A Nuclear Operations Overview Committee of the GPC Board of Directors I

Although intenenor plentihed 28 issues in tus sratement or issues, two 6ssues were tuh numbered 14A and 148. and insenence presented no evidence or proposed Andings on Issue 25. ,

179 ____J

conducted periodic reviews of the regulatory and operational performance of GlCs nuclear plants. Issues I, 9, !? 17, and 20 of Intervenor's Statement of issues (and page 4 of the October I,1990 Supplement to the Petition) include allegations that hir, Farley controlled tiee Vogtle facility based upon his insolvement with establishing and implenwnung nuclear policy decisions. As dacussed in the Appendix to this Director's Decision, the hearing record shows that nuclear policy decisions for the Vogtle facility were established and implemented by GPC, and there was no evidence that h1r. Parley established the outage philosophy or any other operational policies for the Vogtle facility. h1r Farley's limited involvement in a 1989 rate case matter before the Georgia Public Service Commission (i.e., his review of draft testimony regarding ahernative performance standards) dist not indicate any control of GPC's nuclear operations or licensed activities. Intervenor also provided no information that The Southern E Company hianagement Counci' :ted as the SONOPCO Project board of directors until the Project was incorporated. Issues I,6,8,14A,14B,15,19,21,27, and 28 of Intervenor's Statement of issues (and pages 13 of the October I,1990 Supplement to the Petition), in, clude assertions that Mr. Farley exercised control over nuclear r:rsonnel matters for the Vogtle facil ty because he (1) selected and approved GPC's management staff;(2) reviewed nuclear personnel in 1989 as evidenced by GPC N1ar,agement Council's exclusion of nuclear personnel from its 1989 companywide review of management; (3) decided that h1r. h1ichael Barker, a GPC employee, would not be transferred from the SONOPCO Project to the Nuclem Operations Contract Administration (NOCA) group in Atlanta;(4) prepared mr. AlcDonald's annual performance appraisal; and (5) implemented changes in Vogtle personnel eval-uations and pay. As discussed in the Appendix to this Director's Decision, the record does not show that h1r. Farley controlled GPC nuclear facilities by em. ploying, supervising, and dismissing nuclear personnel, or that GPC provided inaccurate informatmn to the NRC regarding hir. Farley's involvement with per-sonne' matters. Issues I,6,12,14A,148, and 17 of Intervenor's Statement of Issues allege that hir. Farley's control of GPC nuclear facilities is shown through budget and personne! pay matters in that (1) Southern Nuclear, its predecessor, and The Southern Company controlled GPC's nuclear budget since November 1988;(2) hir. Farley implemented changes in personnel evaluations and pa'y for Vogtle nuclear operations perrnnel; and (3) the GPC hianagement Council did not review GPC's 1990 nuclear operating budget. Intenenor asserts that inaccurate and incomplete information was provided to the NRC regarding GPC's control of budget and personnel pay matters. As discussed in the Appendix to this Director's Decision, the hearing record does not support a conclusion that GPC misrepresented its budgets affecting the operation of GPC licensed facilities. 180 y

There is no indication in the hearinF record that the particular process GPC used to develop its budget is dispositive to Intervenor's assertion that Mr. Farley, The Southern Comp ny, or SONOPCO Project controlled the operation of the Vogtle facility. Rather, the record shows that GIC was responsible for the costs of the VoFile facility After review by GPC's Management Council, the operating and capital budgets were appund by GPC's President and CEO, and the capital budget was also approved by the GPC Board of Directors. De record does not support that Messrs. Farley and Edward L. Addison, the President and CEO of

     'he Southem Company, approved GPC's nuclear budgets. As an Executive Vice President of The Southern Company, Mr. Farley was involved in reviewing the nuclear budgets as part of the normal process for preparing annual budgets in the
   - Senthern system. Given ne Southern Company's holding company status, Mr.

Addison's involvement in reviewing and providing guidelines and requirements for adequate earnings and reasonable capital needs was appropriate, and did not constitute control of operations at GPC facilities. Issues I, 2,12,13,18,19, and 26-28 in Intervenos s Statement of issues cor,tain assertions that GPC managers provided inaccurate or incomplete infor-tration to the NRC w hen describing its organization and plans to form Southern i Nuclear, and when responding to the petition. The alleged n6represertations or omissions regard statements about (1) the Vogtle chain of command,(2) Mr. Dahlberg's relationship with Vogile site management, (3) Mr. Farley's respon-sibilities as Executise Vice President-Nuclear of The Southern Company, (4) the 1989 title of Mr. DahlberF, (5) SONOPCO Project's control over the Vog-tie facility since November 1988,(6) the composition er the GPC Management

  - Council, and (7) Mr, Farley's title in 1988. As discussed en the Appendix to this Director's Decision, the record shows that GPC provided some inaccuiate or in-complete information to the NP.C when describing its organization and plans to form Southern Nuclear, and when responding to the petition. This information
  . involved (1) the omission of Mr. Hairston when Mr. Mcdonald described the l    Vogtle chain of command during a March 3r 1989 meeting (which was later corrected by GPC after reviewing the meeting transcript and was already accu-rately depicted in the FSAR); (2) a 1989 FSAR organizational chart showing the position of Mr. Dahlberg as " Chairman and CEO" rather than "Presids and CEO"; and (3) GPC's April 1991 written response to the petition indicating l    that the GPC Management Council included all ser.ior vice presidents (which

{ was inaccurate because Mr. Itairston was not a member), and indicating Mr. Farley's title in 1988 to be Executive Vice President-Nuclear of he Southern Company (a position he did not assume until March 1,1989). While the NRC expects licensees to provide complete and accurate information, the inaccurate or incomplete information at issue here was of minor safety significance in terms of the NRC Staff's understanding of the proposed license transfers, did not mislead the NRC, and was not sufficient to warrant NRC enforcement action 181

A

or conclusions that (1) GPC concealed an unauthorlied role of hir, Farley or a defarra, unauthorized organitation for control of GPC nuclear facilities; or (2) GPC lacks the requisite character and integrity to be a licensee

               .1,                            NRC Staff Testimony th ring flearing on filegal *ltamjer hsue NRC Staff testimony (hereaft,'r," Staff") tegaruing the alleged illegal transfer of control issue was jointly presented by hiessrs. Frederick R, Allenspach, an NRR technical reviewer who reviewed the Administrative Controls section of the Vogtle Technical Specifications in 1987; Darl S. Ilood, the Licensing .

Project hianager for the Vogtle facility: and John F. Rogge, Jr., formerly the Senior Resident inspector at the Vogtle site during the time SONOPCO and air, Farley are alleged to have taken operating control of the Vogtle facility. Rese iridividuals provided evidence based upon their own personal knowledge and based up<m their institutional knowledge derived from their work and their relation to other members of the NRC Staff who perform activities relating to the Vogtle facilitv encompassing the period 1987 to 1995. The former Senior Resident Inspector's observation that GPC officials op-l crated the Vogtle ft.;ilities 'vas particularly significant in thit he and hir, Al-lenspach participated in the December 1988 inspection of the SONOPCO Project. l offices, interviewed GPC management, including hiessrs. hicDonald, Ilairston, and hicCoy concerning the management chain of command through hlr. hicDon-ald, along with the organizational structure and supporting role of the SONOPCO Project. hir. Rogge concluded that GPC was in control of Vogtle operations and that the changes in management personnel and organization beginnmg in 1988

       -did not affect GPC's control over Vogtle. He also concluded that the control and direction of daily operations at the Vogtle facility were performed by the onsite GPC employees under the direction of htr. hicCoy. Staff, ff. Tr 2620, at 4;6. hit, Rogge's conclusions were based on the Vogtle FSAR statements, the Vogtle TSs, and his interviews of Licensee personnel. Tr. 2159, 2716-17 (Rogge).

While the NRC did not inspect, or require to be reported, the number of times that GPC's Executive Vice President-Nuclear communicated with the President

 ,          of GPC, the NRC Staff's focus regarding the conduct of operations is where nuclear safety has its immediate and greatest impact, i.e., on the nuclear power plant itself and its immediate mangement. Based on frequent visits and dealings with Vogtle staff at the level of Vice President-Vogtle and the Vogtle General hianager, plant operations appeared consistent with the organization described in the FSAR. Tr. 2656 57,2664 (Flood).

He NRC Staff witnesses' visit at the Vogtle facility and corporate offices in Birmingham, Alabama, in September 1994 confire d the accuracy of the Updated Final Safety Analysis Report (UFSAR) descriptions and figures, and 182

determined that GPC controlled operation of the Vogtle facility. Their conclu-sions were based upon discuuions with numerous managers of GPC, SNC, and Southern Company Services, regarding their organizational responsibilities and

 - structure, including details of their respective employment and their involvement with respect to the Vogtle facility, and discussions with the SRC's Resident inspectors stationed at the Yogtle facility regarding their ooservations of the day to-day control of the facility by GPC managers and the support services of SNC and Southern Company Services employees. Staff at 9.

He NRC Staff witnesses were present throughout the hearing regarding the illegal transfer issue, heard the evidence presented by all of the witnestes, and Mr. Ilood was present during most of the depositions regarding illegal transfer. In their opinion, the hearing record disclosed no evidence to indicate that the operating licenses for the Vogtle facility had been transferred by Git to SONOPCO Project or Southern Nuclear, or to otherwise alter the conclusion in the partial Director's Decision, DD-93 8, that GPC controls epentions at the Vogtle facility. Tr. 2734 (Allenspach, thod, Rogge). In summary, the observations and testimony of key NRC Staff personnel involved with regulatory oversight and technical review of Vorde's conduct of operations at the time of the alleged transfer of control indieve that GpC has maintained control of Vogtle operations and licensed activities. The testimony shows that the conduct of operations and support at the Vople facility has proceeded, and is proceeding, consistent with the phased reorganizations that l were described at the outset to the NRC whereby Southern Nuclear will eventually become the sole operator of the GPC nuclear facilities.

4. Conclusion On the basis of the foregoing,I conclude that GPC has not transferred control ;

of the operating license for the Vogtle facility without the prior consent of the NRC. While Intervenor identified some inaccurate or incomplete information to the NRC by GPC, this inaccurate or incomplete information was either corrected or not significant in the context of the numerous communications regarding the three-phased transfer and the NRC's focus on areas that directly impacted plant

 - operations and licensed activities. The inaccuracies identified do not show a pattern to deceive the NRC regarding the centrol of the Vogtle facility. Thus, there is no basis to conclude that GPC cither misled the NRC or lacks the requisite character and integrity to be a licensee.

183 l I

C. - Diesel Generator Reporting and Reliability Issues (Petition Illi,3; License Amendments Proceeding on DG lssue) Petitioners allege in the section 2.206 petition, and hit. Mosbaugh contended in the license amendments proceeding, that GPC Lnowingly provided inaccurate, incomplete, or misleading information regarding DO " eng rau!b and ~iiabil. ity (including the number of starts and the anoisture content (i.e., " air quahty") of DG starting and control air)" in 1990, as well as in April 1991 statements regarding the knowledge and involvement of senior GlC officials with respect to inaccurate 1990 DG information.22 The alleged inaccurate, incomptr te, or misleading information was pmvided in GPC's April 9,1990 presentation and letter to the NRC (seeking permission to restart); in the April 19,1990 LER on the Site Area Emergency (SAE); in a June 29,1990 cover letter forwarding the revised LER an;l addressing GPC's QA audit and DG recordkeeping practices; in an August 30,1990 letter; in GPC's Petition Response of April 1,1991, as to Mr. Ifairston's involvement in developing false DG staat information during the April 19,1990 telephone call and or evidenced by the actions of GPC managers when they became aware ofinaccurate start counts. Petition at 10-11; intervenor Findings at 78-235 and 263 311. Petitioners also claim that the inaccurate, incomplete or misleading informa-tion was conseyed in GPC's "Wh".e Paper" response Ju:ing the August 1990 l special team inspection in that it (1) excluded Messrs. Itairston and McCoy from the list of participants on the April 19,1990 telephone call; (2) stated that all rt: visions were reviewed by the Plant Review Board (PRB); (3) indicaim i that Messrs. Jimmy Paul Cash (a Unit Superintendent) and George Bockhold , worked together on the DG testing slide prepared for the April 9,1990 presen-tation to NRC; and (4) omitted Mr. Kenneth Burr, a Southern Nuclear corporate ! engineer, from the list of individuals who wrote the April 9,1990 letter. At hearing,Intervenor Mosbaugh also cited GPC's failure to irmlude Safety System Performance Indicator Data in GPC's April 9,1990 letter as another attempt to mislead the NRC. ; 38 The air quahty 6ssues consulcred dunng the beensms heanng concerned GPC's March- Apnl 1990 statements to the NRC, inclueng the NRC's incident invesugatam Team (!!TA was wheiher GPC ofhuals were wittrul or recklessly careless of the facts (as opposel to complete and accuraict (a)in the statement in the Apnl 9 letter that air quahty was satisfactory, (b) in 'he stairmrns in the Aprtl 9 letter that recently obtaned high dewpoint tea &ngs resuhrd from faulty instrumentahon. and (c) in other commumcations with the NRC regar&ng lugh dewpoints. Memorandum and order (sununary Dnpoutma Air Quahry A daed April 27.1995 (unpubbshed A at 6-9 tmervenor's clam dont poor air quahry was the root cause of the DO falures that caused the SAE was not mtfun the scope of the heanns contennon and is not considered in this Director's Decision. See kl at 6 32 The pennon siated that SoNOPCO provnkd inaccuraic false informanon however, only corporale managers at Mr. George Hausson's level (Senior Vice Pressders Nuclear Operahons) and above are otheers of both GPC and SONOPCD/ Southern Nuclear 184

01 conducted an imestiFation and issued a seport in December 1993." Of concluded that: (1) the Vogtle General hianager deliberately presented incomplete and inaccurate information to NRC in the April 9,1990 meeting and letter with respect to DG starts and air quality measurements; (2) a group of GPC ;nior managers conspired to submit a false: Otement in the April 19,1990 LERr(3) ik . . Senior Vice President-Nuclear C ,4.ation.s, with at last a minimum of careless disregard, submitted a false statement in the June 29,1990 letter transmitting a revision to the LER; (4) the Vice President-Vogtle Project, with at least careless disregard, submitted a false and misleading statement in an August 30,1990 letter explaining why the April 9 letter was inaccurate; and (5) the GPC Executive Vice President-Nuclear Operations deliberately provided inaccurate information in an April 1,1991 letter discussing participants in a late afternoon conference call on April 19,1990. l De NRC Staff evaluated the results of the 01 investigation of the DG issues and concluded that, contrary to se~ ion 50.9, GPC had provided inaccurate and incomplete information to the NRC on four separate occasions as a result' l of an inadequate regard, individually and collectively, by a number of senior i CPC officials for complete and accurate communications with the NRC. The performance failures involved in the violations constiteted a Severity Lesel 11 problem as cited in the hlay 9,1994 Notice of Violatica and the libruary 13, 1995 hiodified Notice of Violation (wherein the NRC iniposed a $200,000 civil penalty)."

1. March 20,1990 Site Area 1:mergency On h1 arch 20,1990, a worker accidentally backed a truck into a switchyard support column causing a loss of offsite power at Vogtle Unit 1. At that time Unit I was in a refueling outage, and one of the DGs (DG-IB) had been removed from service for a maintenance overhaul. The other DG (DG 1 A) was available ad was called upon to start twice, but on both occasions failed to maintain running speed. On a third attempt, the diesel started, restoring power 36 minutes after the loss of offsite power. Bis event prompted the declaration of an SAE.

On the same day as the event, GPC conducted several troubleshooting starts on DG I A to determine, li possible, the cause of the e,ent. The dicsci started and ran without problems each of these times. The plant staff then shifted its attention to the DG ID in order to return it to service expeditiour.!y. As part j I

                           - th* alleganon concerning SSPI dma was not subnutted to of unni after the repor, on DG statements was pubbshed of did not complew actmtws on this issue due to the staleness of the issue ami the airing of the matter at heanna before seulenwns was rented M

to L.DP 9415. 39 NRC at 255-56. the Board ruled thm alleganons in the NRC's NoV issued May 9.1994

         . were important to the ndnutted contennon and within the scope of the proceeding 185 1
                                                                                                    -                         w          I

of the effort to return the DG lll to service, GPC performed a number of post-maintenance starts and tests between March 21 and h1 arch 24. During these tests, post maintenance difficulties were experienced, including two failures of the dicsci to start on March 21 because of inadequate fuel in ti.e fuel lines after diese' cassembly. In addition, during a tun on March 22, DG lil tripped on a high lube v. . .., .rature signal; during a run on March 23, the wesel tripped on low jacket wates pressure and low turbo lube oil pressure signals; and during a rtm on March 24, a high jaelet water temperature alarm was received but the diesel continued to run. Immediately after the SAE, the NRC assembled an Augmented Inspection Team (AIT), which arrived at the Vogtle facility on March 22, 1990. On March 23,1990, the NRC issued a Confirmation of Action L iter (GPC Exh. 114) to GPC that, among other things, confirmed that GPC had agreed not to return Unit I to criticality until the Regional Administrator was satisfied that appropriate corrective actions had been taken, so that the plant could safely return to power operations. 'lhe letter also indisated that equipment involved in the incident may be quarantined (minimizing personnel access to areas and equipment consistent with safety) and that GPC could take any acti.m it deemed necessary to (1) achieve or maintain safe plant conditions, (2) prevent further equipment degradation, or (3) test or inspect as required by the plant's TSs. A quarantine order was subsequently issued by the NRC concerning DG equipment. GPC Exh.1165. On March 24, Mr. William Shipman (General Manager-Plant Support) and Mf, C. Kenneth McCoy (Vice President-Vogtle Project) discussed with site personnel, including Mr. Ilockhold (Vogtle General Maaager) ar d Mr. Mosbaugh (Acting Assistant General Manager-Plant Supporti, cencerns that these test resuhs had raised about the pneumatic controls. The site w as instructed to make sure the NRC and the AIT participated in the troubleshooting activities and received any documentation, and to obtain NRC concurrence before anything was changed. Prefiled Testimony of C. Kenneth McCoy on Diesel Generator Reporting issues, ff. Tr,2839, "McCoy DG," at 3-4, On March 25,1990, the NRC upgraded the AIT to an incident .. vestigation Team (IIT)," composed of NRC and industry personnel and headed by the NRC. After recovery from the S AE, GPC assembled an Event Review Team to iden-tify the root causes of the event and to determine appropriate correr'he actions. The Event Review Team included Messrs. Jimmy Paul Cash (tJnit Superinten-dent), Paul Kochery (Vogtle Engineering Supervisor-Operations Modifications),

 "The tesults of tius inwsuganon are docunented in NUREG 1410. bsn or Vital AC l'ower and the Residual Heat Renmal System Dunns M4 L. cop operanons at Vogtle Unn I on March 20.1990  dated June 1990 Statt Eth n 46 at I, see. t =.. NUREG.1410. Appendn J (GPC Exh.11167) 186

Georgie R. Frederick (onsite Supervisor of the Safety Audit and Engineering

 ' Review (SAER) group >. imd Tom Webb (Senior Licensing Engineer).

ne NRC was informed of problems that occurted during the post mainte-nance testing of DG lB as indicated by a h1 arch 24,1990 memorandum by hir. Kendall (an AIT and llT member) that identified the h1 arch 23.1990 trip (low

 . Jacket wat. , . . .are anJ low turbo oil pressure. aho called stat raumber 134) as being significant.)" The NRC was briefed on GPC's troubleshooting plan for additional testing of DG l A and DG.lB. Testing on DG lB was conducted on h1 arch 27 and h1 arch 28, and included sensor calibration and replacement, testing of the pneumatic logic controls, pneumatic leak testing, an undervoltage test, and an operational surveillance. It resulted in DG-1B being declared operable on h1 arch 28. He additional testing for DG I A, which was similar in scope, was performed between htarch 29 and A,>ril I, at which time DG I A was declared operable. Additional starts on both diesels occurred after these tests, in order to establish the reliability of the dicscis.

At the NRC's request, GPC also examined whether the diesel control air system could be the cause of the h1 arch 20 DG-I A failure. GPC tested the dicsci air system for moisture and conducted a review of the control air filters. High dewpomt readings were recorded on DG I A on hiarch 24 and additional high dewpoint measurements were recorded on or about April 5-7,1990. GpC eventually decided thai most of the high readings were inaccurate. On April 9,1990, GPC Fave an oral presentation to the NRC in support of L GPC's request to return Vogtle Unit I to power operations after the SAE. In response to an NRC request that GPC address DG reliability at the meeting, hir. Dockhold. the Vogtle General hlanager, presented informanon on DG starts since the SAE using a viewgraph slide, which listed the sequence of testing on DG l A and DG ID and stated that there were "18 SUCCESSFUL STARTS" for DG l A and "19 SUCCESSFUL STARTS" for DG-1B. GPC intended to convey to the NRC in the April 9 presentation (and the NRC understoed) that there were eighteen and nineteen "cor'secutive successful" starts without problems or failures after the h1 arch 20 SAE. A written seramary of the April I 9 presentation was provided to the NRC in an April 9,1990 letter, "Vogtle Electric Generating Plant Confirmation of Action Letter," signed by hir. llairston and reviewed by corporate managers and hit. Bockhold. De summary, the Licensce's troub:eshooting efforts, and the NRC's inspection activities were among the bases for the NRC's decision to authorire the restart of the facility on April 12, 1990." 3* An Apnl 6 wo GPC las or diesel samts from March O through March 23. wiuch showed the problem saarts on htar:h 22 and 23, was also prouded to the Irr.

     "NRCer "ms regarding ttw quaransme of equipment mvolved in the SAE and oiher measunts to facihtaic the trT's immegaison of the event that were stated in the Much 23,1990 Confirmasson of Action Letter remamed in effect 187 v

2, !)iesel Generator Statements

a. April 9,1990 l'resentation and C. citer Intervenor alleged that GPC, by and through its officers and employees, knowingly, deliberately, and willfully submitted inaccurate information to the NRC in an April 9, i990 otal presentation and letter regarding the number of starts of the DGs. Intervenor contendeil that (1) GPC submitted the numbers eighteen and nineteen successful starts with full knowledge that the numbers were incorrect, and (2) a typed " Cash Lst" that showed the ina$ curacies was a backup slide that was circulated to corporate offices before the presentation.

See Tr. 8310, 8313-15 (Mosbaugh); Prefil:d Testimony of Allen L Mosbaugh, if, Tr. 8263, "Mosbaugh, at 43 44; intervenor Findings 85-89, in the Modified NOV issued February 13, 1995, the NRC Staff concluded that, contrary to section 50.9; [ljnformation prmided to the NRC Region 11 Ofhce by Georgia Power Company (GPC) in an Apnl 9,1990 letter and in an Apnl 9,1990 oral presentation to the NRC was inaccurate in a material respect, Specifically, the tetter states that: "Smce March 20, the l A DG has been started 18 tmics, and the lh DG ha. Sc a startej 19 ;.nes No failures or problems have occurred dunny any of these starts" These statements are maccurate in that they reprewns that 19 consecuine successfut st.uts without problems or f.ulures had occuned on the IB Diesel Generator DG) for the Vogtle facility as of Apnl 9,1990, when. In fact, of the 14 starts refe:Ted to m the tetier associated with the IB DG at the Vogtle facility, three of those sta:ts had problems Specifically, Start 132 tnpped on high temperature lube oil. Stan lM inpred on low prer,ure jacket water and Start 136 had a high ten.perature peket water inp alarm as of ,

                                                                             . . 5 %, the I H DG had only 12 consecutne successtut starts without problems or failures rather than the 19 represented by GPC. The same inaccuracy was pre,ented to the NRC at us Region ll Of fice dunng an oral presentation by GPC on Apnl 9,1H0 The inaccuracy was rn tenal in considenng a restart decision, the NRC was especially interested in the rehability of the DGs and specifically asked that GPC address the matter in its presentation on restart The NRC rehed, m pan, upon this information presented by GPC on Apnl 9.1990 in the oral presentation anc in the GPC letter in reaching the NRC decision to Jiow Vogtle Umi i to return to power operanon.

GPC asserts that the April 9,1990 presertation and letter contained incorrect DG start count information.due to poor GPC internal communications and personnel mistakes, including by Messrs. Cash and Bockhold, and ie was not due to indifference as to the need for accuracy. GPC August 30,1990 Letter (GPC Exh.1118); GPC Response to NOV, dated August 2,1994 (Intervenor Exh.11-105), at 2: Letter from C.K. McCoy to Mr. James Lieberman, dated February 1,1995 (GPC Supplemental Reply to NOV). The NRC Staff found that the count errors were caused by performance failures in collecting and reporting the data, and found no evidence that GPC 188

                                                               \                                               _

employees deliberately and knowingly submitted, or conspired to submit, in-complete or inaccurate informat on. See Vogtle Coordinating Group Evaluation, Conclusions, and Recommenoations, Jated November 4,1994 (Staff Exh.1150) at 1-4; Testimony of David B. hiatthews, Pierce il Skinner, and Darl S. Hood on the Diesel Generator issue (Staff DG Paneth ff. Tr 14,758, nt 11; hiay 1994 NOV (Staff Exh. Il 46K R .! lied NOV (Siaff Exh,1151). The ; aff found that the errors were caused by (1) hit. Dockhold's failure in requesting the count to instruct hit, Cash as to his criteria for a successful start (withe oblem or failure)," she point at which to begin his count, and to ass mt data provided to ensure that it was what he had requested, and (2, failure in performing and reporting his count to ensure that the data prov .c what hir. Dockhold had requested. NOV (Staff Exh.1146) at 2 3; S. $anel at 5,11, The hearing record does not support intervenor's position thas me . mission of eighteen and nineteen successful DG starts reported to the NRC by GPC in the April 9 presentation, and letter of the same date, were knowingly and willfully false," While recollections were not clear about events occurring 5 years earlier, hir. Bockhold testified that he imended to present a number of consecuM: success'cl starts as support for GPC s position that the DGs would perform their intended fimetion, and instructed hir. Cash to review the operators' logs and determine how many consecutive successful DG starts had been made with no significant problems. Prefiled Testimony of George Dockhold, Jr., on l Diesel Generator ReportinFl ssues, ff. Tr. 3309, "Bockhold DG," at 6; Tr. 3422, j 3424 (Bockhold). hit. Cash (an experienced Unit Superinteadent and member of GPC's Event Review Team for the SAE) recalled in., ,,e w s to determine j the number of starts after the esent that were without significant problems.* ! Prefiled Testimony of Jimmy Paul Cash on DG Reporting issues, ff. Tr. 4389, ) 1

" Cash," at 2, 3.
"Tlw term "succeuful sian" was ambiguous in ihm at was subject to varmus imerpreiatwns and is not deAned by NRC in guidance docurrenss such as Regulatory Guide i 108 A count of successfal siarts without problems or failures was dependent upon hasing a defimtmn for wha constituied a successful start and the pomt at which to begin the count Tr. 6875 76 (Greene t Tr 5920-22 Olorton), see Tr 5975 99, 5962. GPC wunenes hal vanous amerpretanons of (1)" successful stans." (2) what consututed a problem start and On when to begin dw count Tr odi$ (Greenet Tr. 3547 (ikxkhohD. Tr, 5922 Obriant "interwnor assens th,.; (1)ihe failure to unhae estabhshed revww and venhcation procedures for the Apnl 9 letter and (2) the failure to subject the letter to PRa revtew as cucurmtanual evidence ihm cor}wrate officsals (who were both GPC and Southern Nuclear employees) wanted to keep the DG start informanon or the air quahty informanou free of rrramagtut venheauon leervenor Fndings 114 159 While such actmas may have thsclosed problems in the count daa. GPC's esplanauon that the Apnl 9 letter was we hamiled as rouune correngondence in order to espedite the drafung and tesww proceu is reasonable giv*n thx the T5 do not require PRB reyww and its desue to espedits restart. See Tr 2958 (bleCoy) The trustakes eshibited, however, are of regulatory concern as cited in the Staff's enforcenent action "In lus June 14.199) Of intervww. htr Cash stated that he vrwed a "ugm6 cant proolem* as something that would have prevented the DG from running tn an emergency of lu 10. at II As h:2 :ng. hteurs. Cash and Bockhoki considered a start successful without sigmheant problems to be one where uw daesel had started (Conemuodt 189

NRC personnel at the April 9,1990 meeting were aware of DG testing, but did not know the number of consecutive successful starts of the DGs after March 20,1990. Tr.14,795 (Matthews); Hunt at 3 5. See Tr. 4949M Although Mr. Dockhold (and other GPC personnel) were aware of problems on the DG 1B during overhaul, he failed to adequately specify ue startinF point for the count to ensure that the count did not include these problems and failed to ensure that Mr. Cash, an experienced Unit Superintendent, understood his criteria for " successful starts" without problems or failures Mr. Dockhold did not determine the point at w hich Mr. Cash began his count (i.e., the specific start number, date, or time) or whether his data included any starts with problems or failures. The hearing disclosed no evidence that Mr. Dockhold or other GpC personnel had any knowledge as to the number of starts of the DGs on April 9, 1990, other than the Cash count that was among the materials assembled quickly over the weekend prior to the April 9 presentationM

       %ere is no evidence that a " Cash List" was a backup slide for thc presentation or that corporate and site personnel otherv ise knew that the April 9 DG start count was wrong," Mr. Dockhold assigned Mr. Cash to count diesel starts; Mr.

Cash did count diesel starts, and the numbers eighteen and nineteen presented to the NRC on Apr;l 9 were incorrect (i.e., they should have been twenty nine and twelve on DG I A and DG ID, respectiscipM OpC has admitted that the violation occurred and Mr. Dockhold's role and responsibility in the underlying events. See Letter from Hairston to NRC, dated August 30.1990 (GPC Exh. prrperty and reachest rated vohare and tmluency intersene bh 97 (GPC Inernogat.w) Responw. dmed Aug 9.199h Tr 342h tisocWidt lhew dehnitmns. homeser. were imt uwd in any ut blf o Artil-Augd 1990 correspon&n.e regarang alw DG scut. count informatic M For esample on Tuesday. Aptd 10. 1990, the d ) after the mecung between the NRC and GPC, Mr. Rick Aendall of the NRC's trt. Inforned oPC the he could not dupheate the Aptd 9 st.irt count and asked for the start data Git bh 14-31 at 5. Prefiled lesumony of John Gilbert AufJenkampe, Jr , on Dwsci Generator Repatmg hsues (Aufdenkampet If Tr 4651, at 4 5 I 43 Wlule it is clear he the Aptd 9 uart coum was densed trom Mr. Cash's efforts, thers is confhebng evidence . as to esactly what information Mr Cash provkled to Mr Bakhold on Apnl 19. 1990, Mr. Cash told Messrs Mosbaugh and Aufdrnkampe (GPC Manager of Techrucal Sapporo he he gave Mr Dockhold ' totals" and not - infortnanon on starts and stops Tape 38 Transenpt (GPC bh 11-2) at 36 Mr Bockhold testi6ed during his 01 imerview on August 14.1990, than Cash gave lum start totals el Esh 12 (laterwnor r,ah. Il-131 at 3. Mr. Cash stated in tus Augun 1990 of interyww omervenor Fah 190>. however, that he gave Mr Dockhold luh total stan riumhers and a hst or stans. In tus June 199) of intemew. he sad chai akhough he could not recall speci6e nunters. he gave Mr Bockhold the numbers greawr than IB and 49 on Dh. ItX at 48 50 At the heanng he could not renwrr%er esactly what count he gave Mr Bockhold, but behewed he gave lum the nunteri 18 and 19 for DG-I A and DG 1B, respectively, or poiuhly 23 stans for DG-IB and 27 for DG-I A as was apparem from a typed haung of stans located by GPC in 1993 Omervenor Exh. 41 and GPC 23) See Tr. 4t47-48,4Mt. 4463-M (Cash)- Even though Mr. Cash stated that GPC a ah.11-23 was a typed wruon of his bst for Aptd 9, he was. uncertain dunng cmss-enanunanon and he could not recall having lus handwntten hit typed or including stans pnar to March 20,1990, that were sworded on the hsung in hght of these statements, it is &fhsult to deternune whm informanan Mr Cash provided to Mr Bockhold 43 For esample, Mr Bockhold was not specifically told that the Apnl 9 (and Apnl 19) can counts were wrong r cent Aptd 30 and May 2,1990, ahen Mr. Mosbaugh gave him a hsung of DG starts that showed the errors. See Bockhold at 14. Mmbaugh Apid 30,1990 Memo (Intervenor Enh.11291

   **See August 30,1990 lener (CPC Eah. Il-18). Tables I and 2. The undenepenmg of the DG-t A mart coura was not relevant to the enforcemem acuon.

190 m

11 18); hioditied NOV (Staff Exh.1151); GPC Supplemental Reply to the NOV, dated Dbruary 1,1995, in sum, the assertion that GPC deliberately provided false DO start informa-tion in the April 9 letter and pfesentation was not substantiated.

b. April IV,1990 Licensee Etent Report

                      ,hir. hiosbaugh alleged that a disputed portion of a taped comersation from the afternoon of April 19,1990 (Tape 58 Transcript (GPC Exh.112)) regarding the '

draft LER, is evidence that a number of GPC vice presidents and plant personnel engaged 8n a criminal conspiracy to intentionally submit false information to the NRC in that GPC intentionally iterated the same false April 9 count information to the NRC in LER 904X4. Tr 841112,9982 (hiosbaugh). Ilis assertion is based on his version of the following excerpt: [ . Shipman: Let's we. What other questions do we got? We got the start thing straightened out. Itairston' (Interrupting] We got the starts - So we didn't hase no, didn't hase no inps? Shipman. No, not, not . McCoy; txt tne empi,un. I'll testify to that. Shipman disavow. What else do we hase Jack? GPC Exh.112, at 11-14. h1r. hiosbauFhalso asserts that GPC tried to exclude him frt>m the telephone conversation taped on April 19,1990. In the hiodified NOV issued February 13, 1995, the NRC Staff concluded that, entrary to section 50.9; lilnformation piovided to the NRC by GPC in a Licensee Event Report tLERL dated Apnl 19, 1990, was inaccuinte in a matenal respect. Specifically, the LER states: "Numerou4 sensor cahbrations Oncludmg jacket water temperaturesh special pneumatic leak testing, and multiple engine starts and runs were perfornwd under vanous conditions After the 3 20-90 event, the control systems of both engines have twen subjected to a comprehensive test program. Subsequent to this test program, DGI A and DGlu hase been started at least 18 umes each and no failu,es or problems l'ae occurred dunng any of these starts," These statenwnts are inaccurate in that they represent that at least 18 consecutive successful starts withmn problems or failures had occurred on the DGs for Vogtle Unit I (I A DG and IB DG) following the completion of the comprehensive test program of the control systems for these DGs, when, in fact, fsilowmg completion of the comprehensive test program of the controt systems. Scre were no more than 10 and 12 consecutive successful starts without problems or failures for I A DG and IB DG respectively. 191 7

4-

                   - The inaccuracy was snatenalin that knowledge by the NRC of a leuer nunder of consecuthe succeuful starts un l A DO and IB DO without problems or failures could hae a natural tendency or capahttuy to cause sie NRC 19 inquire further as k the reliability of the DGs.

Staff Exh.1151 at I and 20.-- Under i 1 C.F.R; I 50.73(a)(1), GPC was require 'n ..ubrait un LEP includ-

              'ing a description of the event (10 C.F.R. 5 50.73(b)(1)) and a description of corrective action taken (10 C.F.R.150.73(b)(3)) by April 19,1990 (30 days Eafter the SAE).                                                                                                          ~j The evidence does not support the claim that the above words from Tape:

58 demonstrate a criminal conspiracy by high officials in' GPC to present false information to the NRC. Tape 58 contains multiple, disjointed?jumbl_ed, and often inaudible conversations;which do not demonstrate conspiracy to , intentionally provide inaccurate information to the NRC. He NRC Staff found H that the taped statements were not sufficient to establish an intention to deceive or mislead the NRC." Further, there was no evidence to support Mr. Mosbaugh's

            - claim that Mr. Mosbaugh joined the call late because QC tried to keep him off the call with corporate managers about the accuracy of the LER. See Mosk ugh                                              ;
            'at 35,48; Shipman at 5; Tr.10,932-33,10,976 77 (Shipman); and Tr. 4194
               '4801,5428 (Aufdenkampe)c
                                                                                                                                       ]

On April 10,-1990, Mr. Mosbaug,. occame aware af the April 9 letter and - he and other site personnel (particularly Mr. Aufdenkampe) became concerned ' that the statement that the " starts were without problems or failures" may have - been a material false statement to the NRC because of known DG failures after

            -- the SAEc Mosbaugh at 32; Tr. 4752-53 (Aufdenkampe), Mrs Richard Kendall
            . of the !!T also asked GPC for data supporting the April 9.1990 DG start count-
             - because he could not get the same numbers. IIT 'leteconference Transcript, dated ' April 10 (GPC Exh. ll 31)"   .
                   -Mr. Webb, an engineer in the group that reported to Mr. Aufdenkampe (who reported to Mr. Mosbauf ).          h used the same diesel start language for the draft --

LER that was in the April 9 letter. McCoy DG at 10-11; Prefiled Rebuttal Testimony of nomas E. Webb on Diesel Generator Reporting Issuesc ff. Tr.

             = 13,096;"Webb," at 2-3; riPC Exh. Ibl71 B, Concems about the accuracy of                                                 -{

the count led the site te delete the start numbers from the draft LER and stcte

                                                                                                                                       ,j "The NRC Staff verunn of the transenpa state,:
       '=-'

Harston- We got the starts -- a we didn't have no. d dn1 Iave no inpsy - Stupman, No, mix, noe . McCoy: [tnaueble) three. I'n tesufy to that - __ shipman ilmaueble) disavow- What eine do me have Jack? GPC also offered a transcnpa veruon of tlus enchange The tape encerpt was played several hmen at the heanng

             - in anevnpts for the Board and the toporter to escern the inau&ble poruons, aluch proved unsuccessful
                 **No hanng of start counts through Apnl 9 was ever located amung the solununous records and documens collect:J by the IrT.
                                                                   -192

1 l that the dicscis had been " started several times and no failures or problems base occurred during any of thesc starts." Webb at 4. In tesponse to a Plant Review Board (PRB) comment on April 18, 1990, the phrase "seveal starts" was replaced with "more than twenty times dach" by adding April 10-18 starts in th control room logs to the numbers reported April 9. Webb at 5 7." PRB Meeting M... .. 0-59 (GPC Exh. II 28) at 4; w eb' " %; Tr b.2 t l (Webb); Aufdenkarnpc at 2. The site received notice on the morning of April 19.1990, that Mr. llairston wanted the phrase " greater than twenty" to be verified. Prefiled Testimony of W. GeorFe Hairston, lit, on Diesel Generator Reporting issues, ff. Tr. 3531, "Hairston DG," at 6; GIC Exh.1125; Stringfellow at 2: Tr. 4058 (Stringfellow); Tr. 4786-87 (Aufdenkampe); Webb at 6. The April 19 PRB, which was chaired by Mr. Kitchens, Assistant General Manager-Operations and held that afternoon, Similarly advised that the phrase be verified, reworded, or deleted based on verifica4 ion efforts. Tape 57 Transcript (GPC Exh.111) at 15-16; PRD Meeting 60 Minutes (GPC Exh.11-29). After the PRB meeting, Messrs. Aufdenkampe and Mosbaugh discussed the draft 1.ER by phone with corporate personnel and informed them that efforts to verify the count were ongoing. Mr. Mosbaugh told Mr. Shipman (General Manager-Plant Support for Vogtle Project) that there were two DG.lB trips (i.e., on March 22 at 12:43 (hi Fh lube oil temperatme) and on March 23 at 17:31 (Iow jacket water pressure-turbine tube oil pressure)) which he belie ed . rendered the statement inaccurate. Tape 57 Transcript (GPC Exh.11 1) at 59 60. Mr. Shipman emphasiicd the need to provide accurate miormation to the NkC, regardless of what George [Bockhold] told [ Stewart) Ebneter. Id. at 62. I During another phone call reFarding the LER between Ate and corporate mana;ers (Messrs. McCoy, Stringfellow, Bockhold, Aufdenkampe. Mosbaugh, and Bockhold)," Mr. McCoy also emphasiicd the need to be certain about the number atter completion of the comprehensive control test program (hereafter !

          " comprehensive test program" or "CTP"). Tape 58 Transcript (GPC Ex5.11-2) at 8. Mr. Bockhold strongly stated that his April 9 start counts were subsequent to completion of a comprehensi.re test program and were " verified correct" by                          .

Mr. Cash GPC Exh.112, at 8.- Mr. Bockhold's statement implied that GPC need not await the completion of site verification effort that Mr. Aufdenkampe reported were under way to confirm the accuracy of the draft LER."

                 'the term " comprehensive test program," however, was ambirous in that GPC had not agreed upon der mition of what it meant. Neither GPC personnel "Mr webb vekved the hst of surts using control ruom h$ knowmg that an ip to dare s:an log with numbered stans was not anulable Webb at 6-7.
             "This call is often referred to as " Call A* on the Apnl 19 LIR "htr Webb's efrort to venfy the count was accomplQd from noon to around 4 p m. on Apnl 19 and was la progress dunng the call.

193

- _      _ = _ _

i at the site on April 19, 1990, nor the NRC intpection staff present during troubleshooting, knew the parameters of the comprehensive test program tie., when it began or ended)? The change of the start count wording from "since h1 arch 20" to " subsequent to this test program" (the CTI'l defined a different starting point for counting diesel starts and created ambiguity in the LER. The LER dord- viigeJ without completely senfying the facts r Jefming the time period involved as hir, Webb (the individual who perfermed the count for the LER) was never instructed to collect consecutive successful starts without problems or failures after the cornprehensive test program? GPC's reliance on verbal assurances and inadequate verifica: ions is a second instance cited in the violation of inadequate verification of information to be provided to the NRCP While it is unclear whether GPC site personnel realized that the list compiled on April 19,1990, showed that the April 9 start count of eighteen consecutive starts on DG ID was inaccurate, it is clear that the list neither confirmed nor disputed the accuracy of the April 19 LER in that hir. Webb was not told to get *

    . consecutive successful starts or starts after completion of the CTP. See Webb List (GPC Exh.1171); Webb at 6 8, Even though hir, hiosbaugh questioned the accuracy of the count after the CTP, and suggested that it might- not end until the undervoltage (UV) test just before the DGs were declared operable, site and corporate personnel (htessrs. hiosbaugh, Shipman, and Aufdenkampe), approved the LER with the

!- " comprehensive test program" language included. Tape 58 Transcript (GPC Exh.

      !! 2) at 8,22-23." The record shows that GPC's (including htr. hiosbaugh's) incomplete efforts to verify the LER start count caused erroneous DG start information to be submlued in the April 19 LER. GPC inse ted the words
     " comprehensive test program" with the intent to exclude the problem starts                                                                         '

identified and rehed on incorrect, verbal assurances that the count statement "at least eighteen times each" was correct. I<i. at 8-34. Although they acknowldged during discussions of the draft LER that they did not 1 now the "Amont thrse who did not knon what the CTP was, what its parameters were, or aben it started or shyped were Mes e Cash (Tr 4471 A McCoy (Tr 6995 A webb rrr %%97,13.128 A and sinngfellow (Tr 4069-74) of oPC and Messrs Hunt (Tr. 499h and Kendall (Tr 5016L the NRC employees who momtored &esel tesung and other activines in lWil M A copy of Mr. Webb's hst (etth nosauons in black and red mk ihat were wraien by Mr. Mosbaugh as a later dae) was aninuned as GPC Esh.11-11 See we bb at fr7. The hst contaned some infornunon on stops and stans. and noted that the total slants idenu6eJ through March 20-April 18 were 32 for 00-1 A and 27 for IMlb. Tl= totals shown were not an accurate count of rewuervrne swressful starts muhour proMenu orf ..rs, but merely totaled all starts idennhed afier Mmh 20 ror cuample, cie hst 4d not klentify the probl m on s art 1% or two stats on the marmng or Apnt 19. See GPC Enh 1171 ( 'Webb List'L August 30.1990 letter (GPC Eth. Il 18L Attachment B. June 29.1990 QA Au&t Report (GPC Lsh 11-15l M ~ The au&o tape recording of conversations on that dale shows thas Mr Mosbaugh and Mr. Aufdenkampe did not esanune Mr. Webb's hst unul a'ter the site haJ approved the revised language in the t.LR 3er Tape 38 Transcnpt at 8-34 The hit did not contain a notanon as to when a UV test was run on erher diesel "This conwesanon 6 e., when the site arproved the last rennon of the L.ER. is often referred to as -Can B' segarding the 1.LR. 194

starting point for the count (i c., the first start following completion of the CTP). Ments. Mosbaugh. Aufdenbunpe, and Shipman failed to clarify and serify the starting point for the count of successful consecutive DG starts arported in the LER 1here is no evider cc, howeser, that any GPC or SONOPCO crnployee involved knew the exact number of t,taris following the C1P on April 19 or had

Sdag if starts (whether prepared by Mr. Cash c' Mr. Webb) i before the thR was approsed." 1he inadequate scritication eth>tn were yeared tcward defending infortnation stready provided to the NRC by changing the description cf the period for the count tihe CTP actually identifie.t a subset of the consecutive successful startti without problena or failures after the SAln GTCs las venfication ciforts were caused in part by unjustified assurances by Mr, boskhold that information (which was assembled quickly using nrnbiguous definitions) had been verilled before being presented. As a result, GIC did not identify inaccuracie. in the April 9 and April 19 start conts and the mistates '

of Messrs, llockhold and Cash in collecting and tcporting v. a in".ial count. 'Ihis failure was among those cited a2 a basis for the Sescrity Level 11 violation against GlC.

    'Iherefore, the allegation that GIC employees, either indisidually or collec.

titely conspired deliberately to prmide inaccurate information was not substan-tiateel,

c. ' June 29,1990 C<n ct Letter and Perised 12ik

    'lhe Pctitioners allege, as supplemented by Intersenor in the licensing hearing.

that GPC dehbeiately submitted falso information to the NRC in a June 29.19% ; cmer letter to a revned I.!!R, concerning the reasons for the enor in the LER in that (1) Mcssrs. llairston and McCoy knew that the information was fahe, (2) neither Mr. Ikickhold nor Mr. Cat informed Mr. Mosbaugh that there was a listing of the April 9 start data when Mr. Mosbaugh questioned the count, (3) there were differsnt reasons for the error stated in the various drafts of the cover letter, (4) the Quality Assurance (QA) audit (which was the basis for sorne of the statements in the cmer letter to the LER Revision) was narrow in scope and did not review all pertinent information, and (5) GPC was on notice tint the reason stated in the !ctier was false. Intervenor Findmps 330 351; .tce P tition at 1011. In the Modified NOV, the NRC found that. contrary to ISc requirements of , section 50 9, the LER cover letter, dated June 29, 1990, was inaccurate and inecmplete in material respects as evidenced by the following examples:

  %maton=no. . ni w in n van i conm4 i er .euch ruo *4 n w .na 4. .: oc mn .na
$$t1l14, &Nd Rnded 44Mhl thd (thPt l.ftt#rRlil0.(WfMthWB Me cash hal used n'es big and on sluh's $aterstnut's t cg for the Apnl 9 meats 195

l W lener states that: "In a.wrdance w 6th 10 C F R. .%0 7.t Ocorria Power Cornpany (GICl l lereby subnuts ow entlowd retswd rep at related to an esced wiuth occurred on Marth 20, 19A) T his fet isum 6: tweenary to clanf) tie infortnation related to ste hunder of suucuful d6csel gerwrator stans as diuuued in Ow 01C letter dated Aprtl 9.1990.

1. The Lt.R cmet lenet is incomplete twouw tlw s bnuttal Al not prmide infornw tion fernsdeng tirihcation of the April 9,1990 letter The 6ncotnpleteness was amterialin shat tie NkC subseque-.stly requested Gif to triale a subnuttal clanfying the Apnl 9,1990 letter.

W lettet states that *lf tie (nierta for Itw cornpletum cf ite test progearn b understood to tw tie hrst suneuful irst in attordant-e wnh Yogtle lhetric Octob 4 Plaid (Vl?GP) procedure 1d9801 *thesel Octwrator Opere%hty Test." then :here were 10 si,tter el starts of thesel Ocnerator l A and 12 nune.siul starts of thenel Ocnerator ll tetweeli the complet6on of the test program and etw end of Apnl 19.1990, the d.de etw LIA424/19904 was subrnuted to ttw NI(C. lie riundwr of sucteuful starts included in tte ongmal Li'it (at least 18) included none of Ow starts that were part of the test program Tiw difference l is artilbuted to dwscl start secord keeping predices and the dehnition vf t!w enJ of tie test l program " 2 The last sentrene in uw stwe paragraph is laaccurate bet muse dwu becord keeping' practices were not a tause of Ilw differente in nur:dwr of dwict sats reponed in uw Apnl 19,199( J R 'md Ow June 29,1990 letter. The differerne was caused by personnel cripts unrelated tu any problents eith etw diesel generator record keeping piactices W inanurAy was runterial in that at could have led Ow NitC to emmeously

                                             -conclude that the torrect tool cauws for the difference in the number of diewl starts reported in tie Apnl 19,19901.1.R and ate June 29,1990 letter had been edelitihed by GIC.

3 ilt last sentence in the alue paragraph is aho incomplete becauw it failed to . include the fact that tie soot tauses for the difference in tte number of diewl stans reponed in tir Apnl 19, 1990 LLR and the June 29. 1990 letter were pc.sonnel errors Pirst, Ow Vogtle Piard General Manager who directed etw t' nit Sugenntendent to perfunn tiw start count la hich forned the basis for Ow April 19, 1990 LI H) failed to issue adequase instructums as to how to perform Ow count and did not sayu,itely asws: the data descloped by tie Umt Supennitstent in mahtum. Itw L!nn Superintenderd inade an error in re mns hss come. Second. Ow l Acting Assistard General Manager.Plard Suppon'p), Ow General Manager for Plant Suppon and Ow Technical support Manager failed to clanfy and senfy itw starting himt for tte tourd of succcuful consecutive IKI starts reponed in Ow Apnl 19,1990 LIR. The incompleteneu was maternal in that had tonect root cluies for tha differ. cawe in Ow nurnber of dwwl stans reponed in ite Apnl 19,1V90 LLR and Itw "W NitC ted Mr Misteugh's ps=uwe drugnaine is a Irner *om Me i L Milhoaa. NRC, to Mr. C K. Mo,. mC- M.r4 n-196

 , c ()                                                                                    -

m

) Jus i 29.199n . tier twen prewiged. this infornuuum could hase led the NRC to wck funber mformauuri Staff fish.11 $1, NOV at 2-3. GF' asserts that the incomplete and inaccurate statements regarding the reasons for the errors in the LliR (and April 9 letter) were based on reasonable attempts to provide an esplanation based on the results of the QA audit report (GIC l'indings at 140-63) and admit' and accepts responsibility for the incompleteness of the letter (GIC Findings 28$ 347). GIC maintains that DG record Leeping practices contributed to the reporting of erroneous counts (noting that the NRC Stafr as knowledged that those practices may have contributed to violations as events unfolded). GlC Findings 286-291.

          'lhe NRC Staff viewed the performance failures of GPC site ant' mrporate personnel, particularly by those who were on notice of Mr. Mosbaugh'                                 neerns that the cover letter to the LliR Resision was inaccurr" and incomplete (ie. Thomas Greene, the Vogtle Assistant Ocneral h' . fer-Plant Support:

Michael llotton, the Vogtle Manager-linginecting Support: Mr. liederick, the Supervisor-SAliR; and liarry Majors, a Licensing !!ngineer for the Vogtle Project) as serious, but found that there was insufficient evidence to conclude that Git intentionally prmided inaccurate or misleading information. See Staf f DO Panel at 611; NOV (Staff !!sh.11-46); and Modified NOV (Staff lish. Il $1L til al'HIOR" KNOMl.i.DGl: Ol' htlMRS.1141MVION AND McCOY AND N4kHOh% col't; Al'DII petitioners are correct that the QA audit was narrow in scope. There is no evidente, however, that e;ther Mr. Ilairston or Mr. McCoy knew that incomplete and inaccurate reasons were stated in the June 29,1990 LliR Revision cover letter as to why the I.liR containett erroneous start-count information or that they intended to deceive the NRC. On the contrary, as described Niow, the esents leading to the development of the letter show that these GlC officials and other GIC employees, endeavored, albeit unsuccessfully, to provide correct information. On April 20,1990, Mr. Webb was surprised by the LliR phrase " subsequent to the test pro, tom" and thought the LiiR could be inaccurate because, on April 19, he had identified only about ten or eleven starts after operability of

     " rte esaml4r, tioth kit llairstoa and Mr MSt,y adrumledged during ste branns - as GIC concedrd in he tensmae to the entietenrnt action - that ettivs in the April 9 lettet and prearniahon and the Apnl 49 LJ R were also due to amadr4pate gettiwnutwo by GPC personart, andh Meurs Cash athi anckhold $re MEpy 10 at 21;it il,39 Tis tilairesons oPC $urrienental NoV Repy .

197 A

the dos. Webb at M4. Mr. Mosbaugh later generated his own list of DO lin oarti mity .he Unit I Control Log, the Shift Supenisor's leg, and the Dicel Art Completion Sheets, and, on April 30 and May 2,1990, he infortned Mr.

     .;ockhold and Mr. Auldenkampe that th April 9 and April 19 counts were wrong and for different reasons." Tr, $2l1 12 (Mosbaugh); Tape 7$ Transcript (Gl'C thh.1134 and Staff Enh.1108) at 31. Mr. Ilockhold instruued Mr.

Mosbaugh to see that the !.ER was resised and indicated be rnight correct the April 9 Start count in a planned inid May 1990 submittal on DO component testing. Mosbaugh at 37; Tape 90 Tran6eript (Staff Exh.11 14) at 12; !!ockhold at 15,

                  !!y May 8,1990, when Mr. Mosbaugh chaired the PRil in his capacity as
 - Acting Auistant General Manager-Plant Support,** the PRil approved a draft r< 4ed I.ER which 6 tate 41 that:

After the MD 40 reent, tie contnil synte . of both crylnes were subj xted to a comprehen-she erst prograin u hnh t ultrunated in control logw lents on Mn hef IX11 A and M7 90 ror IK11H. $utarqtwnt to this test prograni. IKil A and ItalH luul been star.nl ' tirtws cach (through 419401 and no failures or prthlents have wrurred dunng any on im , starts PRil Meeting 90 66, GPC Eth.1137. Other revisions followed that updated the consecuthe succcuful starts through May 14,1990," and were transmitted to the corporate othee licensing engineer who was responsible for drafting the revised I.ER. Webb at 910. 'll. 4047 50 (Stringfellow). The site's inability to come up with a firm count number frustrated Mr. llairston, however, in that he had to report to the NRC ReFi onal Administrator, Mr. Stewart Ebneter, on May 14. 1990, and on June 14, 1990, that the start.

    "Mr Mmbaugh gate Mr limkhold a handweenen list of IGID M. win that umhrmed that stwre mere only it IGlB stans afwe ow 'LN 1est' utw end of the CIP in tus opummi Mosbaugh at M. Interwnw Lah 1129.

lape 90 franscript (Sintf I sh 1144) at 8 ne also sold Mr lhwktuel thu tte Ap,I 9 and Arni 19 counts were wnmg for Afterent resums "Ibnns a May 10.1990111t mreting (Ita Meesms khnutes 9467 (GPC l.sh- Il49tk Mr Mubaugh tacung i i en Gastnen of th. PRlu amgnrJ Mr ikwLkdJ Ow e6tma of Jetermining tuim the Apnl 9 Irtiet would le nwmtrJ. Ist on May 24. 1940. Air limktuild timed lie &ctum airm wuket trererung tte April 9 letwe Aufdenhampe at 17. Mut augh at 38. Inwrvenue i sh Illt Mr Mmbaugh behews he was tenuwed frorn uw Pkte Jue to lus c<muins at.aut false stawmrnis to Hw NRC Mothaugh at 1745, lhe branns reewd revealed only that. on May 10,19W. Mr Mmbaugh eas tenewJ frern uw f*H and twanw a isthnaal Aimines to Mr lluskhidd twauw Mr Greene tenuned tus posttums as Anustant Geswral Manager-Plant Supewt after stierwhng Eemot kractue operasus traan ng twMed tenuneny of limmas V Oreene. Jr.. on themel Ornerstw keportmg tagung ff Tr 6116 Kheenet at i "It was staavinrJ prnetwe tw an t.1 R to update informalma preemsly remuled to the NRC 1r 13.137 IWeto CPC ubmawly druded to torrgo its term smsenful start amt retmet inhJ teus smd falures. m defmed in RO I 808, eueneng dmmste ime 7.19W kruscJ Premed Rebutal lesumony of Ttomas I Webb on thewt Genciauw kerwung lunct "webb keuwd,"If it 13144 (WetM ai 913 Jee t3.R Restuon and Cmer traws tolY Lab Il 16k GPC iths 1147tl owough 171T. Itw approach ekle reovuhng unamtuguous anfmmahon regarang DO starts. JiJ bule to correct He statenwal or tonmutive twts mittumt pnNens w failures demgh Apnl 9 w 19 in that a terwtrd starts wung e Artwent snwruin and over 6 AfleverW penod than staied in etw pr1W 4hwurch'nis Ihr Gowf Irltre chly utreded the Apnl 19 stan enunt (10 and 12 0w LGIA r*J LGill, sestatively) bawd on dw narece scutw au,ht 1911 l

                                                                                    =       .

count numbers were revised. Mr. Itairston directed Mr. McCoy to keep the NRC informed of efforts to correct the count."' ilairston DG at 913; Tr. 3214 (McCoy).*8 When he saw that the draft LER revision and cover letter contained no explanation as to why the start data were different, Mr. Itairston directed that a,QA audit be conducted to determine (1) the correct start count and (2) p the reason O"r -Id not get the number straight. II irston DO ni 11 12; Tr. 3631 (llairston). lie also informed Mr. ESneter that he would submit a revit.ed LER after cornpletion of the Q A audit. Ilairston DG at 1213.

                                    '!here is no basis to conclude that either Mr. llairston or Mr. McCoy knew that the information provided in the June 29 cover letter was false. Mr. Ilairston's actions demonstrated a concern for accuracy and an attempt to discern why enoncous information was given to the NRC. lie and Mr. McCoy read the audit report and the table of starts appended to it to ensure that the count information was conect. llairston DO at 14. Mr. llairston also instructed that the QA nudit results be provided to the Resident inspector at the Vogtle site and that an i                         explanation of the differences in the count numbers between the LER and the I

revised LER be esplained in the transmittal letter to the revised LER, llairston DO at 1415. Mr. Itairston and Mr. McCoy adopted the implied finding in the audit report that DU record Leeping practices were the source of the enoncous information provided on April 19. llairston DO at Ifwl7; McCoy DG at 19 21. Unfortunately,(1) the nanow scope of the QA audit resulted in GPC selecting

                 . an incorrect or incornplete reason for the LER enor; and (2) neither Mr. Itairston, Mr. McCoy, not the other 01 C employees involved noticed that the QA audit showed that the April 9 start count was wrong.
                                   'the audit's failure to examine the performance of site personnel in collecting and reporting the initial counts tendered GI'C unprepared to reach a complete i

assessment of the causes of the April 9 start count errors. There was no evidence that the narrow scope of the audit was part of an effort to deceise the NRC.

                                   *Ihe QA audit report specificJiy stated that the audit was narrow in scope and did not identify a specific cause for the LER count enors. but implied they were caused by the failure to specify a starting point for the count and
                            *"on June ll.1990. Mesara Aufdrnsante and slostmugh sold alw NRC resident instethwi about de emus aiul that the stwrect henhrtt tiegynitrd ce then )Uu

tart (punting Aufde kangw at l$ Aner Mesirt nrtklJiun and Itveter receawd caHe that de oG start inforttwinn was innemt. the Nke pire v .locuss sheder 4tw entwwws tvuns em cause to reconuder de Aptd 12 restart desisson 1r. iljl9 20.13.W)l.1%.M2 (Reyes).

Mr Reyes, the targwty Regumal Adnumstrativ for Reston !!, tet alled that eight starts winild haw teen suffawne la tus opnum Tr llJW H (Reyes) Mr. Reyes telmed that oPCs traung. Stumaw actamt and confinnw(ey woung afert de ewat pin 6ded niewance that pcHems with tie tXis during tie 5Ar had twen residwd 1r 11J22 U (Reyes)

                           'I interwnor aswrwd that de gduce call was km shirt to (onwy (10 infornehon end truerad man alsout an ewsp at Hatch mTurnng ce dial dew inierwsuw lin&ngs ))9.u6 Such age (ulan,e 6s hat suffiCWat to fatet GNJs tessenue) regarding thew (allt 199 La             --

the lack of up-to date DG record Leeping practices.') The QA audit report, however, alluded to this faulty conclusion without confirming that accurate start data were not otherwiic i available in April 1990 (i.e. from the Unit 1 Control Log that hit. Cai.h had also used, which, unlike the Shift Supersisor's Log, contained Sufficient information to derive accurate count data).*) The aubt was also inadequate in sc,pe because it did not examine the perfirmance of hit, llotthold and hfr. Cash in collecting and reporting the initial April 9 data (the failure to define the criteria for "successtol start" and the period for the count), the assurances of Mr. Ilow.nold that deterred site verification efforts, or the failure of site and corporate personnel to define the CTP.** 1hus, the audit failed to identify their inadequate performance as causes for the citoncous infof mation reported on April 9 and in the April 19 LER. While better DG record Leeping practices (i.e., no delays in routing or cornpleting 6 tart completion sheets, and an up-to-date DO Start Log with starts numbered) woulJ have made count information easier to retrieve, it is cient that presious crioneous start counts vere caused by (1) the performance failures of hiessrs, llockhold and Cash in initially collecting and reporting the data (particulafly with respect to the ambiguous term " successful start" and the undefined period for the countf' and (2) OpC's decision to reiterate the count (as snodified by the term CTP) without completing adequate verification ellorts. There is no esidence that Messrs, llairston and McCoy were specifically aware of this cauie of the errors, as there was no evidence that Mr. Mosbaugh's reawns for believing the letter was inaccurate were ever communicated to them. Thus, I there is no basis to support Mr. Mosbaugh's assertion that GpC intendo'l to mislead the NRC. al l ltw (10 Sint iog, conipiled from cont etum strets blied swi b iteratums gersonnel and reewmed tiy dw (K) I ngiacer, Mt stokes, mas nit up to date on April 19 as Itute mere & lays 6n de routing or dw Cswit iction $1rets from (lw ogwrahws tu itw I nghwenns Sutturt larpartnwm (hea&d by Ms Mickwl W. Horton) and cretalors had not blled out a stres tery tinw air IK) mas started hehled leshnumy of ocorgie R lie &nik on Deewi Ornerant kepeting Imns, fr 'It 4121. Iteensk," at 7

   Pursuam to GPC prweitures or Unal I Comn,I t es man to sinuen the start imw. she turw. and any sigmhcam stain changes for cash IK) start Pnicedme Hxiolt. teskeeping (start lih 1141) at 2.1r 4232 Otr&rkk)

The sinns with pret&ns asuk'te failusen (sians 112.134 and 1361 mere all recor&d in tlw Usut i Cotural tag (Start i shs il 21.11-245. Tr 4212 ove&rn-ki T1w coums rep wied in pw Arnt 191.L R (and de Apnl 9 Irner start omat) 6en tu&d statt hefore etw tyrrahihty test was madweed

   ** Me ItcJrtu k iivas amare . hat Me caib had picpared the infortnatuin for Mr.16oskholJ's gecramatsoft, and led suunird that a sermate t<mnt h4d vint been made fie the 11 R Mr licensk had not soniaad Mr Cah Aming the ambt to amid tuaung ttw results of de suat liederkh at 9-12 Tlus approrh mtule resonable from an au&hw's penrecuve. aan aiu prv&m gnen ite gert<vnan$e pn+lems assocised enn milecting ste IK) stan ccmnia and Mr Moshaugh's siateness to Mr it derwh early in de au&q pertad that tw shelJ esartune the st&

pr;GPC

ed ma ar l htwwasonnel emus in the ertoewous omnis Tage lho Tranwript (staff I sh Il-If4 at 24 shai conimuwd a ' successful start without publenu re Imbres' en the au&t erpwt and ed not agree on a dehnutoo umil de August 30, lut) tener that autmuned n.rurale DG l A and 161B uart couma rur Arn) 9

    ** Messrs limkbM Mercy. and H. union ni . failed in tirlt reeww or de &wunwm to ensure that infatamwe prmt&d to t#w NRC in the June 29 uwer leitcv mas nespirie due 60 then failure to *clanfy' the .+ il 9 letier and to povkle a relevant Ascumon or tte stan esem 200

I!ven though senior managers may not be intimately familiar with site activities, the NRC espects that they will ensure that adequate care and attention are given to written and serbal communications with NRC. When they do become personally involved and have information rnade available to them (i.e., tl.c audit table showing the April 9 start count was wrong), they should take necessary steps to ensure that inaccurate information is promptly corrected. (21 Gl'C NOill'll;D 1114T lill: 1,1:R COVI:H 1lTil:R WAN l'Al.SI: AND INCO%ll'Ir!1: Petitioners are correct that GIC was on notice that the draft LiiR was inaccurate and incomplete. Statements made by Mr. Mosbaugh in conversations with a number of GIC employees substantiate this claim. This fact, however, does not dictate a conclusion that GlC intended to submit false in ormation r to the NRC, Rather, it is another esample of inadequate performance whereby GlC failed to correct erroneous and incomplete information. On June 29,1990, during a phone call with corporate personnel, and polling PRil members, on the I.IIR Revision and transmittal lettet Messrs. liederick, Greene, llorton, and llarry W. Majors (a corporate licensing engineer for the Vogtle Projecif' did not fully consider and resolve the concorm raised by Mr. Mosbaugh during the polling of the PRil members that (1) the lotter failed to clarify the DG 6 tarts reported on April 9, (2) DG record Lerping practices were not a cause of the difference in the DG starts reported in the April 19 Ll:R because adequate infonnation was available when the counting errors were made, and (3) the erroneous counts resulted from personnel emirs in developing the count lape 187 Transcript (StafI Enh.1118) at 2 28. Their actions played a part in GPC submitting incomplete and inaccurate information in the revised LliR. Site personnel were aware, as of June 15, 1990, that (t) Mr. Itairston was concerned about the erroneous start counts because he had attested to the information later found to be inaccinate, (2) site verification efforts had been inadequate and relied primarily on hearsay, and (3) Mr. Ilairston planned to explain in the cover lett.t to the revised LER or Ocwhere why the LER was wrong ** and what corrective action was taken to prevent recunence in the future. Tape 157 Trant.cript (Staff Eshs.1135, ll 35A) at 1013. tr Mapas wu to conflete etw tIR revissie gwkage and ensurt eat the IX1 seen e- as were coasistear muh de Q A au&t vesehe Prehled Tetuneny of Huey W. Marts on Diewt Omahr keptung tours. rf. Tr 6212. *klapC at t. es one of de lag &ahs of de rewr truer to the rensed 11 R stated thai the revised llR on ticing si.hnvued "to conwa snfoenasuon related to the nimeer of 6anessful thesel Ornrrahr siarts autwequent to the cienpehenuve lest postaan an escuswd to the 1.1It and the And 9 letter

Gif I.sh 11-1711. W staseiness ans not la the snel covet nrner 201

hir. Frederick, the onsite Supervimr of the SAER group, who reported to a corporate manager in Ilirmingham, supervised the audit conducted June 1l-29, 1990, which he understood war, to detennine accurate numbers for the LER start counts." llis $taff reviewed DG test data sheets generated during troubleshooting, maintenance, and surveillance testing, as well as the Unit i Shift Supenitor's Log kept in the control room and the Diesel Start leg (with numbered starts) rnaintained by the DG sptem engineer, liederick at 4 5; QA Audit Report, dated June 29,1990 (GPC Exh. ll 15).* Unable to identify a GPC - definition of "C'IP" the report concluded that the C'11' ended upon completion of the operabilit, run pursuant to Vogile surveillance procedure No.14980. In reaching this definition, hit, liederick reawned that the ter,t program ended once the machine was declared operable. Thus, the report concluoed that there were ten and twelve consecutive successful starts on DO 1 A and DG.lD terpectively, as of April 19. liederick at 6-7; GPC Exh. Il 15. hicurs. llorton, liederick, Greene, and htajors were specifically notified ; about hir. hiosbaugh's concerns regarding the accurney and completeness of the letter, but failed to resolce them htr. liederick knew the audit was narTow in scope, that the audit had not identified the specific cause of the error in the I.ER, and had been notified that he should examine the personal enors of hiessrs. Cash - and lleckhold, but unreawnably relied on his nartow scope audit and dismissed the concerns raised by htr. hiosbaugh." hir. llorton, a soting I'RIl member, thought the June 29 cover letter statement about DG record.Leeping practices was inaccurate because the DO Start Log was not used, but abandoned this argument when informed that hir. Itairston drafted the lanFuage.'2 hiessrs hlajors and Creene too quickly dkmined the concern that the letter was incomplete in that it did not " clarify" the April 9 count. Ibrther, hir. Greene, f aced with a unit down, adopted the corporate view rather than resolving the concerns of an individual who had been permnally involved in the development of the Li!R. See Tape 187 Transcript (Stalf fixh 111H) at 128.

     **Th6 was the stated purptme or de suat and ad esa implettent Mr. H.nenon's instructiim that du reasons for de erriw also he detertmtwd
     *t1w Prutiotwes assen dial delays to cong&see de redsed (IR are rudene that opC Ined to musiced dw NRC. Tiere ens na terad evideme to suitort n . p'Lta*8'H* Rattwt, de recad revealed inept and praracted oft efforts se artne al upJ.urd counts ami Mi Isairuon's deonne to have the testnum amm1 ste results of Itw QA auet Cimydetum of de nudst was delayed due to ethculty in locating de perunent records are set in tiw snuh was not cont iene and up to d.pel and sortw tecords te 3. de DG Congicine Ehrets, wtuch me tuuled dwough the plate mail e) stem) were not all kvated until tlw end el dw audit liedrnd at $4; QA Au&t Report, oPC lash 1819 (M Coy ML 16mh darunrnes were usued on kne 29.1990-H Mr Itederuk taict ainted that tO tecord keeping and the personal ereurs or Mr Cash in auking lui cours and Mr IWLholJ in answeetmg him al,o comribuird to the ems and (2) as he mas unasare of Mr Harston's instructwa for etw avet to deternune aby mistakes mere malr. he had herused de tous cause descenunatums te 3 inskuuate trumng. inadntuale pioceduren it 427o 71. 4J74 (hedend).

U la tus Dil sesponse and durmg the heanng. Mr Horton accepted responubshty as a PRR nembet far de inanurary la de Juiw 29 cover lettet tv 3. Tt. $897) and aJnuned that he had me adequately skkhessed Mr. Masbaugh's concerns (Tv SS421 202

                                                                                                  ,       ,,,    ,     ,               -m--.,,, -- ,-

1hc hearing record and DH responses indicate that Messrs. llotton. liederick, Greene, and Majors failed to resolve the concerns of accuracy and completeness that were raiwd by Mr. Mosbaugh due to a combination of factors, including the fact that (1) Mr. Mosbaugh challenged language that was personally drafted by Mesys. llairston and McCoy,(2) Mr. Frederick held strongly to his belief based , upon a narrowacone audit that DG record Luping caused the enors, (3) the DG record.Leeping practices explanation appeared reasonable," and (4) they believed Mr. Mosbaugh's opinions were entitled to little weight. Ser Stalf Esh. 11 18; liederick at 11 12; llorton at $-6; Majors at 4 H; Greene at 4 8; Tr. 6913 (Orcene); DH Responses: liederick at 810, llorton at 2 5, Majors at 4.lla Orcene at 513. The actions of the individuals involved did not meet NRC expectations for ensuring that information communicated to the NRC is cornplete and accurate in all material respects.1 heir actions show a reluctanen to question information developed at the corporate office (unless they had direct information to the contrary).1 hey do not show, however, a concened effort to mislead the NRC." (.1) 14tt'llIll*ll 1:Xi't.ANATIONS lON IMi STAIM COUNT ICRROkN Petvioners claim that the various explanations regarding the DG start-count information that appeared in drafts of the cover letter to 1.ER revision indicate that GPC cndeavored to mislead the NRC. l'etitian at 11 17, lhe record shows that the dlafts weie part of GPC attempts to defend or explain previous DG start count information without fully understanding what caused the errors.1he allegation of intentional deception was not substantiated. Git"s sailure to icsolve concerns raised about the accuracy of DG start count information both prior to and on June 29,1990, resulted in site and rorporate personnel believing that the April 191.ER was sufficient to clarify the April 9 count as they did not realite that the numbers for, and interval of, the counts were different. GPC had not yet defined what constituted "a successful start without a problem or failure" and did not recognize that the I.ER Resision U A single sinwie docunwed bke a tio stan teg with completaan sheets and sundered stasis would have mak the tak or aswmbhng and etanumns etw start dea ranet AurJrnkamre as 89.tt McCoy at 19-21. itw hearing revealed that itw updated 180 start 1*g ethetegh May 2,1990)(staff 14h Il 2h did one rected dw pnMem dunes (10-IR shirt 4 % and secor&d is and slans 142 and 114 as smsensful starts it 4D0 (Itedeied) ar j fr 6814110 (Ovegnel N in 6eranng testurkey aml to tilI responses, OpC employees often asserted that OPC failed to encet su chhgatums uner wctum M19 due to Mr Mohgh's actious f f till'tesponses used rmk at 9-10, Greerw at s.14 i L Manws al 710. Itodhold at 8 9, Gif at 4 6.12) While tlw enfmement acuon l&nuhed Mr. Mosbaugh as hetag anens ste engloyers who consnhuted eo ow severity iswl 11 prothm.14anung Mr Mosbaugh detracts hom straningful etanunauons of de source of Girs est.ws and dmourages accouniahhey and resetnuubthey Also, er GPC hat adequaiety sesolved Mr Me haugh's clasma tn Jure 19u0, that na etanunauon or actions try GPC gwrsonswl was accessary to ankestami and correct erttus. It etagts not have taken urdit August ,40.1990. to

 . sit an assuraw cours for April 9 203

count of valid starts through June 7 did not clarify the stan data presented in the April 9 letter and April 19 LliR.1he reliance on vlifferent types of Starts for a different interval and the various explanations set forth in the drafts epitomir.t GIC's failure to adequately investigate the basis for the information originall) conveyed on April 9 and to determine why errors were made.1he use of the term " clarify"in er cever letter to the LiiR tevision and ignorarce tegarding the cause of misinformation made it difficult for various CIC managers and their subordinates to provide a consistent explanation for the mistates. The DG record Leeping esplanation adopted was based on the QA audit that was not adequate to explain the causes of the count enors. 'Ihc record contains no evidence of intentional efforts to deceive the NRC, but ample evidence of evolving etplanations showing GIC's reluctance to admit its mistate, promptly conect the misinformation, and identify the multiple performance problems of senior GpC personnel before April 9 and April 19. l (4) AlfhthtAkY 1he record shows that (t) GIC was cien:ly aware, as early as hiny 2, that ( the April 9 letter and April 19 LI!R were incorrect and (2) GIC failed to take sufficient actions to conect the April 9 letter and determine the reasons for the enors in the two submittals. While GPC undertook efforts to correct the 1.liR, ! it narrowly focused on that submittal and did not examine the actions of the individuals involved or determine whether accurate information was available from plant records.

                       'lhe failure of Git to concet the DG start counts in the April 9 letter an<l to provide complete reasons for the inaccurate DG start counts in the I.liR, was in part due to the enuncous belief that the two submittats addressed the same count information gisen that the Apnl 19 start count was derived from the April 9 presentation. There is no evidence that any Git employee knew the record-Leeping statement was false or incompicie and no esidence of any deliberate efforts to conecal information from the NRC.

d August 30,1990 Letter Intervenor contends that GIC deliberately (or with careless disregard) pro-vided inaccurate or incomplete infonnation in an August 30,1990 letter to the NRC in an effort to ' cover up" problems in develorhg the April 9 letter, in particular the (1)" top-down" drafting of the letter, (2) contradictory public state-ments by htr. hicCoy, and (3) the steering of the August 30,1990 PRIl meeting that approved the letter. Mosbaugh at 5940, 'Ir.10,394-95 (Moshaugh); inter-venor 17indings at 213 20. 204

in the Modified NOV, the NRC cited GIC for two instances in which inaccurate and incomplete information was prmided in the August 30, 1990 letter: The tener states th.st: "The confuuon in ite Aprt! 9th letter and the origin 4 LLk appear to tw tlw result of two factro hrst, there was confuuon in tt e distinctkm between a successful start and a tahd test . Sca..J. an ente was nate by the endnidual who fwrforned the count of 160 starts for ttw NRC Apnl 9th letter,"

1. Ursa statenrnit are inaccurate in that confusion letween a successful stan and a tahd test was not a cause of tir error regarding DO start counts whkh OpC nuule in its Aptd 9,1990 lettet to itw NRC.

Uw inaccuracy was anaterial in that it coulJ have led the NkC to erroneously conclude that the conect root cauws for the enor in tie Aptti 9,1990 leuer had been idenunej by CIC.

2. Uw statenwnts are also incom 4cle. Whric an errot was made by tiw Unit Supenntendent who perfornwd the count of dwwl stans for tir April 9,19'io letter, tie root causes of the enor in slut letter were not completely idenurwd by 01C. $pecinently, ste Yogile platu General Manapt who directed the Unn

                  $uperimendent to perform the start count failed to inriue adequate instructions as to Inw to perform the count and di dno' adequately wiess the data developed by tie Urdt Supenntendent in adddion, the Unit Supenntendent did i ot adequately report has sount to tie Vogtle liard General Manager, lhe incompleteness was nutenal in that, had tir conect root cauws for tie ermt in ite April 9,199n leurt regarding DO stan counts twen reponed. ttus inkwnuition could have led 4tw NRC to seek further infonnation.

Gif contends that the inaccuracies in the letter did nw .oult from wrong-doing on the part of any GIC employee, but acknowledges that Mr. Dockhold should have taken greater care with respect to the letter and allowed greater involvement by his staff, GIC contends that any misstatements or omissions were unintentional. See GpC . indings 3'5400 1hc NRC Staff found no evidence that showed Git deliberately provided inaccurate and incomplete informath.. In the letter, but found that Mr. Dock-hold's actions and inactions as a senior t1anager contributed to the perpetuation and escalation of errors and omissions, and that Mr. Ilockhold's management style tendered the performance oi others ineffective. See Staff Exh,11-51 (cover letter) at 2 3; Staff Exh.11-49 (DFl regarding Bockhold) at 910, 205 w.Ws yrr pr i yg --i w e 1 $ r

(1) "10P lMMN" 1pKArilNU Ol' At!Gt4T 30 IA:TII:M During an Operational Safety Team Inspection conducted from August 6 to 17,1990, to examine the technical validity and safety signincance of the allegations submitted to 1:4 NRC, see Intervenor Exh.1183, the NRC infonned

                         ' GIC that the June 29,1990 submittal failed to address the April 9,1990 data

and requested that Git clarify DO starts reported on April 9,1990, Mr sMcCoy, aware of NRC concerns that erroneous start-count information

                          - was intentionally provided in the April 9 lettet, committed, during an August 17 rnecting with the NRC special inspection team, to correct the DG start data and
                         - explain the errors in 'he April 9 letter. Tape 258 Transcript (Staff Eth 1119) at I, Despite this knowledge, no root cause evaluation or other investigation of the IX1 start count errors was initiated. Instead, Git's August 30 letter (whkh was drafted at corporate headquarters under the direction of Mr, McCoy and provided correct data for April 9) was dispatched without an assessment
                         -_ of the actions of Mr. Bockhold and Mr. Cash who developed the erroneous
                       - information contained in the April 9 letter. - As a resu_lt, Mr. McCoy failed to exercise suf0cient oversight and GIC

Fain failed to identify its mistakes and -

take steps to ensure that the deficient conduct was not repeated. here is no evidence to substantiate the claim that the initiation of a drrft at the corporate of0ces was an effort to conceal information from the NRC. Site approval was sought as evidenced by Intervenor's tapes. Sre, e.g., Tape 258 Transcript (Staff Exh.11+19). Those who were most knowledgeable (albeit l somewhat uninformed) about DG start data and the causes of the error were " involved in reviewing and approving the correspondence. l l. I in slamiNo tw run MIA:t No ne August 30 letter was the first time that GPC defined the term " successful start" and attempted to explain why the April 9 start counts were erroneous. %c actions of Mr. Hockhold, the Vogtle General Manager, significantly hampered efforts to provide accurate information about why errors were made.

                               %c PRH functions as an advisory group to the General Manager. During -

the August 30,1990 PRB meeting that was reviewing a draft of the August 30 letter to the NRC, Mr. Bockhold changed the word " error" to " confusion" in-the phrase explaining the reason for errors in the April 9 letter ard the April 19 LER, As revised, the erroneous information was due to "the cort fusion between the distinction between a successful start and a valid test" Tape 184 Transcript - (Staff Eth.' 11 19) at 13 (emnhasis added). ,When questioned whether Mr. Cash (who had collected the April 9 DG start data) was confused about the distinction between a successful start and a valid test, Mr. Bockhold admitted that Mr. Cash was not confused when he collected % data, but claimed that the sentence 206 _ _ _ . _ = _

was accurate because other people were confur.ed afterward. /d, at 6 8." hir. Ilockhold also made several cornments indicating that he wanted unanimous approval and discouraged some l'R11 inembers from suggested revised wording for the letter. StalfI!sh.11 19 at 3,911. Ilis forceful, overbearing, and, at times, precipitous demeanor, (see Tr. 5769-76 (Aufdenkampe)) and failure to examine his own role and responsibility, contributed rignkanth to misinformation being provided to the NRC throughout ApribAugust 1990. Confusion after April 9 (whether by GIC or NRC personnel) could not have

caused the erroneous count information provided on April 9. This example of l hir, llockhold's forceful management style shows an environment where the ' pR11 reviewing the draft letter could not adequately resolve a concern about the accuracy of the " confusion" statement or inquiry as to the role played by a superior in the development and reposting of misinformation on April 9. hir. Ilockhold's failure to encourage his staff to have a questioning attitude thwarted efforts to cinure the accuracy and completeness of communications with NRC. There is insufficient evidence to conclude that this defensive posture was part of efforts by hir lleckhold to deceive the NRC.

13) INAC(TRA1E l't' lit.lO STA1DICNTA HY htR. hirCO" Intervenor awetted that because the reawns for 1.IIR errors stated in a 1990 press release by htr. McCoy (Intervenor !!xh. Il 67A) (i.e., employees did not use all of the available data and used operator logs only) were different than those stated in the August 30 letter (which stated that " confusion" between a successful start and a valid test and a personnel crior by the individual who performed the count caused the error) shows that GpC lacks the willingness to seek the truth, hiosbaugh at 60; intervenor Findings at 399 400.

The mere fact that a GlC officer stated more than one reason why GpC had submitted erroneous information is not a basis for concluding that Git was unwilling to seek the truth given what the record shows about GpC's inadequate attempts to determine why erroneous information was submitted. Inasmuch as the press release contains scattered quotes from Mr. McCoy, it is difficult I'Oswa that de 44 audit report showed that dese mere only two vahd tests (as dehird t y RO I loin on de d ewt during stus penod toPC l sh 18 li, Anachnent B. Tr. 3779 $0 (skCoy)), this mas nid Ow thiy source of couni emwn 7*1tas locadrni and de PRn nwetmg en de i AvA s> stem, we Section til A 4. ,arra, are both esampics ad M<. Smun lJ's furteful snanagemrsa st);* ori April 30, W), scruur officials of He NRC net muh Messrs sk(kmald, Hansion, skCoy. and otten to espress NRC renseras atna the "contwy' or *cavat6er* amtude that Mr Ika ktmid sand 010 estubited 6a drahngs atth the NRC Tr 14 89045. Ti 14.953 $6 (Mandron GPC and M4 IWhholJ haw sm .; aukr:miedged de rele Mr BmLhold's s.ianagernrns artic plawd in GPC comnwnseanns (naccurale and incomplete thformatue and Ms. Itocktmid has accepted responsihihty fia his nustakes 1.crire from G DmWiJ to j 14ctwemart NRC, dmed february l. IWi Tte NRC Staff aim tmwed that GPC comnmahations sutinantialty iniprowd aher Mr $)upman assumed Mr lixWid's posthon in the f all er IWO T ,13.194 (Mathrwo 207 4

                                                                                        -.r             ,                    . y                                             , , = _ _ ._   - - , . ,

to detennine whether any statements are quoted in context. Consequendy, it is difficuit to draw negative conclusions about GPC's character based on the statements.

e. OSI White Papers, Restumse to Section 2.206 Petitior, and SSPI Data a

ts) Mill 1E pal'IM 10 NRC INhPIX*llON li'Ah! . Intervenor asserted that, during the NRC's special team inspection on oper-ating practices and allegations (the "OSI" Inspection) conducted at the Vogtle facility in August 1990 (see Intervenor thh.1183), GPC intentionally provided false infonnation (1) by indicating that Messrs. Cash and Llockhold sat together in Mr. Ilockhold's office to work on the DG testing slide,(2) by omitting Mr. Ilurt frorn the list of individuals who wrote the April 9 letter,(3) by excludit.g Messrs, llairston and McCoy from the listed participuts in the April 19 phone call inat added the words " subsequent to the test program," end (4) by stating that all revisions of the Ll!R were reviewed by the PRil. Interrenor Findings at 357 376. Git contends that no negative inference should be drawn from any inaccu-racies in the White Papers as they resulted from honest attempts to respond to questions oosed by the NRC, GPC Findings 403 415. During the August 1990 special team inspection addressing NRC concerns about GIC's operating philosophy and allegations about inaccurate information being supplied to the NRC GPC resp <mded to questions posed by the NRC in 4 various " White Papers." McCoy IKi at 22 23: see GPC lixh.11 126; intervenor thhs.11 131,1195.

    'there is no evidence to support the claim that the inaccuracies in the documents resulted from deliberate efforts to misicad the NRC and conceal the participation of senior GPC officials. As is evident from the discussion on the Tape 25311anscript (GPC thh,11122; Intervenor thh.11148). the recollections of various GPC employees were clordy as to who participated in decision-making and who prepared documents. GPC employees freely stated their opinions as to who participated in various decisions and there was nothing to put GPC on amtice that the information to be submitted was inaccurate. In additior., the White Paper expressly conveyed "GPC's belief" at the time when (based upon information developed during the licensing hearing and enforcement proceeding) GPC's investigation of issues was incomplete. Thus, there is no indication that the mistakes were intentional.

208 p ~ y ,--ww- - - --r-

1 l l (2) 51A1DtlNIS IN kE.41'ONNE 10 SirTION 2.2at PEll110N Intenenor also contends that Gif intentionally tried to conceal Mr. Ilair. l ston'.s participation in the April 19 call regarding the I.ER when Mr. Mcdonald l signed GPC's response to the section 2.206 petition and later clarifications. l Here is insufficient evidence to show that Git intentionally provid.9 inae. I curate informatkin. Therc i no evidence that Mr. Mcdonald was specifically aware of Mr. Itairston's participation on the April 19 call and Tape 58 (GIC l Exh.112) shows that Mr. Ilairston joined the call after the wording regarding l the Comprehensive Test Program was added and did not participate in " Call

   !!" when Messrs. Shipman, i. ifdenkampe, and Mosbaugh finalized the LER l   language. See Tapt 58 hnscript (GPC Exh.112; Staff Exh. !! 45 (Vogtle l   Coordinating Group Report). The failure to identify various participants on the I

calls indicates faulty recollection of GIC employees (shown to be inaccurate i by the Intervenor's recordings) and is among the numerous mistakes Git made in providing information on the DG issue, hrformance failures, not deception, appear to be the likely cause. O) NN11 IIAT A Intervenor asserts that GPC's failure to include " bad" 1990 Safety System Performance Indicator (SSPI) data in the April 9,1990 letter to the NRC and to give such data to the llT is evidence of a pattern of willfulness by GIC and argues that the data should have been included in the April 9,1990 letter. Inter enor Findings 44 73: Mosbaugh at 99104; Tr.10Jfr (Mosbaugh) GPC contends that exclusion of the 1990 data, which was wed upon only a few months rather than a full year, did not represent a relevant and material omission concerning the Vogtle DGs. GPC Findings at 191-98.

              'Ihe fact that the data were not included in the final version of the April 9 letter is not significant. He record shows that the NRC asked Git to address the reliability of the IXis as part of the April 9 presentation. The SSPI data gisen to the llT addressed the > cars 1987,1988, and 1989 and was incomplete for 1990. Intervenor Exhs. 11-89,11 91, in a conversation taped by Mr. Mosbaugh on or about April 2,1990, Mr, Ilockhold discussed with Mr. Mosbaugh a document containing SSPI data for Vogtle DGs and indicated the data were to be given to the IIT and Mr. Ilrockman of the NRC Mosbaugh at 101; intervenor Exh.1189. Contrary to Intervenor's
 - assertion that it was hidden from the IIT, a document containing the SSPI data was among the documents collected by the IIT after the SAE. See IIT Document No.143 (Intervenor Exh.1189).

Intervenor's allegation that a draft of GPC's April 9,1990 letter that contained the SSPI data was telecopied to the GPC corporate office and the NRC was not 209

4 proven. NRC Staff records show that draft information transmitted to Messrs. ilrockman (Region 11) and hiatthews (NRC lleadquarters) on April 5 and 6, 1990, did not contain the data. See intervenor Exhs.11-65, ll 65A; nr "n. 3287 90.

          'Ihe NRC's interest relative to restart was to understand the basis for GlC's position that the dos were opes ble and that GIC's coTective actions had                                                      '

been effective. 'the NRC was not seeking a numerical value like SSP 1 (which repfesents the time that a given unit, on average, annually is unavailable), either historically or currently, as part of its restart decision and does not r normally rely on such data." See NRC Staff's Reply to intervenor's First Set of Interrogatories, dated September 15,1993, at Interrogatory 11. ,

          'there is no basis to conclude that the data should have been included in the April 9 letter in order to address the NRC's inquiry about DO reliability and operability. Mr. Ilockhold's decision not to include the data for the first few months of 1990 was not unreasonable. Intervenor has not shown that the information was necessary for a decision on whether the short term corrective actions were sufficient to provide reasonable assurance to permit restart, and it is clear that the information was made available to the NRC, (4 CONCI, UNIONS Rl;GARDING WillTI: I*AIT.RS. Sil'110N 2.206 Rt.NI*ONNE AND SSI1 DATA
         'lhere is no esidence to support interrenor's assertion that GlC knowingly submitted false information regarding hit llairston's participation on the April 19 call about the IIR. 'Ihe misstatements are readily explained by faulty recollection, and do not indicate that GIC intentionally misrepresented hit.

llairston's participation. 'Ihe audio recording made on that date shows that he was not a significant participant in discussions about the accurnicy of the LER. Similarly, there is no basis to conclude that hit. Ilockhold was deceitful in failing to include Safety System JYrformance Indicator Data in the April 9 letter in that the information, although incomplete, was provided to the llT. There is no evidence that the information omitted was requested by the NRC or reasonably should have been included in the btter.

      "N Vogtle a mildresa DG tehahihty by reqmring increased frequene) of DG tenung if a specified in:nkt of failures occurfed dunng the last 20 or 10u vnhd trus N 15s also te+ure special repswtins of DG trat resulta Nie re+uremeeu of the T5a are totally unrelated to s$PI t:*. $$PI data far inskvidaal IXis are cakulated by dividing the enavaitahne htuire (planned, unplanned. ano tomated) t>y dw total nunkt of hours the DG ta reymred to le opernimaal during the $$PI nueurnrot renod. dPC Esh.11140 Such data have hitle or na value unth gespesi to DO cyerabahty and the effectiveness of entrecove actions to albe restart 210 l

l t, _

                                                                                             -        ,_                        =-

i i f Statements Concerning /Ir Quality in Ihr April 9 Istter and to the IIT

11) IN1mt>t'CIION A sufficient air supply is needed both to start the diesel engine and to operate the engine controls. This air is supplied to each diesel engine by an independent, redundant starting air system that includc< an air comprenor, an .

after-cooler, a _ refrigerant air dryer," an air receiver, intale air filters, starting valves, air distributors, instrumentation, controls, alarms, and the anociated piping to connect the equipment. Alarms annunciate on the local control panel in the diesel building and in the Unit's analn control room to enable operators to monitor the DO starting air system. Vogtle SER 19.5.6 (floard thh. II 4) at 948. The control air is supplied by the starting air system from a point downstream from the ait receivers. Control air is used by the pneumatic logic components and sensors to control and protect the dicsci engine. The control air panes through a 3 micron filter and then through a pressure regulator that maintains control air pressure at 60 psig. See NUREO 1410, at 3 47 (Intervenor thh. II.10). One of the ways of monitoring the quality of DO starting air is through dewpoint measurements taken by attaching the dewpoira testing equipment at a preuure gauge fitting on the air receiver. The temperature range of acceptable dewpoints at the Vogtle facility is 32 50*F. Dewpoint measurements obtained at the Vogtle facility on the DO air system are documented in hiaintenance Work Orders (htWOs), which are used to perform the Preventive hiamtenance (Pht) checks of the DG air dewpoints. See Intervenor thh.11-78. at 510; ser hiosbaugh at 69 70; intenenor ihh.11 169. 1he April 9,1990 letter submitted to the NRC to support GPC's request for restart stated the following with respect to air quality: CIC has reviewed sur quahty of the IMI air systern induding dew poird control and has i conduded that air qu ality is sathfactory. Initial reports of higher than capected dew points were later annbuted to raulty instrunwntation This was conhrned tiy internal inspection or one air receiver on Aprit 6.1990, tte pernothe replacenwrd of tiv control mit rihers last done in Marth 1990 whnh showd rio indication of cortoslon and daily air reccher bite- ' A ns w 6th ho ingnihcant % Aler discharge. D ile me dryer as Vogtie h kwated upsueam of the aw recerver; the dryer rewves maior vapur inwn the t congecased eu behwe the er reaches its resener smi is desigacJ to run conununuity l$ Alt 6 9 $ 6 m 9 5 t>4 olosrd t-Ah Il-31. Board t.sh U4 m 9-68 Cunpressed andwns mr. smutated with meer vapur, enters the dryer , and se precoi&d t'y Itw ourjoing refngernard aar tiy an air-t>mt head enchanger The precooled er etwa enters tie aar kncfngersai heat eachanger 0 e , the refngeranca evarcenind where et es enoted tey the drpv's teingerarw+n syvent At the er coots. meier sartw condennes ordo hqutJ dnynets stuch are actuarated met or the er stream t.y e aussiste orperakw. and automaanony discharged by e demntrap Doord fik 18 3 at 9.3 6 4 21I

GIC I!sh.1113. at 3. On May 9,1994, the NRC issued the NOV to , Gif, which included a Violation 11 on air quality based on (1) GIC's failure i to provide complete information separdmg control of DO air quality (i.e.. I dewpoints) in the April 9.1990 letter by only stating that initial reporn of high dewpoints were attributed to fauhy instrumentation and (2) GIC's Is"ert to state that high dewpoints for Vogtle Unit I were also attributable to system j air dryers occauonally being out raf service for estended perhids and to system reprenuritation following maintenance, Staff DO Panel at 7; Staff lish.1146, , at 3 4. j After reviewing GIC's response to the NOV, the NRC Staff concluded that I I an of April 9,1990, GIC had an adequate technical basis to Support a finding that air quality was acceptable, and that dewpoint infortnation of a historical nature, i.e., from before the SAli, was not necessary for the April 12,1990 restart decision. Staff ihh.1150. at 5 6; srr also Staff DO Panel at 9. In the Modified NOV, dated rebruary 13.1995, the NRC withdrew Violation 11. Staff ihh Il $le Appendit at 2 3. Intervenor ancried that the air quality Statement in the April 9 letter is materially false and deliberately misleading in that (1) high dewpoints were not due to " faulty instrumentation" (Intervenor Findir.gs at 285) and (2) the results of the April 6,1990 inspection of the air receiver, the inspection of air filters, and the daily air receiver blowdowns did not support a conclusion that air ; quality was satisfactory (Intervenor Findings at 30M19)." See also petition at

9. Intervenor also alleged that OpC was recklenly carelen in communications regarding high deupoints and concealed high dewpoint readings from the llT.

See Mosbaugh at 66-92. Olt maintains that the letter comeyed its judgment that, as of April 9,1990, the dicsci control air 4t.ality relative to taoisture or humidity was satisfactory based upon the April 6 air receiver inspection and the daily air "twe woue aho stirved dial emet was collected from Ow diewl air optem pnne to And 9.1990, in thal (1)he new a ser of 8 ounces of yelkmtsh fluid in Mr. Kochery's ofnce on March 41980. and (2) a taped (and part6auy inaudible) omversation lembcaws thm de water sanw frsen dirwl pewsmatic tutung (au sperm '1np hnes") that weg disaiernibled on Mush 29 Moshmish al 9194 110 senJur sepreerniatives who eene preiem dunns ite Much April 1990 shsassembly or nuus or t$a chewt senung knes and perimmed the dweel k gic lunctumal tesung. incimhng the dncemnectma of all prosecuve inp bars wuhin the empne genersd paart did ant ewall obweving w twartag about any water or truusrure pn blenu sa the dwwl starting tv control me in Mar & April 1990 Rchunallest:numy sd 6helam onioung and kotert hdmiton en Atr Quahty $tatenients, rf Tr IL428,'OmYoung h4mthm." at e 3.Tt 12.741.12,73s 39 (Om Ytmfig. Aihastual orhrra prarm sa Mr kochery's othee had no recolhytwe of the laakal and ewn dnputed Mr. Mmbaugh's trannenhed wenon of the March m 19Ao tape ersawa. Tr 7552 53,736AJO (5nAest thenauh

                                                                           ' Rebunal at 14 ttf. It 14 c'ns we aleo it 14 074 43,14,u76 telenauld In aAhtum, to May 1944. the NRC $taff taspecket esanussed ohnhet esser heJ ticea sa tie thesel coratol air sp6em na 1980 1he $iaff 6Jetmhed nunwrous cannples er end-of specahcmire drwprunts, but found im estdrnce ad actual wates formatise na ste diewi cordrol me sperm hass or twrosam Staff 14h 113. m 1. 6 8. see alia Triunney or (Jamd D. londianon and Perce H $6sater on Air Quahty, rf. T 14.497, *5taff AQ? m ISil.

Thut dere is no evedrace to substantime the claim the meer was in the inp hne 212

receiver blowdowns, which did not indicate a high humidity environment in the starting air sptem. Srr Git thh. Il $$A (Tape 11 Transcript), at 2; Supplemental Testimony of George flockhold on Air QL.ality Statements, If. Tr. M97, *llockhold AQ," at 5 6. "Ihe statement that " initial reports of higher than expected dewpoints" was not intended to describe all past maintenance issues or to refer to any dewpoint readings taken after htarch 29,1990 /d; Tr. 6582 (!!ockhold). - The NRC Staff concluded, based on the hearing tecord, that (1) the air quality portion of GPC's April 9 letter was incomplete in that it did not reference the-fact that the instrumentation and Control (l&C) technicians were unfamiliar with the use of the VP ill4 instrument, and initially misused it,in taking deupoint rnensurements in etuly April 1990, and (2) the reference in the April 9 letter to

       " initial reports" should reawnably include high dewpoint measurements taken prior to April 9. 'I).14,756 57, l$,111 (htatthews). *Ihe NRC Staff found that out of specification dewpoint readings identified by Intervenor during the hearing (Inte venor thh,11 169) did not Show that air quality was unsatisfactory since inspection of the receivers and coritrols showed no evidence of corrosion or a long. term water problem. Tomlinson and Skinner a 1213.

(2) ACCl' RACY Ol' ETA 11.hll:NT lit AT AIR Qt!At.tTV WAN N All%I AC10RY hit. hiosbaugh alleges that corrosion ren during the April 1990 inspection of an air receiver is evidence that air quality ~ts not satisfactory, as stated in the April 9 letter. Sre hiosbaugh at 82 83. One DG l A eir receiver tank (K02) was insputed b nPC and NRC Staff representatives on April 6,1990. See Affidasil of hiilton D. Ilunt, dated htarch I,1995, ff. Tr. 4882, "llunt Affidavit," at $; Prefiled Testimony of Kenneth Stokes on Dic$ct Generator Air Quality Statements, if. Tr. 6962, " Stokes," at 2-3; Rebuttal Testimony of liarvey llandlinger, ff. Tr.11,346, "llandlinger," at 2; "I). I1,450-$6 (llandlinger)*" 'ihe metal was clearly visible inside the acceiver and there were no loose rust particles in the tank," water droplets on the tank walls, or other signs of moisture durir.g the inspection. 'It 11,374, 11,450-56, 11,483. 'Ihe f act that there were normal rust spots on the welds inside the tank and that the control system air filtets appeared "new" also indicated that air quality was not a problem. Ilunt Affidavit at 5 6;'It 4930 (llunt). ,

         "Mr Haney Harkthnset was GK"a Manages id Masmcoances repsetang so Mr bidenn (Annits. int General Managa 41peratumo Mr Wk honey as the ading instrunwnsateon .nd Control Superintendeva, regated ki Mr Hamthoger H Mr Skenan's Apnl 11.1990 miwes (OpC t.sh it 147) showed that dwre was nuru *aash" corrosue er runs observed te de weki teams or as au enciver tank. as eagested. gesca that wckicJ jnents on the cart.on steel tank hem a thn " rust" er cawresum &lm emnethately aher mekhng kebuttal Teatmeny c4 W0bam 16 Shpman (if le. ta.890k Shipuun Rebuttal? at 14 213

i Mr. Mosbaugh did not dispute the htaternent from the April 9 letter that air quality was satisfactory when that statement was read to the llT on April 11, 1990, and Ments. Kochery and Stokes indicated that the statement was correct, even though the 50 degree dewpoint requirernent had not always been met. Tape 41 Transcript (Staff fish,1115) at 12,5 7, llawd on the enidence wt forth above, particularly the abs nce of significant rust, corrosion, or tnoisture," the statement in the April 9,1990 letter that air quality was satisfactory was not inaccurate, m INCONtri.I:11: kEAkONiiIUR lilGH DLWPOINT READINGS *

              *Ihe record shows that Git's statement that " initial reports of higher than espected dewpoints were later attributed to faulty instrumentation"is incomplete a that it failed to indicate that high readinFs were also obtained s.fter the SAll due to technicians being unfamiliar with backup equipment, but there is no basis to conclude that Git intended to inistet.d the NRC.

On March 9,1990, there were out-of specification dewpoint readings of 61'F and 6(.'F taken on LXLI A air receivers K01 and K02, respectively. Git believed the high readings were valid since humidity would have risen while DO+l A was out of service and disassembled from March I to March 13,1990, foi overhaul maintenance and testing in that the receivetri had b:en depressurired and opened to the room atmosphere. Prefiled Testimony of Lewis A. Ward on Air Quahty Statements, If. 'It. 7740, " Ward AQ," at 3 4; Tr. 7878 80 (Ward)." After overhaul maintenance, air receivers are recharged using multipic ' plced-und feed" cycles, as necenary, until the dewpoint is within the acceptable range. The dewpoint readings were within specification on March 12, 1990, and the DO was declared operable on March 13,1990. Ward AQ at 4; GlC lish.11-62, On March 2H,1990, air quality, including the possibility of small debris or moisture in the dicsci air system, was diseuned at a meeting with the lii' where GIC stated it wouhl determine the last recctded dewpoints for DO-I A and take another dew romt leading in an effort to identify the cause of the March 20,1990 83t r any enir, ever furnwd In de pvwumnus control air antem, mater ocukt bkely acunnlane in the bowl or de tonitol air 6her la ele dwett rnsine cotwul pand but there man no evidense or mater na that hker befine is dunny lie Mah 1990 outage oeYtwng Johrtisan at 34. see ethe 'It 11495 502 (owYoung. Jidmitont Minstwe entronkin prielems in the thenet air mean syneem in Ita) vueld haw also caused degra4:uon due in etwinawa as curvosson puducts whosh would leve twen i+vuwi denng de 6aipectwn and sesung of the &ceels. but Gwee man no esulence or tornwoon durms or ingettwo and sesung or the Arsels folk oms ow hAL Terimumy or kenneth stokt, on Ane Quahip basciertas 17. Tr f 961 *settes.* at 4 he enample. Uw bigic Inard. mhsh est tynwwd and replaced subsequent to the IG la start on Mash 24.1990 (bart i4L simwed no signs or a mater tw swestwo pot 4 eta and taspecunna dunns each is.nsuwh seplaerrwat or Ow contnd air hhers sevealed an smuitwe prublern 1 77o4. 7 tall 86 ($kara)

           "'Ms wmed astnbuted dw high resenge to to actual high-hunuety constma as a resuk or tGI A. inchuhng its av stan syrem. bems out of ocesses and enanseudded troen Mah I to Marsh 13.1990. fin sweshaul masmenanse andtesun4 W8d AQ ni 4 214

spurious trips on DO 1 A. Src Git Eth.1149 (llT Trani.cript), at 95 9' ne alm Dockhold AQ at 1. Git Instrumentation and Control (l&C) technicians performed the tuonthly prevent tive maintenance dewpoint check on DG l A on March 29, 1990, recorded out of4pecification high readings of 80'F and 6(fP. and documented them on an MWO for evaluation and trending purposes." Ser GlC Inh.11155, at 1; MWO IM0l$13)Gif Enh. Il 155); RebumJ Testimony of Mark litincy on Dichel Generator Reporting Statements, ff. Tr. 12 07$ "firincy" at $; MWO l 90-01651, dated March 30,1990 (Intervenor Exh.11 143), During an April 3,19'X) telephone conference with IIT and Regien 11 personnel, GIC (Mr. Ilockhold) stated that the air quality was ;,a*: :netory, but

                                         . did not mention dempoint scadings. Ser GIC Exh.1150 (llT Ranvript) at 59 60; art alw Ilockhold AQ at 1 Mr. Ilockhold temuned that he was not aware of the March 29 high reading on that date and probably focused on the clean condition of the air litters."
                                               - On April 5,1990, Gir initiated a blowdown c.i the DG l A air receivers to check for the presence of moisture, a feed ar:d-bleed of the DG 1 A air receiversi to lower the dewpoint, and a check of all the dicsci control system air filters for the presence of moisture. Srr 11riney at 5-6; GIC Eth.11156. Dewpoint acading of 84*F and f;2T were obtained on DG lil. Fer Gif Exh,11156, at 1; intervenor Exh.11169, at 3.

On April $ through April 6, a series of high dewpoint readings on DG IA was obtained using the Alnor Vp 2466 dewpoint instrument. Ser Intervenor Eth.11143 at continuation sheets 13; Intertenor Exh.11169, at 2. On April 6, Mr. Ilockhold informed the !!T that he was aware (on April 5) that these were high dewpoint rtadings for the DG I A on Match 29,8* and that Git "lmerveruw's allegaten that the Mwh 29 retection of a inrfhwncv Card stums thai GPC tvisended to content the high demiumme seaangs froen NRC (Intervente fin &ngs 60t hota, was rud substantiated Tl* Fid*m mas adequately dmumrwed by areans of a Maimenance Wmk (hder, an act oncemusicais with an Intem to keep inhumatmn from de NRC H Mt IhkkM admined that none td his responws to the til that day esay, in tstrammt, hast leen rmstraang 1r. 646461, e 901 (* (BothfuMs Imeriemw's anegation that Mr. hmkholJ man natr aware of the March 29,1990 high tenangs on te atmua Marsh 29 and thm le dehter.itely methirld eve infmnumes fetwn the irr during an Apil 3. 4980 telecimterence bet inwrveime i nengs 5.11, 54td, lumever, was nas suppewird by its ender.ce Mr limiNM cimid sus recall liring aware of the high ren&ngs pior ta AF615 See lit Traniinpt (oPC 1.sh 11 St) at t. 4-5. Tr 6M (liotkluMi Mtsats Hum and IhwtinM wndernood timi dempunse atxwe 32-$(7I were ** of 6mpr& ate etweea hw operabihty of the diesett ist could cause paru en (tw diesel au splem to conside tf thry oceuned over the km3 term - 1r 4898 99 oluait oM7 i at il Si, al 45,1r 64r667. 64.18 $9,6td*,09 (IWktmMt Thrre u ao evidri.ce that any opC employee, in Wag Mr Miubaugh beterved de dieseln were smterable due to poor a&r quahty or a%ared such a view wuh Mr r%ktuM 5ee It fe97 (BmuuMt flerefore, there 6s insufhttent evidrtke to (teclude that, by Ared 3. IPE Mr llockheM karw ahmt Ow Mmh 29 dempeens rea4ngs tv muhbrid that tafwmsuon from the NRC's tri.

                                              An NRC kesma 11 sailecht, Mihoe Hont. teverwed MWon on the dwerts and ducmtved the March 29,1940 Ivgh dropam sembags ca o0 I A as reseivets in early Aptl 1990 and of wned oPC See Hurit Aftwisvit at S.

1r 6 W (th ktmkn f Contme.h 215

thought the dewpoint sensor instrurnent was bad nr.d was trying to obtain a backup instrutnent." Ser GPC Esh.1151 (llT Tramcript) at 1,4 5. On the afternoon of April 6 following the series of high renhngs on DG.lA, GPC tried to deterinine whether there was an actual high dewpoint condition or inuity instrumentation and u ed a backup EG&G dewpoint instrument (VP.lil4) to verify the accuracy of the Alnor VP 2466 readings on DG l A Tr 12,081 82 (Drincy) are intervenor EAh 11143 at continuation shest 3; Intervenor Esh. 11109, at 2. The vendor's instruction manual for the VP.it14. however, could not be kicated and the I&C tefchnicians taking the measurements lacked training-on the VP.li14," M at 12,082 83; ser oIso Th 12,784 (lla.umond). On April 7,1990, an I&C technician took dewpoint measurements on the

                                          - Unit I and Unit 2 alt receivers using three different instrumeats - the Ainor VP 2466, the EG&O VP.1114, and the recently acquired Ocnera! Electric (G.E.)

rental Ainor Model 7000. The VP-2466 and VP.Ii14 readii:gs were out. of specification high while the O.E. rental instrument readings vicre out-of. Specification low. Ser Intervenor Eth.11217, at 3; ser also Interveior Exh. 11 169. GPC's acting l&C Superintendent could not draw any definitive concluMoia from th( out of specification dewpoint results obtained on April 6 7, but was convinced that eight independent air systerns would not simuhaneously fail to provide satisfactory air to the receivers. Hiincy at 7 8; ser otsu Tr. 6554 55 (DockholdLa

                                                               'the then NRC inspector believed that he saw a listing of dewpoint readings I

taken April 6 7 before he left the site on April 7.1990,*' and was aware interwmv alleged dunng the tranns W.at oPC. 6n its 1994 NoY reismee and in de 1991 pefiled wr quality triunney of Mr limuudd, snienuomally falsely aswned that ott self repwted dw Mmeh 29 high drwpmat readings to the NitC dalerwmv landings $3133R.14454H Wlule kh flum's subsequerW teshnumy shows ofCs saasemeni to tw se erne a6me Mr Hum trahned tv discowred tte Mash 29 high dropoint temhngs, no evtdrnce mas penewed to nubstannase den diurn that dw estur was twemamal U Ahtmugh leurtwmv is cortect that Mr BnckhoM s Apni 6,1990 statenrms to de Irl that thrre was ont a bakup drwpoint anal tser al etw plane was inaturae unterwmv l'tabngs 34v$44l, there is no bass to etwwiude i diat dw staaenent was lasentwnally fatia, parucularly sma dw badup instrunes (VP.lll41 was wied subirquene to ite trir;4mme confereme math ttw trr.

                                                    "8 1merwmv estAbIided al its branny shal de i oAG Model 911 instrunem had Iwen used by l&C techmetans on erw onanum na March 19hv Are tv 12.21617 (MWo lit 90t*22 reflects dempois rea. bogs takte by LAC tethmdan witnf an I oAU anirunemt "lateevetus's allegauon shal oPC engaged ta intentmnal willful corutuct in slanung that etw VP 24tA drwp4nt instrunem man defettive Omerwmw limbngt $47 390. $7s 379. $8), and MH mas sme substanhaled By Aprd to IV9a oPC had a evawenble imus to suspes't dw Alme vP.2466 taurument was fauhy in that (1) the ettendrd eahhration due dase tw sto inurunent was about to espe. (2) de tal sn-spesiheatma reading was on Mach 29.1951, Isw L(1 IB, and O) all or dw Apil 5 dropois sea. hags on de (GI A and !&la unna the VP 24t*

sustrunes mere innet-apvirwaima lugh See GlT I th 11-199 see abo Dnney as 13, are who L sh Il-Iti9. at 21

                                                      Mr Bodhi4J had pnwn.ned a hat or high drepunt presurenrars to Mr Hus, and Mr Hunt suggested alwt off havrow drupam tem equapnrm Im n 6. Y C Sumner Nucerar Plant sa ceder to accurasely nuasure drepum tea.hreys and venly lie torubatoa of alw at it 6917,6%)(BwkhC.d),llum AfhJavat at 3. Tr 4924 25.

49li(Hunu 216

of GIC's opinion that the high readings were due either to faulty dewpoint equipment or operator error. Affidavit of hiilton D. Ilunt, ff. Tr 4882, "llunt Affidavit," at $; Ti,4924 23,4930 31,4933 36 (llunt). Ser Git ibh.11 $2. GPC later determined (based on an EO&O instrument borrowed from V.C. Surnmer around April 8 with its instruction manual) that the initial readings talen with the VP ill4 instrument had been used improperly (without the required flow meter) on April 6 7, IWO.H liriney al 8-9; Tr.12,088,12,340 (llriney); Tri6513 (llockhold); interrenor thh.11169. Ily April 8.- 1990, readings on - both units that were taken using the flow meter (VP ill4 and iS 3529) were in specification (and in close agreement) except readings on the DO-2A K02 receiver (where the dryer was found to be turned off).H GIC concluded that the prior Alnot readings from the VP 2466 instrument were not valid. Tr,12,166 l (llriney), 12,857 59 (llammond) Sre lirincy at 9; 'I).12.203,12,206 (llriney); Intervenor thh,11 169. During a morning conference call on April 9,1990, hit. Lewis A. Ward, l Manager of Nuclear Maintenance and Support kicated in the corporate ollice, told the !!T that with the borrowed instrument, all of the April 8 dewpoint readings were within specification. See Olt Eth,1161, at 4. Mr. Skip Kitchens, Assistant Plant General Manager-Operations, then stated that a high DG 2A dewpoint reading believed to be caused by an air dryer beh.g inadvertently l turned off (probably on April 6) was being addressed by blowing down the air l receiver, *lhere was no mention of I&C technician errors." See llT T:anscript (GIC thh.' 1161) at 4 8. In response to an IIT request, GPC committed to provide u history of dewpoint data for the past year. Id. at 7 9. During the April 9 meeting with the NRC in Atlanta, the NRC was told that . air quality was good, that high readings were attributed to a faulty dewpoint instrument, and that an April 6 inspection of an air receiv:r, as well as , inspections of the control air filters and daily air reccher blowdowns, confirmed that air quality was acceptable. Intervenor Exh.1171, Propet No. 006214. During the April 11 teleconference with the 11T, Mr. !!ockhold (referencing the table of dewpoint measurements dating back to March 1989 that had been - prepared to address the NRC's request for data) stated that air quality had been and remained satisfactory for a number of reasons, including the April 6 air receiver inspection, which showed only light corrosion around the welds and H Dunng the hemm8, an NRC $taff mitness. Atr. Pwere $baret, commied an i O&G repsviement who toki lum the et muukt how been eurenwly difhcult he as t&C teshniana to throttle cow to the etwreet level without a Ow neter 1r 14A44-44 (skinaro irrertect flom causes erron in dr*poins tenangs M H lmerveniv's staim that all eight ser etceivers had espenrnced high, outdapecHkation dengmies due to personnet snabertemly to ime wier. ally turning off the er dryers Omervetus rendmp Stil mas nas sutniannant innervews prmhlrd so esidence to segpwt lus cl.um naJ kir Stunt twaned that the dryers mere out or acn6ce re e.n only a few tmws h m 10 oluut "The noses or ht Ba ley, taken dunas oK's Arn! 9,19uo enretmg with NRC in Aden also renect that this lugh dewpmm teaans mas reputed to the NRC See i.acnenct Lah IIM at $. 217

a minor amount of oil on the bottom. Src GlC I?sh.11 $6. at 6 7; Rebuttal Testimony of W.F. Kitchens, ff. Tr.13.$90,

Kitchens," at 9; src alw GIC lish.11 $6, at 2. 'Ihe data provided to the llT (GIC lish.11 $7) did not include the hirli dewpoint readings from April $.7,1990. becauv OpC did not believe the readings were accurate or reliable. Kitchens at 9.**

to roNetrMONs

     'lhe April 9 letter was incomplete, as it did not indicate that high readings were also caused by technicians being unfamiliar with a dewpoint instrument.

Ily April 9,1990, senior GIC management at the Vogtle facility (Messrs. Ilockhold and Kitchens) and in llirrningham Alabama (Mr. Ward), knew about the problems the IAC teanicians had in using the VP 1114 instrument cortectly. While the letter's reference to " initial reports" is ambiruous, all t.igh dewpoint measurements taken near the time of the SAll and prior to April 9 could have influenced s.n NRC decision on restart.

     'Ihe evidence does not establish that GIC acted with reckless disregard for the truth, intentionally misrepresented information, or conspired to mislead the NRC in communications regarding DG air quality. GlC took reasonable steps to determine air quality (including the receiver inspection), performed blowdowns on the air receivers to remove any moisture that could affect DG performance, and generally Lept the NRC informed about their activities. While Gif provided incomplete information about the causes of high dewpoint readings based on the belief that recent out of4pecification readmgs were not valid, and there inay base l been some delays in sharing informati(n about dewpoints with the NRC, the evide~e considered as a w hole f alls short of demonstrating that OpC engaged in making willful or recklenty carelen misrepresentations, and does not otherwise 6how that GIC lacks the requisite character and integrity to operate a nuclear plant.

g. Conclusions Regarding Diesel Generator Statements l'etitioners allege that GIC, deliberately or with careless disregard, submitted fahe and misleading information regarding DG starts (1) in an April 9,1990 presentation an.1 letter in the NRC (seeking permission to restart after the SA!!);

(2)in an April 19,1990 Licensee Event Report (LI!R) 904106 on the SAli by

 .. tme.ms.                                                                                    e ih, vr iu4 sonhrmany re.Jinc ,.ommwn.
       ., msn. 3mEsm     3.s. .o ihaimm.,_acit    tm.mu.

a ve. u i. , nan, coneraied n,, .e.g .,_, tu, ,iwa t,. sac. but queshone aNiet the ansacy or lhose sedagt were resolwd 19 iSJU9 teadings tahra on Atoll 8 Given thal the NRc m.s 6metested to despam tradmgs (and me necessarily the painviar equqinre weed to t4ain them) and that ve ll14 readings were ansluJed on the linung gemidrd to the Irt, there as samuffwice evidene ] ki suppist laservens a tiern see Gft Iah 11 St. at 7 8, Oft rah 1157. toernetav lah 11-469. at 1 218 s

incans of a conspiracy among Git managers;(3)in a June 29,1990 cover letter forwarding the revised IIR and (4) in an August 30,1990 letter. Pctitioner , also alleges that GlC kr.owingly submitted fahe or misicading statements (1) concerning DG air quahty in the April 9,1990 letter (and in contemporaneous discussions with the NRC's llT); and (2)in GIC's April 1,1991 response to Intervenor's section 2.206 petition with respect to hir, llairston's involvement , in developing the fahe start information (i e., during an April 19 call) and when Olt managers became aware of inaccurate start counts. 'lhese claims were not proven. Although Petitioners are correct that inisinformation was provided to the NRC in various comrnunications related to DGs, the weight of evidence fails to show that GlC knew the information was false or incomplete. 'the repeated failure of GIC to provide accurate and complete information relating to the I wmt of DG starts it. April 1990 stemmed from GIC perfortnance failures j that do not amount to dthberate efforts to deceive or misicad the NRC or to avoid regulatory requirements. '!he erroneous counts of eighteen and ninescen corsecutive successful starts without problems or failures for DG.l A and DG. lit, respecthcly, as of April 9 (instead of twenty nine and twelve) were caused by GlC's use of ambiguous terminology to show diesel reliability during a poorly defined period. When questions arose about the accuracy of the data, GlC managers rehed piimanly on verbal assurances that defended the information and revised the count description without (1) examining the causes of the initial misstatements, (2) determining accountability, and (3) promptly conecting erroneous information that was presented te the NRC. The reliance on serbal assurances and incomplete site verification efforts on April 19 did little to address or identify mistakes by the General Manager in requcsting and presenting the start count, and the Unit Superintendent in reporting the start data he collected. Consequently, the count reported included problems or failures and was not a count after the CTp (which GlC later determined commenced with the surveillance int where a DG is declared operable). There was no evidence that any of the current GIC or Southern Nuclear personnel w ho were involved (Messrs. Ilockhold, Cash, Shipman, Aufdenkampe, McCoy, llairston, Frederick, Greene. Ilorton, Majors, Kitchens, and Ward) conspired, or acted individually, to submit information they knew to be false from March 20 through August 30,1990, regarding DG testing or air quality, Clearly, these statements reflect only a poruun of the many exchanges between the NRC and Git concerning efforts to determine the causes of the SAi!. The failure of Git personnel, individually and collectively, to take steps to ensure that the NRC was provided with complete and accurate information during this period nonetheless is a very significant regulatory concern that constituted a Severity Level 11 problem at the facility - conduct far below NRC espectations. 219

i liased on observations of NRC lleadquarters and Regional inspection staff throughout April through \ugust 1990, GPC took sufficient actions to ensure th.it the DGs were reliah.e and operable. GPC's perfonnance fell short, however, with respect to the level of importance and diligence afforded some communications to the NRC and prompt resolution of concerns about the l

   - accuwy and completeness of information provided to the NRC. This sometimes                                                                                      >
       " cavalier" G, c .ntitude led GPC to fit the words (rather than to serify and reverify facto in communications to the NRC. Mr. Ilockhold's managernent style contributed to an atmosphere whereby site employees were reluctant to question the accuracy or completeness of comrnunications to the NRC, unless they specifically knew that the information was wrong.                                                                                                           '

It is unreasonable that it would take over 4 months (until August 1990) to get an accurate start count for April 9 and take 4 years (until GPC s 1994 ;

NOV Response) to understand why errors were made. Nevertheless, GPC now recognires its role in providing incomplete and inaccurate information to the NRC and its failure to tale steps to ensure communications that satisfy the requirements of section 50,9?$ GPC site and corporate managers and GPC ernp'oyees (including members of the PRil) have accepted responsibility for the mistakes made in 1990 as indicated in responses to the NOV and Demands for Information, and in testimony during the hearing. GPC no longer asserts that Mr. Mosbaugh and Mr. Cash, alor.e, are responsible for incorrect DG start counts.

li the end, whether the stritt counts were twenty nine nd twelve (instead of tht eit'iteen and nineteen reported on April 9), or whether all causes of high dewpoint readings were reported, did not affect the soundness of the decision that the DGs were ready to perform their function, The incomplete and inaccurate information was material in that it had the ability to influence the NRC in its deahngs with GPC. Correct and complete information may have led the NRC to inquire further before authoriting restart in April 1990 .

       "Onewcow achon taken by GPC managenwns in temptmse to de NoV incle&d (h mabag the NoV avslable
 - to all engleyges and etmutulims to post an NkC ortlet if eme were to te assued. (2)em;4 musing etw 6mpiwtame er thsesmgh tecced keepmg during erf.auestallawrs to a letwe ercan UpC's setdor Yhw PresiJem-Nuckar operations to etw Vne Preudents for siw Hah and Wigtle f acahues. O) swesung Ow ingurtamt or effectin conwnururaunas amt the effectne resoluuan or concerns in leuers inom de I,netuisse Vice Pres .te-Nuvice operala,as to enicicar spesalnes etnployers, (4) gesung ugues or scomo M19 he all empk9tes to read. (4 discusung GiCs pnhey or opra, complete, ami awurme conutono6athisis muh the NRC 6n omstangs betwere ow scrute Vice Pttsuktu.

Nmlear (hetsums and ent cy#si t at etw flah and Yogtle nues, and distnbuuns kners to t>'t et oyses on ow anne subicct,(M ebsening tonununksums a Wh the NRC to smure Gian Hw eninscenwm action does not adwnely

affect #w ronf iriciws er statenwmg (7) malms GICs ecpli 60 de Nov available ser all GPC eml4 owes to seeJ. (sicounschng de Usut sarecimembrm and Vogtle Ociwen! Managet by Grfs senau Yace pteuden-Nuclear operanutu,(9)lasang en "oial Renunder" to #w Lind surenmetuirm pursuam to the 1%inw thscirdme system, and t101 prelubits: 0.e INO Wgile Oenrral Manaset from resunung a latw nanagenent poumm with GPC or s(=Wwen Notra er,alcar racihtwa itwough reteuar) 1.1WA. peakhng compit days peuw Imhee so de NRC, See Grf Reply to NoV amt til Lt. ifM.dated July 48,'ema as supplenenh4 f-tuwiryut gerumal traimag and fiO 1, INT 220

1 and about GlC operations, in general, at Yogtle. These events illustrate the need for improvement in communications, both within GPC and with the NRC, and the need for 1.icensee personnel to maintain a questioning attitude about explanathns and data provided to the NRC,

     'The repeated involvemens of Mr. Ilockhold in GPC's submission of incom-plete and inaccurate information to the NRC is significant. Mr. Ilockhold ubly handled technical issues, but his sornetimes overbearing and forceful manage-ment style, his reliance on rewrites rather than reverifications, rind his failure to esamine his own inadequate performance contributed in no small meas. e to the Severity Level 11 problem, GlC Southern Nuclear, and Mr. Ilockhold himself acknowledged his deficient conduct ano. ' < letters dated August 5.1994, as supplemented libruary 1,1995, made con _nitments that he would not tnume line management responsibilities at Git or Southern Nuclear plants unless he had satisfactorily completed training in management communications and re-sponsibilities, and the NRC received 60 days prior notice of the assignment'*
'Ihis commitment was reiterated in correspondence regarding the applications to transfe the authority to operate the Vogtle and flatch facihties to Southern Nuclear and was included in the orders authorizing those t*ansfers.

D - Management Attitudes and GPC Ceedibility (Intervenor's Proposed l'indings for llearing on DG issue at t+7H,225 60) Intervenor argues (Intervenor's Proposed l'indings at 68 78,225 60) that ev. idence of the bad character of the proposed tlansferec, includei: (1) GIC's operating philosophy of power generation above safety" (2) intirnidation of Mr. Mmbaugh in the January 1990 meeting where Mr.11ockhold had written the word "backstabbing" on the board af ter Mr. Mosbaugh's allegations that Mr. Kitchens had violated TS requirements by opening dilution valves,*8 (3)

 "Mr 1%4 hold runhes cursuvened tlist he would rue anunw a bne finnagererni poution at any nuilcar power plani pnor to letv sary 1966: u nhwa saintymg dw wndiuons uswd "lawevenue owns that Mr Haruon's stawrrent that le has two go6' in operaung a nuilcar plain,4 a. 5taying se de bne ahd sIWW1 teIuthng outages? T V\RLsr (Haststont ur wes ihm Mr Hairuon places sonunued stetWkm and abst outages over safety traervenur Proposed finde 3 t>9 Mr Harunn teuded thus safety 6a not a goal, but a fouihlauen for geirsating postr 1hese opm.ons m not eWlence or a Mais siltitude toward salety
 While Mr Mmbaugh's peereptum of the hkuabtung' meures may have lee lum to betwve that C#C suspected tum or prtsupung inquievre by de NkC. Messrs noikhold and Amtras boih tenurwd that they were the amare at that sme that Mr Mmtwgh had gnen any aneganon to the NRC. atul Mr IWLholJ beheved that the word tervred so an uraleurabir workmg relasneske terween Mr Mosbaugh's orgaiuranon and Mr Kuden's sugarusmoom det neesird to be resolved ikwkludd Rebunal as 24 Awlens itebuttal at 24 Ts.13.391t:01 (Kadwest Tr 13.474s lhut et appran that the incaleen 6s an enant le of Mr. Ikdhold's forceful aswl sonrunes overhearang nunngenent stylr 221

Mr. Dockhold's emphasis on a "yes sir" attitude * (4) the GPC cmployee survey results," (5) Mr. Dockhold's apparent disdain for regelatory involvement and attitude about conveying information to the NRC,"" 's Mn Bockhold's handling of the FAVA faicrofiltration system concern, ad 0, the f. elective memory and opinions of Mr. Ilairston.'"2 Intervenor's Fil '.ags at 69 78, 225-W I am not pert,unded that any of these events are evidence of a lack of character. The intensity with which Mr. Mosbaugh pursued his concerns for over 5 years is an indication of the isolation he felt in an organization that did not adequately resolve his concerns. Mr. Mosbaugh's deeply held belief that GPC suspected either he or his department was relaying concerns to the NRC led him to tape surreptitiously conversations at the Vogtle facility. 1he NRC Staff also held herious concerns about corporate and site manage-ment which, in addition to the allegations received by that tin.e, led the NRC to convene a meeting with senior GPC officials on April 30,190", to candidly dis-cuts these concerns, particularly with respect to the performance and attitude of "Mr M*b= ugh aswrts that, dunng a february 7.1990 nwrung on tetwasnareuon gruf personnel downsumg. Mr. hmiludd nemused his trairung la sapeg 5es str" amt told Mr Mosbaugh 6f pu *can't confivm arul acteps, dra pu tred to get oist

Mr Mimbaugh interpeted die renuuks tu nean det tw simuld conftwm to nwnagenent's two ad de aluuon valve" noner danns his upcteung ol puervww Imerwn.v's proposed f amimps at )# 41 Mr 16mkhald snulJ not te.all de remarks. but behewd tie prenns mas about acceping wppet managemrm a eteethms regardsag reorgnmisma g4ulos<gh or de ehrtunmuni of partwular pmmons la dw organualue DmkhlJ Rebutsal at S 6 whethes at tot Mr Mosbaugh 6e turrect obtst tie reason fiw de stawneed, de st.nenwin, sr nude, would esemphly Mr llositual's owrticating nanagemrrW style Din his pagiowd baengs tai 2m imerwmv stmes thai ste resuhe of a nuncy of nuclear personrrllakenin ate

! spnns #419u0 si,omeJ thal 714 of vogile engloyees agreed muh the statenent "l.rty laget s are afraid to sous an l opnion that triaruipenwsd does tut mant to hear" and $N of vogtle employees agreed math the statertrne "I am i ' arred to vosce nr. tinma that lny managemrfd 4Ws tMe mam to hear ' OpC's respmse to NWie survey lesuhn and the problens tevealed by tie 6uues la 130 infurtratum disclosed by the NoV was in tenural eng4oyees usat cotuhtions adwese to nucleat safety should tw twought to nanagem:ni's atletWR4 aml are to be Taldressed stui arml=ed liarston Rebunal Of Tr 11419) at 24, Git Nov keply as 6

       ""imerwnur anetts that 0pC's (1)usuinirly recogtugue of the NRC's 19u0 nnsite problems m uh Mr. IkrMudd's atutude and congnunnatums. (21Imlure to acknomledge personnel ectors as a rett cauw in dw NOV Response, and (3) Mr Herston's testmuniy regarang Mr IbnkholJ s lesformarna 6s pideme shal oPC managemers still almus a let of comwen fat complearness and aicutacy of informatma suteursed to de NitC Intervenut's pnyosed hn&ngs at 244-41 Mr Haushe's 1990 actions (sim bueng telepimne calls to Mr i better) anJ his testimtmy duis Mr lintkludJ a managenent style merunn caused him (Mr UmkhoW to nuss oppwtunittes, does not iminate a hak af concesa hw accurate and cong&te conununnauons unh NRC. NRC $ta                  r f has obwtwd ingrowJ comnamwathum and perforname once Mi Dockhold was no huser 6a a Vogtle line nanagenrni purums Te l$,194 (Mathewsk These entreenross, the correchw kines taAen. and GICs Response to de Mahtied Nov bnclutbng ste comnuinwnes regarang Mr Itoskhold) prmtdr reasonable misurance trust tiw pn4&rra of dw past have bswa addrened W                                                                                                                  ,

Inteswnew aswrts that to 6s 6screatsie the Mr. Hartion (I) &J aos recall the &srussion about DG starte dunng the Apid 19,19u0 triephone call tTall A*1 betueen OpC esspware and site personnel, but d J renumber tus pior call dust same day with tractor operettws, and W had a inruted utkirntambe3 of dewpunts Irnetwmd Proposed hmhngs at 23M4 Tape $s shoma dust Mr Harston had linused involvemrru in Tell A" and nrrely asked ti de abwace of inpa la dur count had brea vensed GPC i th 112. ai 11 14 By contrast tw spoke at length muh an

     . operaste about etwthes le had ccreectly descrited has obwrunons and actens ta the DG totun donns the sal.

Thus. H is not unreastmable that 11r Hastwo trught haw a anse vivid recollectum of cme 6meidens occurnas on dundme 222

the Vogtle General Manager, George Bockhold. Ikring the succeeding months, Mr. Dockhold played a major role in the failure of GPC :o submit complete and accurate information to the NRC. GPC's communication record improved once Mr. Shipman replaced Mr. Ikickhold in October 1990.W

             %e NAC Staff concluded that problems . xperienced by GPC have been addressed and tht GPC has accept.d respos,sibility fcr its performance failures in its response to the NOV and in testimony during the license amendments

) proceeding. Corrective actions hav; included corporate statements to employees emphasizing the need for open and frank communications at the facility, and the Southern Nucleai and GIC commitments with respect to management training *

      . for Mr. thickhold. These correctise actions and improvements in performance indicate that GPC or Southerm Nucleni do not lack the requisite character and attitude to be an NRC licensee. Consequently, I do not conclude that these events are evidence of had character.

E. Discriminating Against Employees for Engaging in Protected - Activities (Petition lll1.a.111.4; July 8,1991 Supplement ill) Petitioners assert that Mr. !!obby, who was GPC's General nianager of Nuclear Operations Contrau Administration (NOCA) from D cernber 1988 to April 1990,"" was discharged from GPC after uttempting to bring to GPC management's nttention his concern that it had improperly transferred control of its nuclear licentes to SONOPCO. Petitioners state that Mr. Ilobby had earlier been instructed by GPC Vice Piesident of Dulk Power, Fred R. Williams, to destroy all copies of the confidential memorandum dated April 27,1989, that had been written by Mr. Ilobby and co-signed by GPC Senior Vice President-Fossil and liydropower, George F. licad, expressing concern for the perception that GPC may have improperly transferred control ofits nuclear facilities. Petitioners also auert (Petitien lill.9.d) tha. GPC and SONOPCO management retaliated 9 gainst managers who make their regulatory concerns known to them.'" On Ocbruary 6 and 28,1990 Mr. Ilobby filed complaints with the Depart-ment of Labor (DOI.) contending that he had been discharged for engaging it protecte 1 activity in violation of section 210 (now 21l) of the Energy Reorga. nization Act (42 U.S.C, 6 5851) of 1974, and the regulations promulgated by DOL at 29 C.F.R. Part 24. EacP of the above issues that Mr. Ilobby identified W Mr Hurston tenn6ed that Mr DodhMs managenwns artie sometnies led Mr. BochlJ to mass optmeturuties ani that, ahhough quahhed. 6: was unkkely that Mr BocWid wouki return to hne management al a macicar poutt racihty Tr. 11,35154 (Hairston)

        '"' Mr. Ho%y was also Asustant to GPC Semor Ves Presules. Mr George Head, unul Mr Head reured in May i9R9. Mr HeaWs ponnon was then Alled tiy Mr. Kerry Adamt

Although not capressly stated in 'he pennon, the complaints or teh Messrs Homy ami Mosbaugh in their sespectne dol duentrunanon suns are perunent to thn concern.

223

 % y3 i

in the petition to the NRC with respect to his discharfe was included in the complaints. See DOL Case 00-ERA 40. On August 4,1995, the Secretary of Labor (Secretary) inued a Decision and Rcmand Order, finding that in 1990, senior maragers of GPC discriminated against Mr. Ilobby when his position was eliminated and he was forced to resign from* 3PC."* De Secretary determined that GPC terminated Mr. Hobby for engaging in v.~ted activities, which included raising safety concerns related to the operation of the Vogtle lacility in the April 27.1989 memorandum. His recision and Rcmand Order rejected the DOL Administratisc Law Judge's Recommended Decision and Order that had been issued on Navember 8,1991, which found that actions taken against Mr. Ilobby were not motivated by his engaging in protected activitich. De Secretary remanded the complaint to the Administrative Law Judge to determine a complete remedy.'" On October 4,1995, the NRC conducted a predecisional enforcement con. ference regarding the Secretary's Decision and Remand Order to discuss the apparent violation, the root cause, and GlCs corrective actions to pre:lude re-currence (see Conference Summary da'ed October iI,1995). De Conference was open to the public in accordance with section V of the NRC Enforcement - Policy, FUREG,1600, and written comments were subsequently submitted by Mr. Ilobby for NRC consideration in reaching its enforcement decision.

     %c Commission's regulations in section 50.7, " Employee Protection " pro-hibit discrimination by a Commission licenset, against an employee for engaging in protected activities. On May 29,1996, the NRC issued a Notice of Violation to GPC for two separate violations of section 50.7 - one in accordance with the Secretary's fin 6ng regarding Mr. Ilobby, and the other in accordance with the Secretary's finding that Mr. Mosbaugh had been discriminated against by being discharged for making audio tape teet.rdings that constituted evidence gathered in support of a nuclear complaint, and for engaging in other protected activities.

Ac Notice of Veolation regarding Mr. Mosbaugh was in accordance with the Secretary of Labor's Decision and Remand Order in DOL cases 91 ERA 001 and 91-ERA-01I on November 20, 1995. finding that Mr. Mosbaugh's sus-

 ""%e secretary alw found that other acts of discrirvan on occurred such as velocanon or htr. Rhy's orttee, restnstions of lus access to the buikhng and revocanon W lut execuuve pakwa penleges i#

This Dol case (94ERAJ0) s'so sonudered Prusioners' aswruon bee sect on 2.206 hution 51114. July B. lWI surplement lib that Mr. Mcdonald knowingly subnutted falw lesumony in another Dot prmhng . e%AsvNMo")in an attempt to demonstrate that Messrs. Gary Yunker and John Fustko were not improperly kept out of a GPC poumon thm would paucipale to the SoNOPCU Protect Wuuonen ca.um that Mr. Hobby aJvtwd GPC's coutuel before the Dol heanns thar Mr. Mcdonald's propowd tesumony was raise and thaa GPC's sounsel tesponded by advieng htr. Hobby the his tesumony would have to be changt> t in has Decision and ' Remand order of August 4. IMS, the secretary stated. ta relevant part 'Because I ramd mher evidence sufrictent to estabhsh that Complainant (Mr Hobby] engaged in proteesed acavity on Jmasary 2. Il989 Ohe preheanns nwenng).) la was unnecessasy to consider as that luns:ture whether counsel attempted to suaorn Complunant to perjury Even ir counwl did, that entence would not aher this decision" Deetuon and Remand order at il see she M m 5,9-11 224

                                                                                                                . __- a

pension and discharge were acts of retaliation for engaging in protected activity.

    . The NRC stated that these violations were of very significant regulatory concern becau e they involved acts of discrimination by senior corporate management, and the NRC categoriicd each of the two violations as Severity Level 1. Be-cause the 5 year period provided in the Statute of 1. imitations for imposing a
    - civil penalty had expired, no civil penalty was proposed for the violations, ne NRC took this enforcement rtion to emphasize the importance of ensuring that employees who raise real or perceived safety concerns shall not be subject to discrimination for raising those concerns and that every effort will be made to provide an environment in which all employees may freely identify safety issues
     ' without fear of retaliation, harassment, intimidation, or discrimination.
           %e NRC also issued separate letters to each of the senior corporate man.

agers the Secretary identified to be involved with the discriminatory actions "" In these letters, the NRC recognited that the discrimination found by the Sec. retary xcurred over 5 years ago, pnor to impler..entation of 10 C.F.R. 5 50.5,

       " Deliberate Misconduct " and that the NRC, therefore, was taking no enforce-ment action against these senior managers. The NRC expressed concern that the discriminatory actions found by the Secretary could have had a chilling effect on other GPC employeestemphaslied that harassment, intimidation, and discrimi.

nation against a licensee's employees for ta . engaging in protected activities is unacceptable; and provided official notice .a to the enforcement actions against i individuals that the NRC is authorized to take under section 50,5. During the enforcement conference and in a written reply dated June 27,1996, GPC denied the violations, objected to the NitC's reliance on the Secretary's decisions that were not 9et final agency action, and acknowledged its right to appeal the Secretary's decisions once they becurr.e fi.ial. Mr. Ilobby's allegation that he was unlawfully nismissed because of a concern about the improper transfer of cc 91 of licensed activities is substantiated by .

    - the Secretary's decision of Augu t 4,1995, Mr. llobby's regulatory concern regarding transfer of control constituted a protected ac"vity."" Therefore, Mr.

Ilobby's dismissal because he expressed this regulator' :encern is a violation of section 50.7.- I am satisfied that the NRC has taken propriate .forcement action to prevent the recurrence of violations of sectmn 50? 5 future, and to ensure a proper environment in which employees can expi na regulatory concerns without fear of retaliation, harassment, intimidation, or discrimination. To the extent that Detitioners' request for NRC involvement relates to matters

       "*la the Hobby case. the Secretary ident 6ed Messrs Fwd Wilhams, Dwight livans. H 0. (Grady) Baker, Jr.,

and Thomas Boe a in the & dung 4 case, the Secretary klenuned Messrs A.W. Dahlberg and Ken McCoy.

       "" As t exusa la Section 10 B of this Director's Decision, I am satished that the alleged transfer of control of licensed actmues for GPC newlear facihties did ans. la fact, occur. This fwt does not, however, aher the 6ading that Mr. Hobby engaged la a potected activity 225 t:

tr

properly within the jurisdiction of the NRC, the request has been granted by n;eatis of these enforcement actions. 1 find no reaum 19 withhold my Decision on this 2.206 petition because of GPC's right to appeal the Secretary's decision when it becomes find. Further NRC action in the event of a successful appeal is not precluded by my Decision st this time. F. Conclusions Regarding GPC's Character he NRC reviews,' inspections, and investigations related to the issees in the petition, as supplemented by the license transfer amendment proct ..ig, revealed a number of instances where the NRC was given incomplete and inaccurate information associated with the proposed license transfer to Southern Nuclear and DG reporting. He allegations that there was an illegal transfer of authority to control operations at the Vogtle and Hatch facilities and that GPC and Southern Nuclear otherwise lacked the character and competence to operate a nuclear power plant were not substantiated. With respect to Petitioners' claim that GPC and Southern Nuclear routinely engaged in unsafe operating practices, the NRC found instances where GPC had violated MRC requ'rements, but the matters identified do not support Petitioners

allegation that GPC or Southem Nuclear (1) praised managers for taking risks, (2) did not take any adverse action against managers or employees wl.a engage in nonconsersative and questionable compliance practices, and (3) refused to critically investigate events or practices resulting in LERs.

With respect to GPC communications related to tSe proposed license transfer to Southern Nuclear, the NRC Staff found that there were instances where the

 - NRC was provided inaccurate or incomplete information about the existing and proposed orfanizational structure in the formation of Southern Nuclear during an oral presentation to the Commission in March 1989 while discussing the chain of cotomand for the Vogtle facility, in GPC's written response to the petition, and in licensing correspondence supporting the applications for transfer.

Dese inaccuracies, when considered in the context of the extensive interactions between GPC and the NRC, were not significant and are not evidence of an intent to misrepresent or deceive the NRC. Rus, the misstatements do not warrant NRC enforcement action. He NRC Staff did confirm that ;ignificant violations of Commission regu-lations have occurred at the Vogtle facility since 1987 and these violations have resulted in escalated enforcement actions by the NRC. The violations involved (1) opening " dilution valves" required to be locked closed; (2) providing inaccu-rate or incomplete information to the NRC regarding DG testing efter the March 20,1990 SAE; and (3) discriminating against Messrs. Mosbaugh and Hobby for engaFi ng in protected activities. 226 s l

De Staff's review of the boron dilution violation rewaled that the GPC employee did not meet TS requirements or NRC expectations, but there was not a sufficient basis to conclude that the individual had intentionally violated a TS requirement. GPC and the individual admitted the mistaken TS interpretation.- Ilased on the findings of the DOL, the Staff concluded that GPC had discriminated aFainst the Petitioners because they engaged in protected activities, which was a Feverity Level I proolem. This NRC enforcement action was taken to emphasire GlCs obligation to ensure that employees who raise real or

 - perceived safety concems are not subjected to discrimination and that assiduous efforts are required in order for employees to have an environment where l   they may freely identify safety issues without lear of retaliation, harassment,

! intimidation, or discrimination. GPC has taken corrective action consistent with ! these goals. ! He failure of GPC to provide the NRC with complete and accurate informa-tion relative to DGs throughout 1990 that were cited in the Modified NOV were serious. The significance of the performance failures of GPC stems not from the effect such inaccuracies had on the safety of plant operation, but because the cir-cumstances surrounding the communications demonstrate an inadequate regard by a number of s.nior I.lcensee officials, and by GPC managemeat as a whole, for providing complete and accurate information to the NRC. Information about the fX35 and GPC's determinations about the causes of errors were important for the NRC to determine whether GPC was fulfilling its responsibilities as a licensee. GPC was clearly aware of the NRC's interest in the DGs because the NRC specifically asked GPC to address DG reliability as part of its restart presentation of April 9,1990. GPC should have taken steps to ensure the completeness and accuracy of its submittals, but instead, at times, engaged in poorly defined efforts to obtain information to satisfy the NRC cn an issue having a direct bearing on the

M's decision to allow restart. This performance is not acceptable.

it also significant that GPC missed repeated opportu.aties to ensure com-pleteness and accuracy ofinformation and to promptly correct information when

 ;its own staff questioned the accuracy of the April 9 information and subsequent explanations aWut inaccurate information. Even though senior GPC manage-ment became involved, GPC did not recognize the need to correct the April 9 start data until the NRC's request during the Am;ust 1990 inspection. Further, GPC continued to submit information that was inaccurate and incomplete and did not recognize the implications of its performance failures until they were identifled by the NRC in the enforcement action almost 4 years later.                .

The NRC Staff has concluded, however, tha the performance problems exhibited throughout these events are not sufficient to establish that Southern Nuclear, and the GPC employees who would work for that company as a result of a transfer of the Hatch and Vogtle operating licenses to Southern Nuclear. 227

lack the requisite character to be a licensee. GIC's everall performance in Lecping the NRC informed of post-repair and troubleshooting activities, GPC's technical competence in addressing those mattersi Mr 11airston's elforts to keep the NRC inforrred about errors identified as GpC became aware of them, and the corrective actions taken by Git management in response to the NOV (whid include measures to ensure effective communicatians nnd resolution of employee et, o,-. and measures emphasizing open complete, and accurate communications with the NRC), are among the indications of Git's diligence, competence, and (haractes. Testimony of Messrs. Roy P. Zimmerman and Luis A. Reyes on the Character ar.d Integrity Contention, ff. *It 15,2'6, "Zimmerman. Reyes," at 5 7, he NRC Staff's evaluation of GIC's response to the May 9, 1994 NOV on the DG issue and GPC and individual responses to the DFis issued to Messrs. Ilockhold, McCoy, Greene. Horton, liederick, and Majors revealed that GPC officials have accepted responsibility for, and regret, their part in GPC's deficient performance. De NRC Staff remained concerned, however, about whether GPC, Southera Nuclear, and Mr,130ckhold fully understood the ramifications of the DG enforcement action and the future performance of Mr. Ilockhold in line management positions at nuclear power facilities Staff Exh.

 !!.51 (co"cr letter).

I find that GlC's tendency to defend information provided during the restart " presentation, rather than to verify the accuracy of the data, was inconsistent with the simple candor upon which the NRC relies to discharge its responsibility foi ensuring public health and safety See North Anna, CLI 76-22,4 NRC at 491, here is not a sufficient basis, however, to conclude that GPC endeavored to intentiually mislead the NRC or otherwise engaged in a pattern of deception and falsehood in its licensing communications. He failures can be traced to (1) the collective perfortnance of senior GPC managers, including the management style of the General Manager who repeatedly failed to ensure that complete and accurate information was provided to the NRC; (2) the reluctance of site and corperate personnel to question the views of superiors; and (3) the inadequate efforts to verify information submitted to the NRC. Ilased on a review of the facts set forth above, including the evidentiary record of the adjudicatory proceeding, the enforcement actions taken against GPC (i.e., regarding opening " Dilution Valves," DG reporting, and section 50.7 violations), and the favorable performance of GPC (and corrective action taken) since 1990, there is no basis to conclude that Southern Nuclear lacks the requisite character, integrity, and competence necessary to aperate the Vogtle and Hatch facilities in accordanen with the Commission's ru es and regulations. He individuals employed by GPC and Southern Nuclear have not been shown to have intentionally submitted to the NRC infomiation that was inaccurate, incomplete, or misleading in a material respect. Rather, the - performance problems exhibited in GPC communications to the NRC were due 228 l l 4 ____

to the failures of certain individuals to take steps necessary to ensure the accuracy and completeness of information and to promptly correct such rnisinformation. In recognition of the role, management style, and repeated performance failures of the former General Manager, the license transfers for the Vogtle and llatch facilities have been conditioned to limit his involvement in hne management actisities consistent with commitments of GPC and Southern Nuclear. IV. CONCLUSION As discuned abose, NRC hv conducted several inspections, investigations, and technical reviews regarding the concerns in the petition, and proceedings before NRC and DOL have Leen conducted regardmg most of the concerns. Some of the concerns raised by the Petitioners were substantiated. Violations of reFulatory requirements have occurred in the operatiens of the Vogtle facility, b Notices of Violation and civil penalties have been issued to the Licensee, letters have been issued to sescral individuals, and certain conditions negarding one individual are being ireposed by the NRC in conjunction with the license trander:. To this extent, the Petitioners' request for action pursuant to section 2.206 had been granted. On the basis of the NRC Staff's resiew and the license amendments hearing record, I conclude that no unauthorized transfer of the Vogtle operating licenses occurred, and that the GIC nuclear facilities are being opcrated in accordance with NRC regulations and do not endanger the health and safety of the pub-lic. On balance, the evidence does not support the conclusion that GPC, the SONOPCO Project, or Southern Nuclear deliberate ly provided false or mislead-ing information to the NRC or that Southern Nuclear or GPC (including the GPC employees that would be employed by Southern Nuclear as a result of the license transfer) lack the requisite character and integrity to be an NRC Licensee as required by section 182 of the Atomic Energy Act,42 U.S.C. 6 2232, and to C.F.R.150.80. Thus, there is no basis upon which to grant Petitioners' request that the operation of the facility be suspended. With respect to Petitioners' request that the NRC institute proceedings and impose civil penalties based on the matters addressed in the petition, the issues in the petition that give rise to substantial health and safety issues have, in fact, been the subject of a lengthy proceeding and escalated enforcement actions by the NRC. Also, based upon the fmdings of the DOL, the NRC has addressed both Petitioners' r.pecilic concerns that they were discriminated against for engaging in protected activities (and the associated issue that GPC retaliates against managers who make their regulatory concerns known) by taking escalated enforcement actions against GPC. Based on actions already taken by the NRC Staff, there is reasonable assurance that the GPC facilities operate with 229 h.4 '. ,h.

adequate protection of the public health and safety. Therefore, I decline to take any further action with respect to matters raised in the petition. To this extent, the Petitioners' request for action pursuant to section 2.206 is denied. A copy of the Director's Decision will be filed with the Secretary of the Commission for the Commission's review in accordance with 10 C.F.R. 6 2.206(c) of the Commission's regulations. As provided by this regulation, the Director's Decision will consti*ute the final action of the Comrnission 25 days alter the date of issuance unless the Commission, on its own motion, institutes a review of the Director's Decinon in that tirne. I

                                                             '9R THE NUCLEAR REGULATORY COMMISSION liank J. Miraglia, Jr., Acting Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 18th day of March 1997.

APPENDIX ALLEGED ll. LEGAL LICENSE TRANSFER ISSUES "Intervenor's Prehearing Statement of issues" (Statement of issues), dated December 12, 1994, raised twenty eight issues to support Intervenor's illegal transfer issue for the license amend.nents proceeding."" he issues were submitted in support of Intervenor's contention that the Vogtle operating license should not be transferred to Southern Nuclear tiecause it lacks the requisite character and integrity. He twenty eight issues screat and further supplement assertions in the petition regarding an illegal transfer of control of GPC nuclear facilities. H8 Ahhough tmerwner idemined 28 issues in has Saaremem or issues, two issues mese twh numbered 14A and 148. and inserwnot presemed no evidence er proposed Andings on Issue 25 230 l

1. = ALI,EGED INACCURACIES ABOUT MR. FARLEY'S ROLE -

IN THE CONTMOi, OF THE VOGTLE FACILITY

         %c gravamen hI intervenor'i twenty.cight issues and related issues in the -

petition, as supplemented, is that the nuclear officers in SONOITO Project re. ported to Mr Farley, rather than to Mr. Dahlberg, GPC's CEO, and to demon-strate that Mr. Farley controlled the Vogtle facility based upon his alleged in-volvement in (l) controlling daily _ operations; (2) establishing and implementing nuclear _ policy decisions; (3) empkiying, supervising, and dismissing nuclear personnel; and_ (4) controlling costs.; intervenor also asserts that numerous docu-ments and statements provided to the NRC regarding the organizational stmeture

   -'and resp <msibilities for managerial control of the Vogtle facility were inaccu-
 - rate or incomplete because they do not show Mr Mcdonald reporting to Mr.

Parley or Mr. Parley functioning as the defacto Chief Executive Officer of the SONOPCO Project.

 - A,1 Controlling Daily Operations
      - Intervenor asserts in Issue I that GPC misled the NRC about the corporate management structure over the Vogtle facility during a March 30,1989 meeting
 = in_ that Mr. Mcdonald's description of the chain of command ignored Mr.

Farley's role as the chief executive over the Southern Company's nuclear ' division, which commenced exercising operating responsibility over GPC's nuclest plants in November of 1988. ;intervenor asserts that Mr. Mcdonald inaccurately stated that he solely reported to GPC's CEO, Mr. Dahlberg. Intervenor claims that Mr. Mcdonald reported to Mr. Farley who reported to Mr. Edward L.- Addison, the lYesident and CEO of The Southern Company. Similarly, in issue 10, Intervenor. alleges that GPC's April I,'l991. Petition response, falsely stated that certain: organizational charts filed with the SEC

 - and included with a May 15, 1989 memorandum from Mr. Fred Williams-to Mr. Ilobby, accurately depicted GPC's organizational structure before the incorporation of Southern Nuclear in that they do not show that Mr, Mcdonald reported to Mr. Farley or that Mr. Farley functioned as the de facto Chief Executive Officer of the SONOPCO Project.

The hearing record does not support Intervenor's claim that Mr. Farley

 - exercised control c..er GPC's nuclear facilities beginning in November 1988.

Mr. Farley testified that he had neither the authority, nor attempted to control management decisions about licensed activities or personnel matters concerning _ the Vogtle facility. Prefiled Testimony of Joseph M. Farley, ff. Tr.1749,"Farley," I at 1718,22: Tr.1801-02 (Farley). Mr. Shipman (who in October 1988 was the Vagtle General Manager for Support and in January 1991 became the Vogtle l General Manager), Mr. McCoy (GPC.Vice President-Plant Vogtle), and Mr. -' 231 3

llairston testified that Mr. Farley did not issue orders or instructions regarding

the operation of the Vogtle facility or any aspects of the facihty or otherwise become insolved in the management of personnel or activities at the Vogtle facility. Tr.1976 (Shipman); Pretiled Testimony of C. Kenneth McCoy, ff. Tr.1560, "McCoy," at 19; Prefiled Testimony of W, George Hairston, I!!, ff.

    'n.10"8, "flairston." at 47-48; Tr.1726 28,1740 (11airston). In addition. Mr.              l Mcdonald t: " l ihat Mr. Parley never influenced him regarding operation of the Vogtle facility. Prefiled Testimony of R. Patrick Mcdonald, ff. Tr.1249.
    " Mcdonald," at 25; Tr.1550-51 (Mcdonald).

He record of the //obby DOL nroceeding indicates that GPC President, Mr. Dahlberg, testified that the operation of GPC's nuclear facilit;es is his direct responsibility; that Mr. Mcdonald takes his management direction from Mr. Dahlberg regarding the operation of GPC's nuclear plants; and that Mr. McD(maid reports to Mr. Dalhberg for management operations dealing with GPC plants (flobby DOL Transcript at 305,307,309). Mr. Farley stated that he did not hase any responsibility for operating GPCs nuclear facilities and that Mr. Mcdonald did not report to him with respect to the operation of flatch and Vogtle (id. at 567,568). Mr. Mcdonald stated that he reported to Mr. Dahlberg regarding the operation of GPC's nuclear facilities (id. at 613,614), in a deposition of May 5,1990, taken in the same llobby DOL proceeding, at , 13 and 14, Mr. Mcdonald stated that he had no reporting responsibilities to Mr. Farley. A May 15. 1989 memorandum from Mr. Fred D. Williams, the GPC Vice President for Bulk Power Markets to Mr. Ilobby, forwarded a' copy of the most recent published organization chart which showed that Mr. Mcdonald reported to Mr. Dahlberg for operation and support activities of the Vogtle and llatch facilities, and that Mr. Itairston reported to Mr. Mcdonald. While the record shows that Mr. Ihrley received verbal reports from Messrs.

 ; Mcdonald, llairston, McCoy, Louis B. Long (SCS Vice President-Technical Services), and Charles McCrary (SCS Vice President-Administrative Services) concerning the performance of GPC's nuclear units, and attended staff meetings (Issue 15), this does not support a determination that Mr. Parley was part of the management structure over the Vogtle facility. As the future CEO of -

Southern Nuclear and as manager over certain support services provided to the Vogtle facility, Mr. Farley periodically briefed The Southern Company Board of Directors, received information, and attended meetings. Cuch activities do not amount to control of operations or other licensed activities at the Vogtle facility. Intervenor asserts that, during a deposition, Mr. Shipman str.ted that Mr. Mcdonald and Mr. llairston reported to Mr. Parley. Mr. Shipman testified during the license amendments hearing that he understood Mr. Mcdonald reported to Mr. Parley for certain things and there were certain things that Mr. Mcdonald did not report to Mr. Farley on. Tr.1966 (Shipman). This is consistent with Mr. Farley's testimony that Mr. Mcdonald would informally report to him 232

with regard to governmental affairs, such as congressional pnweedings, and administrative matters unrelMed to the operation of the plants. Such activities do not indicate that Mr. Farley had line management responsibilities or that Mr. Mcdonald reported to Mr. Farley with respect to any licensed activities involving the Vogtle facility, _ _ . The Petitioners claim that control of operating the nuclear facilities is based upon Mr. Ilobby having witnessed the day to-day operation at GlC's corporate offices (Petition at 5 6). During the hearing, however, no direct evidence was offered to support the claim that Mr. Mcdonald reported to Mr. Parley regarding the vperation of the flatch or Vogtle facihties. Messrs. llobby and Mosbaugh both acknowledged that they had in personal knowledge that Mr. Mcdonald received direction from Mr. Farley regarding the operation of the Vogtle or llatch facilities. Tr 2157 58 (Moshaugh) and Tr. 2377 (llobby); Hobby DOL Transcrip; at 239). Mr. Mosbaugh admitted 6at he had no first hand knowledge of the day to-day it action among Messrs. McCoy, llairston, Mcdonald, and Glt officers, and had never been in the Ilirmingham, Alabama offices of SONOPCO. Tr. 2128 (Mosbaugh), 2 Intervent 'm asserts (Issue 1) that Mr. Dan Howard Smith, a Department Manager with Jglethorpe Power Corporation (a co-owner of the Vogtle facility), had observed that Mr. Farley was the chief executive of the SONOPCO Project, that Mr Mcdonald reported to Mr. Farley who reported to Mr. Addison (the President and CEO of The Southern Company), and that Mr, Farley's control over nuclear operations might violate the terms of the operating licenses for GPC's nuclear facilities."' flowever, Mr. Smith testified at his deposition

that after reading the transcript of the March 30, 1989 meeting on the Vogtle Uni; 2 full-power license, during an April 1989 co-owner's committee meeting, GPC provided a chart, at his request, that clarHied the reporting chain. Smith Deposition at 22-23, 36-37, Intervenor's referece to Mr. llobby's memorandum of April 27,1989, which alluded to concerns aoout Mr. Mcdonald's reporting relationship (Issue 1),

does not establish that there was an improper exercise of control by Mr. Farley and The Southern Company. Mr. Rogge, the NRC Senior Resident inspector, testified that "No one to my knowledge ever expressed a concern that GPC was not in control of operations at Vogile." Testimony of Frederick R. Allenspach, Darl S.11ood, and John F, Rogge on :he " Illegal 'llansfer" Issue, ff. Tr. 2620, "Allenspach, Hood, and Rogge," at 6. In issue 3, Intervenor asserts that 1988 amendments to FSAR Chapter I inaccurately depicted the corporate organization for the operation of the Vogtle facility because FSAR 61.4.1.2, " Description of Corporate Organization," did W Mr Hobby's Menuwandum or Apnl 27,1989 (Enhabit A or the September 21.1990 Supplenrat to the Pentioni refers to Mr. Snumb's concern about control or GPC racihnes 233

not state that "The Southern Company had newly established a nucleu division with responsibility for .erating GPC's nuclear plants." The NRC was given timely notification of the plans to form ~a separate

     - operating company by sittue of the meetings held on libruary 16 and .Wy 3 1988, with the Commissioners and others to brief the NRC about The Southern Company's tentative plans to form a separate nuclear operating company and to                                  i review the several phases that would have to be involved, pending SEC approval, and ultimate license ar.icndments, as well as by tucetings held h1 arch 2 and 18, 1988, and July 25,1988, with NRC personnel. Farley at 11 12. Therefore, its omission from FSAR I1.4.1.2 by the 1988 amendments was not significant in terms of NRC awareness.

In issue 4, intervenor claims that the 1988 amendment to FSAR Chapter 13 . (i.e., Vogtle FSAR Amendment 39, dated November 23, 1988) was inaccurate + because it described the Executive Vice President-Nuclear Operations (htr. hicDonald) as an officer of both GPC and APC who is " responsible to l' o chainnan and CEO of each company for all aspects of operat ion of the nuc' ear generating plants in the Georgia Power snd Alabama Power systems, as v ell as technical and administrative support activities providad by SCS," but did not indicate that hit. Farley was the functioning chief executive of SONOPCO Project. latervenor claims that the amendment was also misleading because technical and administrative services reported to an executive officer of the

     ' SONOICO Project, with hir. Farley scrying as chief executive officer.

As President and CEO of APC in November 1988, hit. Farley was not part of Vogtle line management, and he exercised no line management responsibility

   ,   over licensed activities at the Vogtle facility. A September 21,1988 memoran-dum by hir. Addisor. noted that h1r. Addison had asked hir. Farley to guide the L       famation of the new company (Southetn Nuclear) and that hir. hicDonald was serving as Executive Vice President of GPC and APC and was responsible for the operation of the llatch, Vogtle, and Farley nuclear facilities. Thus, the ah-sence of Alr. Farley from the Chapter 13 organizational charts and descriptions submitted by Vogtle FSAR Amendment 39 is not an inaccuracy.

Services by SCS to GPC were provided in accordance with a January 1,1984 services agreement between them, hiessrs, Louis Long, SCS Vice President of Technical Services, and Charles hicCrary, SCS Vice President of Administrative Services, reported to hir. hicDonald with resp". to the Vogtle facility, not to

      . hir. Farley. On April 24, 1989, the arrangement was made formal by a letter of agreement between hiessrs. hicDonald and H. Allen Franklin, the President
     - of SCS at the time, hicCoy at 8; Hairston at 21 and Tr.1712; Deposition of hicier at 40-41. 'Iherefore, Intervenor's clai., of inaccuracy is not supported by                               i the record.

In Issue 5, Intervenor states that the organizational chart, Figure 13.1.1 1, was inaccurate in the Vogtle FSAR amerdment, dated h1 arch 28,1990, because 234

gict Mr; Mcdonald's reporting relationship to Mr. Farley and it the Administrative and Technical Services Vice Presidents reporting to -

           - Mr. Mcdonald and then to Mr. Dahlberg. The hearing record does not support intersenor'. assertions.

Figure 13.1.1 1, as revised March 28, 1990, accurately shows that the Executive Vice President-Nuclear Operations, an officer of both APC and GPC, reported to the President and CEO of GPC on Vogtle matters since Mr. Farley was not hvolved in the operation of the Vogtle facility or activities authorized by t!.c Vogtle licenses. Figure 13.1.11 also accurately depicted the Vice President for Administrative Services and the Vice President for Technical

           - Services reporting to Mr. Mcdonald and then to Mr. Dahlberg; Under a services agreement between SCS and GPC, Mr. Dahlberg had the authority to direct activities of these SCS ollicers for the functions they were performing in sopport of plant operation (llairr, ton at 35). The fact that Mr. McCrary reports to Mr.

Ittriey concerning certain administrative matters unrelated to plant operations, in:luding the formation of Southern Nuclear and general indusuy activities (see Farley, ff. Tr.1749, at 16; liairston at 33; McCoy at II), is not relevant to Vogtle licensed activities and does not indicate that Mr. Farley controlled operations at the Vogtk facility, in issue 18, Intervenor alleges that, during e January 11,1991 meeting with the NRC, Mr. Mcdonald falsely stated that Mr. Parley had no responsibilities fm 'I administrative matters related to the SONOPCO Project. See also July 8,1991 Supplement to "*ction 2.206 Petition, iIV, Based on the meeting transcript and Mr. Mcdonald's testimony, the January 11,1991 statement was not maccurate. Mr. Mcdonald testified during the hearing that his stotement on page 42 of the meeting transcript"2 was that prior to Phase II (the incorporation of Southem Nuclear), Mr. Parley had been performing a job as a Vice President of

             'the Southern Company, had been providing certain services to Mr. Mcdonald under a contract with SCS, and had no responsibility for certain administrative support that was depicted on organization charts discusseo during the meeting Administrative support was being performed by Mr. McCrary for Mr. Mcdonald pursuant to an April 24, 1989 agreement, While Mr. McCrary provided administrative services to support Mr. Farley's responsibility to guide the formation of Southern Nuclear and Mr. Farley's general industry activities, Mr.

McCrary did not report to Mr. Farley with respect to the administrative support function for the Vogtle facility. Mcdonald at 9. H2 The merung transcrtre, at page 42. shows that Mr. kletknald trefernns in an organizanonal chao states-Yes A month ago it.cre ass no hne here, his. Iarley mas pertornung has job as a Vice President or the Saathern Co,npany. He had no responsabihties for f is adnumstrause support. That adunistranve suppost thas we had basicany was being done. and he wa , a part or a contract - 64 was a contract to ene tram Southern Serv as rur provakng essenuany triuch the same support we have here now. 235 J

in Issue 7, Intervenor states that the March 1991 FSAR amendment revising Figure 13.1.1 1 is falw because it shows the Executive Vice President-Nuclear Operations, Mr. Mcdonald, reported to the President and CEO of Southern Nuclear, Mr. Farley, for Southern Nuclear matters only, and because it shows i that Mr. Mcdonald reported to the President and CEO of GPC for GPC matters. Intervaar claims that (1) Mr. Mcdonald reported to Mr. Farley on matters pertaining te . q..., (2) both Messrs. Mcdonald and Farley reported to Southern Nuclear Board of Directors on matters pertaining to GPC's nuclear operations, and (3) Mr. Farley reported to The Southern Company CEO, Mr. Addison, and to lhe Southern Company Management Council. Intervenor similarly alleges in lisue 22 that GPC's April 1,1991 response to the petition falsely asserts that - during Phase 11 (after incorporation of Southern Nuclear), all Southern Nuclear management in the reporting chain above the Vogtle Plant General Manager were officers of GIC because Mr. Farley stated during his deposition that he was never an officer of GPC. Once Southern Nuclear was incorporated, Mr. Farley became its President and CEO and Mr. Mcdonald, who retained his positions as Executive Vice President of GPC ar'd APC, became the Southern Nuclear Executive -Vice President. llairston at 37 38. Thus, Mr. Mcdonald reported to Mr. Earley, and they beth reported to the Southern Nuclear Board of Directors, regarding Southern Nuclear matters. Ilowever, for licerised activities at the Vogtle facility, Mr. Mcdonald continued to report directly to GPC President and CEO, Mr. Dahlberg. Ibriey at 1719; Mcdonald at 4; McCoy at 13. Since Mr, Farley was CEO of Southern Nuclear during Phase it, and was net part of the management chain for the Vogtle facility "2 Intervenor's assertions that Figure 13.1.1 1 and GPC's petition response were inaccurate were not substantiated. In issue i1, Ir,tervenor alleges that in the April 1,1991 response to the petition, GPC falsely represents that Mr. Parley dici not have management control over GPC licensed activities or GPC personnel matters. The record shows that Mr. Farley did not ha' ve control over GPC's licensed activities. Mr. Mcdonald, who signed the April 1,1991 response, testified that Mr. Farley did not exercise any management control over GPC's licensed activities, and that he (Mcdonald) was not aware of a single instance where Mr. Parley controlled, or made, a GPC staffing or operating decision. McDon. and at 10. Neither the hearing record nor results of NRC's regulatory oversight , H3 The agreement eieruted by GPC and $where Nuclear (GPC Heanns rahibits 20 aad 21) espressly stated that Somhern Nuclear woukt not perfeem any activmes in connevnon with the nuclear plants that were required by the operaung beennes to be performed by the tacensee, GPC H.urston as M 38. As pvt or his esponsiNiines as Execuuve Vice President-Nuclear or The Southern Company, Mr. Farley bnered the Southern C Spany Board and btr Addison on nuclear developnents Farley at 21. This responsiNhty to provide intorin. on diws not consatuw contrut or beensed acevunes at the Vogtle racihty 236 1 1

support Intervener's assertion that Mr. briey had rnanagement control over GPC licensed activities or GIC personnel matters. In issue 20, Intervenor claims that statements by Mr. Stephen II. Chesnut (a GPC manager-in training in August 1990), recorded on Mr. Mosbaugh's Tape No. 260, end statements during Mr. Shipman's August 1994 deposition, show i that SONOICO Project managers observed that Mr. Rrley, rather than Mr. Dahlberg, controlled GIC's nuclear operations."* See also October 1,1990 -

   ' Supplement to Petition at 4 5.

Given that (1) Intervenor's testimony concerning Mr. Chesnut's statements on ] Tape N9. 260 was stricken from the record,(2)Intervenor subsequently withdrew the tape transcript, (3) Intervenor did not .:all Mr. Chesnut as a witness (see Tr. 190911,2017), and (4) Mr. Shipman, a SONOPCO Project manager, testified - that he never had any doubt that the responsibility for the licensing and operation

     'of the GIC nuclear facilities rested with Mr. Dahlberg (Tr. 1982-83)."5 there is no basis to cmclude that these SONOPCO Project managers believed sat Mr.

Briey controlled GPC'; nuclear operations or other licensed activities. In Issue 23, Intervenor alleges that GPC's April 1,1991 response to the petition falsely asserts that Mr. Dahlberg is contacted on a daily basis by GPC nuclear operating officers conceming the status of GPC nuclear plants in that

      " phone records" showed differently. Intervenor did not submit any " phone records" or other evidence to support his assertion.                                         _        _

The testimony of Mr. Dahlberg and Mr. Mcdonald established that Mr. . Dahlberg or his staff received daily reports from a GIC nuclear officer con-cerning the status of GPC's nuclear piants and was contacted if some imusual or unexpected operational event occurred, Dahlberg at ifrl7. Mcdonald at 3,

22. See also Tr,1135, ll54 (Dahlberg).

' Accordingly, the hearing record does not support Intervenor's allegation in issue 23 that GPC's April 1.1991 statement is iriaccurate.
"4 5mulatty. in Loue 21. Intervenor alleges that tu its Apnt 8.19at respome to the pennon, GPC rasely asserts that (D Vogtle protect managemem does not anunw that Mr f arley, rather than Mr Mcdonald, controls Vogite's opersions; and (2) Mr. McDonaW repiets to Dahlberg on all matters concerning um. operanon of GPC's nuclear facihnn hir McthmaW wsuhed that he was confWent that Vogtle managers understood that he, and all other GPC offkers. managers, and ernployees, reported to Mr thhlberg on all matters penaanang to the operanoi of GPC's nuclear facihnet as specthed in tie IsAR, and latersenor's assumpnon th.st Mr. Farley was in control was based on statements ty Mr. MeCoy tnat hat been talLen out of contest. MeDonald at 17,2421.
"8 Mr. $hiprean s.ud he hai currected tus depos non statement unwrvenor Exh 10) that. in Apnl 1990. Mr.
- Hairston reported to Mr Farley through Mr McDonalJ to correctly indwaw that Mr Hairston reponed to Mr
- Dahlberg through Mr. McDona:J Tt 1992 95.1.icenwe Esh 25 Mr. S;ipman espt.uned that lus inimal deposmon stawnum was in the contest of informanon customanly presWed in Mr_ Farley by the SONoPCo Project esecunves and he thought at the hme of het 19% deposition that Messrs. Herston and Mcdonald were othcers nf SCS as melt as GPC and APC and, as such, reported to Mr. Farley with respect to SCS nwners. Tr.

1%5 67,198) 83,199L95 (Stupmant 237 k

                                                                                                                      -      )

In issue 15, intervenor contends that GIC failed to tell the NRC, during a December '1988 inspection of the corporate offices in Birmingham, Alabama, that Mr. Ruley was involved with the SONOPCO Pr(ject as CEO of the SONOPCO Project, and hiiksi to inform the NRC about Mr. Mcdonald's

        " reporting relationship" to Mr. Faruy,"' Intervmx claims that: (1) Mr. Farley
      = reported to Mr. Addison and The Sonthern Company ManaFement Council
                                                                                                                      )

which served as a board of directors for the SONOICO Project; (2) Mr. Farley was involved with the opaation and management of The Southern Company's nuclear plants, presiding over weekly staff meetings; and (3) GPC's letter of December 29,1988, to NRC continued to mislead the NRC about Mr. Farley's role by stating that, "as shown on FSAR Figures 13.1.1-2 and 13.1.13, the Executive Vice President, the Senior Vice President-Nuclear Ope:ations and the Vice President-Nuclear do provide line management direction for the operation

      -- of the Plant."

He record shows that Mr. Farley was President of APC during the December 1988 inspection, and he did not become Executive Vice President of Re South-ern Company and SCS until March 1,1989. Farley at .. The announcement that he would be the CEO of Southern Nucicar upon its incorporation was not made until March 1989. Farly at 11; Tr.1723 (Hairston). Intervenor's assert;on that Mr. Farley presided over weekly staff meetings designate : "Farley staff meetings" is not supported by the heanng record. Although SONOPCO Project staff meethgs were held beginning in November 1988, Mr. Farley did not attend these n'eetings until i 'veted to the

      . SONOPCO Project offices, after his election to Executis                                   e m sident of The Southern Company and SCE, effective March I,1989,                                        provided no management oversight or direction at those meetings. Parley at 21: Mcdonald at 21; llairston at 24. Consistent with providing support services to :he SONOPCO I

Project and his future position as CEO of Southern Nuclear, Mr.1arley's attendance was to keep abreast of system plant developments and, as Executive Vice President-Nuclear of ne Southern Company, the meetines enabled him to ' provide periodic reports to The Southern Company Board of Directors. McCoy at 1718; Farley at i1,21; Mcdonald at 21: Tr.1341-42 (Mcdonald), Tr.1848-51 (Farley), Tr. 1989-90 (Shipman); McCrary Deposition at 38. He fact that Mr. Farley was kept informed and periodically briefed he Southern Company Board d'Itom flecernher 19 through 21. 1981, the NRC corducted an inspecuon of the corporate orgata dion, respinwtuhuet and functmas c.! SoNoPCU at Birnungham. %eana di.nng Phase i or the Southern Nuclear transinon (Ingecuon Report Nos S32148-41. S36Mts-4L $4We,40, 50 415/B07t, S348M8 33, and 30 36448-33) and observedJn Part 3 or the report that'

              - In preparation for coinhimag the inanagement or Vogile, H.mh. and Farley into one orgamuuon, GPC has reorgvumi and nuwed the corporate nuclear operaisons to Dirnunghant . . . Currently, the lisecunve Vice President and seruce Vice President for Nuclear operanons are otheers or tuh GFC and APC.      .The Vice Presidents for each of the three protects (Vogtle, Hatch, and Farle% repen to the semor Vke Presideni r Nuclear operauons.

238

of Directors does not warrant the conclusion that he was past of the management strscture for the Vogtle facility or exercised control over its operation or its other licensed activities. De hearing record does not support intervenor' ssertinn that Mr. Itairston's letter of Deceruber 29, 1988, that referenced organizational charts shown in FSAR Chapter 13, misled the NRC about Mr. Farley's role in the operation of the Vogtle facility (see aim Issues 4,5, and 7 herein). Mr. Farley had no such tvic. Accordingly, there is no basis to conclude that the NRC was misled during its December 1988 inspection u by subsequent submittals regarding the orga-nization in control of OPC's licensed activities. It, Issue 16, Intervertir contends that during a July 25,1989 meeting with the NRC, GPC failed to accurately portray the actual configuration of the SONOPCO organization by not revealing that Mr. Farley had management responsibility over the Vogtle facility, Since the record does not support that Mr. Parley

    - had management responsibility over the Vogtle facility, this contention is not substantiated.

In issue 24, *,ntervenor alleges that GPC omitted from the Vogtle Emergency Plan at:y discussion of Farley's management functions and responsibilities as they relaed to the ':orporate Emergency Plan described in Appendim 7 of the Vogt!c Emergency Plan (Revision 12, effective April 1990). Intervenor's bases for this allegation are that (1) the Vogtle emergency procedures demonstrate that Mr. Fuley had an emergency plan responsibility because he was listed in the On. Call P*oject Manager's telephone list as " Georgia Power Corporate Management"; and (2) Messrs. Mcdonald, llairston, and McCoy as well as the rest of the corporate emergency organization were controlled from a practical standpoint by Mr, ihrley. Mr. McCoy testified that Revision 12 (dated April 1990) of the Corporate Emergency Plan accurately indicated that Mr, firley had no role in the Corporate Emergency Organization, and that Mr. Ihrley was not part of the " Senior i Corporate Management" identified in the Corporate Emergency Notification

      'Iree (Figure C 1 of the Corporate Emergency Plan for the Vogtle Electric Generating Plant, Revision 12). McCoy at 18-19; see also Tr.1597 (McCoy);

Supplemental Prefiled Testimony of C. Kenneth McCoy, ff. Tr.1560, "McCoy

    - Supplemental," at 1. Even though Mr. Farley was accurately identified as Executive Vice President-Nuclear of The Southern Company, his name was listed under the heading " Georgia Power Corporate Managernent" in the On-Call Project Manager's u lephone list. He heading was incorrect and, beginning in 1991, the section was renamed " Corporate Management and included the designated title for each individual, McCoy Supplemental at 1; see also Tr.

1574 76,1588-89 (McCoy). 239 i

l 'Ihe On-Call Pndect Manager'; telephone list does not identify who is to be called in the case of a signi6 cant event ni the Vogtle facilny, is not part of a proceddre, and is not intended to be used by the On-Call Pudect Manager (corporate) to identify who is to be noti 6ed in the event of an emergency. Adntinisaative procedure VNS.EP-01, entitled " Duties of the On-Call Pndect Manver"(GIC Exh. 9),identines uho is to be notified by the On. Call Project ManaFef. IP . drder,"' and Mr. Farley was not required to be notified by the OtrCall Project Manager as a part of the emergency call-out precedures."' McCoy Supplemental at 2-3; Tr.1580-92 (McCoy).

                           'Ihe record does not support Intervenor's assertion that Messrs. Mcdonald, l

Ilair6 ton, McCoy, and the rest of the corporate emergency organiration in 11irmingham, Alabama, were controlled by Mr. Farley. Messrs. McDenald and McCoy both testified that there was no attempt by Mr. Farley to control the operation of the Vogtle facility and that line management authority over licensed activities at the Southern Nuclear offices was very clear - through Mr. McCoy to Mr. Itairston, M1. Mcdonald, and Mr. Dahlberg. McCoy at 19; M Donald at 29. GPC's response to the March 20, 1990 Vogtle SAE also demonstrates that Mr Farley did not participate in the emergency response, but only listened to discussions regarding the event consistent with his need to know info mation. Tr.182529 (Farley). Accordingly, the allegation in issue 24 is not supported The hearing record does not support that Mr. Parley had emergency plan responsibilities indicative of a control mer GIC's nuclear facilities or that he exercised control over GPC managers and personnel involved with GlC's emergency response. Therefore, the claim that Mr. Parley was omitted from the Vogtle emergency plan in order to mislead the NRC is unwarranted. In sumniary, Intervenor's assertion that Mr. Parley functioned as the defacto Chief Executive Officer of the SONOPCO Project is not supported by the record. Mr. McD<mald did not report to Mr. Farley regarding GPC licensed activities. 'Ihe items cited do not demonstrate that Mr. Parley exercised con. trol over licensed activities at GPC's nuclear facilities during his invalvement I in the SONOPCO Project. Rather, the record shows that GPC controlled the daily operations of the VoFtle facility in accordance with a chain of command extending from the Vogtle General Manager, through the Vice President of the i UI lf a sagtuscant ewns onurred at the Wgtle facihty. Adnunntrauve Procedure VNS l.P o4. as it esiued in 1990. required that the appropesate GPC corporate enanagernene be notihed and bneted tm tie enwrgency ir ny one or ttue to be notihed were not availaNe. the on-Call Project Manager would30 to the nett person up the line on occanons, Mr. kkCoy was unable to teach htr. hkDonald or Mr. tLurston. and he called Mr. Dahlberg McCoy supplernental at 1-4

                "'The a6h, Strative procedure thd not reguere that Mr, rarley be contacted ror sign 6cani events at the Wgtle racihty, hur . practice, both Mr Farley and Mr Dahlberg woukt be called.1,l 240 1

Vogile facility, through the Senior Vice President-Nuclear Operations, through

the Executive Vice Presidem-Nuclear Operations, to the President and CEO of -

                . GPC. A Nuclear Operations Overview Committee of the GPC Board of Directors
                . conducted periodic reviews of the regulatory and operational performance of -

GPC's nuclear plants. H. Establishing and Implementing Nucleme Polley Decisions intervenor's Statement of Issues and the petition, as supplemented, include-allegations that Mr. Farley contmtled the Vogtle facility based upon his involve-

                . ment with establishing and implementing nuclear policy decisions. (Issues I,9, 15,17, and 20, October 1,1990 Supplement at 4).

In issue 15, Intervenor claims that, in 1987, Messrs. Addison and Farley met

privately and agreed Mr. Farley would serve as

chief executive of Southern Company's nucicar division" and decided to locate Southern Nuclear in Birm.

L ingham without the knowledge of senior GPC officials.

                   - Intervenor's assertion that Messrs. Addison (CEO of The Southern Company) -

and Parley agreed in 1987 that Mr. Farley would become the chicIexecutive of a Southern Company nuclear operating subsioiary is not supported by the hearing record; Although he did not recall the exact date, Mr. Addison believed that his discussions with Mr. Farley about Mr. Parley heading the Southern Nuclear Operating Company occurred when the decision was made to go forward." ~ - Addison Deposition at 36 37, The hearing record shows that Mr. Addison did. j not make the decision unilaterally, that Mr. Farley was elected to the position 1

               - of President and CEO of Southern Nuclear by the Board of Directors, which; included GPC's CEO (Mr. Dahlberg) and GpC's luccutive Vice President--

Nuclear Operations (Mr. Mcdonald) after Southern Nuclear was incorporated I on December 17,1990. Jia:rston at 37. The fact that Mr. Addison, the CEO of, the holding company, divussed with a senior officer the possibility of that officer heading a new subsidiary, does not violate nny Commission regulation and does -- not support a conclusion that Mr. Farley directed GPC licensed activities. There is no basis in the record to conclude that Messrs. Addison and Farley decided where SONOPCO would be located, or that this information was withheld fram GPC management.' .-While Mr. Parley told Mr. Addison ibat he would consider heading up Southern Nuclear if the corporate offices were in Birmingham, Mr. Addison discussed the merits of the location with GPC, the issue was examined by task forces, and Southern Nuclear was located in Birmingham, Alabama, due to its proximity to the engineering support staff and-the economics of that location. Addison Depositivo at 80-81, 83; Tr.1821. 1823 (Farley). Mr. Thomas McHenry, the GPC Manager-Nuclear Support, represented GPC on the implementation task force, and Mr. H.G. "Grady" Baker, ' GPC Senior Executive Vice President, was on the steering committee Tr.1331 241 e s

(McDonaldi. Mr. Farley believed that the decision as to location was made by the Board of Directors in May 1988. Tr.1822 23 (Farley). In issues 15 and 17. Intervenor alleges that by 1989 tbc Southern Company Management Council began functioning as the SONOPCO Project Board of

                               ' Directors. Intervenor states in issue 17 thM s es GPC's April 1,1991 respone,e to the pet).lon falsely stated that 'Ihr Southern Company Management Council                                   1 was not involved in operatin'y asues pertaining to GPC's mvicar plants;"' and l(2) the functioning of the Management Council was omitted from the April I response and the FSAR.

De record shows tnat there was no Board of Directors for the SONOICO Project and no Board of Directors for Southern Nuclear until it was incorporated at the end of 1990. Tr.1773-75 (Farley); Farley (ff. Tr.1061) ac 13-14: Dahlberg ut 8. Individuals who later became members of the Board of Directors of Southern Nuclear informally discussed the status of efforts to form Southern Nuclear, and other issues of common interest, as representatives of The Southern Company Management Council. Farley at 1314. Mr. McCoy testified that he Southern Company Management Council is not described in the Vogtle FSAR because the Council is not the licensee of the Vogtle facility or an organization with responsibilities regarding the operation of

                              = the Vogtle facility. The Southern Company Management Council only reviewed GICs budget in connection with The Southern Company's obbgations to its stodholders. McCoy at 16 Neither 10 C.F.R. 5 50.33 nor 10 C.F.R. y 50.34 tequires that such budget review activities be ine'uded in an FSAR, Rus, there was no misrepresentation to the NRC and Intervenor's allegations in Issues 15 and 17 are without meri'.

In issue 1, Intervenor asserts that key negotiations between GPC and Ogle-thorpe Power Corporation were conducted by Mr, Farley, Mr Parley testified that he conducted ccitain negotiations with Mr. Stacey of Of Qorpe Power Corporation at the renuest of Mr. Dahlberg, but the major par. u; the negotiations were through Mr. Grady Dakcr and Mr. Fred Williams. ' ' Farley at 33; see aho Dahlberg at 11 12. Mr. Williams confirmcJ that he was in charge of negotiating the agreement, and that in his view, Mr. Farley merely provided OF'ethorpe Power Corporation information and comfort about setting D'intersenor nunharactenzes GPC's Apnl l respon e The resporne stated, at 4 The Southern System Management Council prmkles a forum for the euhange or informenon among subsubary compames that will aid the Compames' daly operahons, it renews system performance am! 6 prmbles strategw and polwy gatance to the systent However, day.co-day management or pohey and operanng 4ssues pertaning m&ly to an irahvidual subsuhary company is the exclusive responsibihty or the sutnahary company's CEo tetervenor offered no evi& ace that ihmmi the statement to be inaccurate. 242 1

1 up rmelear operating companies.' Tr. 2482-83 (Williams). Thus, Mr. Farley's participation does not indicate es,..'rol of GPC licensed activities. Intervenor claims in issue l- that Mr. Farley reviewed data requests and testimony befote the Georgia Public Service Commission in support of GPC's 1989 rate case. Mr. Farley testified that he had no responsibility for GPC's rate case and did not direct Mr. Mcdonald *5 activities related to the 1989 rate case. Tr.180) (Farley); ihrley at 34 35 Mr. Ihrley's monitoring of data icquests to make sure that the SONOPCO Project was providing expeditioos support (Tr.

                    .180311 ([hrley)) does not retket control over licensed activities.

In Issue 9, Intervenor alleres that GPC's April I,1991 response to the petition falsely stated that the resolution of a dispute between Messrs Dwight Evans (GPC Executive Vice President-External Affairs) and McDtmaid by Mr. Dahlberg's disection to McDwald regarding the presentation of performance indicators to the Georgia Public Service Commiulon was ezidence of the l reporting relationship and indicative of who was in control of nuclear operations l- at the Vogtle and llatch facilities. Intervenor claims that this statemerit is false L because Mr. Mcdonald, after an August 10, 1989 meeting, did not follow Mr. Dahlberg's instructions, and Messrs. Mcdonald and Farley reviewed and approved testimony that did not include alternative performance indicators. The hearing record does not support Intervenor's assertion that Mr. Mcdonald did not follow Mr. Dahlberg's instructions. Messrs. . Mcdonald and Dahlberg both testified that a decision was made at the August 10,1989 meeting to be prepared to propose alternative performance standards, if necessary, and that this strategy was carried out in the nandling of the 1989 rate case. Prefiled Testimony of A. William Dahlberg,111. (f. Tr,1061, "Dahlberg," at 17; Mcdonald at 15 17;

                     'Ir. I102 22,1137-41 (Dahlberg); Tr.15N (Mcdonald). Mr. Earley received .

copies of the draft testimony to be submitted to the Georgia Public Service

                   . Commission, but he neither approved nor disapproved it. Farley at 34. He was in agreement with Mr. Dahlberg's decision that GPC should be prepared to prcpose alternatii e performance standards, if necessary. Tr. I10009 (Dahlberg).

Such actions de not indicate control of nuclear operations or budget pclicy. In hsue 20, Intervenor claims that in its April 1,1991 response to the petition (at 12, Attachment I), GPC inaccurately states that Mr, Farley did not create the outage philosophy

for the Vogtle facility. Intervenor asserts that the response is inaccurate because (1) Mr. Ihrley was involved in the establishment of the outage philosophy at the Vogtle facility, (2) Mr. McCoy referred to Mr. Ihrley's
As used here, *cnstage phdosophy* refers to curage scheduhng SpecAcany, the "phikwt h y" was to use an "itumum" schrdule - a schedule withist the inctunon or ume for concogencies McCoy at 1415.

243

role as indicated by an audir tape (Tar. No. 236) recorded in August 1990,*' and Mr. Farley testified during a deposition that " Parley staff meetings" were held every week.

                    'the record shows that GPC's April 1.1991 response to the petition was accu-rute because Mr. Mcdonald established and implemented the outage philosophy and Mr. Farley was not involved in overseeing %e estabhshment of the outag:

philosophy. McDtmaid at 13; Tr.151H 20 (Mcdonald); McCoy at 14; Farley at 30. Mr. McCoy's statements on Tape No. 2M referred only to

div:ussions" about the outage philosophy that included Mr. Farley, and do not show that Mr.

Parley set, established. directed, or created the outage philosophy at the Vogtle facihty McCoy at 14. Mr. Parley testified that he (1) did not direct the operating philosophy and other executive matters concerning operation of the Vogtle fa-cility in the weekly staff meetings,(2) did not have any authority to control, and q (3) did not attempt to exercise any control over management decisions affecting licensed activities or personnel matters concerning the Vople facility. Farley at

22. Moreover, Mr. Mosbaugh admitted that he had no personal knowledge to support his claim that the outage philosophy came from Mr.1 atley. Tr. 2129-35.

Accordingly, the hearing record does not support Intervenor's allegation in issue 20 that GPC's April 1,1991 Statement is inaccurate or that Mr. Farley controlled operation of the Vogtle facility by establist ing or implementing the Vogtle outage or other operational philosophy. In summary, the hearing record shows that nuclear policy decisions for the Vogtle facility were established and implemented by GPC, and there was no evidence that Mr. Parley established the outage philosophy or any other oper-ational policies for the Vogtle facility. Mr. Farley's limited involvement in a 1989 rate case matter before the Georgia Public Service Commission (i.e., his review of draft testimony regarding alternative performance standards) does not indicate any control o' GIC's nuclear operations or licensed activuies. Inter-venor also provided no information that The Southern Company Management Council acted as the SONOPCO Project board of directors until the Project was

             - incorporated.

C. Empicying, Supenising, and Dismissing Nuclear Personnel in his Statement of Issues and the petition, as supplemented, Intervenor asserts that Mr. Farley exercised control over the Vogtle facility becausa he (1) selected and approved GPC's management staff; (2) reviewed nuclear personnel in 1989 as evidenced by GPC Manigement Council's exclusion of nuclear personnel

Thn issue h also raned in the ottober I,1990 Supplement to the Petitma at 4. Peuanners chum that Mr.

McCoy's taped statement, thm the cusap phihyhy was created by Mr rarley and others. supports their a>sertion that Vogtk proyect manapment assumed that Mr Farley, nue Mr Dahlberg, conrrt4 led VogtVs operanot.s. 244

from its 1989 companywide review of management;(3) decided that Mr. Michael Darker, a GPC employee, would not be transferred from the SONOPCO Project to the Nuclear Operations Contract Administration (NOCA) Froup in Atlanta; (4) prepared Mr. Mcdonald's annual performance appraisal; and (5) implemented changes in Vogtle personnel evaluations and pay. (Issues I,6. 8,14A.14B,15, 19,21,27, and 28; October 1,1990 Supplement to Petition at 1-3 ) The h. .... .ecord fails to support Intervenor's allegation (Issues 6 and 15; _ October 1,1990 Supplement to Petition at 12) that Mr. Farley selected and approved GPC management staff.-Re decision to select the individual officers responsible for GPC's nucicar operations was made by GPC management with the approval of the GPC lloard of Directors. GPC's Vice President, Grady llaker, and not Mr. Parley, recommended that Messrs. Mcdonald and liairston -

     - become officers of GPC Mr. Farley's involvement in the selection of Messrs.

Mcdonald and liairston was limited to concurring as President of APC that they could take on the additional responsibilit;es associated with managing GPC's nuclear facilitics. Farley at 25 26. Mr. Farley's involvement in the hiring of Mr. McCoy consisted of discussing Mr. Mcdonald's proposal to hire him. Mcdonald at 10 II; Farley at 25-26; McCoy at 5-6; Tr.1349 50 (Mcdonald) and Tr.1727 (llairsson). GPC's CEO, l Mr. Robert W. Scherer, interviewed Mr. McCoy before he was appointed, and the GIC Doard of Directors subsequently appointed Mr. McCoy to his current position. McCoy at I,5, and 6, Mr. Farley was involved in the selection of Messrs. McCrary and Long as Vice Presidents in SCS. As Pres:Jent of APC, Mr. Farley was consulted on the appointments of Messrs McCrary and Long because the Farley nuclear facility was being supported by the SONOPCO Project and SCS officers, llairston at 24. Mr. Farley was a member of a selection committee, including GPC and._ AIC representatives, to make recommendations for the Vice President of Administrative Services position.u2 Mr. Mcdonald and Mr. Jack Causey of GPC were also members. Tr.1276 (Mcdonald). Thus, the hearing record supports the conclusion that Mr. Farley did not make decisions regarding the hiring of any of the officers reporting to Messrs. Mcdonald and llairston. Mr. Farley's limited involvement with SCS officers within the SONOPCO Project (such as Messrs. McCrary and Long) does not appear inappropriate since the SONOPCO Project and its SCe officers were also providing support to the APC nuclear plant. Intervenor's assertion (Issues I and 14A) that the GPC Management Coun-cil's exclusion of nuclear personnel from its 1989 companywide review of man-agement was evider.cc that nuclear operations were reviewed by Mr. Farley was U2 Typical or the nelection process tw SCS nennw personnel, no nelecuan conumnee was convened ror Mr. l.ong tecause bs runctmas and posmoa in . . SoNOPCo Propet mere sumlar to his posmon m sCS Farley at 22 24 245 s

not supported by the bearing record. hit. Dahlberg testified that the nuclear management was not included because the nuclear officers had just been re-viewed as part of the recent formation of the SONOPCO Project. Tr.1I85-88

                                         . (Dahlberg).

I intervenor asserts (Issue 8) that GPC's August 24, 1994, response to a Licensing floard question U2 was inaccurate because it failed to ider.tify the NOCA group as an org s. ion that had oversight responsibilities within GPC, failed to state that SONOICO Project personnel refused to cooperate with - NOCA, and that SONOPCO personnel, including hir, Farley, interfered with the operation, staffing, and existence of NOCA.* The hearing record indicates that NOCA never performed the type of over-sight functions identified by the Board's question. NOCA did not perform any osersight function regarding licensed activities and the pet.,* anigned to NOCA were not qualified to perform oversight of licensed activities. Tr 2565 76,2579,2588 89,2596 (htcCoy); Tr.1238 (Dahlberg); hicCoy Rebuttal at 3. While NOCA was, in part, formed by hit. Dahlberg to monitor the performance of GPC's nuclear plants, it was later determined that its data gathering function duplicated activities of SONOICO Project personnel reporting directly to hir. Dahlberg. Dahlberg at 13; h. I193 (Dahlberg). hir. Ilobby, who was General hianager of NOCA, testifieJ that employco in the SONOPCO Project refused to cooperate in supplying him information regarding the plants, and prevented him from hiring the employees needed to perform NOCA's intended function. hir hicDonald viewed NOCA as an impedance in the GPC chain of command and admitted that he did not cooperate with NOCA because he felt hir. Ilobby was attempting to a.6 as an intermediary between hir, hicDonald and hir. Dahlberg. Tr.14h; (Dahlberg); see aho Tr.1485 (htcDonald). hit. hicDonald's concern as a GPC official regarding the GlC chain of cointnand does not constitute transfer of control of licensed activities at GPC nuclear facilities. Furthermore, hit. Hobby lacked any personal knowledge that hir. Farley directed or otherwise influenced hir. h1cDonald's actions regarding NOCA. D. 2352 57 (llobby). Intervenor's claim that hir. Parley interfered with the staffing of NOCA by deciding that hir. hiichael Barker, a GPC employee, could not be transferred - from the SONOPCO Project to the NOCA group in Atlanta (Issue 8; October I,1990 Supplement to Petition at 3-4), was not substantiated, hir. Hobby admitted that only GPC employees attempted to prevent him from interviewing W Questen 2 in the Board's Menwaramium and order, dated May 2$ 1994, asked what organuanonal umas or i execuaw personnel or GPC had any form or eversight scavtry over the sONoPCo Project, such an "manatenal control auMt invesugamm. personnel, quably assurance or control, ur root cause awssments "

Petitioners ennen that Mt w6 tham Evans, a GPC Corporate Concems investigator. tom Mr Hobby thas Mr.

Iartry wouM be *malung the catr' as to whether Mr. Hobby would interview a SONoPCO candidate ror the NoCA perfarvnince engineer posinon october I.1990 supplernent to Petinon at 3-4 I

 .,-,---,,..-,w-   -
                          - - ~ - - - - - - - - - - - - ,                                         .,

f Mr. Michael llarLer for the NOCA performance engineer position. Tr. 2360 61 (llobby). He bearing record shows that Messrs. Ilairston and Mcdonald, l both GPC officers, opposed this transfer because they believed that the NOCA position had been assignert an inflated rating, b. 1737 38 (llairston); Tr.1490-94 (Mcdonald). Mr. flarker discussed his transfer directly with Mr. Dahlberg. Tr.1222 23 (Dahlterg). Neither Mr. Farley nor Mr. Grady Bake could recall any discussion of Mr. IlarLer on May 5,1989, with Mr. Dahlberg regarding Mr. Ilobby's propmed additions to the NOCA staff. Tr. 1759-60, 1820 21 (Farley); IL9.cr DOL Depoution at 41. Mr. Ilobby's b: lief about Mr. Farley's interference was based on information imm individuals who did not attend the May 5,1989 meeting. Ilobby at 4it Evans Deposition at 17-18. Accordingly, the assertion that Mr. Farley made the call" is not supported by the record Mr. Farley did tell Mr. Dahlberg on or about May 5,1989, that some orga. niiations in %c Sout!.ern Company system, such as NOCA, were duphcative (Rirley at 32-33; Tr.1756 (Farley)), but Mr. Dahlberg came to the same conclu-sion without Mr. Farley's input. Dahlberg at 13; Tr,1228 (Dahlberg); h. 2461, 2497 2504 (Williams). Thus, Mr. Faricy's action did not convey a command, or constitute control, over GPC personnel matters. Intervenor's claim (Issue 1) that Mr. Farley prepared Mr. Mcdonald's annual performance appranal was not substantiated. He record shows that Mr. Mcdonald's annual performance appraisal was prepared 1.y Messrs. Ilarris and Dahlberg, the respective CEOs of APC and GPC. Although Messrs, liarris and Dahlberg gave Mr. Farley a chance to comment on the review, Mr. Farley did not know what was finally done. Tr. 186162 (Farley).

                             %e record does not substantiate inervenor's claims (Issues I an i 6) that Mr.

Rirley implemented changes in personnel evaluations and pay with respect to

                       -Vogtle nuclear operations. The record shows that Mr. Iwley did not implement changes to personnel evaluations or pay policy for Vogtle nuclear operations personnel.                        Mr. Farley explained the new Southern Company systemwide policies and answered questions on them. Farley at 31. His involvement was appropriate for his position as a Southern Company of'icer and did not constitute control over licensed activities of GPC's nuclear facdities.

As an Executive Vice President of he Southern Company, Mr. Farley addressed nuclear plant employees to brief thern on the systemwide changes being made to the incentive pay programs of all of the operating companies. At that time, he also polled employees about any concerns they had with their employment situation. Such systemwide activities are typically performed by a representative of ne Southern Company. Mcdonald at 17-18. Rese activities do not constitute improper control of GPC personnel or NRC-licensed activities. In summary, the record does not show that Mr. Farley controlled GPC

                     - nuclear facilities by employing, supervisinF, and dismissing nuclear personnel, 247 l

or that GIC provided inaccurate information to the NRC regarding Mr. Farley's involvement with personnel matters. D. Controlling Costs in his Statement of l$ sues, intervenor alleged tilt Mr. Farley's control of GPC nuclear facihties is shown through budget and personnel pay matters in that (1) Southern Nuclear, its predecessor, and 'Inc Southern Company controlled GPC's nuclear budget since November 1988; (2) Mr. Farley implemented chan;es in personnel evaluations and pay for Vogtle nuclear operations personnel; and (3) the GiC Management Council did not review GPC's 1990 nuclear operatin;; budget. Intervenor asserts that inaccurate and incomplete information was provided to the NRC regarding GPC's control of budget and personnel pay matter; (Issues I,6,12,14A,148, and 17,) latervenor alleged in l$ sue 6 (ser also issues I and 12) that GPC's budget had been under the control of Southern Nuclear since November 1988, and thus the March 28,1991 Vogtle FSAR amendment revising Chapter 13 inaccurately states that (1) the GPC Executive Vice President-Nuclear Operations reports to GIC's President and CEO with respect to all matters concerning budgets, and (2) Southein Nuclear matters are currently limite( to cperational support activities. Intervencr's allegation regardinE budget control is based upon his opinion that GIC's 1990 budget was approved by Mr. Farley and later by Mr. Addison over Mr. Dahlberg's objection. Testimony of a number of witnesses about GIC's 1990 budgeting process, and subsequent nuclear budgets, shows that GlC retained control of its nuclear budgets. GPC's 1990 (and later) nuclear budgets-were reviewed by the Presidents of APC (Mr. Ilarris), GPC (Mr. Dahlberg). SCS (Mr. Franklin), The Southern Cornpany (Mr. Addison), The Southern Company Executive Vice President-Nuclear (Mr. Farley), the Executive Vice President-Nuclear Operations of GPC and APC (Mr. Mcdonald), probably the Senior Vice President-Nuclear Operations of GPC and APC (Mr. Hairston), probably the nuclear plant project Vice Presidents (Messrs. McCoy, Beckham, and Woodard), and probably the SONOPCO Project Assistant Comptroller (Mr. Gilbert). Dahlberg at 9. The SONOPCO group presented the 1990 budgets recommended by Messrs. Ilairston and Mcdonald for all three GPC nuclear facilities to Mr. Addison and his staff during a December 1989 meeting in Birmingham, Alabama. Mr. Addison then visited each of the operating groups and received a report on theic budgets from Mr. Mcdonald, Mr. Hairston, and the project vice presidents. Earley at 28 29; Tr.1392-94, Tr.1405-06 (McD<maldh Tbc proposed budgets for the three nuclear facilities were then submitted to the operating companies, APC and GPC. Mr. Dahlberg received, from the GPC Management Council, the portion reflecting GPC's nuclear plants 2 248

for incorporation into the overall GPC budget and for approval. Iludget approval was then given by GIC's CEO for the GPC capital and operating budgets, and by

 ' the GIC Iloard of Directors for the capital budget.- After approval by GIC, the total GlC budget was sul mitted to De Southern Company. Dahlberg at 9; Tr.-

1240-41 (Dahlbeig); Mcdonald at 1415. GPC Management Couxil reviewed

 = the 1990 GPC nuclear budgets, 'as part of the total GPC budget, before they were apprc.m .,, Mr. Dahlberg, ne capital budget was also approved by the GPC IP ard of Directors Dahlberg at 10.

Mr.1;arley's involvement was limited to reviewing the budgets as an Execu-

 - tive Vice President of He Southern Company and advising Mr. Addison, who was responsible for the review of all operating company budgets. Dahlberg at 10; Tr,1779-83,1795 (Farley). Mr. Dahlberg determined whether the 1990 budget was acceptable. Farley at 27. Mr. Addison had never, however, approved or disapproved GlC's budget over Mr. Dahlberg's objection. Dahlberg at 11.
       %c review of budgets of subsidiaries by holding companies (e.g., The Southern Cornpany) to ensure that the budgets of the operating companies were reasonable and appropriate is not unusual or indicative of a transfer of con-trol.*

Accordmgly, the hearing record does not support Interrenor's assertion that .

 --Southern Nuclear controlled GPC's budyct. Thuefore, there is no support for
 - Intervenor's claim that GiC inaccurately stated that (1) the GPC Executive Vice President-Nuclear Operations reports to GPC's President and CEO with respect to all matters concerning budgets, and (2) Southern Nuclear matters are currently -

limited to operational support activities. The record supports a conclusion that Southern Nuclear ir.atters are limited to operational support activities.

     . Intervenor asserts in issue 14A that GPC's April 1,1991 response to the petition is false in stating that the GPC Management Council functioned as a policy-setting body and made corporate resource allocation decisions because.

L in late 1989, the GPC Management Council did not participate in the review l of GPC's 1990 nuclear operating budget. The hearing record, however, showed } that Intervenor's assertion was incorrect in that the GPC Management Council did review the 1990 nuclear budget as past of the total GPC budget review before approval by Mr. Dahlberg. See Tr. 1396-98,1403; Dahlberg at 10. Intervenor claims in issue .14B that in the April 1,1991 response to the : petition, GPC misrepresents that Mr. Mcdonald reported periodically to the W

      & rewee er GPC's budget by The Southern Cornpany Management Council in conneenon with The Southern Company's chhganons to tts stucuicklers 6s not an actmty that need be desenbed 6n the Vogtle FSAR, and its inmss on dnes not warrans the conclusion that GPC's Apnl I,1991 response to the pennon was inactwate as Imervenw aswris in tssue 11 249 a

t GIC Mangement Council regarding matters such as budgets and organizational goals. Mr. Mcdonald testified that he reported to the GPC Management Council on nuclear operating matters, including budget matters, with the quahlication that

 " reported" rneant "provided budgets for their review,"u' Organizationally, he reported only to the GPC CEO. Mcdonald at 14. In view of Mr. Mcdonald's testirnony, the hearing rewrd does not support a conclusion that GPC's April 1, 1991 tesponse was inaccurate.

In summary, the hearing record does not support a conclusion that GPC rnisrepresented its budgets affecting the operation of GPC licensed facilities. Dere is no indication in the hearing record that the particular proecss GPC used to develop its budget is dispositive to Intervenor's assertion that Mr. Farley The Southern Company, or SONOPCO Project controlled the operation of the Vogtle facility. Iwhet, the record shows that GPC was responsiHe for the costs of the Vogtle facility. After review by GPC's Management Council, the operating and capital budgets were approved by GPC's President and CEO, and the capital budget was also approved by the GPC Board of Directors. De record does not support the conclusion that Me.srs. Farley and Addison cpproved GPC's nuclear budgets. As an Executive Vice President of ne Southern Company, Mr. Farley was involved in reviewing the nuclear budgets as part of the normal process for preparing annual budgets in the Southern system. Given he Southern Company's holding company status, Mr. Addison's involvement in reviewing and providing guidelines and requirements for adequate carnings and reasonable capital needs was appropriate. II. OTilER ALLEGED INACCURACIES COMMUlilCATED , TO NRC Intervenor's Statement of Issues and the petition contain assertions that GPC managers provided inaccurate or-incomplete information to the NRC when describing its organization and plans to form Southern Nuclear, and when responding to the petition. The alleged misrepresentations or omissions re-hard statements about (1) the Vogtle chain of command, (2) Mr. Dahlberg's U"bleenng nunutes show that htr klethmaid parucipated to klanagenem Counal nwenngs about the 1939 and 1990 budgets on Sepseneer 21 and october 14.1948. and prescreed orgamsanonal goah ror the Vogtle and Harch facibites dumg a December 7.1983 fnecong latervennt Esh.135 (rne. ting nunuws) at 27,29-30,42 43 htr hkDunald attended a 3ely 25.1989 nwenng dunng which the 5 year capital budget targets were approved, and the setrdule for Imdget renews, induang klanagenwnt Councd review and htr Ad& son's review, was agreed upon lmervenor Exh.135 at 78 7) The blanagenwm Couned also consulered nuclear budgets during nectings on November 6 and 14, and December 4.1989 Intervenor Exh. I35, at 90. 93-96. 97 (capual budget). 98. IM 16 (nuclear updasel 250 l

relatir,nship with Vogtle site management, (3) Mr. Farley's ra.ponsibilities as Esecutive Vice President-Nuclear of The Souther Company,(4) the 1989 title of Mr. Dahlberg,($) SONOPCO Project's control over the Vogtle facility since November 1988 (6) the compor.ition of the GIC Management Council, and (7) the title held by Mr. Parley in 1988. (Issues I, 2,12,13,18,19, and 26 28.)

                               *lhe hearing record regarding the alleged ill' gal license 'ramf-r issue does not support that GlC concealed an unauthorited role of Mr. Farley or a defarro, unauthorired organisation for cattol of GPC nuclear facilities, in issue 1 (see aho Section 2.206 Petition lill.2: an;l July 8,1991 Suppiv-ment ill!), Petitioners stated that GIC misled the Commission about the chain of command from the Vogtle Project's Plant Manager (l.c., thr General Man-                                 '

ag(r) to its CEO before the NRC issued the operating license it: the facility, On March 30,1989, the Commissiontra met to discuss and possibly vote nn the full power operating license for Vogtle Unit 2. Commissioner Carr espressed l concrrn about the hierarch/between the Vogtle Plant Manager and tne Chief Esecutive Officer (CEO), noting that it " looked to me like he was a long way from the CEO." Mr. R.P. Mcdonald, GPC Esecutive Vice President-Nuclear Opuntions, responded that (1) he (Mr. Mcdonald) reported to Mr. A. Willian' Dahlberg, the GPC CEO; (2) that Mr. Ken McCoy, Vice President of Vogtle, reported to Mr. Mcdonald; and (3) that Mr. George Dock.mid, then Vogtle General Mana/er, reported directly to Mr. McCoy. At ac conclusion of the meeting, the Commissioners voted unanimously in favor of the license, and the license was issued the following day. , On May 1,1989 Mr. W.G. Ilairston, lit, Senior Vice President for Nuclear l Operatiom, sent the NRC a letter of co ection of the transcript, r.oting that Mr. Mcdonald had "ir. advertently left out the Senior Vice President of Nuclear Operations. The orFaniiation ~ lescribed on figures 13.1.1 1 and 13.1.12 I , of the Vogtle Final Safety Andysis Report." !

                               'Ihe Ittitioners claim that Mr. Mcdonald knowingly made false statements to the NRC Commissioners in the presence of Messts. Dahlberg, McCoy, and llockhold during his response to then Commissioner Carr in that he " eliminated one entire level of management between the plant manager and the CEO."

l- Moreover, the Petitioi its asserted (Petition at 8) that: hiessrs Dahlberg. McCoy and flockhold stald have known that Mt. Mcdonald's statenwnts were fatu and simuld have tvought this to the lmnwdiate attention of the Comndsuon and oumise corrected the record before the Cornmksiot acted on ite Voetle full power IKenw requnt. In its Response to the Petition of April 1,1991. GPC noted that the Commission had been apprised of the Company's organization before the meeting on March 30, 1989, including the Senior Vice Prert Dal position, by 251 l i.. . .

an amendment to the Vogtle PSAR that was submitted Nosember 2.1, 1988.

              'Ihc amendment described the reporting chain as being from hit. hicCoy to hit.

llairston to hir hicDonald. GPC's Respoue also indicated that the NRC had reviewed the organisational structure in December 1988 and issued an inspection report.'" in the inspection report, the NRC stated that the vice presidents of the Parley,11atch, and Vopile facilities reported to t'. . Senior Vice President, who reported to the Esecutive Vice President, and that toe organization for Vogtle was consistent with the Vogtle FSAR amendment submitted in November 1988. In its April 1.1991 Response, GPC also noted that, during the klarch 30 meeting, Commissioner Rogers stated that he had reviewed the Company's organisational chart during his visit to the plant site in addition GPC notett that it had submitted the letter of correction to the transcript arprosimately 2. weeks after receiving the NRC transcript.

                  - Ihe NRC Staff has reviewed this issue and concludes that hit. hicDtmald's reply to then Cemmissioner Can was ' < curate in that the transcribed record clearly contradicted other documents i., scord, including the FSAR and NRC inspection reports. The inaccuracy was material in that the reply (1) was in direct response to the Commissioner's stated concern regarding an organizatior al structuie in w hich the plant manager appeared to be "a long way from the CEO,"

! (2) could have influenced the Commission's decision, t nd (3) could have ieen considered by the Commission in reaching its decision. l l 1here was no apparent motive for 1.icensee and its employees to a'.cmpt to deliberately mislead the Commissioners since the 1.icensee had pecuously provided correct information, and NRC Staff members were present whc knew the correct informatkm."' The NRC Staff does not view hit hicD nald's inaccurate statement or omission as intentional or signi.lcant in that it is u thkely the statement would base caused the Commission to reach a different

cision.

No enforcement action was taken regarding the omission of hir. llairsto4 in the organisational structure, in summary, while inaccurate information was initially given to the Commis-sioners, it appears to have been inadvertent, it was corrected by the Licensee upon discovery, and the NRC Stalf was clready aware of the co: rect information. Under the NRC's Enforcement Policy (NUREG 1600), unsworn oral statements that are unintentionally inaccurate are not normally acted upon unless they in- t

             . volve significant information by a licensee official. While the Licensee should have corrected the material omission either during or imme 'Stely following the sveting, further action regarding this omissioni is not warranted due to its mi.

3D NRClupnt Repwi Not M32tt8s 41. SMR41, 442418% S42158 77. %34s/88 3A and WM%31 dated lebruary 1. 89149 us ktr John Rogge, the Nke's Sems kesident Imperu tar sie Vogtle taahr) at $e utne, anended tte nwenng with the Comnuiswers se Wadungton IC, and teinhed dunns lie Ptaw I heanns that at that preung te was anare that hir. Hastston was in the Vogtle chain or consnand Tr 2731 (*sggeL 252

i not significance and because no information other than the Petitkiners' opinion esists to su,rn _the position that the omission was intentional. Intervenor also alleges Orc issue 1) that GPC falsely stated durit.g the March 30, 1989 meeting with NRC that hir. Dahlberg had a " personal hands on" relationship with ib management at the plant site. The meeting transcript (Intervenor llearing Exh.17), at page 5, indicates that Mr. Dahlberg desci.ned GPC's upr. ... nagement as being accessible. The record shows that Mr. Dalbberg visited plants periodically and the Vogtle facility at least twice in i 1989, and was involved in nuclear operations llis " hands-on" management style referred to his oversight, his daily communications with the nuclear management, his plant visits, and his willingness to take calls periodically f om the site. l - latervenor llearing Exh. 32, at 4,15; McCoy at 64: Tr.1153 59 (Dahlberg). l Therefore, the record does not support the allegation that the statement wa, inaccurate. In issue 2, interrenor states that Mr, llairston's letter of May 1,1989, to the NRC correcting the Unit 2 full-power license hearing transcript was inaccurate in asserting that an attached FSAR Figure 13.1.11 as amended November 23, 1988, accurately depicted the corporate management structure for the Vogtle facility since the fi fure did not porway Mr. Parley's role, and indicated that Mr. Mcdonald (the "Esecutive vice President-Nuclear Operctions" position) reported to Mr. Scherer (" Chairman and CEO"), rather than to Mr. Dahlberg i (" President"). In December 1988, Mr. Scherer relinquished his position as CEO and Mr. Dahlberg became CEO, but not Chairman. Thus, Intervenor is correct inasmuch as FSAR Figure 13.1.1 1 had not been updated to reflect this change of title. Morcose , the figures attached to the May 1,1989 letter should hase shown the Executhe Vice President-Nuclear reporting to the " President and CEO," which was Mr. Dahlberg's correct title. Mr. Itairston testified during the transfer hearing that the only purpose of the lay 1,1989 letter was to correct Mr. Mcdonald's omission of Mr. Itairston's le during the Unit 2 full-power hearing. Mr. llairston and others did not notice

             *utdated title in the CEO box. Itairston at 29 oiessrs. Allenspach and Rogge, who participated in NRC Staff's review of the organizational structure for the full pcmer licensing of Vogtle Unit 2 and the related inspection of the organizational structure in December 1988, testified
       ' hat the focus of the NRC Staff's review of the organitation in con'rol of the Vogtle facility was at Mr. Itairston's level and lower and they :ttached no particular si Fnificance to the organliational structure represented at levels above Mr llairston. Tr. 2678 80, 2698.

253

                                            -             - --- . - . _ - ~ - . -                                     - - - . . . . . . . .
        'lhere la no evidence that Mr. llairston's explanation regarding the outdated title in the CliO box was inaccurate or that the NRC was misled in any significant                                                       i manner by this oversight. In addition, as discussed in Secpon lilII.l.a of this                                                          !

Director's Decision Mr. Farley was not in the Vogtle chain of command. ' In summary, while Intervenor is conect that FSAR Figure 13.1.11 did not accurately reflect Mr. Dahlberg's title of " President and CI!O." the error was not a significant factor in des NRC Stalf evaluation of the information, and there is no evidence that it misled the NRC. 'ihe record does not support Intervenor's assertion that the figure is also inaccurate because it failed to reflect Mr. Farley's role in the control of the Vogtle f6.cility, in issue 12, Intervenor claims that in the April 1,1991 response to the peth tion, CIC misstated Mr. Parin 7 responsibilities as linecutive Vice President-Nuclear as including: tl) ovenceing ttw formathm of Souttrm Nuclear, (2) a(ung as spokesman for Soutlern Nuclear anumg chief esecuuve othcert of the ollet Souttwrn Cornpany afhhates

and 0) terrewnting sie Souttern Company on tie national stene conceming genene nudcar power issues Mr. Mcdonald testified th.it this dneription is tn accurate reflection of Mr.

Farley's duties as described in Mr. Mcdonald's letter agreement dated April 24 1989, with Mr. Itanklin of SCS. *Ihe deset;ption is consistent with the NRC ' Staff's historical knowledge of Mr. Farley's activities and duties. The hearing record provides no substantive evidence to the contrary. In issue 13, Intervenor asserts that, because Mr. llairston was a Git Senior i Vice President in April 1991 and had never been a member of the GPC Management Council, GPC's April 1,1991 response to the petition falacly states that the "OPC Management Council is made up of all the linecutive and Senior Vice Presidents of GPC." Intervenor is correct with respect to Mr. Hairston and the error was admitted in the hearing testimony. Mcdonald at 13-14; *". 2: MS 77 (Dahlberg); Tr. 1442 43 (Mcdonald). There is no evidence that the error was anything other than a simple oversight. ~Ihe primary focus of the statement, that Mr. Mcdonald was on the Management Council and Mr. Parley was not, is correct. 'the NRC was not significantly misled by the error w'th respect to Mr. II:.irston. in issue 28, Intervenor alleges that the April 1.1991 GPC response to the petition falsely states t'at Mr. Ihrley's role in the selection of personnel-for the SONOPCO Project was proper in that *Mr. Addison requested such assistan:e from Mr. Parley and such assistance fell within liis duties ns (Inecutive t

Tte response to the petiuon usted than ilus furwhon refers to str iaricy's nwmberstup on the sovitwra syniern htanagenwst Council 254 y- -,,-gi- ., ry ,i,+% zs- - --* mew w -,, e

Vice President-Nuclear of The Southern Company." Intervenor claims that this staternent is false because the staffing selections were inade in 1988 and Mr. Farley did not become lhecutive Vice President-Nuclear of The Southern Corni'any until March I,1989. Intervenor is correct. Mr Mcdonald admitted that, technically, the April 1, 1991 response to the petition was inaccurate in stating that sti. fling selections made in 1988 were within Mr. Farley's duties as lhecutive Vice President- - Nuclear of *lhe Southern Cornpany since Mr.1:arley had not yet assurned that position in 1988. Met .3ald at 12. The enor was not significant or intentional because the same page of the April I,1991 response (Interrenor thh. 48, at 9) indicated Mr. Farley's conect title in 1988, i.e., President of AIC. In issue 26, intervenor alleges that in a September 4,1992 license amend. ment application. GPC omitted facts pertaNing to the actual configuradon and operation of the Vogtle facility in stating that in January 1991, Southern Nuclear began prctiding nuclear support services, technical services, and adeninistrative services but omitting reference to the SONOICO Project's " control over the nuclear operations of plants Vogile, llatch, and lia rley [which] beFan in Novem-ber 1988" prior to Southern Nuclear's incorporation. Mr. llairston testified that the September 4,1992 statement regarding Southern Nuclear was accurate ar.d that Southern Nuclear was vorporated on December 17, 1990, and became effective January 1,1991, ll.ntston at 46 The license amendments application is consistent with information recci<cd by the NRC during the late 1990-carly 1991 time frame and the NRC was well informed of the phased approach employed by GIC to establish a nuclear operating company through various meetings, inspections, and unciasions, Intervenor provided no esidence that the services provided by SONOpCO Project from November 1988 until Southern Nuclear's incorporation constitutsd control over operations or licensed activities for GIC or AIC nuclear facilities. Accordingly, there is no evidence that the license amend aents application of September 4,1992, was inaccurate or misled the NRC. In issue 19. Intervenor states that in its October 3,1991 response to the section 2.206 petition as tevised July 8,1991, GpC falsely states that (1) the selection process osed in:1988 for the staffmg of SONOICO was not completed during the two-day meeting of SONOICO Project esecutives, and (2) Mr. Mcdonald "never purported to give an unqualified or rigid top down characterization of how the organization was staffed." Messrs. McCoy and Mcdonald testified that while a number of individuals

                      . were identified as the most likely candidates for positions within the SONOICO Project during that two or three-day meetinF, the selecdon process continued beyond the meeting. McCoy at 16; Mcdonald at i1: Tr. at 1301 (Mcdonald),

l L 255 l I

l Mr. Mcdonald testified that the selection pniceu invohed Mr. McCoy and Mr. J.T. lleckham (Vice President of the flatch facility) starting at the top of

 'he organir.ation and, using a blank organitation chart, identifying prospective candidates who were most qualified for positions in the organisation. Selected inanagers then participated in selecting those individuals who would be worLing                            ,

for them. lie only recalled that they settled on N top tier during the meeting, ' ahhough they may have penciled in other riames, anu os other candidates were I shullied around for a couple of weeks. Tr. at 1301,1304- ' (Mcdonald). Given Mr. Mcdonald's description of the selection giroects, the hearing record does not support the conclusion that the statement regarding GPC's _l October 3,1991 statement is inaccurate or misleading.

    -In issue 27. Intervenor alleges that GPC's October 3,1991 response to the petition inaccurately states that Mr. Mcdonald's testimony concerning                                  ,

the selection of Messrs. McCrary and Long given in the l'unArr and Fuchio DOL proceeding was not inconsistent with his testimony in the //obby DOL proceeding. During the licensing transfer hearing, Mr. Mcdonald testified that his answers were different, and were not contradictory, because the questions were dif ferent. In the l'unAer and Fuchlo proceeding, w hen he was asked who selected Messrs. McCrary and Long for their positions in the SONOPCO Project, he undeistood I the question to be who was ultimately responsible for referring them to the l Iloard of Directors, and he replied he was not sure but assumed it was the i President of Southern Company Services, in the //obby case, he was asked l if he was " involved" in selecting them and since he had been involved with f recommending them, gave an affirmative reply, Mcdonald at 11 12. In light of the differences in the questions posed, the evidence does not support the conclusion that Git's response of October 3,1991, is inaccurate. III, CONCLUMON he record shows that GPC prov ded i some inaccurate or incomplete infor. mation to the NRC when describing its organization and plans to fonn Southern Nuclear, and w hen responding to the petition. his information involved (1) the omission of Mr. Hairs nn when Mr. Mcdonald desenbed the Vogtle chain of command during a M.uch 30,1989 meeting; (2) a 1989 FSAR organizational chart showing the p>sition of Mr. Dahlberg as " Chairman and CEO" rather than " President and CEO"t and (3) GPC's April 1991 written response to the pW. ion indicating that tim GPC Management Council included all Senior Viec lYesidents (which was inaccurate because Mr. liairston was not a member), and indicating Mr. Farley's title in 1988 to bc Executive Vice President-Nuclear of The Southern Company (a position he did not assume until March 1,1989). 2%

l

                                                                                       'this inaccurate or incomplete information was not significant in terms of NRC focus on nuclear operations and licensed scrivities or in the context of the overall correct information provided to the NRC, and did not mislead the NRC. 'lhus the inaccuracies and omissions are not sufficient to warrant NRC enforcement                             !

articn or conclusions that (1) OPC concealed an unauthorized role of Mr. Ihrley or a de facto, unauthoriied organisation for control of Ol'C nuclear facilities; or (2) GlT ! .. the sequisite character and integrity to be a licensee, i t 257

1 I I Cite as 45 NRC 258 (19371 DDM 7 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OrPCF. OF ENFORCEMENT l James Lieberman, Director - in the Matter of - f WESTINGHOUSE ELECTRIC , CORPORATION , (Madison, Pennsylvania) March 20,1997 <

                                                                                 .t The Director, Office of Enforceme t, has taken action with regard to a petitmn *, led by Shannon Doyle requesting that the Commission take action        '

with regard to Westinghouse Electric Cerporation. The Petitioner requested that the Commission investigate allegations that Westinghouse willfully provided false information to the Department of Labor (DOL), institute a show cause proceeding pursuant to'10 C.F.R. 5 2.202, and/or impose a civil penalty upon Westinghouse. The Petitioner had asseriod, as a bali fo* his request, that

Westinghouse had failed to correct the DOL record and provided material false

-statements to the IX)L Administrative Law Judge in a case arising under the Energy Reorganization Act. In denying the petition, the Director determined that the matter should be referred to the DOL Administrative Review Board for i its consideration. 7 - TECHNICAL QUALIFICATIONS: REQUIREMENTS The NRC generally does not have .pecific requirements for qualification and training of health physics technicians. lNRC: JURISDICTION The NRC and DOI have compicmentary responsibilities in the area of-employee protection. 258

DIRECTOR'S DECISION UNDER 10 C.F.R.12,206 l

l. . 1, INTRODUCTI- #N On May 30,19%, Mr. Shannon Doyle (Petitioner) filed a petition pur.

                            - suant to 10 C.F.R. 6 2.206 requesting that the Nuclear Ryulatery Commis.

sion (NRC) take immediate action against Westinghouse Electrie Corporation (Westinghouse). Specifically, the Petitioner requested that the NRC investigate allegations that Westinghouse has willfully provided false information to the

                            . Department of Labor (fX)L), and institute a show-cause proceeding pursuant to 10 C.F.R. 6 2.202 and/or impose a civil penalty upon Westinghouse, JAs a basis for his request, the Petitioner asserted, among other things, that .

Westinghouse had failed to correct the record and, through its counsel, had provided material false statements to the DOL Administrative Law Judge (AIJ) in a case arising under the Energy Reorganization Act (ERA),89. ERA-022.

                            . Specifically, the Petitioner asserted that Westinghouse: (1) " knowingly let remain the false impression of the Administrative Law Judge that registration with the National Registry of Radiation Protection Technologists (NRRIT)is a requirement for the holding of the position of health physics technician in the nuclear power induury"; and (2)" purposely maintained this false impression by providing through its counsel false material statements in maintaining that an NRRPT filing to the USNRC ' establishes that a passing score on the registration test is required for the pos; tion of health physics technician.'"

By a letter dated August 16,1996, I iniormed the Petitioner that, pursuant to

                            -scetion 2.206, the petition had been referred to me. I also informed the Petitioner that his request for immediate action had been denied, but that as provided by section 2.206, nction would be taken on his request within a reasonable time, To address the concerns in the petition, I also requested in my August 16,.1996 letter that the Petitioner provide further information supporting the petition. In addition, by a separate letter to Westinghouse dated August 16, 1996, I requested from Westinghouse a response to certain questions, including, among e her things, whether testimony by Westinghouse before the DOL ALJ in this case asserted that registration with the NRRPT or a passing grade on an
                                                                                                                 .l
                            - NRRIT registration examination was required before gaining employment with
                            -- Westinghouse as a radiation technician.

By letter dated October 8,1996, the Petitioner responded to my August 16th

                            - letter, By letter dated November 8,1996, WestinF house submitted its response to my August 16,1996 letter, 259

II. DISCUSSION Westinghouse is a contractor that provides services at various nuclear power plants that hold licenses from the NRC. Ilydro Nuclear Services, Inc. (llydro), was incorporated on January 23.1985, as Westinghouse's nuclear decontami-nation service business, in part, providing worko to rerform decontamination ser ices at nuclear power plants. Ilydro was a comractor for the Indiana a Michigan Power Company, which holds Facility Operating License Nos. DPR-

      $8 and DpR 74, issued by the NRC pursuant to 10 C.F.R. Part 50 on March 30,1976, and December 23,1977, respectively. The licenses authorire the Li-censee to operate the D.C. Cook Nuclear Power Plants in acconlance with the conditions specified therein.

On December 9,1988, the Petitioner filed a complaint with the DOL asserting that liydro had violated section 210 of the Energy Reorganitation Act (now section 211) when it failed to hire him as a decontamination technician to work at the D.C. Cook plants during an outage in the fall of 1988. On March 30, 1994, the Secretary of Labor issued a Final Decision and

     ._ Order in this case, 89 ERA 22, finding that flydro had discriminated against the Petitioner ' liydro petitioned the Court of Appeals for the Third Circuit for review of the Secretary's Final Decision and Order; 'iowever, on August 24, 1994, pursuant to a motion by the Secretary of Labor and Westinghouse, the court remanded the case to DOL for consideration of damages.

On December 14, 1994, a hearing on damages was held before a DOL AU. One of the issues raised at she hearing by the petitioner was that he was entitled to damages for lost promotional opportunities as a result of his w rongfut discharge. Specifically, he argued that he would base been promoted from - decontamination technician to a position as health physics technician had he not been wrongfully discharged With regard to this issue, on December 12,1994, a deposition concerning the DOL complaint was taken. During the deposition, Mr. William Burns, Westinghouse Manager of Steam Generator Field Services and Field Readiness Operations, stated, in response to a question concerning the requirements for qualification to e ik as a health physic: technician: "In the industry, the certain amount of hours would be given credit for, but there are also requirements of certain amount of education plus a national testing program to qualify as a radiation protection technician." (Ts.1718.) in addition, during the hearing, Mr. Burns, in response to questions concerning education or testing requirements to become a health physics technician, stated:

       'On June 28 1995.de NRC issued a Nace or whenon in I armenem Actmn No 95 0$ to Westinghouse, ca eg winns de dwnenapon against Mrs(byle as a Seventy level m notation 260

Well, to be more or less t,oard cert 6ed and recene cert hcates jolj cducatmn or testmg. the National Registry of Radiat6on protection lechnidans srmbannually conduct leuj tentmg seminars at the Aner6can Nudear $cdefy sumnwr and winter pretinn The llcalth Phpks Sodety also condals tertam anusunts of school and testing 9 become a heahh physics technidan. or a ceruhed technidan ('th 165.) On hia!cn za,1995, flydro filed " Post llearing hiemorandum of Law Re-lating to the Assessment of Damages"in connection with the above matter, in this filiny llydro stated, in part: "Doyle understood that to become a health -

              . physics technician, he had to log a certain number of hours of experience, pass a national test, and obtain the sequired cacational backpound." (/d, at 25 26.)
                         . On April 7.1995, flydro filed " Respondent's Propnxd Findings of Fact and                                         ,

l Conclusions of Law" concerning the above matter. In this filing, Ilydro stated,

in part: -"hfoscover, at no time during this job with Alabama Power did Doyle l Lake or pass the national qualifying test needed for promotion to a board-certified i health physics technician." (/d. at 2.)

l On November 7,1995, the AU issued his Recommended Decision and Order on Damages (Decision on Damages). In his Decision on Damnges, apparently l relying on the above. the AU stated, in part: I To e .tabhsh lost promanons. Compiamant met show ; l) that Cornplainant had the particu. lar $Lalla or other job rel.ited quahhcanom required by Respondent to be promoted to health physles inhn6 dan; 2) that the health physics techmetan position was b a hne of progreu6on upward from the dnontanunalma techmdan pitson, that is, the decon'stmnaaon tahnidan would normally be promoted to trahh phpics technk6an after wnw intenal of acceptable periormance, and h that (tw prerequisite sert 6ce as e Jecnntammaison technsdan in not itscif Juktthod by busmess neceuity aside from the skills or other quahficauons to perfonn the health phpics technician job. [Catation omitted ) The Complama d has not fulhlied the first part of the analpis since he did not acquire the hours or the nuessary paumg grade on the heakh physics technicians esam. (Decisiot. on Dama; es at 17.) nerefore, the AU denied the Petitioner's claim that he would have attained a

              - position as health physics technician had he not been wrongfully discharged, and determined that the Petitioner was not entitled to damages for lost promotions.

Subsequently, the Petitioner appealed the AU's Decision on Damages and also attempted to supplement the record. In his appeal and motions to supple-ment the record, he argued that lie was entitled to lost promotional benefits. As part of his Second hiotion to Suppkment the Record, the petitioner submit'ed a

                'iting by the NRRPT in a Ittition for Rulemaking proposing an amendment to 10 C.F.R. Part 35, docketed by the NRC on November 24,1995, purportedly to prove that the position of heahh physics technician did not require the passing of a national certification test.

261

On April 17,1996, liydro submitted a " Memorandum of Law in Opposition to Complainant Shannon T. Doyle's Second Motion to Supplement the Record," t in this filing. ilydro stated, among other things: "At the damages hearing and at various depositions, . . . Mr. Ilurns clearly testified that in order to become a health physics technician, one was required to . . . (3) pass a national qualifying test." (Id. at 10.) in his petition, tiie Pdiner indicates that these statements, which imply that passing a national qualifying test was required in order to obtain or hold the position of heath physics technician at Westmghouse,8 constitute the false statements provided by Westinghouse's counsel. In his October 8,1996 response to my August 16, 1996 letter, the Petitioner further awerts that the AU was misled Sy Mr.11 urns' testimony concerning schooling and testing requirements, which resulted in the AU's determination that natural progression would not have enabled him to attain the position of health physics technician. Notwithstanding flydro's position it. % *Memorandurr 't Law in Opposition to Complainant Shannon T. Doyle's Seco d Motion to Supplement the Record," in its Nosember 8,1996 response to my August 16.1996 letter, Westinghouse stated, in part: No Westinghouse witness testihed that NRkPT registration or paning an NRRPT registraten exam was 3 prerequisite to gaining employnwnt with Westingnouse as an HP (lleahh ; l'h)sical technictan. In fact, the testinony is no general that it says nothing at all atmut a specihc Westmghouse or II)dro Nuclear hinng requirenwnts or. for that matter,its specihe requirenrnts of any other employer-In addition, Westinghouse asserted that its witness Mr. Durns, provided the testimony concerning the NRRPT or similar requiremenia or certification. Ilow. ever, Westinghouse further asserted: ITlaLen in context, this tesumon) indicales only that itP techmcians can and sonwtimes do obtain this type of tmard certihcation and that na.,onal organisions, such as the NRRPT, provide tesutg for indaviduals to obtain such certthcanon. The inference can not be drawn Itom this is remony that such certihcation was an absolute prerequisite to employnwnt as a IIP technicsan at Westmghouse or elsew here . (/d. at 4.) t ihe NkC ge,winHy does saw have , acifw erquirenrats tw quahncatma arut traimag or hes':h pyswa ie-hscians 262

                                                                                                                                                       ;_____                                                    ,2_                                   - _ .-

III. ANALYSIS It appears that Westinghouse, in its November 8,1996 response to the NRC, characte. ired the evidence presented to DOL differently from that actually provided to the DOL in Westinghouse's submittals, as described above.

      'Ihe NRC and DOL have complementary responsibilities in the area of em-ployee protectmn.$ After considering the petition and the documents submnted by both the Petitioner and Westinghouse. I have determined that the pctition raises matters that fall withia the jurisdiction and authority of the DOL, rather

t.

the NRC Ibr this reason. I have concluded that this matter should be rc-ferred to the DOL Administrative Review Board for its consideration.

IV. CONCLUSION Ibr the reasons set forth above, the petition in denied. In accordant.s with i 10 C.F.R. 5 2.206(c), a copy of this Decision will be fded with the Secretary of the Commission for the Commission's review As provided by this reFulation, this 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

l. Decision within that time.

FOR Tile NUCLEAR REGULATORY COhth11S$10N I James Lieberman Director Office of Enforcement Dated at Rockville, h1aryland, this 20th day of h1 arch 1997. I As ar'ed la Sectmn 11. the NRC has taken enfor vnwra aden he the underlying notauon of the appluable Conmissen disennunstma regulanon 263 1

Cite as 4$ NRC 265 (1997) L8P 97 7 UNITED STATES OF AMERICA NUCl EAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENGING BOARD Before Administrative Juogos: Charles Bechhoefer, Chairman Dr. Jerry R. Kilne Dr. Peter S. Lam 1 [ in the Matter of Docket No. 50160-Men (ASL8P No. 95 704-01.Ron) (Renewal of Facility Uconte No R-97) GEORGIA INSTITUTE OF TECHNOLOGY (Georgia Tech Research Reactor, Atlanta, Georgia) April 3,1997 i The Licensing Board issues an Initial Decision that authorites grant of a 20-year renewal of the operating license of the Georgia Tech Rnearch Reactor. RULES OF PRACTICE: REQUIREMENTS OF DECISIONS Merely because expert witnesses for all parties reach similar conclusions on an issue does not mean that the L'. censing Board must reach the same conclusion. The significance of various facts is for the Board to determine, based on the record, and cannot be delegated to the expert witnesses of various parties, even , if they all agree.1he lloard must satisfy itself that the conclusions reached have - I a solid foundation. 265 e .

LICENSING HOARDS: SCOPE OF REVIEW A licensing board must do mort than act as an " umpire blandly calling balls and strikes for adversaries appearlig before it." Pac (/ic Gas and Electric Co. (Diablo Canyon Nuclear power P ant. Units 1 and 2), LDP 94 35,40 NRC 180, 192 (1994), citing Scenic thason Prestnurlon Conference v. federal Power Commission, 354 P.2d ME 620 (2d Cir.1%5). EVIDENCE: TESTIMONY OF GOVERNMENT OFFICIALS Altbush the testimony of a public official working for a government agency

             - may be entitled to a presumption (albeit rebuttable) that public ofhclals are presumed to have performed their official duties in a proper manner, this presutnption does not apply where the official is not operating in a traditional governmental capacity but rather as an official of a regulated entity operated by a government unit.

RULES OF PRACTICEt STANDARD OF PROOF Government entities hwe the same burdens in proving their cases in NRC licensing proceedings .ui private entities. MANAGENGNT ORG ANIZATION: STRUCTURE NRC regulations prescribq no particular managerial structure. 'The accept. ability of a managerial crganizational structure depends, in part, on the inde. I pendence of operational and safety functions. MANAGEMENT ORGANIZATION: STRUCTURE With respect to power reactors, interpretations of quality assurance require-ments have led to mandatory separation of operational and safety functions. With respect to nonpower reactors, there is no regulatory rx]uirement for any particular structure, and they vary considerably, so long as some forra of inde. pendent safety review is maintained. MANAGEMENT ORGANIZATION: STRUCTURE Where two forras of management organization are legally acceptable, a Licensing Board would need a strong record estabh.hing the performance superiority of one (and safety deficiencies attributable to the other) to mandate a change. 266 i i .., ._ um , - .gn,.

ENFORCEMENT ACTIONS CRITERIA A licensing board would only refuse to authorire a renewed license under the enforcement policy (i.e., based on violations) for reasons that were as serious as those that could lead to license revocation. Under NRC's enforcement policy, a series of Severity Level IV violations would not warrant licents revocation. TECHNICAL ISSUES DISCUSSED

   - !he following technical issue in discussed: Management organization.

1 APPEARANCES Alfred I. Evans, Jr., Eng., Patricia Culiday, Eng., E. Gail Gunnells, Eng., and Randy A. Nordin, Fng., Atlanta. Georgia for Georgia Institute of Technology (Georgia Tech or Applicant). Ms. Glenn Carroll. Decatur, Georgh, Mr. Robert P. Johnson, I", Ms. Carol Stangler, Mr. Alvin Lenoir, and Ms. Denna Smith, Atlanta. Georgia, for Geordans Against Nuclear Energy (CANE or Intervenor). Sherw ta E. 'Ibrk, Esq., Colleen P. Woodhead, Esq., and Susein S. Chidakel, Esq., for the NRC Staff. TAllt.E OF CONTENTS i A, D ack ground . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 69 11 . Georgia Tech's Prefatory Comment . . . . . . . . . . . . . . . . . . . . . . . 270 C. GANE'S Management Contention . . . . . . . . . . . . . . . . . . . . . . . . . 271

1. Historical Record of Managemeat . .................... 272

a. Management Record Leading to Shutdown . . . . . . . . . . . , 272 (1). Inspection Report 87 01 . . . . . . . . . . . . . . . . . . . . 272 (2) Inspection Report 87-03 . . . . . . . . . . . . . . . . . . . . 274 (3) *Ihe July 1,1987 Management Reorganization .. 276 (4); Inspection Report 87 00 . . . . . . . . . . . . . . . . . . 2 7f-($) Shutdc.wn Orders . . . . . . . . . . . . . . . . . . . . . . . . . 281

              , b. The Cadmium l 15 Accident . . . . . . . . . . . . . . . . . . . . . . . , 283 (1) Summary Description of the Cd ll5 Accident. .,, 284 (2)- GANE's Claim of Mistreatment of the Safety Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 85 267

2. Managernent Record Af ter Restart . . . . . . . . . . . . . . . . . . . . . . 287

a. Record of Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287 (1) Inspection Report 8 9-02 . . . . . . . . . . . . . . . . . . . 2 87 (2) Inspection Report 8 9 -05 . . . . . . . . . . . . . . . . . . . 2 8 7 (3) inspection Report 90-0 2 . . . . . . . . . . . . . . . . . . . . 2 8 8 (4) Inspection Report 91 04 . . . . . . . . . . . . . . . . . . . . 2 8 8

($) Inspection Report 92-48 . . . . . . . . . . . . . . . . . . . . 2 8 9 (6) Inspection Report 93 02 . . . . . . . . . . . . . . . . . . . 2 89 (7) Inspection Report 93 03 . . . . . . . . . . . . . . . . . . . . 289 (8) Inspection Report 94-01 ..... ... .......... 290 (9) Inspection Report 94 02 . . . . . . . . . . . . . . . . . . . . 290 (10) Irnpection Report 94-04 . . .............. 291 (11) Inspection Report 940$ ..... ...... .... .. 291 (12) Inspection Report 95-01 .................... 291 (13) Inspection pepor195-02 . . . . . . . , . . . . . . . . . . . 292 (14) S u m m ary . . . . . . . . . . . . . . . . . . ..... ....... 292

b. Ernployment llistory of William Downs . . . . . . . . . . . 292

c. Intrusion by 10X TV Film Crew . . . . . . . . . . . . . . . . . . 296

d. liard ware issues , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29.a (1) 'the Ili$muth likick . . . . . . . . . . . . . . . . . . . . . . . . 298 (2) Ibel F ement Failure . . . . . . . . . . . . . . . . . . . . . . 299 (3) Envi' mmental Monitoring . . . . . . . . . . . . . . ... 300

3. Georgia Tec'i. Management Organiration Structure . . . .. 301

a. Applicable Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301

b. Examples of Organintional Structures. . . . . . . . . . . . . . 302

c. G ANB's Challenge to the Structure . . . . . . . . . . . . . . . . . 306

d. Other Parties' Positions . . . . . . . . . . . . . . . . . . . . . . . . . . 309

4. Licensing floard Conclusions . . . . . . . . . . . .... .... .... 310 D. Conclusions of I.aw . . . . . . . . . . . . .... ... ............. . 312 E. Or d e r . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 13 APPENDIX A - Witnesses (unpublished)

APPENDIX 11 - List of Exhibits (unpublished) INITIAL I)ECISION

    'this proceed.ng involves t':e e " ition of Georgia Institute of Technology (hereinafter, Georgia Tech or A                            to renew its Facility License No. R-97 for the Georgia Tech Reses                          stor (UTRR). also known as the Neely Nuclear Research Center (N'                          ocated on the Georgia Tech campus in Atlanta, Georgia. Under tht                       6 of the cAisting license, the GTRR is a 268

heterogrneous, heavy-water moderated and cooled reactor authorited to operate at power levels up to 5 megawatts (thermal) for research and development activities. GT Eth.19,' Staff Exh.13. As set forth in the September 19,1994 Notice of Opportunity for llearing, 59 lid. Reg. 49,088 (Sept. 26,1994), the renewal would extend the expiration date of the license for 20 years, until June 6,2014 (OT Exh.19; Staft Eth.13),in accordance with the Applicant's timely application for i newal dated April 19, 1994.8 lbr reasons set forth herein, we are approving the sought license renewal. We are also suggesting that Georgia Tech consider making certain changes in management organizational structure, although we are not imposing any formal conditions to this effect. A, Itackground in response to a Notice of Opportunity for llearing on the license renewal application, published in the Federal Register of Septemtv '6, 1994 (59 l'ed. Reg. 49,088), Georgians Against Nuclear Energy (herei. a.er, GANE or Intervenor) on October 26,1994, filed a timely petition for leave to intervene.

 '!his Licensing Board was established on November 18, 1994, to rule upon GANE's petition and preside over any evidently hear,ng that might result. 59

, itJ. Reg. 60,849 (Nov. 28,1s94). l Ily our Memorandum and Order (Intervention Petition), dated November ; 23,1994 (unpublished), we outlined applicable standards for both standing to intervene and contentions and, in accordance with 10 C.12.R. 62.714(a)(3), established a date by which GANE could submit an amended petition. GANE's amended petition was timely filed on December 30, 1994. Georgia Tech and the NRC Staff each opposed GANE's supplemental petition, both as to standing and contentions. We held a pichearing conference on January 31-libruary 2,1995, in Atlanta, Georgia, to consider GANE's standing and its proposed contentions? Ibtlowing the conferen e, we issued a Prehearing Conference Order (Ruling on Standing and Contentions), LUP-95 6,41 NRC 281 (1995). We determined that GANE had established its standing to participate and admitted two of its ten proposed contentions, one dealing with the adequacy of the Applicant's management and the other with physical security of the site during the 1996 Summer Olympic Games held in Atlanta, Georgia. I oegla Tech lahabits will be referenced an GT tah. . I lly virtue or its un(y appbcauon for renewe', Geargia Tech in erfect euenard the espirauon date or ha current hcenne unt.1 the Coinnusson reuhes a rinal descrnunacon on ttw renewal appbcanon,10 e F lt $ 2.109 8 3ee Notice or Preheanns Conterence, dated knusy 12.1995, pubbshed at 60 fed Reg 3855 Cart 19.1995) 269

1 The Applicant and Staff sought Comtnission review pursuant to 10 C.P.R. - 1 ! 62.714a of out determination to grant OANE a hearing and admit two con. i tentions. They each contested out admission of the two contentions, and the l Applicant in addition challenged our finding of OANE's standing. During the ! course of that appeal, the Applicant, responding to several Commission inquiries ! lelative to security ont the Olympic Games, determined to remove all nucle.it fuel from the site prior to the O!ympic Games ami not to replace it until after the l dames. 'the Commission accordingly remanded the security contention to us i for appropriate action (CLI 9510,42 Ni;C l (1993)), and we issued a Partial ' initial Decision dismissing the contention as moot. Lilp 9519 (corrected),42 ! NRC 191 (1995). . l

                                 - The Commission affirmed both our finding of GANE's standing and our admission of the management contention (Contention 9). CLI 9512,42 NRC                                                                                                 f 111 (1995), With respect to that contention, we held 13 days of evidentiary                                                                                            ,

hearings, between May 20,1996, and June 28,1996 (1) 962552,2614 3545).* { With the agreement of all parties, the filing of proposed findings of fact and j conclusions of law was delayed until after the conc!usion of the Olympic Games. Proposed findings of fact and conclusions of law were filed by Georgia Tech,-

GAN!!, and the NRC Staff.8 Reply findings and conclusions were thereafter filed ; by Georgia Tech.' ' it. Georgia Tech's Prefatory Comment

                                - Ocorgia Tech initially takes the position that, based on the bottom line po-                                                                                       l sitions of expert witnesses of all parties to the effect that the operation of the OTRR currently poses no undue risk to the health and safety of the public, no                                                                                            l detailed findir.g of fact need be made by us. App. FOP at lii xii, We disagree.
                           'Ihe significance of various facts is for us to determine, based on the record,.                                                                                          i and cannot be delegated to the expert witnesses of the various parties, even                                                                                              ;

( if they all agree. We must satisfy ourselves that the conclusions expressed by , expert witnesses on significant questions have a solid foundation. Philadelphin . Electric Co. (Limerick Generating Station, Umts I and 2), ALAB 819,22 NRC -

i 8 to accorde=4 wnh 10 CJ R 4 2 7t$ tai we ahn heard oral hentwd appearance stawnents, once disting the $ intual preheanns conference (lvh 1, IM) and twice during the leanns sessions (May 20 and 22. IML $ 8 The oeurgia tanutuw or Technology's Propmed Findings or twt and Conclusions or t.sw. dated Sepurnhet t). IM (App. lof'); orargians Against Nuclear raergy Proposed hndings or hict in Considersion or Apphcation - tar Renewal or Fm-they IJcenis, daird october it. IM (OANE lof'). NRC Staft's Propmed Hndings or Puct and Conclusions of law. dawd oacher 1s. IM (staff IDF1 .

                           ~ 'The oeceg6a innaituw or Technology's Reply to the Proposed rindings or fut and Conclusions of law or U)                                                                !

OANi!. arul m The NRC starr. dawd Novemher 8. IM tApp. Reply FOr) 270 $ 9 l

      ..'--e    -A u m m,v            ..-w--  ,,--;,-- <        r          , ,,_           -,,,, wee,w ,~,
                                                                                                                         . - - . . . , , ,   ..,-nnnn-w.mn,,       ---w, ,---,,,-n, . ,       m n-~

681, 741 (1985).' Moreover, the evidentiary record includes more than just espert witnesses' testimony. We must also assess the significance ofinformation obtained from fact witnesses and documentary eshibits. As another basis for not making detailed findings, Georgia *Iech also has clairned that Dr. Ratib A. Karam, Director of the GTRR, is a public official working for a governmental agency and is entitled to a presumption (albeit rebuttable) that pubtle officials are presumed to have performed their official duties in a proper manner. App. IOF, Prefatory Comment at sli, cit /ng United States n ChrmIrnt foundation. Inc., 272 U.S. I,1415 (1926), and 31 A C.J.S. IMdence i146, at 318 22. This presumption does not apply where, as here, the government official is not operating in a traditional governmental capacity but rather as an official of a regulated entity operated by a governmental unit. Indeed, insobr as relevant here, government entities have the same burdens in proving ' heir cases in NRC licensing proceedings as private entities. Ser Trnnesser Valley Authority (phipps llend Nuclear Plant Us.its I and 2), ALAll-506,8 NRC 533,544 (1978), establishing that no different regulatory standards would apply if the GTRR were operated by a private rather than a governmental entity. We therefore reject Georgia Tech's suggestion that we need not make detailed findings on the many factual issues on which we took evidence. We turn now to our findings on the management contention, the single contention at issus C. GANE'S Management Contention GANE's Contention 9, as submitted in GANE's Aniended Petition for Leave o Intervene, dated D$cember 30, 1994, and as admitted by us in our April l 26,1995 Prehearing Conference Order (Ruling on Standing and Contentions), LilP-95-6,4i NRC 281 reads as follows: GME con.rnds that nrusnanenseont problenti at tino G1RR ore so great senat sotfetyfor sino pul>tse canemt be asserrd Kafety concerns at sie Georgia Tech reactor are the nole responsibility of Dr. R A. Kararn (SAR, Fig ti I, p.1571 Dr. Karam is the director who withheld information about a senous accident imm the NRC t1987 cadmium 11! accident) The NRC was advised of the 1987 cadmiunt 115 accident by the safety othcer at that time, who m as later demoted, and lett the OTRR opermuon claiming haransnent. Smce the locklent. nanagement has twen restructured giving the director (Dt, Karam) increased auttuutty, including increased muttuvity over the Manager of the Ofhce of Radiation Safety. Although the safety ofhcer has hne to higher ups than tir director, since hehhe woQs for the director on a day-to4tay tasis, the threat of reprisal would be a huge disincentive to defying tir director.

                   'Stawd anotter way, a heenung bond nma do more than act as an *unpre blandly calhng in:Is and stnken hw adversarwa anwaring bekwe ** * *th er Car and flectric Co (thaldo Canyon Nuclear 1%tt Plant. Umts i and 2h LBP44 3$. 40 fdRC lls ' ' r% timig krw Hudue pientr>vsme Csuprrence e frJeral Pmt fi==munion, )S4 F 2d 604. 620 t,         W 271

r

                'the Nudear Safeguards Committee which has theoretical oversigid of the GTRR oper-arkms has a distinct flaw in havlog no etericern with health issues. The Office of Radanon Safety Manager is sought for its knowk/ge of taw rmre than its Lrmledge of health phnws.

(SAk, Sec. 6.1, p.136-l$4 During the course of the hearing, ur uemonstration of good cause for the delay, GANE added several other tn ete items as examples of poor inan.gement.

           'lhe Applicant, Staff, and GANE cach prea.ited witnesses and each also relied on documentary evidence. We will identify these witnesws and i se relevant documentary evidence in conjunction with our discussion of specific aspects of the contention.

1, Historical Record of hianagement in order for us properly to assess GANE's management contention, it is necessary to review the management deficiencies extending at least as far back as early 1987, upon which the contention is based, and the partial and complete shutdowns that occurred in 1987 1988. We will then examine the record of management after restart to determine whether, as GANE contends, substantial management deficiencies still persist (ser LDP-95 6,41 NRC at 299) or, as Georgia Tech and the Staff assert, the deficiencies have been adequately rernedied.

a. Afanagement Record Leading to Shutdown

0) th'sPt:CTION RI: PORT B7 01 Our review of the Applicant's managerial deficiencies that undergird GANE's contention must initially focus upon the NRC Stalf's inspection findings in early 1987, as presented by the NRC Staff's Panel A, as well as by NRC Inspector Anne Rebecca Long, testifying on behalf of GANE 8 As reflected by the current record, the earliest of those inspections citing management deficiencies was conducted by Inspector Long on February 9 23, 1987, and is documented in inspection Report (IR) 50-160/87-01' (GANE Eth. 21).

8 Ma long was called as a witness by the start la responw in G ANE's request. on &rected by this 1.icensing floard The Board had deterraned, 6a acctwdance wnh 10 C F R.12.7Mhx2). that Ms. Imag's "vww or the reets . . . can reasonably tw espected to &ffer sigmlicandy frorn wwws hkely to tw presented by the inspecton on NHC's w6tness paneln." 1hird Preht nng conference order, l.BP-% s. 43 NRC I? ?,18109%k

      ' inspection reports ORO velaird to nutlear reactiv heensees are generally 6ssued in numerical neque.4 each year. draignaung ste facihty's exhet number followed by the IR nurnber. hw utnphetry, references in ttus opimoe to NRC IR: win oerut the oTRR docket number ($4 ttiO) from Ow (R aunter.

272 l

Inspector Long testified that, prior to this inspection, the NRC had rer eived allegations coricerning the GTRR (to the cffeet of an unreporter' a~.., ,$eursion and a report that the reactor had been running without a fles nsed oper 4 tor at the controls) and she was instructed by her acting supervoo to inclr ,e these allegations in her routine inspection but not to reveal to Ge ,reia Ter , that the allegations had been received. 'R. 1444,1446,1449-50,1549 (L...g. IR 87 01 concluded that the power escursion occurred but was not a violation (GANE Exh 21, Report Details, at 27 29). De Staff referred the other allegation to Georgia Tech for investigation after determining there was a lack of evidence to pursue its own investigation. 'R. 1449 50 (Long); Stalf Eth,9. Inspector Long documented six Severity Level IV violations

in IR 87 01, with numerous examples riven for several of the violations, specifically: (1)

                            ' failure to provide or utilize procedures (seven examples); (2) failure to control experiments as requi-d by the Technical Specifications (TS) (four examples);

(3) failure to per'- 2 n weekly heat balance surveillance; (4) failure to receive prior NRC apprt.<al for a change made to the facility's Technical Spcifications; (5) failure to comply with the requalification program for annually documenting performance of operators under simulated emergency conditions for 1984,1985, and 1986; and (6) failure of the Nuclear Safeguards Committee (NSC) to perform its review arid audit functions as required (fou. examp.es). Ibliowing Georgia Tech's responses dated May 25,1987, and July 15,1987, to the IR and Notice of Violations (NOVs), the Staff withdrew the last two ! violations and some exarnples of the others. Georgia Tech initiated corrective l actions for the remaining violations. Staff Panel A, ff. 'R.1740, at 9,10-12; GANE Exh. 21 Enclosure I (Notice of Violation); GANE Exh 23.H lleyond the specific violations identified, the Staff advised Georgia Tech that it was " concerned about a program.natic weakness in implementation of Technical Specification requirements." GANE Exh. 21, Letter to Georgia Tech transmitting NOV and IR 87 01, at 1. De Staff testified that," collectively, the siolations provided substantial evidence of a lack of management oversight." , Staff Panel A, ff. Tr.1740, at 13.'2 P' At the tune. NRC categansed viol.ations in Sewney levels I u V. as follows: Seventy tsvell and il violaucas are of wry segru6 cant regulatory concern la general. violanons that are included in ttese seventy categanes tavnive actual et lugh potenual irnpact on tlw gwbtec Seventy isvel til violauona are cau,e for signi6 cant concern. Sewnty 14wlIV violatsans are less senous ht are or smee than trunur concern; i e.. if left uncorrected. they could lead to a enore sesious concern Sewnty level V violauons are of snione safety or environenental concera 10 C F R. Part 2, Appendis C (revised as of January 1,1988); Statt Panet A, ff. Tr 1740. at 12. H inspector long would have preferred to escalase the us tsvellV v6olanons into nu.re severe tevel III velauans. but she d d not pursue ow formal steps to appeal the clasu6cauon and inscated piar she was naus6cd with IR 8741 Tt 1344-47,1394 95 (langi. II Renuting de Stafr's elevased level or concera, the cover lenet was signed 1.y the Directre. Division of Reactor Projects, one level or snanagerrers higher than normal Stafr ranet A. fr. Tr.1740. at 1314 273

                                                                                                                                                     . . .. i a

inspector long brought to the attention of Region 11 management (specifi-cally, Mr. Albert F. Gibson, Director of the Division of Reactor Safety, Regior. II, from 1985 to the present, and Mr. Malcom Ernst, then Deputy Regional Administrator of Region 11) her dissatisfaction with NRC's withdrawal of two of the violations and portions of two others set forth in IR 87 01. Tr.1405, 1406-07,1582 (leng). Mr. Gibson subsequently agreed that the violations should not have been withdwwn. Ilut no further action in this regard was taken against Georgia Tech, inasmuch as, by that time, further inspections had been undertaken, an order modifying the GTRR license had been issued, and an en-forcement conference with Georgia Tech had been scheduled. Staff Panel A, ff. Tr.1740, at 1314; Staff Exh.19." (2) INNI'ECTION REPoirr 8743

         'the next significant inspection, carried out on April 710,1987, by a Ra-diation Specialist in the Emergency Prepa.edness and Radiological Protection 11 ranch, produced many apparent violations, including a failure to label a con-tainer of radioactive material, failure to perform radiological surveys (two ex-amples), failure to wear protective clothing as required by procedure (two ex-amples), failure to wear required dosimetry, failure to imple.nent itealth Physics (llP) monitori'ig as required by a Radiation Work Permit, faih~ to obtain re-view and approval of experiments (two examples), failure to complete the Exper-imenter's Checklist as required by procedure (two examples), failure to respond i    to a criticality alarm, and failure to survey radiation levels during handling of a j    pneumatic transfer device containing an irradiated sample. Although the Appli-cant had itself discovered several of these failures, adequate corrective actions                      _

were not taltn. Id. at 16; IR 87 03 (GANE Eth. 31). ~ 11ased on an unusually large number of apparent violations, the Staff held an enforcement conference on May 4,1987, at which violations identified earlier that year in irs 87-01 and 87 02 were also addressed. Staff Panel A, ff. Tr.1740, at 16; h.1764 (Collins); see GANE Exh. 31, at 1; D.1529 30 (Long). At the enforcement conference, documented in IR 87-06 (GANE Exh. 30), Georgia Tech outlined actions to improve management oversight and self identification of problems, including a possible reorganir.ation to place the radiation protection or health physics (llP) function under the authority and responsibility of the NNRC Director and the possible merger of the campus wide Radiation Safety U 1he orat inyecuan or de GTRR. covenng re&auon conuols and environmental potecum idennfwd two further violatwnt one tswelIV and one level V IR 87 02 tOANE I.th 3$) fur dene violauona, tie Apphcant careecuve acunna accepable to the stafr staft Panet A. fr. Tt 1740, at 13 Ahhough ow inyecuos giving nie to tR s743 was nas conducted by Ma lens, she was present at the enrateenwns conference which a&buonally conudered pracuces uncovered la de invecuan that Mt long had cosutucted 274

Committee with the Nuclear Safeguards Committee (NSC) Staff Panel A, ff. Tr.17*0, at 16-17.18. NRC Region !! issued five Severity level IV violations based on IR 87

03. The Staff further noted that these violations, and the violations described in the NOVs accompanying irs 87-01 and 87-02, raned concerns about the Applicant's management control and involvement in implementation of Georgia Tech's programs for radiation protection, reactor operations, and control of experimen;s. The Staff asked Georgia Tech to respond in a comprehensive way to the indications of management control problems by indicating the corrective actions it had taken or planned to take, and to describe how it planned to improve the working relations between the llP and reactor operations groups:

in addatum to its need for corrective action regarding tre specthe matters identined in tie enckmed Notke. pleme address tie root caui.e kw tie violations and de corrective actions you have taken or prop (me to correct tie programrnic deficio cles in the operation of your facility, Partolar attention should be gtwo to luow you will impreuve workng relation.t between o.ral lu physks and operattens und adherrowe to u rteten procedures by personnel as the faciluv GT Eth,8; GANE Eth. 31 (emphasis supplied): Staff Panel A, ff. Tr.1740 at 17; 11.1767-68 (Collins). In addition, the Staff noted that the Applicant had inappropriately exprened concern at the enforcement conference that its employees had reported safety concerns directly to the NRC, without providing GTRR managers an opportunity to resolve perceived or actual safety problems. 'the Staff acknowledged that the most effective way to resolve such issues is to have them brought directly la line management, and encouraged the Applicant to promote the type of wotking conditions in which employees feel their concerns will be appropriately addressed. Ilowever, the Staff reminded Georgia Tech that its employees had the right to provide information directly to the NRC, under section 210 [211) of the Energy Reorganization Act, as implementc' hy 10 C.F.R. 6 50.7. GANE Eth. 31, at 2: 'li,153132 (Long). In its June 15, 1987 reply to the NOV, the Applicant identified difficulties in communications and coordination of work activities between the reactor operations and health physics groups at the GTRR, and cantinuing quarrels between the two groups, as the cause for several of the violations. The Applicant also noted that the ilp group had identified problems and violations of NRC requirements but had not communicated them to the Director. "the Applicant mentioned a proposed corrective action for these difficulties as a reorganization, under consideration for about a year, that would require the Manaper of the 275 i i

Office of Radiation Safety (MORS) to report to the NNRC Director. Staff Panel A, ff. Tr.1740, at 17,"

0) Till' JL'tX 1,1961 M AN AGl:MlWT klDkU ANIF.ATION llistorically, the next inatter of significance to managementS was the reor.

ganization that was implemented in July 1987. Georgia Tech's reasons for the teorganitation are described later in this Decision (Irg/ra, pp. 30910). Suffice it to say here that the NOV emanating from IR 87 03 (OT Exh. 8; GANE Exh.

31) issued on May 26,1987, little more than a month prior to the reorganization (and included five Severity Level IV violations, together with NRC's expression of concern about Georgia Tech's manags.:.ient control and involvement in pro-grams for radiation protection, reactor operations, and control of experiments).

Georgia Tech made its reorganisation effective July 1,1987, although it had failed to seek a license amendment from NRC." Ily letter dated August 6, 1987, however, the Applicant belatedly submitted a license amendment request proposing to amend the GTRR organizational structt.re. Staff Panel A, ff. Tr. 1740, at 28t S'aff Panel C ff. D. 3171, at 12. (~1his proposed amendment, as well as several that followed, 're discussed in greater detail /rifra, at p. 305.) Shortly after the July 1987 reorganir.ation, on August 19,1987, a significant incident occurred at the reactor - the cadmium ll5 spill (after the irradiation of a topar. crystal). The rpill was not discovered by the NRC Staff until a December 16,1987 inspection by inspector George 11. Kuro. Staff Panel A, If, D.1740, at 19. This accident, including any reporting to NRC that might have been required, is discussed in detail liifra, at pp. 284 85. We note here only that, contrary to the claim in GANE's contention, the accident occurred after, not before, the manageinent restructuring and thus cannot be viewed as a cause for the restructuring. The July 1987 reorganir.ation caused consideta!# animosity and hard feelings at the GTRR, particularly among the llP staff which was then headed by Mr. Robert M. lloyd - whose title was changed from Radiation Safety Officer (RSO) to Manager, Office of Radiation Safety (MORS), and who thereafter was required to report to Dr. Karam, the NNRC director, in whose hands the responsibility for radiation safety had been placed. GT Exh. 6 (Figure I); GANE

                                                                                                             ~
                     "The Nite start later discosered that the Arpinan hal undertaken a managenent tourganimauen wnhaut recetytag a heenee anu.idment or NRC suthorizaban to do no $ae IR 8744 (start rah. (2) and Tesumony of $ tart Panel C. rf it 3171-
                     The nest intrections, docunwnted ai IR 8748, 8745. and 87 07, produced one deviation tot nothing or signihcance to managenwnt or the UrRR OR 87 Oti. GT rah. 7 was a report or ow May 4,1981 entornnent conference teresenced above ) Staff l'anet A. fr Tr 174n. at 1819 U

This ecuan man 6drnched as an appstens vanist,on so IR s7 08, tius no violanon issued tecause Ocorgia Tech had previously ahised NRC that it wan considrnns a teorganizauon Tr.1792-9)(Colhns). 276

thhs. 42,43. ihen prior to the reorganliation, Dr. Karam, who had become Director in 1983, had attempted to assuage the group animosities by bringing the llP and operations personnel together socially. At his own expense, he invited the entire star f to Christmas luncheons in 1983,1984,1985,1986, and 1987, lie also started recogrdring birthdays with brief office parties. Karam, ff. D. 2723, at 23. Ilowevet. Dr, Karam opined that, notwithstanding these efforts, the reorganitation had prmluced further problems and had not ameliorated the existing situation. h. 2773 (Karam).

     'Ihus, Dr. Karam testified that, within 3 months of the reorganization, a number of incidents occurred at the NNRC which led him to believe that someone on the GTRR staff was engaged in " dirty tricks" or deliberate acts to damage the facility or impair its abihty to funcijon. 'Ihese acts included damage to an expensive liquid scintillation counter, the crasure of floppy diskettes containing important data, the theft of two cases of batteries, placement of a bag of human feces in a staff refrigerator, and slashing of a large container of algicide causing the contents to spill on the floor. More significantly, in September 1987, a 500-watt light bulb above the 20. foot-deep Cobalt Storage Pool was smashed," causing glass fragments to fall into the pool where they could interfere with the water filtration system; and three safety switches in the cobalt storage area were turned off at t!.J same ti.ie, thereby disabling the associated safety alarms which were required under certain conditions to avert human exposure to lethal cobalt radiation. Karam, ff h. 2723, at 3133.

Although there had been hostilities at the NNRC prior to the reorganization, Dr. Karam characterited these incidents as more serious than any that had occurred previously, h, 2785, 2786 (Knram). Dr. Karam believed that the act of turning off the three Cohalt Pool switches was extremely serious from a safety standpoint, and was consistent with sabo-tage. Accordingly, he consulted with the Campus Police Chief (who also served as Deputy Chairman of the NSC) who suggested the use of a polygraph test. Dr. Karam then discuued polygraph testing with the entire NNRC staff in late September 1987; all (including hir. lloyd) agreed to take the test, except for the two llP techniciant in Mr lloyd's unit - whose response was, "see our lawyer." Karam, ff. Tr. 2723, at 33 34; Tr. 2786,2788 (Karam).

    'Ihe two llP technicians' resistance to taking the polygraph examination caused Dr, Karam to wonder if they had been involved in these incidert s In the following two months, with hostilities between the llP and operations units continuing, it seemed to Dr. Karam that the two llP technicians' work performance was declining, that they were " disgruntled" that their attitude H

Georgia Te<h is auth,rtred under its state beense to poness a spectried quannty or colmla 6n. oluch it stores la a Tobalt Poul" under apprournSely 20 reet or mater. lac 6Jenis concerning the cobat:40 storage are ont withis nur jurista uun to resolve, escept insofar as they enay also pertan to the tractar itsett 277 1

1 I bordered on insubordination, and that this could affeet nuclear safety. Karam. (f. Tr. 2723, at 34 35;'n. 2789 90 (Karam). Dr. Karam spoke about this situation to Dr. Stetson, who stated that he had heard similar statements about the lip staff from the NRC. Karam, ff. R. 2723, at 35; D. 2791 (Karam)." On December 9,1987 Dr. Karam advised Dr. Stelson that he believed the situation had deteriorated to the point that nuclear safety was involved, and in his opinion the llP staff should be replaced as quickly as ponible with interim personnel. Karam, if. Tr. 2723, at 36; Staff Eth. 25, at 14?' Dr. Stelson suggested waiting until Jar.uary 1988, when a new Associate Diiector was expected to join the staff. They then agreed to speak to Dr. Ilernd Kahn, Chairman of the NSC, about the situation. Dr. Kahn suggested that an aucf.sment be obtained from an industrial psychologist plior to taking the contemplated personnel actions, to which they agreed. Drs Karam and Stelson then engaged Dr. R. Mkhael O'llannon, an industrial psychologist, and asked him to perform this assessment. Karam, ff. D. 2723, at 36; GT Exh.10, at 1; 4. (O INSI'frI10N Rl;IURI IrMis The NRC inspection that commenced on December 16,19M, conducted by inspector George 11. Kuro, led to the identification of numerom violations in the areas of operations and health physics related to the cadmium spill and resulted in the NRC's issuance of the January 20, 1988 Order sus l. coding reactor experiments. These events further degraded Dr. Karam's confidence in the llP staff- whom he also believed had provided damaging (and arguably inaccurate) information to the NRC (src note 20, supra, explaining that we have an inadequate record to resolve whether reports to inspector Kuto played any part in the proposed discharges of the two llP technicians). Ihllowi*g the W l4. Karam also stated that de two HP technicians were adversely arfecung Mr hoyd's dechiveness and effecoveness, and te behr.ed that tenuwing de twe. HP techrucians would help to ehrrunate dw sinfe at dw facihty Tr 277L74 (Karam). In contrast. Mr Doyd twhewd . hat the Uruverury's reason tar reptm* 7 ttw HP itaft was v6pdecoveress on de part or tir $wtson. due to Mr. hoyd's having ckned down a (staw-h4 cd) bot cell oper tuon in early 1987. cauung tiw kan or a s*XX) sonernet. It 2151 (Doydk it. 2474 77 (Karamt 3"Dr Karam's recomnwndation to n pl. ace dw two HP lechnicians oss made one week twitwo de commencement or Mr Kuac's inspection on Decenter 16.1987, thus suppistmg Georgia Tech's assntmn that dwir disetuirge was tuurd up1c. de HP-rgersions confhet and de HP technicians' conduct. ratter than on a behef th,it dry had reported protdene to sta NRC during Mr. kuso's inspecuon Tr 3490, 3491 tKaram) See staff t.sh 23. at 14-15. However. Ow disseres were not announced or pi into erfees until aher inspector Kuac's inspecuan. lenshng none credence to oANE's view diat Ltw discharges coukt have twen muuniwd (at least la part) by adv6ce given to NRC tether than oeergis Tech See 01 Repurt 188410 (oANE rah 33L synopsis, at 6. A lederal ()ismet Court apparendy agreed. hadmg that one rectte in de dischsges was dwar repswt to NRC inspectors nn

oerendwt 1981) of the August 191t? cadmium spil, Ahayungs e Koreas, Civd Acuan t4 i sS ev.312-ODE ,

(N D os lW31891 (shp op m 24 23,2L24k d'd per carium ne nomi Asurpe e Karam 976 F 2J 744 (lith , 04r.1992)(Staff IAhs. 23,26. Tr. 3437-58 (Karam) There is an insufhews fecord Itw us to resolve stus quesuon I and, given ha orcurreu alnwat 10 years agn, we need not do so. 278 1

NRC's inspection " exit interview" on January 22,1988. Dr. Karam concluded that removal of the llP stafI should be expedited. Karam, ff. h. 2723, at 42-43, 44; Staff Eth. 25 at 24 27. At about the same time Dr. O'!!annon performed his psychological assess. ment of the GTRR organliation and in libruary 1988, reported to Dr. Kararn. GT Exh.10; Staff Esh. 25 at 17. Dr. O'llannon concluded that Mr. lloyd's management of the !!P unit was weak, that the level of hostilit;* between the llP and opvations units was too great and too entrenched to be repaired, that the !!P staff showed a defiant attitude with no desire to correct the situation, and that one of the !!P technicians (Mr. Millspaugh) was likely to have been involved in the " dirty trkLs" referred to above. Karam, ff. h, 2723, at 37 38; h, 3197 (Karam). Dr. O*flannon recommended that the entire llP staff be rernoved from the NNRC and assigned elsewhere, and the a new manuger of the llP staff be appointed to replace Mr. lloyd. Karam, if, Tr. 2723, at 37; OT Exh 10, at lunnumbered) 4. NRC Inspector Kuro confirmed, based on the number of violations issued for poor performance by the llP group, that the group had problems necessitating some sort of remedial action. h.1898 (Kuro). On libruary 11,1988 Dr. Karam handed letters to the two llP technicians, Messrs. Paul Sharpe and Steven Millspaugh, advising each that his " employment will be terminated on February 25, 1988." On libruary 15, 1988, however, prior to the effective date of the proposed discharges, following discussions with counsel, Dr. Stelson " rescinded" the discharges, pending a hearing; and the llP technicians were thereafter reas.;igned to other duties outside the NNRC. Staff Exh. 25, at 20 21; h,3198 (Karam).8' In IR 87 08, Mr. Kuro identified significant reactor operations and radiation safety issues that required further NRC attention. Therefore, during the period of January 14 22, 1988, Region 11 management dispatched a special inspection team (which included inspector Kuro) to review selected GTRR program areas.

   'the inspection team found numi.rous examples of failures to follow or to have adequate procedures to implement the Technical Specifications (TS), and/or violations of 10 C.P.R. Part 20 health physics requirements associated with the August 1987 experiment and the resulting Cd ll5 contamination event. Staff Panet A, if. D.1740, at 19-20; 01 Report No. 2-8h-003 (GANE Exh. 33).

These deficies cies involved both operational and health physics issues related to the pre-experiment review and cakulation of dose rate leveJs for the topaz and cudmium container, r,s well as llP issues related to post accident radiation surveys and evaluation of personal exposures. Tr,1778 (Kuro). I' At the une or this tearing. bit ht:ihreugh was null wtekitis arrorargia Tech tahhough tus at ow rescuw) Tt Mtn01 (Katsmt 279 l l

in general, the inspection findings identifiW continuing poor performance by Owrgia Tech personnel regardmg routine orrations e d flP activities. Details of these findings will be reviewed later, in connection wig the cadmium-Il5 accident description, but particularly noteworthy was Georgia Tech's failure, by the time of the inspection (some 4 months after the accident), to have conducted a complete and thorough evaluation of the cadmium Il5 contamination incident or to have implemented corrective measurm to prevent recurrence during future experiments. Staff Panel A, ff. Tr.1740, At 20. Georgia Tech's failure to evaluate the irMent and to implement corrective actions by the time of the inspection were perceived to indicate a lack of man-agement involvement and control of operations and HP activities - which had been consolidated under the Director's control in the July 1987 reorganization. Id. at 20-2it Tr.1835 (Fredrickson); Tr. 3219-20 (Karam). The lack of man. agement involvement and control ideratified in IR 87-08 was considered by the NRC Staff to be detrimental to the safety of the facility. Tr.1782 (Collins, liedrickson, Gibson, Kuzo). During this inspection, NRC Staff members also determined that working attitudes between IIP and operations had continued to deteriorate, and informal trainirg rather than procedures were used for many routine tasks. Operations

     ' personnel a,,peared satisfied with the NNRC Director's management efforts, but ilP personnel indiccted that the Director was involved too much in day-to-l      day health physics activities to the detriment of those HP activities.- (At the same time, the Applicant added an NNRC Deputy Director, which NRC Region 11 viewed as a positive development because the individual selected had an operations background and had not beert involved in the prior conflict between the llP and operations staffs; and because establishment of this position would assist the Applicant in improving its procedures and training. Staff Panel A, ff.

Tr.1740, at 21: Tr.188841 (liedrickson).)23 IR 87-08 concluded that there had been no significant improvement in the Applicant's performance since the May 1987 enforcement conference and that the management control problem continued. Staff Panel A, ff. Tr.1740, at 21; Staff Exh,12, at 1-2.2) Particularly troubling to the NRC Staff were certain findings it reached concerning the surveys and bioassay performed by Georgia Tech IIP personnel 22 The Staff was not concerned that tius individual later resigned from the facihty, or that the pomuon has been vacant from April 1992 until the present, becauw (a) there has been no degradauon an Cn'orgia Tech's performance since the Deputy Director resigned. (b)lae poution was most needed to asust in resolving the problems that existed at that bme unveNag revisions to procedures, programs to ensure regulatory compbave and the funcnoning of the orgamrationk and those probleras lave since been resolved. and (c) theiv was no hcensing or TS requirement for the postuon. Tr 1891 (Itedricksonh Tr. 2981-84 (McAlpme). 23 This inspecike also sansed concerns over the Apphcant's psoposed orgamzauonal change which, the NRC inspectors learned during this inspection, hat been implemented on July 1,1987, withert the prior issuance of a license amendment. Staft Panel A. fr Tr 1740. at 21; Tr,179L94 (Colhiut Tr.1839 (Fredrickson) See p. 276, supnn 280 o . .

in tesponse_.to the cadmium ll5 contamination event. (Dese 'indings are reviewed, infra, in our diwussion of the accident.24) Technical inadequacies also were identified in this inspection regarding personal contamination surveys and bioassays performed for the operator (Mr. William Downs) f:ivolved in the contamination event. Staff Panel A, ff. R.1740, at 23 24; D.1800,1802, 1803 05 (Kuro). (Dese inadequacies are addressed, iq/ra, in our discussion of Mr. Downs.) In IR 87 08, the Staff also determined that the Applicant had not conducted adequate surveys and analyses of possible airborne contamination in August 1987, after the heident occurred, Staff Exh.12, at 7, 9; D.1884,1885 86, %e survey results reviewed by the NRC included the August 24, 1987 memorandum to Dr. Karam from IIP technician Paul Sharpe, who had served as the Decontamination %fpervisor. Staff Panel A, ff. Tr.1740, at 22 23. As we will review under the cadmium-ll5 incident, iq/ra, that memorandum is not pertinent to our Decision here, except to the extent that it may relate to Georgia l-Tech's current policy concerning reports to the NRC.

     - In IR 87 08, the NRC Staff rejected Dr. Karam's reliance on the August 1987 w sample analysis. Staff Exh.12 (Report Details at 9). De Staff also l  questioned the reliability of Dr. Karam's January'1988 analysis of air filter L  samples. GT Exh.11; Staff Exhs. 27, 28; 'P. 2511 12 (Boyd); D. 3423-l- 25, 3441, 3444 50, 3465, 3472-74 (Karam). Again, we need not resolve this dispute. We recognize that there were certain deficiencies in the sampling techniques and procedures used in 1987 1988 but, as discussed later, thase techniques and procedures do not persist, and those used today appear to be j  adequate. (For further elaboration of these matters, and to the extent relevant to l

our determination here, see our description of the Cd-ll5 accident, Iq/ra) f 1 m SIIUTtxmW ORDERS On January 20,1988, the NAC issued an " Order Modifying License, Effective immediately," which suspended all further irradiation experiments. Staff Exh. 13; Staff Panel A, ff. Tr.1740, at 25. The Order stated that the Applicant's actions after the May 1987 enforcement canference had not been sufficient to address the management control problems, which continued. The order described the specific operations and health physics violations related to the - 24 As the heartog, thers was considerable difference of opiruon between the Staff and oeorgia Tech concermag whether there liad been adequate samphng of the contaimnanon from the cadnuurn ll5 incident and whether adequate secords were available to evaluate the cuent and levels of contamination. cf Staff Fanel A. fr.Tr.1740 at 22 24. and Tr_1790-97,1799.1800,1802. It03-Os.1884.1845 86.1906 (Kuzo) wt:A Karant If. Tr. 2723. at 40,43-43, and Tr. 3206. 3433. 3439 (Karamt We need not resolve thew quesuuns here, however, inasmuch as the Applicant evenn.Jiy took steps to improve ha samphn; procedures and techn' ques and the staff has accepted the current procejures as adequate. Tr.1791 (Itedncksent

281

August 1987 contamination event, and it stated that Georgia li,h had failed to complete a thorough review of the event regarding its cause(0 and had not t taken aay corrective measures to prevent recurrence during future experiments.

    'lhe order required Georgia Tech to cease utilizatic.n of the reactor facility for any irradiation experiments until the following requirements were met:

(1) assessnwnt of nmnagenwns controls over facihty operations; (2) review of records for similar occurrences and identincation of root causes; (3) assessment of personnel exposures during the contamination and decontainination; (4) review of facihty neahh physics and operating procedures f'r inadequacies; (5) identincation and scheduhng of corrective actions; (6) development and implenentation of a training program; and (7) submission of the results of these assessnents and reviews to the NRC for review. Staff Panel A, ff. Tr.1740, at 25. On February 15,1988, the President of Georgia Tech directed the immediate suspension of oil reactor operations pending adequate resolution of all safety questions. Karam, ff. Tr. 2723, at 45-46. An NRC enforcement conference was held with Georgia Tech management on February 23, "3. During this conference, the NRC representatives presented their view that a serious management problem existed at the NNRC, which was not limited to the facility's health physics organization. These representatives also expressed concern as to whether certain recent changes made at the facility, involving the

replacement of HP personnel and the addition of an operator, would really solve

!- the principal problems; and they stated that Georgia Tech management needed to provide an expectation of excellence by direction and example. Staff Panel A, ff. Tr.1740, at 25-26; Tr.1806 (liedrickson). The NRC representatives also criticized the Applicant's failure to coordinate survey data co!!cetion related to the cadmium incident and to thoroughly investigate the incident and evaluate its seriousness. Georgia Tech was advised that its lack of regulatory sensitivity and its communications with the NRC dij not compare favorably with other major research reactors located in NRC Region II. Staff Panel A, ff. Tr.1740, at 26. During the enforcement conference, Georgia Ted's President stated that he had decided the reactor would not restart until the Applicant and the NRC were both convinced that operations and health physics activities could be . safely conducted. He Applicant also presented an NNRC action plan to the NRC. Id. On March 17,1988, based on Georgia Tech's self-mitiated shutdown of the facility and its commitment to conduct an independent evaluatioe of the riuclear reactor program, the NRC Staff issued a Confirmatory Order Modifying, License 282

(Staff Exh.14). His order set out additional conditions that had to be met prior to restart of the reacter - specifically, (a) Georgia Tech was to submit a written identihcation of the rooi causes of problems that could impact safe operations of the reactor, and (b) the President of Georgia Tech was to submit to the NRC a written description of the corrective actions taken to remlve the problems, as well as the reasons he believed the f acility should be allowed to restart. Staff Panel A, ff. Tr.1740, at 26-27; Staff Exh.14 (GT Exh.15).

b. The Cadmium lIS Accident In our review of the management history leading to shutdown, we referred to the cadmium-ll5 incident that occurred in August 1987 but was not discovered by the NRC Staff until Dxember 1987. This was mentioned by GANE in both its contention and its FOF as a primary example of mismanagement. We at v l

turn to this accident in detail. As set forth earlier, GANE's management contention asserts in part that Dr. Karam is the Director who withheld information about a serious accident from , the NRC - the 1987 Cd l15 accident. According to GANE, the NRC allegedly was advised of the accident by the RSO at that time (Mr. Boyd) who was later. demoted and left the GTRR operation claiming harassment. We decide here whether the Director i fact withheld information from the NRC or retalired against the RSO for reporting information to the NRC about the Cd ll5 accident. The Cd il5 accident occurred at the GTRR in August 1987, almost 10 years ago. When the Staff learned of the accident (in December 1987), it responded vigorously by conducting special inspections at GTRR, issuir g orders to Georgia Tech, and finally issuing a civil penalty in November 1988.25 We do not adjudicate the correctness of the Staff fmdings or actions in dealing with the incident in the 19871988 time period. The basic facts of the incident and Staff responses are undisputed. Some details riot now material to license renewal remain i i dispute between the Staff and Georgia Tech but they are not essential to our decision and we do not resolve them. He esent itself is material to license renewal at GTRR now only because the Director of the GTRR (Dr. liaram) at the time of the event remains Director now. At the hearing we permitted GANE the opportunity to demonstrate that the Director's actions taken at the time of the cd-ll5 accident were not conducive to safety at the time and were part of a pattern of unsafe behavior which continues - to the present day, We earlier made clear to GANE that, even if the Director 21 1eur violations were evalumed culiectnely as Seventy Level !!!. A sM00 civd penalty was imponed - a base penalty or s2500 that was escalated 100% (is., doubled) because of Ocorgia Tech's pnne pace perfamance and failures to take prompt correvuve acuon to deal with the management control problena staff Panet A, ff. Tr. 1740, at 3s% Tr.1852-53.1855 mednckson, coltms). 283

made mistakes in the past, that would not be mr 41 to license renewal unless th- behavior went substantially uncorrected to the present. Tr. 1521 22. (1) SUhth1AltY DESCRil'I' ION OF Ti!E Cd ll5 ACCIDENT On August 18,1987, Mr. William Downs, a Senior Reactor Operator (SRO) at the GTRR, transferred an irradiated topaz crystal from a cadmium-lined alu-minum container to a glass beaker on the top of the reactor. During the irra. diation the cadmium liner had become radioactive by neutron capture. Several isotopes of cadmium including Cd-ll5 and Cd 109 were formed. Unknown to the operator, however, the cadmium metal liner had partially disintegrated dur-ing the irradiation, possibly because of heat exposure in the reactor. When he poured the topaz from the container into the glass beaker, radioactive cadmium particles fiam the partly decomposed cadmium liner escaped and were spilled on the top of the reactor. Karam, ff. Tr. 2723, at 39-40; Tr. 320104, 3429, 3437 (Karam). Subsequently, radioactive particles were carried either by air currents or gravity from the top of the reactor to the reactor containment floor below. Whether radioactive particles were transported to other parts of the reccior building is a matter in dispute between the Applicant and the Staff. Records that couM resolve the matter are nonexistent. Karam, ff. Tr. 27'3, at 40; Tr. 2256, 2503 (Boyd); Tr. 3432-33 (Karam); Staff Panel A, ff. Tr.1740, at 22. A small amow of radioactive Cd l15 was found on the containment building floor in a routine survey the next day, August 19,1987. Subsequent investigation em the same day showed radioactive contamination measured at 20 millirem per hour at the top of the reactor where the topaz transfer was conducted. Karam, ff. Tr. 2723, at 39-40; GT Exh 11; Staff Exh. 25, at 9; Staff Exhs. 27,28; Tr. 2255-56 (Boyd); Tr. 3426-21,3423-24 (Karam). Decontamination efforts were initiated under the direction of the MORS (Mr. Boyd) who, in turn, delegated operation 11 responsibility for assessment and decontamination to a health physics technician. Tr. 3421 (Karam). On August 24 the HP technician reported in a memorandum to the Director (GT Exh.12) that decontamination efforts were concentrated on several specific locations in the re:.ctor building. The wording suggested that contamination was found at each of the locations that were decontaminated. Karam, ff. Tr. 2723, at 40; GT Exh.12, at 1: Tr. 3432 (Karam). The Director suspected that the memo was ueliberately misleading and that there was no contamination beyond the locations where it was first identified. Tr. 3205-06 (Karam). However, survey records which cou'd settle the issue were inadequate. Staff Panel A, ff. Tr.1740, at 22; Tr. 2503 (Boyd); Tr. 3206 (Karam). Subsequent surveys showed no contamination, although limited hot spots remained which were :tte c decontaminated. Tr. 3207 (Karam), 284

De Director reported the radioactive release to the Georgia Tech Nuclear Safeguards Committee (NSC) whose chairman was the ex-officio RSO. Neither the Director nor the RSO thought it should be reported to NRC because they hd concluded that the accident lacked sufficient safety significance to be reportable. The MORS (Mr. Boyd) agreed that the event was not reportable but urged his management to report to the NRC anyway as a matter of prudence. Karam, ff. Tr. 2723, at 40-41; Tr. 219E-99, 2253, 2259, 2436-37 (Boyd). IIis advice was not followed. Later, the NRC Staff investipted the event and after some uncertainty because of incomplete records concluded that the accident was not a reportable event urs : Georgia Tech's Technical Specifications or 10 C.F.R. Part 20. Staff Panel A, ff. A 1740, at 24: Tr.1784-86 (Kuzo). GANE did not pursue this aspect of its contention in its FOF. Neither did it direct nur attention to any facts of record that contradict or suggest a substantially different view of events st nmarized above. Our review of the record did not reveal any conflicting infor. nation. Accordingly, the Board finds that, contrary to the contention, the Director of GTRR did tx.t wrongfully withhold information from the NRC concerning a serious accident (the 1987 cadmium-Il5 accident). The accident did not create a serious radiation hazard and was not requ ced to be reported to the NRC under either the reactor technical specifications o.10 C.F.R. T . 20. (2) GANE'S CLAIM OF MISTREATMENT OF Tile SAFFTY OFFICER OANE's contention on the Cd ll5 accident also suggests that the safety officer suffered retaliation from his management after informing the NRC of the accident. Although it is somewhat ambiguots, we assume that GANE initially intended this part to refer to the MORS.11owever, GANE did not pursue this allegation in its FOF and the other parties did not discuss it either. We heard testimony from the former MORS (Mr. Boyd) where he could have but did not male the claim that his reportirig concerning the Cd-ll5 incident resulted in his later removal from duty at the reactor and his reassignment to work elsewhere in the University system. lie concurred with his management that the accident was not reportable to the NRC. The former MORS has many grievances against the Director for other reasons and he harbors hard feelings to the present time for actions taken against him. Tr. 1233-47 (Boyd). The hard feelings are based on his demotion prior to the Cd-l15 spill and his perception that managemer. unfairly blamed him and his HP staff for the Cd-ll5 incident when, in fact, the original release of Cd-ll5 was due to the carelessness of the SRO. In this he apparently misunderstood the signaicance of the accident, which did not create a serious health risk to anyone but did reveal to the NRC that there were serious deficiencies in management and lip procedures and practice at the reactor. The Board would take a serious view of a substantiated attempt 285

by management to limit'the flow of information about reactor operation t , the NRC, as alleged by the contention flowever, the disgruntlement f4 one former MORS based on disagreement with management decisions is not an important - factor in the licensing decision before us even if tne Director was biased or unfair to the employeo 4t the time. We fmd that, contrary to the contention, the Director did not retaliate against the 110RS (Mr. Boyd) for pawing information on the Cd ll5 accident to the NRC.26 Job actions taken against the MORS were related to the Director's adverse perception of job performance by the MORS and the HP staff. This view was formed in an ongoing process that both unfolded before the Cill5 incident and was exacerbated by the llP staff performance in the wake of the incident. He contention also claims that management was restructured to give the Di-rector more control over the MORS after the Cd-ll5 incident. Although it is true r J undisputed that management was restmetured and that the responsibil-ities of the MORS were reduced - see discussion at pp. 276,309-10 of this Decision - this occurred in July of 1987, before the accident in August. hus the restructuring was not linked in any manner to the Cd-ll5 incident and it couH not have been motivated by retaliation of the Dbmtor against the MORS stemming from the Cd ll5 incident. Our findings in this section are narrowly constru.ted to respond to GANE's admitted contention. The contention as filed reflected considerable initial misunJerstanding on the part of GANE. Contrary to the assertions in the contention, we find that the Cd-l15 accident was not treated by the NRC as an accident having serious health and safety implications. he Director was not

required to report it to NRC. he MORS was not demoted or removed from drty by reason of information he reported to NRC about the accident. The management restructuring at GTRR happened before the incident and was not linked to it. Nor is there any evidence that the incident in any way resulted from i the restructuring.

26 The Board interprets the contenuon to nwan *MORS" wtwre it refers to "the safety ofhcer" and we have struewred the Deciuon acconhngly %e heard v. tensive testimony on the personnel pmblems that were rampant at the textor at the tine and are aware that the NRC Onice of invesugations concluded that there were aDegauona or retahauon against two HP technicians who were supervised 'sy the MoRS for giving informadon to the NRC but thi.' dere were no Intennonal, contrived violations or regulations and bcensing requirenwnts. Suff Panel A. ff. Tr.1740, at 29-30 O! Report 2 88-03, GANE Exh. 31 See neae 20, rupra. ' Die thrust of the Of Rep *rt, however, as that dwre was arvere nus'ninagement at the reactor, a fact not in dnpute in this beenung acuen. Althougt these were serhun matters at the time they unfolded, they are not material to the bcensing decision now before me withnut alhuo..at evidence that the nusmanagenent has conunued to the present day 286

2, bianagem:nt Record After Restart t Record of Violations Restart of the reactor was authorized by the NRC Staff on November l A. 1988. Staff Panel A, ff Tr.1740, at 39-40; Staff Exh.16. GANE relies s. . various Statiinspection reports following restart to demonstrate that managerial problems persist and, accordingly, that Georgia Tech's license should not be renewed. We here consider the management record after restart as reflected in partinent Staff inspection reports from the restart date until the clor of the record. From January 1989 through April 1996 thirty one inspections were per-formed by the NRC Staff to teview numerous aspects of the Applicant's op-eration and management of the facility. The areas inspected include opera-tional and maintenance activities, design change functions, operator licenses, requalification and medical activities, procedures, fuel r.;ovement, surveillance, experiments, effluent and environmental monitoring, emergency preparedness, radiation protection, safeguards and security, as well as the Applicant's organiza-tional structure and review / audit functions. Among these thirty-one inspections, no violations were found in eighteen inspections; and seventeen cited violations (Severity Levels IV and V) and seven nor.ched violations were found and doc-umented in the remening thirteen inspections. Staff Panel B, ff. Tr. 2813. A brief description cif these violations is given below. (I) INSPECTION REPORT 89 02 An operations inspection was conducted in July and August 1989, and was documented in inspection Report 89-02 (GANE Exh. 61). Two Severity Level - IV violations were identified:

1. fail , to perfeim leak-rate testing in accordance with commitarats and

2. inadeqaate proctdure to assure that any shim blade not fully inserted was withdrawn sufficiendy to casse a negative trip when rel'tsed into thm core.

Staff Panel B, ff. Tr. 2813, at 14 Adequate corrective actions were taken by the Applicant, and thir, matter was closed by the Staff. Id. at 14-15. (2) INSPECTION REPOilf 89-05 A security inspection was conducted during September 1989, as documented in IR 89-05 (GANE Exh. 64). The following six Severity Level IV violations were identified: 287

1. failure to mamtain assessment equipnent in operable condition and failure to properly position nuessnrre equipmerd.

2. failure to secure a controlled access barner.

3. failure to maintain the alarm sptem in operable condition.

4. failure to change keys as committed.

5, failure to control keys as committed, and

6. failure to establish and maintain a safeguards event log.

Id. at 15. This excessively large number of violations consed the Staff to be concerned about weaknesses in the Applicant's procedures used to implement its l physical security program, and escalated enforcement action was considered by the Staff. GANE Exh. 64, at 1; Tr. 3(M6-47,3162-63 (McAlpine). Corrective

 - actions were taken by the Applicant to address these violations, and they were found to be acceptable by the Staff. Staff Panel B, ff. Tr,2813, at 15-i7, (3) INSPECTION REPORT 90-02 A health physics inspection was performed during Ane 1990, and was documented in IR 90 02 (GANE Exh. 55). One Severity Level IV violation and ore noncited violation were identified:

1. failure to maintain a high radiation area locked as required in 10 C.F.R. I 20.203(c)(2),

and 2, failure to perform a personal survey at tha exit to a controlled area. (Noncited " violation.) Staff Panel 11, ff. Tr. 2813, at 17. Appropriate corrective actions, which included pmcedural revisions, counsellir.g and training the individuals involved, were taken by Georgia Tech to address these matters. Id. at 17-18; Tr. 28"2,2825, 2827-28, 2995-97 (Bassett, Mandonca). (4) INSPECTION REPORT 9148 An emergency planning inspection was conducted during September 1991 and was documented in IR 91-(M (GANE Exh. 58). Although various emergency pla.ining exercise strengths were observed, GANE Exh. 58 (Summary at 1-2), Tr. 3143-44 (McAlpine), two noncited violations were noted:

1. Inadequate procedure for implementing the Emergency Plan notification requirements.

! and 2 hilure to perform a biennial review of the Emergency Plan as required. 288 J

Staff Panel B ff. Tr. 2813, at 18. The Staff found that the Applicant took appropriate corrective actions concerning these violations. Id. at 19. (5) INSPECTION REM)RT 92 04 An emergency planning inspection was conducted during November 1992 and was documented in IR 92-04 (GANE Exh. 57). One Severity Level V violation was noted during this inspection: failure to have an adequate procedura for implementing certain emergency planning rotification requirements (a repeat of-the noncited violation noted in Inspection Report 91-G4), Staff Panel B, ff. Tr. 2813, at 19. Appropriate corrective actions were taken by Georgia Tech to address this violation. Id. at 19 20. (6) INSPECTION REM)RT 9102 A combined operations and health physics inspection was performed in September 1993 and documented in Inspection Report 93-02 (GANE Exh. 60). Three Severity Level IV violations were cited as a result of this inspection:

1. failure of the Nuclear Saf guards Comnuttee (NSC) to condo, um: oiennial aucht of the beensed operator requahficanon program si required by Technical Specific tions (the Manager of the Office of Radiation Safety performed .he audit; he was not a member of the NSC).

2. failure to follow procedures for conducting neutron surveys, for completing certain twice-weekly contamination control surveys, and for completing survey (c ins required for shipping rndioactive matenal, and

3. failure to comply with 49 CER. Part 172 requirements concerning the cescription of rashoactive matenal being shipped and indicating a 24-hour emergenci rer.ponse telephone number on shipping documents.

Staff Panel D, ff. Tr. 2813, at 20. Appropriate corrective actions were taken by the Applicant concerning these matters, in^ Sng a commitment that the NSC would thereafter perform the required a. , procedural revisions, and revision of the shipping forms. Id. at 20-21. (7) INSPECTION REPOltr 9103 An emergency planning inspection was conducted during November 1993 and was dccumented in IR 93-03. One noncited violation was noted: failure , to perform periodic testing of the criticality alarm system in accordance with procedure. The required monthly tests of the system were not performed during 289 5

May, June, and July 1993. Appropriate corrective actions were taken by the Appheant corecerning this matter. Staff Panel B, ff. Tr. 2813, at 2122.

     - (8) lASPfX'I'lON REM)iG 94-01 An unwheduled inspection was conducted during March 1994, to follow up on an incident involving the failure of a Senior Reactor Operator (SRO),                        >

William Downs, to follow procedures that resulted in two disabled reactor scram functions. id. at 22; Tr. 2860-61 (Mendonca); Tr. 2865 (McAlpine). This inspection was documented in IR 94-01 (GANE Exh. 59). One noncited violation with two examples was identified:

1. failure to complete the actions required by the checklist for startup of the reactor en fthruary 15.1994 (a fuse was not replaced after it had been removed during a tratning session, as the checklist required), and

2. failure to complete the actions required by the checklist dunng shutdown of the reactor on Itbruary 1I,1994 (three electricaljumpers had not been removed).

Staff Panet B, ff. D,2813, at 22; Tr. 2862 (Bassett, Mendonca). These incidents f were chssified as noncited violations because the disabled scram unctim were not tequired under the Technical Specifications (TS) for safe operation of the reactor, since they generally provide equipment protective functions, and credit is not taken for them in accident mitigation in the Final Safety Analysis Report. Staff Panet B, ff. Tr. 2813, at 22; D. 2863-64,3155 (McAlpine, Bassett). Following the incident, the Applicant took corrective actions which included reviewing the incident, temporarily suspending the SRO's reacter operating duties, and establishing a panel to further investigate the incident and the SRO's operating history to recommend what further nctions should be taken. 'Ihe Applicant's panel evaluated the technical performance of the SRO with respect to the incident of February 15,1994, as well as the SRO's historical performance, i and determined that, because of the SRO's lack of diligence to safety and poor past performance, the suspension of the SRO should remain in effect until there was an obvious change in attitude and a commitment to follow procedures. The SRO subsequently terminated employment et the facility in June 1994. Staff Panel B, ff. Tr. 2813, at 22-23; Tr. 2800-02,28M (Karam); Tr. 2865-66 (McAlpine). See further discussion of Mr. Downs, infra, pp. 2s2-95. (9) INSPECTION REPOl4 94-02 A health physics inspection was conducted during August 1994 and was documented in IR 94-02 (GANE Exh. 56). One violation (Severity Level IV) was cited: failure of the Applicant to make a proper evaluation of the extent of 290 s

                                          . = _ _ _ _

the radiation present following the annual neutron radiation survey perfo med August i1,1994, which was required by procedure. Staff Panel B ff. Tr. 2813, at 23. The Applicant subsequently took appropriate corrective actions concerning this matter. Id. at 23 24. (10) INSPECTION REPORT 9444 An emergency planning inspection was performed dering Octe'ver 1994 and was documented in Inspection Report 94-04. One noncited violation was noted failure to submit emergency procedure changes to the NRC in accordance with section 10.4 of the Emergency Plan. Id. at 24. Adequate corrective actions were taken by the Applicant with respect to this matter. Id. (II) INSPECTION REPORT 94-05 An operations inspection was conducted during December 1994 and was documented in Inspection Report 94-05 (GANE Exh. 63). One noncited violation was noted: failure to replace the charcoal cartridges every 2 weeks as required by Technical Specification 6.4.b(6). Staff Panel B, ff. Tr. 2813, at 24-25. Appropriate corrective actions were taken by Georgia Tech with respect to this matter. Id. at t n (12) INSPECTION REPORT 95-01 A health physics inspection was perfonned during February and March 1995 and the inspection results were documented in IR 95-01 (GANE Exh. 66). Two violations (one Severity Level IV ana one Severity Level V) were identified: t I; . seporting failures. by: (a) onussion of some of the reqi. ired data and providing inaccurate data in annual reports concerning liquid and gaseous radioactive efiluents to the NRC for the years 1983.1986 and 1988 through 1993, and (b) provicing inaccurate f inforn'ation to the NRC in the 1994 Safety Analysis Report concermng continuous, automatic measurement and recording of meteorological data and 2 failure to have a Nuclear Safeguards Comnuttee (NSC) approved procedure to calibrate and operate the alpha / beta proportional counter. Staff Panel B. ff. Tr. 2813, at 25. Appropriate corrective actions were taken by the Applicant with respect to the inaccurate reporting data, including the creation of a computer data base for gaseous and liquid discharges, and the correction of the inaccurate portions of the annual reports and FSAR. Id. at 25 26. Apptopriate corrective actions also appeared to have been taken with respect to the failure to have an NSC-approved procedure, although verification 291

of these corrective actions h not yet been completed and documented by the NRC Staff prior to the comnuncement of hearings in this proceeding. Id. at 26. (13) INSPl:CIlON REM)RT 95-02 A security inspection was conducted during May i995 and was documented in IR 95-02. One violation (Severity Level V) was identified: failure to submit material status reports within 30 days of March 31 and September 30 of each year as required by 10 C.F.R. 5 74.13(a)(1). Id.t GANE Exh. 69; Tr. 3097 (Mendonca). Appropriate corrective actions were taken by the Applicant to resolve this matter. Staff Panel B. ff. 'IY. 2813, at 26-27.

     - (14)

SUMMARY

As stated car'Dr none of these violations identified by the Staff in the period following restart was more serious than Severity Level IV, and the corrective actions taken by the Applicant were usessed to be adequate by the Staff. In addition, it. none of the inspections from May 1995 through April 1996

     .were any violations identified, at least as reflected by the record herein. The                                    i Staff explicidy indicated that the decreasing frequency of violations with the                                    '

passage of time was a factor it took into account in assessin3 the adequacy of management. Tr. 3151 (McAlpine, Mendonca), herefore, collectively, the identified violations together with other inspection findings do not present a picture of serious management deficiency during the January 1989 through April 1996 period,

b. Employment History of William Downs One matter stressed by GANE as an example of poor management by Georgia Tech "a glaring problem"-is the failure to take any action t ntil 1994 against Mr. William Downs, an SRO at the GTRR from 1976 until June 1994. GANE FOF at 8. Mr. Downs was involved in several serious incidents at the reactor, j two of which we have previously alluded to (i.e., the cadmium-115 incident of l~ August 1987 and the disabled scram functions of March 1994). GANE claims that his employment history raises questions as to the adequacy of personnel management during this period of time.

Specifically, to rehearse the incidents involving Mr. Downs-292

   )                                                                                       _ _ . _ _ _ _ _ _ _ _ - _ - -

(a) Itbruary 1985 - Striking of Ilot Cell Window vith a wrench while manipulations were in progress. Mr. Downs explained that he struck the window accidentally during horseplay. Staff Exh. 22. Enclosure 2, at 1. (b) January 1986- Failure to isolate sample line per procedure when per-February 1987 forming monthly surveillance. IR 87-02. Mr. Downs explained that this procedure had little safety signif-icance and that he violated it for convenience sake. llowever, he claims that, as of Jur..: 1988, he was strictly adhering to the procedure. Staff Exh. 22, Enclosure 2, at1. (c) - 1986 Failure to fill out or complete Experiment Schedule Forms or Experimenter's Checklists. IR 87-01. Mr. Downs admitted his error, lie was counseled by the . NNRC Director on procedural adherence after the NRC l violation was issued. Staff Exh. 22 Enclosure 2, at 2. (d) March 1986-- Faihire to wear dosimetry and protective clothing in November 1986 - areas requiring their use. IR 87 '" 'fr. Downs could not recall any failure to wear dosimetry or pre'ective clothing when they were requi.ed. Staff Exh. 22, 1 Enclosure 2, at 2: Enclosure 3, at Event 5. (e) 1986 Failure to log Initial Conditions and Equilibrium Condi-tions per Procedure 2000, " Reactor Operation" on fre-quent occasions, as well as numerous missing /incom-1- plete log entries. IR 87-01 Mr, Downs responded that, I during 1986 there were three instances where the Initial Critical Data (ICD) stamp was not completely filled out. On two of these occasions, a reactor scram occurred within 2 minutes of reaching power, and he had no op-portunity to fill out the log. On the other occasion, he put the ICD stamp in the logbook out of sequence and forgot to go back and cross it out after completing his log entries. The ICD stamp was filled out after bemg restamped at the proper time. Mr. Downs stated that he would pay more attention to this procedure in the future but would also bring to management's attention a deficiency in the procedure. Staff Exh. 22, Enclosure ; 3, at Event 6. ' 293 1

                   ,                              ,                                        _ .___.____-._]

L (f) February 1987 - Power Excursion from 300 kW to approximately 2 0 MW while power was supposed to be stabilized during conduct of Beam Port opnrations. IR 87-01. Mr. Downs asserted that he believed he reacttd in a safe manner, in that the time between the power excursion and his actions was not excessive. He blamed the event on a stuck power level indicator. However, the Sta'f observed that there were other indicators and the c',ent took phce over a period of r.Pfroxiniately 10 minutes and u act terminated until radiation monitors alarmed. Staff Exh. 22, Enclosure 2, at 2. (g) August 1987- Inadequate log keeping and control of an experiment February 1988 resulting in the overexposure of a topaz speriment. Subsequem contamination event was due to poar HP-piacticea and inadequate communications with facility management. Inconsistent information was provided to the NRC regarding post spill activities, in particular the

                          , diation monitoring of his residence. IR 87 08 'Ihis is the cadmium-ll5 incident that we have reviewed elsewheie in this Decision (see pp. 283-86, supra.)

(h) February 1994 Failure to follow procedures that resulted in two dis-abled reactor scram functions. IR 94 01 (GANE Exh. 59). (See p. 290, supra.)

    'the foregoing history of events indicates that, during the early years of Mr.

Downs' service, there were a number of events that might have warranted per-sonnel action against him and which motivated the Staff to have an enforcement conference with him on May 20, 1988. Following the conference, the Staff detern.ined to take no enforcement action with respect to Mr. Downs' SRO li-cense but advised him of its concern "over your lack of adherence to procedures, i your lack of diligence n recording information in operating logs and experiment forms, and your casual attitude displayed during the August 1987 contamination incident." Staff Exh. 22, letter to Mr. Downs from J. Nelson Grace, Regional Administrator, Region 11, dated June 17, 1988. Mr. Boyi blamed Mr. Downs (at least in part) for the 1987 HP-Operations hostilities, which we have described earlier in this Decision. Mr. Doyd believed that the HP technicians were being unfairly singled out for the conflict, instead of Mr. Downs. He rc garded Mr. Downs as demonstrating a tostile attitude toward health physics or to anyone telling him what to do, as showing a total 294 1 W

1 neglect for complying with procedures, and as being subject to repeated bursts

    - of anger. Tr. 2165-68 (Boyd).

Mr. Boyd t , commended to Dr. Karam that Mr. Downs' services be terminated following the cadmium-II5 incident. Dr. Karam agreed. lie testified that Mr. Downs had been asked to take a geiger counter home to his apartment to check on radioactivity from'the cadmium Il5 incident but could not remember whether he (Downs) had donc so. R. 2798-99 (Karam). Dr. Karam believed that Mr. Downs "somehow didn't forget, he was playing games" (Tr. 2799) and accordingly requested to Dr, Stetson that Mr. Downs be terminated. Apparently, Dr. Stelson believed that people forget many things and instead recommended a psychological examination, which Mr. Downs passed. Id. Mr. Downs served satisfactorily entil tiie incident involving disabled reactor scram functions occurred in libruary 1994. R. 2800 (Karam); 'I). 2866 (McAlpine). Following the incident, the Applicant took corrective actions, which we have earlier described (see p. 290, supra), leading to Mr. Downs' suspension

and his subsequent termination of employment at the facility in June 1994. Staff Panet B, ff. Tr. 2813, at 23; Tr. 2800-02, 28N (Karam).

l , Our evaluation of Mr. Downs' service indichtes, as Mr. Boyd suggested, ' !. that his horseplay incident in libruary 1985, and the attitude it reflected, may have warranted the intmediate termination of Mr. Downs' services as a reactoi operator. Several late-incidents, including the cadmium-II5 incident, also may have warranted his termination, as Dr. Karam recommended. Management's failure to take action against h' Downs until libruary 1994 erhaps reflects poorly upon it (although not or. 4. Karam). But the failure to take action earlier 12 not sufficient to disqualify management from acting under a renewed license. This is particularly so when the current Director of the facility sought (unsuccessfully) to take action following the cadmium Il5 incident. Furthermore, none of the evidence - except perhaps a surmise by Mr. Boyd (R. 2169) - supports GANE's claim that Mr. Downs was not discharged because the reactor would have lacked sufficient personnel to operate and produce a monetary return. Dr. Karam had responsibility for producing a monetary return, and he in fact sought to terminate Mr. Downs' employment. N The 1994 ident raiwd concern in WC Region II owr Mr Downs' lack of diligence and caused the Staff to consider whether M . Downs' SRO bcense should be suspended or rev Aed. Tr. 2869 (McAlpinek Tr. 2872 (Mendoncal The staff, however considered ocorgia Tech's anspension of Mr Downs to be responsible and appmpriate. Accordingly, the Staff uk no accon on its own. perahng the outcome of the Applicant's evaluatm Tr. 2872 (Mendoncal 295

c. Intrusion by Fo.t 7Y Film Crew One example of alleged mismanagement relied on by GANE was based on events occurring after the initiation of this proceeding, In early October 1995 (Tr.1621 (Carroll)), a film crew from the television series "/. Current Affair"

                            . visited the Georgia Tech site and, with its camera rolling, made its way into the administration building which adjoins the reactor containment building. A filmed record of their " intrusion" or " incursion"("It 2621 (Carroll)) (i.e., entry) into the reactor complex was broadcast by Fox Television on November 15,1995, and personally videotaped from the broadcast by Ms. Glenn Carroll, GANE's representative in this proceeding. Tr. 2620-22 (Carroll),2653.

On November 10,1995, after the "intrusica" dthough prior to the broadcast, GANE sought to introduce a new contention concerning security of the facility basmi on the incident. We preliminarily considered this proposed new contention at a prehearing conference held in Atlanta, Georgia, on November 15,1995 (the same day as the brocdcast). GANE offered to submit a videotape of the program in suppon of the new contention. At the conference, GANE also described the incident as having management implications (Tr. 520). We dismissed the new contention without prejudice to its being refiled along wid a discussion of the factors relevant to late-filed contentions. Second Prehearing Conference Order, dated November 29,1995 (unpublished).. On ;anuary 1,1996, GANE provided the videotape to the parties and resub-l mitted the incident as part of its management contention. By our Memorandum

                           - and Order (Telephone Conference Call,5/15/96), dated May 16,1996, LDP                                10,43 NRC 231,233, and as reiterated at the hearing (Tr. 2617), we determined that the tape was relevant to the maaagement contention. 'lhereafter, we admit-ted into evidence the video portion of die tape (GANE Exh 54), along with I~

limited portions of a transcript of the broadcast (GANE Exh. 53). Tr. 2677 98." GANE contends that the film crew's ability to intrude, unimpeded, into the reactor complex demonstrates inadequate (" sloppy") management on the part of the Applicant. See, e.g., Tr 2669-70 (Carroll). Although Ms. Carroll was not present at the site during the film crew's entry into the reactor complex, she had been informed that members of the film crew were dressed like students and that a small, concealed hand-held camera was used in the filming. Tr. 2651, 2654-56. Ms. Carroll stated that the film crew tried to open certFn doors but found them to be locked, and that they did not get into the room where the txlicactive cobalt is stored or into the reactor containment. Tr. 2656-57,2658 ' (i..'arroll). She pointed out a sign they had filmed, indicating the presence of U We determined that the part of ow audio that was descriptive of vanous events on screen was relevant but that other comnwnis of the narrator that suempted to characterne the ewnts or to provide interpreuve comnents were inappropnate, at least in the Pbsence of the narator who could be crowenanuned Tr 2617, 296 4 V

radioactive materials - however, she did not know if entry had been made into areas contairbg radioactive materials, or if the facility's security plan was

         - breached;28 and sne did not identify any violation of a regulatory requirement.

Th 2649 50,2657 59,2660-61 (CarToll).* Upon receiving a report of this event, an NRC Region 11 safeguards inspector conducted an inspection of the facility on October 31-November 3,1995; the results of that inspection are summarized in Inspection Report 95-04, No violations or deviations were identified in this inspection. GANE Exh. 65 ,

         - (Summary at 2; Report Details at 1, 3). The inspector determined that the fihn crew toured interior and exterior areas of the NNRC that are not subject to control under the GTRR security plan - including hallways in the administration building, a stairwell leading to the visitors' observation window, the roof of the administration building, and a fenced storage yard. GANE Exh. 65 (Summary at 2; Report Details at 1). He film crew was videotaped challenging two security doors, which remained locked. No bruch of security or the security plan was identified; and there was no indication that the television crew had unauthorized access to protected or radiation-controlled areas. GANE Exh. 65 (Summary at 12; Report Details at 12); Tr. 3058 (Mendonca); see Th 3511 12 (Karam).

He NRC safeguards inspector spoke with Georgia Tech personnel concern-ing this event, and verified that access controls, barricia, atarms, assessment capabilities, and response to alarms were in accordance with the GTRR r.ecurity plan. The inspector subsequently viewed the television broadcast of the event on November 15,1995, and. determined that it contained no indication that the television crew had unauthorized access to protected or radiation-controlled ar-eas. GANE Exh. 65 (Report Details at 2-3); Tr, 306152 (McAlpine). The videotape did not lead to the identification of any weaknesses in the Applicant's security program. Tr. 3068 (Mendonca)." After the event occurred, the facility director discussed it with all NNRC staff and students. Notwithstanding the fact that no violations or deviations [ were identified as a result of this event, the Applicant subsequently revised 2n to contrut. Dr. Karam stated that the signs that appear in the videotape are located oursade secured areas in which radmactive materials were present, and that the Elm crew only entered a pubhc buikhng that was open to students who come anl go to classes there, Tr. 3314 12. D OANE was not pertrutted to have access to the security plan alowugh earher it had sought such accen Ms. Canoll offered a "comrnon sense" opinion that the facably seconty plan rMuld utibre fences and herbed wire. Tr 2MI. 2M5 Ms. Carroll's educanon and espertence (conmung of a Bachelor of Arts degree in visual arts, and espenence as an artist, typesetter. and graphics deugner. Tr. 2%3 67) do not quahfy her ta render an espert opmion on ttus subject Moreover, undnubtedly because she would have had no reason to be grarited access. Ms. Canuit has never seen a security plan for any nuclear reactor, and she did not know snor could have known) what security measures are la place at any other research re.ctor. Tr. 2667 68.

           "Tla videotape showed that one indivhtual(whom GANE idenufted as a textor operator) alloued the film crew to conunue in its intruaion into th: adnuantranon tmilding, animpeded This individual was not terniss in this orgard, since there is no requirement for him to have done anyttung to hmit their access to that area. Tr. 3068 (Metutoncat 297
                                                                             ,                                              _J

its t.ecurity measures, by restricting access to the NNRC to require use of an existing coded key card reader or the presence of an authorized individual to open the front entrance to the facility;58 also, additional patrols by the campus police, whose office is located across the street from the reactor facility, were put into effect. GANE Exh. 65 (Report Details at 3); TY 3263-64, 3513 (Karam)." Georgia Tech's voluntary institution of these additional security measures was over and above NRC requirements. The Staff would not have required the Applicant to take these actions. Tr. 3054 56 (McAlpine); Ti. 3069 70 (Mendonca, McAlpine). Upon review of the evidence on this event, we agree with the Staff (Staff FOF at 108) that the Ibx Television film crew's intrusion into the reactor complex does not reflect inadequate n'anagement by the Applicant." To the contrary, the secusity plan appears to have worked as ir. tended, in compliance with applicable regulatory requirements. Ibrther, as observed by the Staff (id.), the Applicant's subsequent decision to upgrade iis security measures t>eyend the requirements of the security plan may be viewed as demonstrating good managerial judgment. Thus, this matter does not provide grounds for denying or conditioning the li ense reriewal application. i

d. Harduare issues As part ofits claim of poor management, GANE auerted that the GTRR had l operated for extended periods of time using equipment that needed repair. We l turn to an analysis of these clairns.

l tt) Tile BISMUTit DI.OCK GANE asserted that the continued existence of a water leak in the bismuth block is evidence of inadequate managemert at the rer.: tor.. GANE did not pursue its concerns in its proposed findings of fact and did not direct our attention to any part of the record that could support its assertion. b'either did Georgia Tech address the matter in its proposed findings. We therefore find that this is a matter no longer in controversy between Georgia Tech and GANE and,

 ' accordingly, adopt the proposed findings of the NRC Staff on this matter, as summarized below. Staff F0F, if 2.4.2.12.4.2.5, at 99-102. We set forth below 33 The key card reader at the front door was in pace previously. tmt was only used when the door was locked

{l3 e., from 5 (4 p nt to g 00 am). Tr 3522. 3530 (Kiramt 1n akhuon. a new fence has been installed at the facihty, with an alarm that wuvates at the NNRC and the campus pohce station if the fence is cut, cumbed, or shaken. Tr. 3513. Ttus fence was instaned la connection with the adwnt or the '.996 olympic Games, but Dr. Karam mdicated that Georgia Tech intends to keep it in glace after the cames have concluded. Tr.3522 23. 3525. 5ocorgia Tech subnutted no proposed 'indings regardmg ttus ewnt. 298 V --

a brief summary of the testimony on the bismuth block and find that leaking cociant has no safety significance, and is not material to license renewal. The bismuth block is part of a shield within a biomedical beam port at the reactor. Its purpose is to attenuate gamma rays and permit neutrons to pass through for use in experiments.1he bismuth block is cooled by a water source independent of any source in the reactor. The cooling system is not part of an accident mitigation system at the reactor. le 4 "- '983, heavy water was found leaking from the bismuth block. Wa the basement of the y reactor building. The wet area was posted as y .r . ttaminated and the reactor was shut down. After analysis, the leak w. 2.e with a commercial radiator stop leak compound and reactor operations resumed. The bismuth block coolant was converted from heavy wi er to ordinary light water in 1983. The seal wn; successful until 1989, when the leak reappeared. An attempted

,'   repair using "stop leak" aad epoxy compounds did not succeed. The leak did not interfere with the block cooling function and radioactivity levels remained below regulatory limits. Rather than attempting further renairs of the leak, the Applicant installed an NRC-approved collection system to catch and store the leaking water. The collection system is now functioning and no running water has been observed, although the basement are, is damp. The bismuth block leak has no health and safety implications. Since there is no safety function, the Applicant is permitted by NRC to use the bismuth block in its current condition.

The bismuth tAcck leak raises no concerns with respect to the license renewal application. We have reviewed the record and omd no contrary evidence to that cited by the Staff and summarized above. Accordingly, the Board finds that the water leak in the bismuth block is not evidence of poor management at the reactor and is not material to our decision on license renewal. (h FUEL-EI.EMENT FAlt,URE GANE has asserted that a fuel-element weld failure is evidence of inadequate management at GTRR because of fail. ire to notify NRC Neither GANE nor , the Applicant addressed the matter in tFeir proposed findings and the Board considers the matter no longer in controversy. The NRC Staff's uncontested Findings of Fact state that the Staif was notified both in writing and by telephone in September 1992. The weld failure was not a violation of NRC regulations or of the GTRR license. The affected fuel element was removed from the reactor and was placed in storage in the fuel poet. Staff FOF, 65 2.4.3.1, 2.4.3.2, at 2. We find that this event has no public health and safety significance and does not present a concern with respect to license renewal. 299 m M

0) FNVIRONMFNTAl, MONITORING GANE asserts in its proposed findings that it " remains concerned about Neely management's ability to contain radiation from the environment and their ability to monitor the contamination that is occurring." GANE FOF at 10. GANE claims that Georgia Tech has been cited by NRC for errors and omissions in environmental monitoring data over a 10-year period from 1983 to 1913.

The asserted errors include errors in math, gtps or blanks in data, absence t f meteorological monitoring equipment for 10 yen., and submission of the same windrose diagrara repeatedly. Id.; IR 95-01 (GANE Exh. 66). GANE asserts that in 1996 the Applicant was cited for failure to calibrate the GM gas monitor in timely fashion. It cites in support NRC IR 96-02 (apparently not offered into evidence). Although we cannot confirm that the NRC inspection report has been admitted to the record, nevertheless we find reference to calibration of a GM gas monitor cited in NRC IR 95-01 (GANE Exh. 66). It was left as an open item in that report (Id at 21). Thus, GANE's calibration assertion cannot be substantiated. We note also that GANE cross-examined at length on issues related to envi. romnental monitoring around the reactor using film badges and thermolumines-cent dosimeters (TLDs). TL 2903 25. It did not pursue these matters further in its proposed findings of fact. GANE's licensing concern appears to stem from reports of adiation levels above background, set forth in IR 93-02 (GANE Exh. 60). GANE asserts that there is a lack of reliable data as to what (radiation) the environment has received from operations at the NNRC and that it may never be known what the risk to the pcpulation is. GANE urges the Board to deny the license renewal to prevent the reactor from operating in its " broken-down, slip-shod fashion for another 20 years." GANE F0F at 10. On review of IR 93-02, the Boud finds that the Applicant was cited for violations as asserted in GANE's proposed findings. The insocction report, however, shows that no citation for a violation was more serious than Severity Level IV. We adopt the NRC Staff's uncontested proposed findings on issues related to fIm badges and TLDc in this Decision. Staff FOF, }6 2..i.4.12.4.4.4, at 103 04, to the effect that GANE's concern for environmental monitoring using film badges and TLDs does not involve possible violations of i.RC regulations, inasmuch as Georgia Tech is not required by regulatica or license condition to perform such snonitoring. It does so under a comndtment starting in 1966 in the SAR to place thirty monitoring devices in the enviro:. ment around the reactor. Tr. 2915 (Mendonca). Georgia Tech used film badges for inonitoring for many years but converted to TLDs in 1994 or 1995. Id.; Tr. 2919 (Mendonca). The use of film badges o. 'll.Ds is equally acceptable to the Staff and its approval of 390 P 7g T

the Georgia Tech application is not dependant on which was chosen. Tr. 2924 (Bassett). GANE expressed concern that environmental monitoring had unacceptable uncertainty becauw some film badges in the past showed false radiation doses which were attributable to physical damage from rain and heat. Tr. 2906 (Mendonca). His concern is laid to rest, however, by Applicant's testimony that all the badges were not affected and that the plant has other monitoring devices plus monitors required by technical specifications in place. Furthermore, de TLDs now in use are not subject to damage from heat and moisture. Tr. 2908 l (McAlpine).- He Board conclu<tes that .ven though some film badges in the past showed ; false positive radiation readings, there was sufficient redunaancy in monitoring i devices to preclude uncertaint) in radiation measurements large enough to be significant to public health and safety. Our confidence is enhanced by the fact that the errors asserted by GANE result in false positive readings in which the monitoring device appears to detect radiation when none is detectable by unaffected devices. This type of error attracts notice and requires analysis. Tr. 2910-11. (Bassett). Rus, thete is little likelihood that false positive error could lead to a failure to detect radiation emissions to the environment, if any actually occurred. The Board accordingly concludes that GANE's concerns for environmental monitoring based on the Applicant's use of either film badges or TLDs is not well founded and does not present a concern for licensing.

3. Georgia Tech's hianagement Organization Structure At the heart of G 'E's concerns over Georgia Tech's management is the organizational structu . -f that management. As described by GANE:

The anost unique aspect of the management of the Neely Nuclear Research Center at Georgia ' Tech, and the one that cansed us the most trepidation about the facihty to twgin with is the management structure sh places the Director of the facility over the Manager of the Orfice of Radianon Safety [GANE IOF at 3].

a. Applicable Standards he acceptability of a managerial organizational structure depends, in part, on the independence of operational functions and safety functions. NRC regulations pcescribe no particular mang erial structure, either for power reactors or research reactors. Staff Panel C ff, i. 3171, at 9. With respect to power reactors, however, interpretations of quality assurance requirements have led to a mandatory separadon of operational and safety functions. 10 C.F.R.

Part 50, Appendix B.I: see, e.g., Consumers Power Co. (Midland Plant, Units 301

l and 2), ALAB 152, 6 AEC 816, 817 (1973) ("those charged with the

                   . function of assuring the quality of particular work must be independent of the individual or group having direct responsibility for performing that work").

Given the absence of regulatory requirements for any particular organization or management structure for nonpower reactors, those structures vary conside. ably,- so long as some form of independent safety review is maintained. f ,

b. Examples of Organizational Structures Although some variations among types of managerial structures for research reactors exist, essentially two forms of organization are considered acceptable.

He first, recommended by Georgia Tech consultant Dr. Nicholas Tsoulfani-dis, by the current MORS, Dr, Rodney D. Ice, as well as by several GANE witnesses, is comparable to the organizational model for power reactors. The

                   - operational Director reports to a high-level official- the Dean of Engineering
                     - whereas the Radiation Safety Officer reports to another high-level official
                    - the Vice Provost for Research. Both the Dean of Engineering and the Vice Provost for Research in turn report to a higher level, the Office of the President.

Tsoulfanidis, Prepared Testimony, ff. Tr.1939, at Exh. GT 2. See Figure 1, p. 303, infra. See also GANE Exh. 42 (G TRR Organization Chart Before 7/1/87). His model is essentially whr.t Georgia Tech utilized prior to the 1987-1988 reorganization.

                         %c second, relied on by the Staff, is based upon the "American National Standard for the Developraent of Technical Specifications for Research Reac-tors," ANSI /ANS 15.1, which includes a section on administrative controls. Hat version, initially set forth in 1982 as ANSI /ANS-15.1-1982, includes a level 1 unit or organizational head; a level 2 reactor facility director or administrator reporting to level 1; a level 3 reactor or shift supervisor reporting to level 2; and a level 4 that consists of the operating staff reporting to level 3. Review and audit functions are performed at a level above the facility director and report to level i management. Radiation safety personnel report either to level 2 (the director / administrator of the facility) or to level I (unit or organizational head).

This type of organizational structure permits the Radiation Safety Officer to report 'ither to a level above the operational director - in effect like the first plan iecommended by Dr. Tsoulfanidis - or to the Director. If reporting to the Director, safety review functions are overseen by entities outside the line of operational functions, although the direct reporting remains within that line. A cha.t of the ANSI approved structure, as revised m 1990, is set forth as Figure 2 on p. 304, infra. Although the ANSI standards referenced above do not constitute regulatory requirements, the NRC Staff participated in their development and has encour-302

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m aged research reactors to follow them, at least in general outline. The two witnesses who comprised the Staff's Panel C, which dealt with this subject, were Messrs. Alexander A. Adams and Marvin M. Mendonca, former and current project managers for the GTRR. Mr Adams serves as the NRC's alternate representative to American Nu-clear Society (ANS) Consensus Committee N-17 "Research Reactors, Reactor Physics and Radiation Shielding," is the NRC's representative to ANS subcom-mittee ANS-15. " Operation of Research Reactors," and represents the NRC on the working group for several individual American National Standards Institute

           '(ANSI)/ANS standards pertaining to research reactors, including the working group for ANSI /ANS 15.1, "Ihe Development of Technical Specifications for hesearch Reactors," which includes guidance on organizational issues. For his part,-Mr Mendonca has conducted training covrses on research reactor inspec-                                    j tion and regulation issues related, inter alia, to organizational, review, and audit functions, and serves as the NRC's representative on various standaids commit-tecs associated with research reactors. Panel C, ff. Tr. 3171, at 1-6,9,12, We fmd Messrs. Adams and Mendonca to be well qualified to address the differ-ing management structures in use at research reactors and the adequacy of the management structure currently used by Georgia Tech.

Under the 1987 1988 reorganization, Georgia Tech abolished the Office of Radiological Safety and established a new Office of Radiation Safety as a t..t t of the NNRC. Mr. Robert M. Boyd (the former RSO) became the MORS and commenced reporting to the facility director, Dr, Karam, as did operational personnel, in turn, the organization chart indicated the Director would report to the Vice President for Research, who would report to the President. At the same time, Dr. Bourne (the interim President) appointed Dr. Kalm to serve as the Chairman of the new Nuclear Safeguards Committee (NSC), which replaced two former committees (Nuclear Safeguards and Radiation Protection). Staff Panel C, ff, Tr. 3171, at 12-13: Tr. 2178,2215 (Boyd). In addition, Georgia Tech requested changes to the Technical Specifications for the NSC, including changes in the requirements for membership, quorum, r areas of expertise, maximum number of members permitted to be from the GTRR staff, and the scope of the NSC's review and approvi.1 responsibilities. The proposal showed that the NSC (with the NSC Chairman also holding the title of RSO) would report to the NNRC Director, with communication to the Office of the President. Staff Panel C, ff. Tr. 3171, at 12-14." M An organuauonal now chart prepared at that time showed arrows leading to Dr Knam (the Director) frorn the NSC, the MORS, and the President, creanng the impression that the Prendent and NSC would lanceforth repor to Dr. Kararn Tr. 2484-85 (Boydl The now chart's indicauon that the NSC and President would report to Dr. Karp ras disaporoved by the NRC Staff, and was revised by the Umversity Prendrnt. The unremed version was aho adveriety cornrnented upon by Mr Boyd in tius proceeding. Tr. 2484-8s 305

         .                                                                                                                    l

ne NRC Staff performed an initial review of the amendment request after

                 .it was submitted, and found certain aspects of Georgia Tech's proposal to be problematic; t' ' Staff then communicated several questions to the Applicant. Id.

at_14. nc .. ore significant issues related to the proposal's failure to conform to the recommendations contained in ANSI /ANS-15.1," by (1) having the NSC tqort to the facility Director rather than to level 1 management, (2) providing too few review and audit functions for the NSC,(3) not specifying the trinimum number of NSC 'nembers, and (4) not prohibiting NNRC staff mem - rs from - being a majority of the required quorum of the NSC. Id, at 14-15. He Applicant then submitted a revised organizational chart for the GTRR TS, which adAessed the Staff's questions. In the revised organization, the NSC would report to level i management (Office of the President) and would communicate with the NNRC Director. Also, the MORS would report to the NNRC Director for supervision and administrative reporting but would report to the NSC on safety and safety policy matters. Id. at 15.)* In addition, the Applicant revised its proposed amendment to expand the scope of the review and audit responsibilities of the NSC to activities generally suggested by ANSI /ANS-15.1, and it withdrew its proposal to delete the requirement that no more than a minority of the NSC members would be from the GTRR staff. Id. at 15-17, 18. ' De management structure adopted following the reorganization in 1987 1988, and similar to that cunently in place at the GTRR, is similar to the second model, with the MORS reporting directly to the Director of the GTRR, although also reporting safety concerns to the Nuclear Safeguards Committee (NSC). As set forth in Figure 3, p. 307, infra. According to the Staff, both organizational forms work, with about 35% of research reactors having the radiation safety functions reporting directly to the facility director (like the GTRR) and the others reporting either to a higher level

                - or to a different chain af command. 'IY. 3175 (Mendonca).

c. ' GANE's Challenge to the Structure GANE claims that, under a structure where the MORS reports directly to the Director, (1) the MORS lacks sufficient independence to conduct his duties, D 3ce discussion at p. ,110. htfra 30 Mr. noyd sinularly noted that cert;un aspects of the July reorganizaion were clantied by the Univenity President in February 1988, in a memorandum and general faculty nweting. First. the Prendent indicated that the NSC was to report to the University President, second. the MORS was responuble, under a reviwd organizational chart. to feport safety problems to the NsC (as well as .o the facihty director)- and 6f the MORS was not satis 6cd with how wfety problems were bemg treated by others, he was to inform the hesident or Vice President for Research of those marters, oANE Enh. 47. at I; oANE Enh. 46. Ttus latter statenwnt responded to Mr. Boyd's concern that his reporung hne to the NSC had been ehrninated under the July teorgannation Tr. 2259, 2277, 2403 %

2410'11 (Roydt GANE Enbs 46,47. 306

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(2) the NSC har an inadequate concern for safety, and (3) too much authority is cot.:entrated in the Director (currently Dr. Karam). GANil in particular relies for '.hese claims upon two of its witnesm who had been former radiation safety ofticers at the GTRP,- Dr.13rian Copeutt and Mr. Robert lloyd. Ilut in support of the superiority of an organization that has separate chains of command for the director ar'd the radiation safety afficer, GANII also points to the opinions of Dr. Rodney Icc, the current MORS, and Dr. Nicholas Tsoalfanidis, an expert witness presented by Georgia Tech. Specifically, Dr. Copeutt served as MORS from July 1990 to November 2, 1990 (GANill!ahs. I,13). Ilis letter of resignation to Dr. Karam, dated October i t H,1990 (GAN!! !!xh.13), cited extensively by GANI!(GANI! IOF at 4), states

hat it is "impoulble for me to work effectively within the structure of the l radiation safety program at Georgia Tech." Dr. Copeutt goes on to state in the letter that the MORS " lacks sulficient operational freedom to adequately conduct the radiation safety program" and that the health physics stalf (which -

nominally report to the MORS) appears to be "under the taal control" of the MORS and the facility Associate Director. lie concludes that "I cannot, in good conscience, take responsibility for a program whose priorities I cannot mt and t in which I must compromise my professional judgments."5 Mr. Robert M. Iloyd, who served as Radiological Safety Officer at Georgia Tech frma 1973 until the reorganization in 1987, as MORS fron ,187 to 1988, and who served (simultaneously) as Radmlogical Safety Officer at Georgia ' State University from 1973 until his retirement in 1995 (floyd, Professional

           !!sperience, ff. 'n. 2122, at i 2), even more strongly stressed in his tes:imony the superiority of dual reporting chains. lie characterited the cunent form c l           organ!zation, with the MORS reporting to the facility Director, as "the fox guarding the hen house" and called the decision tu change to such a structure "a mistake -it was a mistake in my view, in. proper"(Tr,2175 (floyd)).

Mr. lloyd conmled, however, that the management strueure in place wac "not so serious as to e,ay that the safety of the publi: cannot be assured" (Tr. 2396 (lloyd)). lie added that he "did not consider the present organizational structure to constitute an immediate herilth hazard"(id.). Dr. Ice, wb has been MORS since 1992, with over 29 years of practical experience and pu%lishui resear. h in heahh physics and who is a health phys'cist and a teacher and advisor on radiation safety (Ice, ff.1992, at 2,5), also favored having the MORS not subject to the supervisory control of the Director, lie explained: M The letut also ot9ects to aneged suggemons from de threcke and Associmie Direcks that f.e should suit. in the fut.are. 4wurnrat observed regulatory s6clauona or prmned prograrn improwrnents." We have dealt noth thew anegatmns einemhere in this tw .se 308

1 think in an effective organtatson for radiation safety, esecuthe snanagenent should te invoh ad in tie oversigid in the scenario, so I think Orte should be a elcar path betuten tie radiation safety olhar and esecutive rnanage..rnt. . . organinuonally. and from an operstmnal standpoint, I would icne to see a cleaner relatiomhip between safety and operatirms, a pure disunction between the two, h ,2( m 01 (Ice). Finally, Dr. Tsoulfanidis, a consultant for the Applicant and, since 1975, the Radiation Safety Officer for the University of hiissouri-Rolla (where he also serves as a professor of Nudar Engineering and the Assistant Dean for Research in the School of hiines and hietallurgy (Tsoutfanidis, ff. Tr.1959, at 2)), expressed the view that the present administrative structure of the Radiation Safety Prograrn "seems to work fine and there is no evidence of any kind that l safety is compromised " lic recommended a structure with dual lines of authority (set forth as Figure 1 above) for the followir.s reasons: lT)tw present reponing nrthod has the potential for enors, omlanlons and abuse, parucularly if the curt.:nt Director is replaced and the new one is not to safety conscious. . There is no evidence that the current Director either made mistues or abuwd the system. llowever, whenever a program or acuvity is controlled by a single person the possibility of eme or omission of actum is possible. l Tsoulfanidis, ff. h,1939, Exh GT 2, at 6. Dr. Tsoulfanidis stressed that separate budgets should be set up for the Direcor (for operational purposes) - and for the RSO. Id at 7, r l d other Parties' Positions l The Applicant stron;ly favors tne e irrent organizational structure,- where the htORS reports to the Director. Dr. Karam, who was appointed Director on December J,1983 (prior to the reorganization), expressed his belkf that inasmuch as his responsibilities as Director covered overall operation of the reactor (including radiation safety), and inasmuch as the radiation safety staff did not report administratively to him but operated independently, he was extremely uncomfortable about being held responsible for the work of . unit over which he had virtually no control, lie also believed that he could better deal with the hostilities betwec i ilP and operauons personnel if he had managerial control over both. Karan, if, Tr. 2723, at 24 25; h. 2769 (Karam). Rus, prior to We reorganitation, the manager of the safety unit nominally reported to Vice President Stelson, to whom Dr. Karam also reported. But in actual practice, the manager of the llP unit (hir. Boyd) was instructed "to run that thing and don't bothec [Dr. Stetson]". lie was " essentially unsupervised by anybody" (Tr. 2366-67 (Joyd)). hit, Boyd added, however, that he felt 309 s

the Chairman of the then Radiation Protection Committee and the Chairman of the Nuclear Safeguards Cornmittee were " essentially [hh] boss a far as safety concerns"(1). 2367 68 (to>yd)). Prior to the reorganitation, there had been extreme hostility between the heahh physics and operational staffs. This history of hostility, which among otner thingt led to a shutdown of reactor operations by NRC, is reviewed in greater detail earlier in this opinion. One of he t purposes of the reorganizat;on where the RSO reports directly to the Director was to lessen the hostility, initially following the reorganisation the hostihty actually increased. Thereafter. Dr. Karam replacal the entire health physics staff with persons with greater academic qualifications. The end result, according so Dr. Karam, was a better-qualified heahh physics staff and a diminution of the hostility between the two groups. As a result, Dr. Karam strongly supported the existing chains of command. 1he Staff would hgve fcund either method of organiiation equally acceptable

                        - both are sanctioned by the ANSI standards, and either would be acceptable under NRC regulations (Tr. 3175, 3132-in (Adams, Mendonca)), "[II]ither can work," 'lY.1895 (Gibson); TY. 1894 95 (Collins). Ilut the Staff appeared                                                                                                         :

to p efer the current form of organization on the basis of its success at the ' GTRR in terms of resulting in fewer and less severe violations than the previous i unacceptable level that in part caused the Staff to have the reactor shut down.

4. Ikensing Remrd Conclusions llaving carefully considered the various views of organitational format expressed by witnesses of all parties, we conclude that, in our opinian, the separation of functions inherent in having the MORS and other health physics personnel report to a person other than the operational director of the facility would be preferable to having him or her report to the Director, as is currently the practice at e.c GTRR.11ecause either form of organization is legally acceptable, however, we would need a strong record establishing the perfonnance superiority of separate reporting chains (and safe:y deficiencies attributable to a single reporting chaiy in order for us to mandate such a change for the GTRR.

Such a record is not here present. IIven witnesses who favored the separate chains of command indicated that the present system at GTRR presents no threat to the public health and safety, Part of the rationale for this view sten,med from those witnesses' knowledge of the technical competence and dedication of the current Director, Dr, Ratib Karam. Dr. Kasam is planning to retire within the _ next few months, however, effective June 30,1997 (1). 270910,3404 (Karam)). When that happens, Georgia Tech may wish to consider what organtiational format it will utilire, ilut we will inapose no license condition requiring any modification. 310

Apart from organir.ational format, UANE $ a seeks to deny licenso renewa! on the basis of a contir.uing series of regulatory violations. 'lhe anost serious occurred before (and in part caused) the reactor shutdown in 1988, Since restart, the numbers of violadons/ycar has been decreasing over the years (Tt l *49 50, 3151 (Mendonca, McAlpine, liassett)), and none has been found by the Stalf to be more serbus than Severity Level IV. We decide hefein whether the GTRR license renewal application should be denied or conditioned on the b sis of L events and vi dations of that severity cited by GANE from NRC inspection reports. At the time of those citations. NRC's enforcement pohey '- to C.F.R. l' art 2, Appendix C, defired Severity I evel IV violations as of % . inn minor concern, i.e., if left uncorrected they could lead to a more seriou. . inc(rn.'"' Table 2 of the enforcement policy indicates Commission policy to corsider licenas suspension or revocation only for more serious vio!ations at Sevetity Levels III,11, or I." There is no indication in the enforcement policy (either that in effect in early 1995 or at present) that the Commission would suspend, revoke, or deny a license to operate on the basis of several Severity Level IV violations, it is evident from the policy that the appropriate sanction for Severity Level lV violations is for the Applicant to b'

equired to correct the cited defaciencies. The NP.C Staff is now satisfied thar Georgia Tech has recovered from management deficiencies of the past and that its performance now is generally satisfactory.

*!hus, although GANE calls 4or *he Board to refuse to authorire license renewal on the basis of several Severity Level IV violations, we decline to do so. Under all but the most caceptional circumstances not relevant here, Severity Level IV violations do not rise to the level of significance that wouhl place license renewal in jeopardy. GANE may well hold the view that reactor licensees should be held by the NRC to a standard of error free performance. Although conceptually app #.:ng, that is not the regulatory scheme. As evident from the enforcement policy, NRC takes account of the severity of violations and not just their occurrence when it riccides what enforcement action to take.                                                                  ,

One further matter warrants some brief comment. In its fmdings of fact, GANE claims that " Georgia Tech has denied GANE the respect due to ordinary citizens who are simply exercising their democratic right to due process. Up to and ir ;uding their latest submission (i.e.. Georgia Tech's proposed fmdings). 'M 5ee sum 10. sacru. fra a definluon or each of the erwnty lewls in effect ni Ow knw of Gw cac.Joen 1.ffecove lune 30, IW1. Ow I.ntonenent Puhry was tenuwed from 10 C F R. Part 2 and pubhshed as NL'RIo-Irdn fio led Reg 1080 Oune 30. IWS) At Ow une, severity 14 vel V vio.auens were ebnunated rJ at 34.3st.

"The NRC is auduvised under de Atomic Diergy Act to revde beenwa under de sane conacons that would haw wareanted refusal or a b<enne on an swiginal appination 10 CT R. Part 2. Appenas C, t il oWS ed ),

NtfRiiG ltd10 S Viciel The noard enund only sefuse to authanse a rocwed hcense under tte ertitecernent pohey for remns th.it were an serious as thaw that could lead to revocahon 311

we have been treated as a nuisance not wrrthy of their time and this attitude is tot only rude,it does not speak well of the nuclear industry's willingness to act in good faith as a community citizen." G/ NE F0F at 3. GANE provides no specific references to this alleged treattnent, and our exarnination of Georgia Tech's findings of fact does not reveal any such disrespect. Suffice it to say, howe 7r, that this Board views GANil's efforts in this proceeding with great respect. Even though GANE did not succeed in its efforts to deny renewal of the Applicant's license, or to require a differen: management organitation, it brought to light many aspects of Georgia Tech's operation that could lead to an operation m the future providing enhanced protect' n to the public health and safety. GANE's efforts therefore deserve commendation. D. Conclusions of Law

     'Ihe Licensing Board has considered all of the evidence presented by this parties on the admitted contention concerning the aJequacy of the Applicant'i management of the Georgia Tech Research Reactor, Based upon a review of th:

entire record in this proceeding and the proposed fMdings of fact n~I conclusior J of law submitted by the parties, and based upon the iindings of fu-t set forth herein which are supported by reliable, probative, ar.d substantial . . mence in the record, the lloard has decided all matters in controversy pertinent to management of the GTRR and reaches the following conclusions:

1. The Applicant's performance in the post-restart period, although not entirely satisfactory, has rubstantially improved since the shutdown of the reactor in 1988. Further, Georgia Tech's performance in the post restart period does not support GANE's assertion that management of the GTRR is inadequate and that the license renewal application should therefore be denied. Nor has GANE met its burden of demonstrating that " substantial management deficiencies persist."

LHP 95-6,4i NRC 281,299 (1995).

2. The Board has further examined the evidence in light of the guidance provided by the Coramission at the start of this proceeding. We conclude that GANE has not demonstraied " management improprietics or poor ' integrity' . . .

[ thall relate directly to the proposed licensing action," or that "the GTRR as presently organized and staffed [ fails tol provide reasonable assurance of candor and willingness to follow NRC regulations." Moreover, the evidence supports findings that "the facility's curt:nt management cricourages a safety-conscious attitude, and provides an environment in which employees feel they can freely voice safety concerns," and there is " reasonable assurance that c : GTIUt facility can be safelv operated" in that '4he GTRR's current management [nleither is unfit [nlor structured unacceptably." CLI-9512,42 NRC 111,120-21 (1995). 312 f

   ,                                                                                          . b

3. 1he Applicant's management of the Georgia Tech Research Reactor complies with all applicable regulatory requirements, and provides reasonable assurance that its management of the G1RR facility, upon the renewal of License No R-97, will not be inimical to the common defense and security or to the health and ...fcty of the public.

4. All issues, arguments, or proposed findings presented by the parties but not addressed herein have been found to be without merit or unnecessary for this Decision.

F. Order

1. Pursuai,i to 10 C.F.R.16 2.760 and $0.57, as a pplicable, the Director, Office of Nuclear Reactor Regulation, hereby is authorized to issue to the Georgia It'stitute of Technology, upon making requisite findings with respect to matters not embraced within this initial Decisio9 a renewal of Operating License No. R 97, in accordance with Georgia Tech's application for such license renewal.

2. This initial Decision shall become egerrtre and constitute the final action of the Commission forty (40) days after the date of its issuance, subject to any review pursuant to the Commission's regulations.

S. In accordance with 10 C F.R. 5 2.786, any petition for review of t% Initial Decision must be filed within fifteeri (15) days after service of the Decision. Any other pt,rty may file, within ten (10) days after service of a petition for seview, an answer in support of, or in opposition to, the petition for review. 'the petition for review may be granted or denied in the discretion of the Commission, giving weight to the considerations of 10 Cf.R. 6 2.736(b)(4). Tile ATOhtlC SAFETY AND LICENSING BOARD Charles Dechhoefer, Chairman ADh11NISTRATIVE JUDGE Dr. Jerry R. Kline ADh11NISTRATIVE JUDGE Dr. Peter S. Lam ADhtlNISTRA11VE JUDGE Rockville, hiaryland April 3,1997 3:3

Cite as 45 NRC 315 (1997) DD-97 8 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Samuel J. Colline, Director in the Metter of Docket No. 50-219 OENERAL PUBLIC UTIUTIES I NUCLEAR CORPORATION (Oyster Creek Nuclear Generating .

                                                                ' Station)                                                                  April 2,1997 Ily a petition dated September 19,1994, Reactor Watchdog Project. Nuclear Information and Resource Service, and Oyster Creek Nuclear Watch (Petitioners) requested that % NRC take action with regard to Oysar Creek Nuclear                                                                    !

Generating Station (OCNGS) operated by GPU Nuclear Corporation (GPU or

                                                             . Licensee). Petitioners requested that the NRC (1) immediately suspend tae OCNGS operating licenr.e until the Licensee inspects and repairs or replaces all safety-class reactor internal cornponent parts subject to embrittlement and cracking. (2) immediately suspend the OCNGS operating license until the Licensee submits an analysis regarding the synergistic effects of through wall cracking of multiple safety-class components, (3) *immediately suspend the OCNGS operating license until the Licensee has analyzed and mitigated any
                                                             ~ area of noncompliance with regard to .' radiated fuel pool cooling as a single-unit boiling water reactor (llWR), and (R) issue a generic letter requiring other licensees of singl$ unit ilWRs to submit information regarding fuel pool noiling                                                        .

in order to verify compliance with regulatory requirements and to promptly ake appropriate mitigative action if the unit is not in compliance. Ily a letter dated December 13,1994 Petitioners supplemented their petition and requested that the NRC: (1) suspend the OCNGS operating license until Petitioners' concerns , regarding cracking are addressed including inspection of all reactor vessel internal components and other safety related systems susceptible to intergranular stress-corrosion cracking and completion of any and all necessary repairs and modifications; (2) explain the discrepancies betwan the response of the NRC 315 l t l

Staff dated October 27,1994, to the petition and time-to-boil calculations for the FitzPatrick Plant: (3) require GPU to produce documents for evaluation of e

        - the time.to-boil calculations for the OCN05 Irradiated fuel pool; (4) identify redundant components that may be powered from onsite power supplies to be used for spent feel pool cooling as qualified Class IH syst:ms:-(!) hold a                                            ,

public snecting in Toms River, New Jersey, to permit presentation of additional

         - Infurmation related to the petition; and (6) treat IYtitioners' letter of December                                       !

13, 1994, as a formal appeal of the denial of their request of September 19. - ! 1994, to immediately suspend the OCNOS operating license. ' ily letter dated October 27, 1994, the Director denied Petitioners

request --

for immediate suspension of the OCNOT operating license, fly letter dated , April 10,1995, the Director denied requents ($) and (6) of the December 13, 1994 Supplemental Petition. On August 4,1995, the Director issued a Partial , Director's Decision (DD 9518. 42 NRC 67) de..ying requests (1) and (2) of the September 19,1994 Petition and request (1) of the December 13, 1994 t Supplemental Petition.

By a Directu's Decision issued on Aptil 1,1997, the Director granted in part requests (3)(exclusive of tr.c request to suspend OCNOS operating license was previously denied) and (4) of the September 19,1994 Ittition and granted requests (2), (3), and (4) of the December 13,1994 Supplemental Petition, _ FINAL 1)lRECTOR'S DECISION UNDER 10 C.F.R. I 2.206

1. INTRODUCTION Ily a petition submitted pursuant to 10 C.F.R. 6 226 on September 19, 1994 (petition), Reactor Watchdog Project. Nuclear Informstion and Resource

     ' Service, and Oy,ter Creek Nuclear Wate:, (Petitit .a) req 1cated that the U.S.
      - Nuclear Regulatnry Commission (NRC) take immediate acsion with regard to                                                    ,
     ; Oyster Creek Nuclear Generating Station (OCNGS) operatecl by GPU Nuclear                                                     -

Corporation (GPU or Licensee). By letter dated December 13,1994, Petitioners supplemented the p. Ition, n in the Petition of September 19, 1994, Petitioners requested that the NRC:

     . (1) immediately suspend the OCNGS operating license until the Licensee in-spects and repairs or replaces all safety-class reactor internal consponent parts subject to embrittlement and cracking,(2)immediately suspend the OCNOS op-erating license until the Licensee submits an analysis regarding the synergistic                                         j effects of through-wall cracking of multiple safety-class components,(3)imme.

diately suspend the OCNGS operating license until the Licensee has enalyzed 316 2 p g w m # y -_w-..g-- v g ..,q - -

                                                                                   .ey w-. q-,-wg 3, 9-,k , --    y .y , -f.y py

and mitigated any areas of concompliance with regard to irradiated fuel pool cooling as a sirgile-unit boiling water reactor (HWR), and (4) issue a generic le'.ter requiring other licensees of single-unit DWRs to submit information re-garding fuel pool boiling in order to verify compliance with regulatory require-ments and to promptly take api.ropriate mitigative : ion if the unit is not in compliance, in addition to providing more information on the original request, the supplement dated December 13, 1994, requested that the NRC: (1) suspend the OCNGS operating license until Petitioners' concens regarding cracking are addressed, including impection of all reactor vessel internal components and other safety related systems susceptible to intergranular stress corrosion cracking

                                 - and completion of any and all necessary repairs and modifications; (2) explain the discrepancies between the response of the NRC Staff dated October 27.1994, to the petition and time ta boil calculations for the FitzPatrick Plant; (3) require GPU to produce documents for evaluation af the time to-boil calculations for the OCNGS irradiated fuel pool; (4) identify redundant components that may be powered from onsite power supplies to be used for spent fuel pool cooling                                            ,

as qualified Class 1H systems; (5) hold a public meeting in Toms River, New Jersey, to permit presentation of additional information related to ilm petition;

and (0) treat Petitioners' letter of December 13, 1994, as a formal appeal of the denial of their request of F;ptember 19,1994, to imn diately . +cnd the OCNGS operating license, ,

On October 27, 1994, the Director of the Office of Nuclear Reastor Regu-lation informed the Petitioners that he was denying their request for immediate suspension of the OCNGS operating license, that tneir petition was being evalu-ated under section 2.206 of the Commission's regulations, and that action would be taken in s reasonable time. By letter dated April 10,1995, the Director de. nied requests (5) and (6) of Petitioner's supplemental petition. On August 4, 1995, the Director 3ssued a Partial Director's Decision (DD 9518,42 NRC 67), denying requests (1) and (2) of their Petition of September 19,1994, .nd request (1) of the Supplemental Petition of December 13, 1994. A decision regarding requests (3) and (4) of the Petition of September 19, 1994, and requests (2), (3), and (4) of the Supplemental petition of December 13, 1994, was deferred pendinf; completion of our review.

                                     - he NRC Staff's review of the petition and supplemental petition is now complete, Ihr the reasons set forth below, requests (3), with the exception of suspending OCNGS operating license which was previously denied, and (4) of the Petition of September 19,1994, are granted in part and requests (2), (3), and (4) of the Supplemental Petition of December 13,1994, are granted as described below.

317

II. IIACKGROUND On November 27,1992, a report was filed pursuant to 10 C.P.R Part 21 by Iwo contract engineers that notified the Commission of potential design deficiencies in spent fuel pool decay heat removal systems and containment systems at Susquehanna Steam Electric Station (SSES). The report noted that under certain conditions, systems designed to remove decay heat from the spent fuel pool would be unable to perform their intended function, and that as a result of cencu: rent plant conditions it would not be possible for operators to place backup systems in service or that backup systems would otherwise bo unable to perform their intended function 1he report concluded that under su(A conditions, the spent fuel pool could reach boiling conditions and that the adverse environment created by a boiling pool would render systema designed to remove decay heat from the reactor core and systems designed to limit the releasa of fission products to the environment unable to perform their intended function. The ultimale consequence of these conditions could be the failure (meltdown) of fuel in both the reactor vessel and the spent fuel pool and a substantial release of fission products to the environment that would cause significant harm to public l health and safety. Although the issues raised by this Part 21 report appeared to be of low safety significance, because of the low probability that the necessary sequence c' events would take place,8 the complex nature of the issues prompted the NRC Staff to undertake an entensive evaluaticn of the matter. The NRC Staff review process, which continued from November 1992 to . lune 1995, included information gathering trips to the Licensee's engineering offices and to SSES, public meetings with the Licerisce, public meetings and written correspondence with the authors of the Part 21 report, and numerous writt-n requests for information to the Licensee and corresponding responses. The Staff issued Information Notice (IN) 93 83. " Potential Loss of Spent Fuel Pool Cooling After a Loss of Coolant Accident or a I oss of Offsite Power," on October 7,1993, w hich informed licensees of all operating reactors of the nature of the issues raised in the Part 21 report. The NRC Staff issued a draft safety evaluation (SE) addressing the issues raised in the Part 21 report on SSES for comment on October 25,1994. Af-ter receiving comments from the Licensee, the authors of the Part 21 report, and the Advisory Committee on Reactor Safeguards, the Staff issued a final SB speorically, de NRC 'utff observei than a kun-of-conlant acc:dra tolkwed by smluple faHures rf enwrgency enra conhag systems would be nece*

y to whwve the adverne rashokpal enedicotts that would preclude operwar acunna to ensure comanued adequaw decay heat renmal fruen dw spent ruct pont 318

regarding the issues rai6ed in the Part 21 report for the SSES on June 19,1995 (SSES SQ 8

       %e NRC Staff reviewed and evaluaN the SSES plant design and inspected operation of SSliS plant equipment with respect to the various event sequences describs(in the Part 21 report. De Staff also evaluated the response of SSES

_ plant equipment to a broader range of initiating events than was identified in the Part 21 report For example, the Staff considered the safety significance of a loss of spent fuel pool decay heat removal capability resulting from a loss of offsite power events, from seismic events, and from flooding events, %c Staff considered the safety significance of such events potential'v lecding to spent fue. pool boiling sequences that could, in turn, Jeopardire safety-related equipment needed to maintain reactor core cooling, ne NRC Staff conducted both deterministic aid probabilistic evaluations to fully understand the safety significance of the issuen raised. De Staff evaluated the safety significance of the issues as they pertained to the plant at the time the Part 21 report was submitted and as they pertained to the plant after the completion of certain voluntary modifications made at SSES during the course of the NRC Staff's review. Finally, the Staff examined licensing issues associated with the design of the spent fuel pool cooling system to determine the c4 tent to which SSES's design and operation met the applicable regulatory requirements. On the basis of the Staff's deterministic analysis of the plant as it was configured at the time the SSES SE was prepared, the NRC Staff concluded that systems used to cool the spent fuel storage pool are adequate to preveu unacceptable challenges to safety related systems needed to protect the health and safety of the public during design-basis accidents. On the basis of its probabilistic evaluation, the NRC Staff concluded that the specific scenario involving a large radionuclide release from the reactor vessel, w hich was describeJ in the Part 21 ceport, is a sequence of very low probability. The Staff's evaluation concluded that even with consideration of the additional initiating events previously described," loss of spent fuel pool cooling events" represented a challenge of low safety significance to the plant at the time the Pa t 21 report was submitted. However, the Staff also concluded that the plant modifications and prowdural upgrades made during the course of the Staff's review, which included removing the gates that separate the spent fuel storage pools from the common cask storage pit, installation of remote spent fuel pool temperature and level indication in the control room, and numerous procedural - upgrades, provided a measurable improvement in plant safety and that these conclusions had potential generic implicatio.y te summary, with regard to loss 3 tsner to R Byram,14nmytvama Itwer & taght Cortgany, from L Stola, NRC,"sunquehanaa sicam I.lertnc Stauon, Units I amt 2, safety twaluauon Re$meng Srem twl l'uol Coohns luurs (T AC No. Ms3337k' daard June 19.199s 319 U

of spent fuel pool cooling events, the SSES SE concluded that the design of the SSES facility was adequate to protect public health and safety. ! With regard to licensing-basis design issues, the Staff concluded that only a loss of spent fuel pool cooling initiated by a seismic event was considered in the original granting of the SSES license by the NRC. De Staff issued IN 93 83, Supp!cment 1, "Ibtential Loss of Spent Ibel Pool Cooling After a Loss-of Coolant Accident or a Loss of Offsite Power" to all power reactor licensees on August 24,1995, describing the conclusions of the June 19,1995, SSES SE. he information notice described the Staff's plans i to implement a generic action plan to evaluate the generic concerns raised in the SSES SE and to address certain adoitional conecens arising from a special inspection at a permanently shutdown reactor facility.5 He generic action plan, entitled " Task Action Plan for Spent Ibel Storage Pool Safety" (Task Action Plan), was issued on October 13, 1994, and included the following actions: (1) a search for and analysis of information tegarding spent fuel storage pool issues. (2) an assessment of the operation and design of spent fuel storage pools at selected reactor facilities, (3) an evaluation of the assessment findings for safety concerns, and (4) selection and execution of an appropriate course of action based on the safety significance of the findings. As part of the Task Action Plan review, the Staff reviewed operating experience, as documented in licensee event reports and other information sources, as well as in previous studies of spent fuel pool issues. The Staff

     . also gathered detailed design data relating to the design basis and functional capability of the fuel storage pool, the fuel pool cooling system, and other systems associated with fuel storage for every operating reactor and analyzed these data to identify potential safety issues regarding a loss of spent fuel pool cooling or a loss of coolant inventory.

He NRC Staff forwarded the results of ia 'lask Action Plan review to the Commission on July 26, 1996.4 The Staff concluded that existing spent fuel storage pool structures, systems, and components provide adequate protection of public health and safety at all operating reactors. Protection is provided by several layers of defenses that perform accident prevention functions (e.g., quality controls on design, construction, and operation), accident' mitigation 1 3 on January 23.1994 de beeniec for Dresden Umt 8. a permanewly shutdown facihty, discovered approximately s5.000 galkins of water ta de baienent or de untwated Umt I containmeid. The water crismawd from a rupture of de servta water system that occurved as a result of freese damage. De licensee invesugaud further and found that although the fuel trumfet system was not damaged. Dere was a potential for a parunn of Llw fuel transfer system 6 nude cmstmarrrnt to fad and resuk to a pwual drairulown of de spent fuel pool that conta ned 660 spent fuel aseembben he NRC lauwd NRC nullete 9441. *powenal puel pool Drandows Cauwd by inadequate Menenance precueen at Dresden Una 1." on Apnl s,1994. io all luenwes with germanently shutdown reactors that ht spent fuel stased in spent furi roots The NRC requested that such bcensec4 take certain actions to ensure that spent fuel storage infety did noe become degraded.

Memorandum to de Commisuna from J Tayks.
Resolution of Spent Nel $ttvage pool Acuou plan issues.* i dated July 26,1996 320

l functions (e.g., multiple cooling systems and multiple makeup water paths), ruliation protection functions, and emergency preparedness functions. Design features addressing each of these areas for spent fuel storage for each operating reactor have been reviewed and approved by the Staff. In addition, the risk analyset available for spent fuel storage suggest that current design feature 4 ad operational constraints cause issues related to spent fu"! pool storage to be a small fraction of the overall risk associated with an operating light-water reactor. Notwithstanding these findings, the NRC Staff reviewed the design of every operating reactos spent fuel pool to identify strengths and weaknesses and potential areas for safety enhancernents. He NRC Staff identified seven categories of design features that reduce the reliability of spent fuel pool decay heat removal, increase the potential for loss of spent fuel coolant inventory, or increase the potential for consequential loss of essential safety functions at an operating reactor, ne NRC Staff determined that these design features existed at twenty two sites; OCNGS was not one of the twenty-two sites. As the Staff has concluded that present facihty designs provide adequate protection of public health and safety, possible safety enhancements will be evaluated pursuant to 10 C.F.R. 5 50.109(aX3). "lhe analyses for possible safety enhancement backfits will consider whether modifications to the plant design to address the plant-specific design features iden:ified by the NRC Staff could provide a substantial increase in the overall protection of public health and safety ar ..hether such modif* cations could be justified on a cost-benefit basis. De NRC Staff also identified three additional categories of design features that may have the potential to reduce the reliability of spent fuel pool decay heat removal, increase the potential for loss of spent fuel coolant inventory, or increase the potential for consequential loss of essential safety functions at an operating reactor. De NRC Staff preliminarily determined that these design features existed at eleven sites. OCNGS was not one of the eleven sites. %e Staff has insufficient information at this time to determine whether backfits (- pursuant to section 50.109(a)(3) are warranted at the eleven si:es, ihr plants } identified as havitig design features in these three categories, the NRC Staff will gather and evaluate additional information prior to determining whether to require any backfits. In addition to the plant specific analyaes described above for twenty two sites, which will address certain design features, the NRC Staff informed the Commission in the July 26, 1996 Task Action Plan report that it plans to ' address issues related to the functional performance of spent fuel pool decay heat removal, as well as the operational aspects related to coolant inventory control and reactivity control, in a new proposed performance based rule for shutdown operations (10 C.F.R. 5 50.67) at all operating reactors. De new rule is scheduled to be issued for public comment in 1997. 321 6

      'the NRC Staff sent the Task Action Plan report of July 26,1996, to all operating power reactor licensees. For those licensees whose plants havo one or more of the design featuren that warrant a plant-specifie safety enhancement backfit analysis, the Staff has pmvided an opportunity to comment on: (1) the accuracy of the NRC Staff's understanding of the plant design, (2) the safety significance of the design concern, (1) the- cost of potential modifications to sidress the design concern, and (4) the nisting arotectior from the design concern provided by administrative controls or other means. In developing a schedule and plans for conducting all of the plant specific regulatory analyses, the NRC Staff will consider comments received from licensees.

III. DISCUSSION A !ssuance of Generie Letter, Compliance Verification, and Mitigative Action (September 19.1994 Petition Itcias (3) and (4)) The Petitioners requested (items (3) and (4) of the September 19, 1994 Petition) that the NRC smmediately suspend the OCNGS operating license until GPU analyres and mitigates any areas of noncompliance with regard to irradiated fuel poc,1 cooling as a single unit boiling water reactor, and that the 1 NRC issue a genene letter requiring other licensees of single-unit ilWR6 to submit infermation regarding fuel pool boiling in order to verify compliance , with NRC requirernents and to take quick initigati"e action if the unit is not in , compliance. As stated in the cover letter, the October 27,1994 Director's letter informed you that he denied your request for immediate suspensioa of the OCNGS operating license. While the NRC has not issued and does not plan to issue a generic letter, the Staff has communicued the importance of conducting relevant spent fuel pool decay heu removal activities in accordance with technical specifications and other plant specific appl cable regulatory requirements to licensees through the issuance of othe. Fener;c comtaunications, as described below. The Staff also surveyed all operating reactor licensees, including GPU Nuclear Corporation, Licensee for OCNGS, to collect information on, among otner things, parameters affecting boiling of the spent fuel pool. Results of the survey relevant to this petition are discussed below.

     'the NRC Staff issued three information notices on matters relattd to adequate removal of decay heat from the spent fuel pool, IN 93 83, " Potential Loss of Spent Ibel lbol Cooling After a Loss of-Coolar. Accident or a Loss of Offsite Power," was issued on October 7,1993, and described the concerns in the November 27, 1992 SSES Part 21 report discussed above. IN 93 83, Supplement 1, " Potential to s of Spent Puel Pool Cooling After a Loss-of-322 l

1 6 - ______a

Coolant Accident or a less of Offsite Ibwer," issued on August 8,1995, informed licensees of the results of the NRC's review of the concerns at SSES, IN 95-54, " Decay llent Management Practices During Refueling OutaFes," was issued on Decernber 1,1995, and described recent NRC asmsments of events at certain plants regarding the 1.icensce's control of refueling operations and the methods for removing decay heat produced by the irradiated fuel stored in the spent fuel pool during refueling outages. IN 95-54 communicated to lice,1 sees that the plant. specific events described therein and in the previous information notices illustrated the importance of ensering that (1) planned core offload evolutions, including refueling practices and irradiated fuel decay heat ternoval, are consistent with the licensing basis, including the final safety analysis report, technical specifications, and license conditions; (2) changes to these evolutions are evaluated throto,h the application of the provisions of 10 C.F.R, 6 50.59, as appropriate; and (3) all relevant procedures associated with core offloads have been appropriately reviewed. De Staff surveyed operating reactors, including Oyster Creek, as part of the (a) Spent Fuel Pool (SFP) Task Action Plan, and (b) followup actions related to issues identified at Millstone, and reviewed the degree to which fuel pool operations cott' pared with each facility's design basis and the degree that the fuel pool design features conformed with accepted guidance and standards, in the crae of Oyster Creek, the NRC Staff found no deviations in operntion os design as a result of either review. The Staff issued its report on the results of spent fuel pool survey regarding Millstone followup issues on May 21,1996. As described in Section !! of this Decision, the NRC Staff forwarded its report on the resolution of the SFP Task Action Plan on July 26,1996, to all operating power reactar licensees. As part of the SFP Task Action Plan, the Staff considered, on a generic basis, the history of regulatory requirements related to spent fuel pools at they were applied in plant licensing actions, The Staff found that SFP-related - regulatory requirements have been evolving since the first nuclear power plants were licensed and that specific regulatory guidance on the design of spent fuel pool cooling systems was not formalized until 1975, when the Standard Review Plan was issued, which was after the issuance of construction pe:mits for most currently operating reactors. !!ccause the regulatory requirements were evolving during the era in which the Staff was conducting licensing reviews for the current generations of operating reactors, Staff approved designs varied from plant to plant, llowever, ba:.ed on the recent survey results, tne Staff concluded that all operating reactors had design features for spent fuel storage (e.g., addressing accident prevention functions, accident mitigation functions, radiation protection functions, and emergency preparedness functions), which had been resiewed and approved in the past by the NRC. In addition, based on the review of the survey 323 k

results, the Staff found that all licensees were in compliance with current NRC requirements. Although the NRC Staff concluded that all plants, including OCNGS, are in compliance with the NRC spent fuel pool design requirements, the Staff reviewed certain operating practices at all operating reactor pla-ts to verify . hat the pland were being operated consistent with the plant design as described in the licensing basis,5 specifically with respect to refueling outage practices

associated with offloading irradiated fuel into the spent fuel pool. The Staff concluded, on the basis of the informat!on collected and reviewed and the specific Licensee actions taken and commitments made during the course of this review, that core offload practices are consistent with the spent fuel pool decay heat removal licensing basis for all plants, or will be before the next refueling outage. it should be noted, however, that during the course of its review, the.

Staff determined that nine sites (involving fifteen units) needed to modify their licensing bases or plant practices, pursuant to 10 C.F.R. 650,59 or 10 C.F.R. 650.90, to ensure that t!.cir refueling practices adhered to their licensing basis. This is an indication that these plants may have previously perfo rmed full core offloads inconsistent with their licensing basis. "Ihe Staff is reviewing potential enforcement action for these facilities, it should be noted that OCNGS is not one of the nine sites.

                                'the Petitioners requested that the NRC immediately suspend the OCNGS
                - operating Ilcense until GPI) analyzes arvi mitigates any 3reas of noncompliance with regard to irradiated fuel pool cooling as a single unit rlWR, and that the NRC issue a generic letter requiring other licensees of single t nit BWRs to submit information regarding fuel pool boiling in order to verify compliance with NRC requireme'its and take quick mitigative action if the unit is not in compliance. 'these requests are granted in part as described above. Petitioners' request for immediate suspension of OCNGS operating license was previously denied.

H.- Tline to Boil Calculations (thember 13,1994 Supplemental 14tition Iteins (2) and (3))

                            ~ IYtitioners' supplementary request of December 13,1994, asked the NRC to explain." discrepancies" between the response of the NRC Staff dated October 27,1994 to the petition and the documented time to-boil calculations for the Fitr. Patrick Plant as they bear on time-to-boil calculations for other single-unit General Electr!c BWRs. including DCNGS Petitioners contend that documents available in the Public Document Room for FitzPatrick Plant, a single unit
                 ' Ilemorandum to de Commmion tram 1 Taylor, daed stay 28.194 324 a

N

site, indicated a time to boil following a loss-of coolant accident of S homs, considerably less than the 25 hours SSES, a dual unit site, committed to in a letier dated June 1,1994. Petitioners also requested that the Licensee, GPUN, produce time-to-boil calculations for OCNGS. The NRC StafIletter of October 27,1994, to Petitioners concluded that time-to-boil conditions at single-unit ilWR shes, such as DCNGS, are of low safety signi0cance because, unlike dual unit sites, such as S$115, a large decay heat rate associated with a short time to reach boiling conditions is an unrealistic asumption durir.g periods when the unit is operating and fuel in the reactor - vessel in subject to a loss-of-coolant accident. l As explained in the Director's letter to Petitioners dated April 10, 1995, the time-to boil calculation rest;lts for the FitzPatrick Plant single unit IlWR, which were presented in a New York Power Authority document dated May 31, 1990, were based on the masimum postulated decay heat wes during a refueling outage fuel discharge and full core offload that occurred about 7 and 10 days, respectively, after reactor shutdown. These calculations also assumed that spent fuel pool cooling was lost when the pool was at its masimum calculated temperature. In contrast, the Staff calculated the time-tMu3 for FitzPatrick to be 25 hours for a one third core discharge 30 days after reactor shutdown, assuminr the spent fuel pool was at its maximum temperature limit for normal operation, which is 125'F. 'lhe details of this calculation w . provided in our Director's letter to you dated April 10, 1995. Additionally, the Staff had surveyed the factors that would most significantly affect the time to-boil (i.e., spent fuel pool volumes, rated reactor thermal power level, total number of fuel assemblies in the reactor vessel, and spent fuel pcol temperature limits) for twelve General Electric Company llWR/3 and ilWR/4 reactors, The Staff concluded that its time-to-boil calcolations for Fit: Patrick are representative ic United States single unit flWRs as a whole, and OCNGS in pa:ticular. As part of the NRC Staff's Tasu Action Plan activities, the Staff callected 1.tformation from Licensee documents to calculate the time to-boil for all operating reactors on a consistent basis While the Staff did not specifically require licensees (including GPU) to provide documentation to support time-to-boil calculations, the Staff did indepen'*ntly calculate the time to-boil for each plant from Licensee supplied information in Final Safety Analysis Reports and other design documents. On this basis, the Start determined that the time-to-boil at Oyster Creek is average among single unit ilWRs, thus confirming the same conclusion reached earlier in the Director's letter of April 10,1995. Accordingly, the Petitioners' requests to explain the discrepancies" between the response of the NRC Staff dated October 27,1994, to the petition and the documented time-to boil calculations for the FitzPatrick Plant as they bear on tirne-to-boil calculations for other single unit General Electric BWRs, including 325

OCNGS, and that GPU produce doeurnents for evaluation of time-to-boil calculations are granted as described above. C. Redundant Class IE Components and Power Supplies (December 13 1974 Supplemental Petition item (4)) In the supplemental petition submittal of December 13,1994, the Petitioners requested that the NRC identify redundant components that may be powered from onsite power supplies to be used for spent fuel pool cooling as qualified Class IB systems at Oyster Creel

       %e Petitioners noted that while Oyster Creek may have redundant compo-nents, in their view it is rneaningless to have redundant components and power supplies if they have not been qualified to operate under emergency conditions.

At Oyster Creek, spent fuel decay heat removal consists of a two-train spent fuel pool cooling system. De first train (" Spent Fuel 1901 Cooling System") has Iwo pumps and two heat eschangers. De second or augmented train, installed in parallel with the first train, contains two full-capacity pumps and a single heat eschanger. De four pumps in both trains are powered from electrical buses supported by safety-related emergency diesels (MCCs I A21, I A23,1821, and 1H23). %e augmented train is seismically qualified. Portions of the spent fuel pool cooling system, initially designed to be a nonseismic sptem, has b.u upgraded to Seismic Category I requirements. hose portions of the system that do not meet seismic requirements can be isolated from the spent fuel pool cooling system if a seismic event renders them inoperable. It should be made clear that the NRC Staff does not require Class 1B qualification for spent fuel pool cooling equipment and instrumentation. Class IB is the safety classification of electric equipment and systems that are essential to emergency reactor shutdown, containment isolation, reactor core cooling, and containment and reactor heat removal, or are otherwise essential in preventing significant release of radioactive material to the environment.' The spent fuel pool cooling system and monitoring insuumentation are not required for such functions. In his letter of April 10, 1995, the Director informed Petitioners that they have not presented, not was the Staff aware of, any evidence that the spent fuel poo' cooling system fails to comply with its design basis, or that the Licensee failed to qualify these components to the degree Petitioners describe such that it would alter his decision as it pertains to the safety significance of these issues. Desefore, further review of the qualification of spent fuel cooling system components at OCNGS is not warranted. Additionally, Petitioners were

ur. sia 3on.iesa 326

informed that the Staff would continue its generic review of spent fuel storage pool safety and would take appropriate action based on the conclusions of that review Ilased on the results of the generic review of spent fuel storage pool safety thus far, the Staff has concluded that no additional actions are warranted for the spent fuel pool cooling system components at OCNGS.

   'Ihe Petitio,eers' request to identify redundant qualified Class 111 sys.tems was granted as described above.

I V. CONCI,USION ' Although the Staff has not initiated fonnal enforcement proceedings in response to the petition, the Staff has taken a number of actions that address the concerns raised in the petition. Ik example, during the course of its review, the NRC Staff has issued generic communications responsive to Petitioners' request (4)of September 19,1994. In addition, the NRC Staff reviewed the compliance , of NRC-licensed facilities in the area of spent fuel pool design responsive to Petitioners' request (3) of September 19, 1994. To this extent, the petition is granted in par:. Finally, Petitioners' supplemental petition requests (2), (3), and (4) are granted as expirined above. A copy of this Final Director's Decision will be filed with the Secretary of the Commist on for review in accordance with 10 C.F.R. 6 2.206(c). 'Ihis Decision will become the final action of the Commission 25 days after its issuance unless the Commission, on its own motion, institutes review of the Decision within that time. FOR Tile NUCLEAR REGULATORY COMM'SSION Samuel J. Collins, Director Office of Nuclear Reactor Regulation Dated at ilockville, Maryland, this 2d day of April 1997, 3.17

Cite as 45 NRC 328 (1997) DD-97 9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOH REOULATION Samuel J. Collins, Director In the Matter of WISCONSIN ELECTRIC POWER Docket Nos. 60-266 COMPANY $0-301 i (Point Seach Nuclear Plant. 72 5 Unita 1 and 2) CONSUMERS POWER COMPANY Docket Nos. 00-255 l (Pallnades Nuclear Plant) - 72 7 ENTERGY OPERATicNS,INC, Docket Nos. 50 313 (Arkansas Nuclear One, Units 1 50 368 and 2) 72 13 April 17,1997 I 1he Director of the Office of Nuclear Reactor Regulation denies a petition filed pursuant to 10 C.F.R. 6 2.206 by Citizen's Utility lloard on September 30,1996, asking the NRC to (1) require the Licensee for Point Ileach Nuclear Plant to reserve a fixed number of vacant spaces in the spent fuel pool to permit retrieval from a VSC 24 cask in the event the fuel in the cask must be removed, and (2 to order all users of the VSC 24 cask not to load any casks until the COC, SAR, and SER are amended to contain operating controls and limits to prevent hazardous conditions. 328

DIRECTOR'S DECISION UNDER 10 C.F.R. 52.206 !

1. INTRODUC110N On Scramber 30. 1996, Citizens' Utility Board filed a petition pursuant to svtlon 2.206 of Title 10 of the Code of rederal Regulations (10 C.F.R.

                       $ 2.206) requesting thu the U.S. twelear Regulatory Commission (NRC) take                                                                                               ;

the followh.g 1.etions:

l. Order Wisconsin Electric Power Compkny (WEPCO) to retain 24 empty and available spaces in the Po . I Heach Nuclear Plant spent fuel pool to ,

provide the capability to permit retrieval of spent fuel from a VSC-24 - cask in the event of an accident requiring removal of spent fuel from the cask or in the event that conditions of the certificate of compliance (COC) for the VSC 24 require removal of spent fuel from the cask, until such time that WEpCO has other options available to it to remove spent fuel from a eask in the event conditions warrant it: and :

2. Order users of he VSC 24 cask not to load VSC 24 casks until the COC, safety analysis report (SAR), md safety evaluation report (SER) are

amended to contain operating controls and limits thet pre.;nt haiardous ,

conditions, including but cot limited to the generation of explosive gases, due to VSC 24 material reactions with environments encbontered during loading, storage, and unloading of the VSC 24 cask. *lhe SAR and SER rnust be a nended such it.st each operating control and limit is clearly -; documcated and justified in the technical review sections of the SAR ' and associated SER as necessary and sufficient fe rafe cask operation. The petition has been referred to me pursuant to 10 C.F.R. 6 2.206. The <

                    - NRC letters dated October 11 and December 10,1996, to Mr. Dennis Dums, on -

i behalf of *he Petitioner, acknowledged receipt of the petition and provided the NRC Staff's determination that the petition did not require immediate action by

                     -the NRC. Notice of receipt was published in the Federal Register on December

16. 1996 (61 IVd. Reg. 66.063).~

On the h. r s of the NRC Staff's evaluation of the issues an'd for the reasons

                    . given below the lYtitioner's requests are denied.

II. HACKGROUND i

                         *lhe Petitioner's first request is for the NRC to order WEPCO to maintain sufficient empty space in tie spent fuel pool at Point Beach to accommodate                                                                                             ;

the unkiading of a VSC 24 spent fuel storage cask; NRC regulations include a requirement that an independent spent fuel storage installation (ISFSI) be , designed to provide for the ready retrievel of spent fuel or high-level radioactive 329 i 4 i S Y 4 yww- .aw- , ,e **-wv s. *<w - v- --,:w-.w-,,y--wv--,er.-v--yes-~ sw- - , - . e. -v . r m- - w r - nr+--- -mwr wm a- - pm-w y

waste for further processing or dhpmal. This requirement is applicable to ISFSis so that the stored spent fuel can be retrieved for transport to either a monitored retrievable storage installation (MRS) or a high level waste repository whenever it becomes available. This regulation,10 C.F.R. I 72.122(I), provides as follows: (4 ltetrievabilny. $ttwage systems snust be designed to allow ready retrieva! of spent fuel or high-level radio,icuve waste for further processing or dapmal. in addition to the regulatory requiremen's in section 72.122(f) pertaining to retrieval of the fuel assemblics for further processing or disposal, there are ceanin events or conditions that could warrant removing a VSC 24 cask from an ISFSI and returning the multiassembly sealed basket (MSil) to the spent fuel pool and unloading the stored fuel assemblics. The COC requires a VSC-24 cask to be returned to the spent fuel pool in response to those design basis events or conditions that may challenga the integrity of the storage cuk or the cladding of the spent fuel assemblics.' Petitioner's second request is for an 14RC order to WEPCO and other users of VSC 24 casks not to lost additional casks until the COC, the SAR, and the i SER are amended to contain operating controls and limits to prevent haiardous conditions. On May 28.1996, a hydrogen gas ignition occurred during the welding of the shield lid after spent fuel had been loaded into a VSC 24 ed at the Ibint Ileach Nuclear Plant. The hydrogen was formed by a chemical reaction between a rine based coating (Carbo 7jne 11) and the borated water in the spent fuel pool. Fvllowing the event, the NRC issued confirmatory action letters (CALs) to those Licensees using or planning to use VSC 24 casks for the storage of spent nuclear fuel (i.e., Licensees for Point Ileach, , Palisades, and Arkansas Nuclear One).1he CALs documented the Licensees' ) commitments not to load or unload a VSC-24 cask without resolution of material compatibility issues identified in NRC llulletin 96-04, " Chemical, Galvanic, or Other Reactions in Spent Fuel Storage and 11ansportation Casks," dated July 5,1996, and subsequent confirmation of corrective actions by the NRC. The Staff has acknowledged that the event demonstrated that the SAR and related NRC review, as documented in the SER, did not adequately address the use of a zinc-based coating and its reaction with the acidic wrter in spent fuel pools.

   'The retkmns sectsons or the CDC inciale requirenwits tre returmng a YSC 24 cask to the spent ruel pool anNur unhahng the cans-Secune i 13. "Maunum Wrnusuble Air oudet Ternperature".

Secuos l.210. Tine unut ror Drmrung the MSB", Section i 215 *Wndhng He.ght*; and secuoe 13 4, Thermat l'erictmana" nach wccon is discussed later is dus Dectuon 330 J

i ne Licensees using VSCb4 casks submitted to the NRC information on operatine controls and limits to prevent hazardous conditions implemented in . respo,se to NRC Bulletin 96 04 and subsequent Staff inquiries._ De submittals from the Licensees included evaluations of possible material interactions and provided descriptions of how procedures were revired. De revisions include ; controls for the environments that the casks encounter during use, requirements for inspections and environtnental sampling, and additional precautions for

           ; various cask operations. De NRC Staff has evaluated these responses for

[ Arkansas Nuclear One (ANO) and Point lleach and, as documented in the safety i evaluations dated December 3,1996, and April 8,1997, determined that the ' operating controls and limits proposed by these Licensees are acceptable and satisfy regulatory requirements; By a separate letter also dated Decunber 3, ,

           - 1996, the Staff informed the Licensee for ANO that its corrective actions had                                                                                         >

been verified by inspecti< ns performed by the NRC Staff. Shortly thereafter, the Licensee initiated cask loading activities.8 He NRC will perform inspections in the near future in order to verify corrective actions implemented at Point Beach. ' he revi2w of responses to the bulletin related to Palisades is ongoing. Cask operations at Point Beach and Palisades continue to be limited by the Licensees' commitments described in CALs. r III. DISCUSSION . As noted, the petition requests two actions he taken by the NRC. Rey are addressed below.

                                                                                                                               ,                                                   l Item 11 Order WF.PCO to Retain Twenty.Four Spaces in the                                                                                                              !

Point Hench Spent Ibel Pool ne first requested action cads for the NRC to issue an order to WEPCO to retain twenty four empty and available spaces in the point Beach spent fuel pool to provide the capability to unload a VSC-24 dry storage cask. He two basic reasons to return a cask to the spent fuel pool would be either to (1) retrieve the fuel assemblies for further processing or disposal pursuant to section 72.122(I), 3The NRC Staff is kicking into apwin from thet ecs on de need to perform weld seper +3 the weWang or I

         - tte stueld bd into the MSBs of several VSC 24 cads This potential poblem is not selaiev. Nuested arnens or supparung intornution cited in de pennon.11e NRC $taff deternuned that the tua          . this Direct #s -

Decision should hat be delay 4 pending eesoluton of potential problems auociaire muh tb Depairs because the evid sepairs are ant renneed to eu cerns presented in de pection mal the weWm, how .eing addressed by oneng NRC activities. De IWtoner was informed of de wekbag tuue and tw NRO Staff's deciuon to not include the lune in de Staft's evaluadon of de peution 331-9 4 1.1 -. ,n,...-,w.w-~ ~.u + + - + .c.. -e , r, , , >..-.m- .~r- # ~v. . , - , - - ,,,,, . , , ,, -, ,, .- . . . .

or (2) respond to an event or condition that has potentially degraded the cask or spent fuel in regard to the requirements established in the COC, As previously discussed, section 72.122(f) sets forth requirements pertaining to retrieval of the fuel for further processing or disposal; however, it provides no basis for the NRC to require a licensee to maintain a specified reserve capacity in the spent fuel pool. I':ensees will have considerable opportunity to 1.lan and schedule the activities associated with retrieving fuel assemblies from esisting storage casks for transfer to other casks for further pmcessing or disposal. 'Ihis ability to control the activity includes either ensuring that existing spent fuel pool facilities will suppoft the transfer or developing alternate approaches. Alternate approaches could involve, for example, making room in spent fuel pools by use of other storage or transportation casks, expanding the wet stoinge capacity by , making changes to the spent fuel pool or other parts of the reactor facility, or development of a system for difect cask to-cask transfer under dry conditions.

 "Iherefore, the design requirement for ready remeval in secilon 72.122(f) does not provide a basis for issuing an order as requested by the Petitioner.                                          7 Similarly, requiring the Licensee to maintain space in the spent fuel pool is not necessary as a contingency for certain events or conditions for which a cask must be returned to the spent fuel pool to facilitate inspections or ensure adequate cooling of the fuel assemblies, During its reviews performed during certification of the VSC 24 design, the NRC Staff confirmed that the design fea'uas of the cask provide reasonable assurance that the cask and fuel assemblies will cor. fine the radioactive materials following the design basis events estabhshed for dry storage casks. 'lhese design features include the confinement function provided by the welded MSB, the cooling and shielding functions provided by the ventilated concrete cask (VCC), the limitations on the fuel to be stored, and i other cask characteristics and limitations placed on its use that were relied upon during the NRC's certification of the cask. Although the NRC Staff considered it prudent to require a cask to be returned to the spent fuel pool to ensure cooling of the spent fuel and support inspections to confirm that the cask could remain in service following certain design basis events, she ability of the VSC 24 casks l

to withstand such events made it unnecessary for the NRC to include specific time constraints in which the cperation needed to be completed.2 in the event that a condition would arise requiring a cask to be retm3 to the spent fuel pool, the continued continement of the radioactive materians he MSD would afford the Licensee ample time to develop corrective actimi. ' would maintain safe storage conditions and minimite occupational exposures. 3 the possuos that a tine urgent unlanding of a can ered ant tie conudered is also supported tiy de analysis of a hypodwtscal event tavolving ow future of ou stored fuel pins esth subsequent giound level tecach of an MSa that was presented in the s Aa for the VsC 24 druga Although no edLa bed accident tenuha to such futurea, the ewat was analyted to demonsvare the knused rasbologkal comequrnces from necidreas savolving VSC 24 cads 332

lhe design features of the cask, the unlikely nature of events that may require unloading a cask, and the NRC Staff *s judgment that Licensees could develop an alternate approach if a spent fuel pool could not support an immediate unloading of a cask have previously been cited as reasonable justification for not requiring Lice,tsees to maintain a fised reserve capacity in spent fuel pools.* Requirements defining conditions for returning a cask to the spent fuel pool were inc5ded in the COC for the VSC 24 cask in order to rnalntain the cask components and stored spent fuel assembhes within the boundaries evaluated and accepted by the NRC Staf f during the certification process. The COC addresses those events or conditions that might lead to degradation of the ca k or fuel assemblics. The required actions normally include restoring operations to within the acceptable limits or otherwise ensuring the spent fuel is placed in a safe storage condition. The COC requirements for some events or conditions include returning the MSH to the spent fuel pool to provide a safe storage condition and unloading of the spent fuel assemblies in order to support inspections of the cask. The COC-required action in sectLm 1.2.10. " Time Limit for Draining the MSD," states that a cask should be returned to the spent fuel pool for cooling if the water cannot be drained within the specified time after the MSB is removed fiom the spent fuel pool with twenty four spent fuel assembaies. The referenced draining operation is part of the cask loading sequence and it ' :asonable to assume, therefore, that the cask loading area within or adjacont to the spent fuel pool would be available for the cask s'nould this contingency need to be implemented. Further, the COC-required action is meant to restore cooling ta maintain safety margins pertaining to fuel assembly suberiticahty and can be accomplished without unloading the fuel assemblies from the MSD. It is likely, however, that the locations in the spent fuel pool that had contained the fuel assemblies loaded into the storage cask wt,uld remain available during the loading and draining of the cask, Section 1.2.15, llandling licight," requires fuel assemblies to be returned to the spent fuel pool, and inspections and evaluations performed for cask components in the event a loaded cask is dropped from a height greater than 18 inches. The COC prohibits handling of a loaded VCC at a height greater than 80 inches. The NRC evaluation of the MSU drop analysis concurred that drops up to 80 inches of the MSB inside the VCC can be sustained without breaching the confinement boundary, preventing removal of the spent fuel assemblies, or causing a criticality accident. Ilowever, it is deemed prudent to ;eturn the cask to the spent fuel pool to perform inspections and evaluations in the event a cask esperiences a significant drop, which is considered to be a drop from a 8 ice reinhiuon of rubbe comments pubinhed with rulemnLmgt to add the VsC44 cak (58 led. Reg.17.H8) and TN44 tak (58 fed Reg $1.76h to the het of NRe-certshed cakt 333 f

         ' height greater than 18 inches. 'Ihe requirement to perform such inspections and evaluations was, therefore, included in the COC in the event that a cask were to be dropped during movement, llowever, since the most likely time for a cask drop event to occur would be during movement of a newly loaded cask to the ISI?SI, it is reasonable to assume that the spaces in the spent fuel pool that
          - had contained the fuel assemblies loaded into the cask would remain available.
         - Moreover, even assuming for the sake of this analysis that the drop occurs
          - when spaces might not be available in the spent fuel pool, reviews of the cask -

have shown that the cask and fuel will remain intact iollowing a drop from the maximurn allowable f.eight. Because a drop from the maximum allowable height

          = would not po:. e immediate threat to the safety of the public or plant personnel, salequate time _ womJ be available for the Licensee to develop and implement approaches to perform the required inapections and evaluations if spaces were not available in the spent fuci pool to support an immediate unloading of the          +

cask. Temporary shielding, loadmg the affected MSB into a spare VCC, placing the affected MSB into the cask loading area within or adjacent to the spent fuel pool, or other contingency actions could ensure safe storage conditions while , the Licensee developed and implemented an approach to allow for the actual unloadhg of the cask that had been dropped.

               '!he requirements contained in sections 1.2.3, " Maximum permissible Air Outlet Temperature " and .l.3.4, "Ihermal Performance," were included in b COC to provide reasonable assurance that the temperatures of the fuel cladding and the VSC 24 ccnerete do not exceed design limits. Concrete temperature limits are intended to prevent gradual degradation of the VCC and the shielding it pmvides for the MSB, which is the containment vessel for the spent fuel. Other i-          temperature limits pertain to the fuel cladding and are intended to malatain the

[ stored fuel assemblies below the temperatures at which damage might occur, l Ilowever,in the event that excessive temperatures are detected, cooling of the cask and subsequent placement of the MSD into the spent fuel pool, if necessary, are sufficient to avoid immediate safety concerns. Because safe storage of - the fuel assemblies is achieved by placing the affected MSB into_ the cask loading area adjacent to or within the spent fuel pool, the actual unloading of the assemblies from the MSB to the storage racks within the spent fuel pool I

         . can await the Licensee's development of alternative approaches if that were necessary due to a lack ~of storage space in the spent fuel pool. Such approaches may require the Licensee to make modifications to the spent fuel pool or other parts of the reactor facility.

In addition to the specific COC requirements previously discussed, a cask might'need to be returned to the spent fuel pool if the cask fails to meet some criteria provided in NRC regulations or the COC and should, therefore, be removed from servicci Tests and surveillances performed before and after loading spent fuel into a storage cask are designed to detect failures to conform to 334

design or regulatory requirernents before a problern presents an imminent threat to the cask or stored fuel. Therefore, while discovery of a nonconformance or previously unidentified vulnerability may require removing c cask from service as part of a Licensee's corrective actions, it is highly improbable that the discovery of such a condition would pose an immedialc Safety concern. As in the previous examples, safe storage of the spent fuel could be accomplished by returning the affected MSil to the cask loading area within or adhcent to the spent fuel pool and the MSil and spent fuel could rems en there wnile the Licensee determined an appropriate course of action, including provisions for unloading :he cask, if necessary. In sum, no credible nccident has been identified that would require the immediate ualoading of a storage cask as a necersary protective measure to avoid significant radiological consequences to members of the public, in addition, there is no event or condition that was identified during the certification of the VSC-24 cask that would require a time-urgent unloading of a cask. Therefore, there is no need for NRC to require continuous availability of space in the spent fuel pool to accommodate the potential need to unload a cask.12urther, the NRC Staff has reasonable assurance that Licensees could,if necessary, develop and implement an approach to unload a cask if required to do so by unplanned events or conditions, such as those identified in the COC If space is not immediately available in the spent fuel pool, thore would be time to make it available by relocating other spent fuel assembhes or removing tham for temporary storage in a cask or by making modifications to the spent fuel pool or other parts of the reactor facility.1herefore, the NRC does not See a need to require the Licensee to reserve a fised number of vacant spaces in the spent fuel pool or to maintain the capability to retrieve the spent fuel from a cask within a specified period of time, particularly when there is no such prescriptive requirement stated in NRC rules. Item 2: Order VSC 24 US rs Not to Load Casks Pending Amendment of Documents The petitioner's second request was for the NRC to order all users of the VSC 24 cask not to load VSC 24 casks until the COC, the SAR, and the SER are amended to contain operating controls and lirnits that prevent harardous conditions. As noted previously, following the event at point Beach, the NRC Staff secognized that additional evaluation of potential material interactions was warranted for all transpc.rtation and storage casks. In regard to the VSC-24 cask, the event and subsequeni NRC inspections made it apparent that actual changes in the operating procedures or the design of the cask would be necessary, CALs were issued to confirm Licensecs' commitments to refrain from loading VSC-24 casks pending completion of the Staff's review of the responses to NRC Bulletin 335 1 l l i l

I 9644 and verification of the associated corrective actione. As discuued, the CALs established a procers by which the NRC Staff could obtain confidence that operating controls and limits to address potential hatardous conditions are developed and implemented by each Licensee using VSC 24 casks. In particular, the CAL process ensures that Licensees will incorporate the necessary operating controls and limits into revised plant procedures. Moreover, under existing NP" requirements, the Liccesce must adeq Jately implement those ! revised procedures. Ibr this reason, no changes to the CDC or the SAR are needed to ensure that enforceable operating controls and limits are in place to address potential hazardous conditions during the loading or unloading of a cask, Purther, as previously i'.dicated, the Staff has documented the process, information, and results of its review of the Licensee's response to Bulletin 9MM for use of the VSC 24 at ANO and Point Deach in safety evaluations available for public review. De NRC Staff is currently reviewing the responses to the bulletin submitted by the Licensee for Palisades. Although the rions taken as part of the CAL process provide adequate assurance that technical and regulatory compliance issues raised by the event et Point Ileach will be resolved before a Licensee loads or unloads a VSC 24 cask, the NRC Staff agrees with the Petitioner that it would be beneficial if the SAR and other licensing basis documents accurately describeu .e identified chemical reaction and the associated operating controls and limits. The NRC Staff is currently reviewing a proposed amendment to the SAR and the COC for the VSC 24 cask design and will ensure that the inforination related to the identified chemical reaction and associated operating controls is adequately addressed in the appropriate licensing basis document. In addition, the NRC Staff is processing a petition for rulemaking, PRM 72 3, that may lead to additional updating of ISFSI SARs and the inclusion of information on operating controls and limits implemented as a result of the event at Point Beach. Ilowever, the previously discussed contiols to be implemented by the Lic(nsees and verified by the NRC Staff as part of the CAL process, and the enforceability of those controls under existing NRC requirements, make it unnecessary to require revision of the specific licensing documents cited by the Petitioner as a precondition for resuming cask operations at the facilities using VSC 24 casks. IV. CONCLUSION He Petitioner requested tnat the NRC (1) require WEPCO to retain twenty. four empty and available spaces in the Poin' Beach Nuclear Plant spent fuel pool to accommodate retrieval of spent fuel from a VSC 24 cask, and (2) prohibit loading of VSC 24 casks until the COC, the SAR, and the Mu' are amended to contain operating controls and limits to prevent huardous conditions. Each of 336

the claims by the Petitioner has been reviewed. I conclude that for the reasons discussed above, no adequate basis exirts for granting tha Petitioner's request for either (1) requiring the Licensee for Point Ileach to re :rve a fixed number o!~acant spaces in the spent fuel pool or (2) suspension of the Licenses s' use of the general license for dry cask storage of spent nuclear f ael at Palisades,

,                    Point 14ach, or Arkansas Nuclear One pending revision of the SAR, the SER, g-                    and the COC for the VSC-24 cask.

P- A copy of this Decision will be filed with the Secretary of the Commission g for the Commission to review in accordance with 10 C.F.R. { ?.206(c). As j provided by this regulation, this Decision will constitute the final action of the Commission 25 days after issuan.;e unless t' Coramission, on its own motion, institutes a review of the Decision within t' at t ime. _* FOR Tile NUCLEAR REGULATORY COMMISSION Samuel J Collins, Director Office et Mclear Reactor Regul.itica ' Dated at Rockville. Maryland, this 17th day of April 1997. 1 337 E mm umi miII p

$3

Cite as 45 NRC 338 (1997) DD-9710 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGbARDS Carl J. Paperiello, Director 1 .

     " In the Matter of                                               Docket No,040-07102 SHIELDALLOY METALLURGICAL l         CORPORATION .

l (Newfleid, New Jersey) April 15,1997 By an undated letter received October 11, 1996, and surplemented by a i letter dated February 7,1997, Mr. Sherrood Bauman, Chairperson of Save Wills Creek (Petitio..er), requested inodificatior of Shieldslloy Metallurgical Corporation's (SMC) license to allow only possession of radioactiv, material for the express purpose of de:ommissioning and decontam nating its Newfield, New Jersey facility, and further requested that current operations at the facility that result in additional radioactive material being st) red at the site be halted. The request vas considered as a petition submitted pursuant to 10 C.F.R. 6 0.206. In-a Director's Decision dated April 15, 1997,_t'ie Diiecer of Nuclear Material Safety and Sar eguards granted in part and denied in part the relief sought by Petitioner.? The Director concluded that concerns regarding SMC's

     - proposed decor missioning funding plan warran,ed conditioning SMC's license as part of any futu e renewal to require SMC to provide additional proof of a proposed slag disposition method, in the form of an NRC. approved export application, within 1 year of the license's reacwal. Additionally, any renewed SMC license will require financial assurance commensurate it value with the costs of offsite disposal for future source-mnterial pessession increases. The Director also concluded that Petitioner had otherwise failed to provide a basis -

to warrant modification of SMC's license in the manner requested or to halt current operations. O t-l l l o ., m s -

                   . DIRECTOR'S DECISION .UNDER 10 C.F.R. 5 2.206

1. INTRODUCTION r In an undated letter addressed to U.S. Nuclear Regulatory Commission

("NRC") Chairman Shirley Jackson and received on October iI,1996, Sher-wood Bauman, Chairperson of Save Wills Creek (" Petitioner"), requested that j the NRC take action with respect to NRC Licensee Shieldalloy Metallurgical

                                                                                                                      'l
    '        Corporation ("SMC"), of Newfield, riew Jersey. The Petitioner requested, pur-                           -!

suant to 10 C.F.R. 6 2.206, that the NRC ' modify SMC's license to allow only. 4

         - possession of radioactive material for the express purpose of decommissioning
           'and decontaminating its Newfield facility, and that current operations rest.! ting in additional radioactive material being stored at the site be immediately halted.

i .3 He Pet tioner citer the lack of adequate financial assurance, as required by 10

                                               .                                                                        1 C.F.R. 6 40.36, as the basis for his requesti                                   .

y , De Petitioner submitted a followup letter, addressed ta the NRC Executiec Director for Operations and dated Rbruary 7,1997, reiterating the above request. In this letter, the Petitioner stated that SMC is attempting to reclassify wastes as potential resources ',ar which the Petitioner believes there is no viable market.

. Ibrthermore, the Ittitioner concludes that without a viable market and the i

resultaat inadequate financial assurance for the company, SMC is jeopardizing the health and safety of the local Newfield community. By letter dated November 14,1996, I formally acknowledged receipt of % Petitioner's original correspondeace and mformed the Petitioner that his reques.

         - was being treated pursuant to section 2.206 of the Commission's regulations.
           ' A notice of receipt of the petition was published in the Federal Register on..

Thursday, November 21,19% (61 fid. Reg. 59,251). By letter dated March 7, 1997, I formally acknowledged receipt of the Petitioner's supplementary letter, I. have evaluated the Petitioner's request and have determined that, for the reasons stated below, the petition is granted in prt and denied in part.. II. BACKGROUND At its Newfield, New Jersey facility, SMC processes pyrochlore, a con.en-trated ore containing columbium (niobium), to produce ferro-columbi"m, an additive / conditioner used in the production of specialty steel and superalloys. The pyrochtere contains, by weight, more than 0.05% natural taanium and tho-rium, which are source materials and therefore require an NRC license pursuant to 10 C.F.R. Part 40. SMO operates this process under the authority of NRC Source Material License Do. SMB-743. 339 t 2 a _,0~

During the manufacturing process, the radioactive materials are concentrted in both high-temperature slag and baghouse 8 dust, which are then stored in the source-material storage yard at the site. The slag contains most of the licensed material. In a letter to the NRC, dated June 24, 1996, the Licensec indicated that the concentration of source material in the baghouse dust is, on average, less than the " unimportant quantity" source material threshold of 0.05% by weight, as dese,ibed in 10 CP.R.140.13(a),2 and need not be treated as 5; licensed material after it is removed from the site. The Licensee has stored source material in this manner at the Newfield site since the 1950s and has accumulated approximately 295,000 kilograms (kg) of thorium and 40,000 kg of t uranium at the site. SMC's current license limits SMC to 303,050 kg of thorium and 45,000 kg of uranium. Dat license expired on July 31, 1985, and SMC has continued operations in accordance with its existing license under the timely renewal provisions of 10 C.F.R. b 40.42(a). He SMC site has been included in the NRC's Site Decommiss!oning Management Plan beause it centains a larye volume of contaminated material for which disposal may prove difficult. [ De primary issue significantly delaying SMC's license renewal is SMC's ability to meet the financial assurance requirements of section 40.36.3 To meet its obligation under section 40.36, SMC originally provided the NRC with a Letter of Credit, dated July 23,1990, in the a loont of $750,6 to serve as financial assurance pending completion or the NRC's review of SMC's decommbsioning funding plan, in September 1993, SMC notified the NRC that it had filed for bankruptcy under Chapter 11 of the U.S. Bankruptcy Code. At that time, SMC also informed the NRC that it could not provide an acceptable decommissioning funding plan for reaching unrestricted release limits

hy disposing of all stored material in a

         ' The baghouses cotynn 61ters competwd of cloth (or sirmlar naterial) arranged la a tubular fashion in an enclosed hnuung The efLt! stream from tha produccon ama is bkywn through the hlter be;t which trap the particubus on Elt collected material that builds up on the bugs. As the buildup of naterial on the bags increases, so too does resistate to Row. br that reason, the baghcuw hiten are equipped with shaking / vibrating devices to remove the rollected dust and recondition the tugt The rated ef8ciency of the hiters used in the t>lli baghouses is over 99 1 2

Onder section 40.13(ak any person is esempt from the requireness of 10 CF R. Part 40 and from the requirements for a hsense under section 62 of the Atomic Energy Act to the cuent that such perwn receives, j r possesies, uses, transfers or deliven enurce mateful in any chenucal nusture, compwnd, sohmon. or alloy in which the source matenalis by weight leu than 0 0$% of the nus'ure, compound, soluta or alloy 3 ) The NRC's f.aancial assursnce requirements in seccon 40.% as pertain to sMC's Newheld license, state that. (a) Each applicant for a specs 6c license aut' artting the possession and use of more than 100.uu of source nuierial in a readily disperuble form shall subnut a decomnussiomng fundmg plan [DFP) a ,> desenbdin paragraph (d)of this secoon. (d) Each lDFPI naist contaan a cost estimate for decommissiomag and a descripuon of the method lunch as a prepaynwnt, a surety, or an external sinking fund as described in 6 40Re}} or assuring funds for decorumsuoning.

         *11.4 NRC's guidance for unrestricted release hmits can be found in " Disposal or Oraite Storage of Taorium or Uramum Wastes from Past Operauons"(46 Fed R- 52.061 (oct. 23,198M 340 i

a

licented disposal facility. Despite SMC's filing for bartuptcy and ~ continued cfforts to satisfy _'the NRC's financial assurance requirements, SMC has'and continues to maintain public health and safety at its Newfie;d facility during

     -. continued operations 'under its existing license. Therefore, the status of current
   ; pia..ic health and safety protection is not at issue in this case.

By letter dated December 12,1995, SMC submitted a new decommissioning funding plan to the NRC, proposing' enat the licensed slag be exported for use in steel prodetion. ~ ne decommiss' aing funding plar also proposes ~ that SMC sell tir baghouse; dust domestically-(for cement utanufacturing)--

       - without restriction because it is, on average, less than the 10 C.F.R. 6 40.13(a) ur;important quantity" threshold ~ described above. Finally, und" the new
   ' decommissioning funding plaa, SM'.: would decontaminate and decommission
       ' the remainder of the Newfield site, after offsite shipment of the aforementioned
     ' prcHucts and-in accordance with the NRC's unrestricted release criteria, by--

disposing of remaining contaminated structures and soils in a licensed disposal facility, in December 1994, SMC submitted an application to tbc NRC for a license to

. export ,a test shipment of slag to a steel mill in Trinidad. The NRC's review of

   = the export license application became moot in early 1996 when public concern

[ in "Irinidad led SMC's potential customer to reconsider purchasing tu material. I: SMC has unofficially indicated to the NRC that it is currently negotiating with other steel mills and will likely revise its export application f export to steel reall* in one or more countries during 1997/ _ . ' y letter dated June 24,1996iSMC requested permission ..r the proposed - I domestic sale aad transfer of the baghouse dust to unlicensed persons; the Staff - is currently reviewing the request. III. DISCUSSION He Petitioner cites the lack of adequate financial assurance, as required by. section 40.36, as the basis for '1is request. ' The Petitioner states that SMC is : attempting to redassify wastes as potential resources for which the Petitioner believes there is no viable market. Nrtherinore, the Petitioner concludes that lacking both a viable market and adequate decommisMoning funding, SMC is'

   - jeopardizing the health and safety of the local Newfield community. To support his request, the Petitioner presents three factors he believes are relevant to his .
     - petition:.

1. The Petitioner stated that the NRC's draft environmental impact state-

                 . ment, dited July 1996, for SMC's Cambridge facility (Docket 040-8948),

discuv.ed an identical proposal to sell slag from tne Cambridge site. As . part Of that discussion, the Petitioner noted that the NRC Staff stated 341 I m

that SMC could not actually demonstrate that SMC's proposal for sale of ferro-columbium slag at the Cambridge site is a workable and viable option.

2. The Petitioner also stated that to piove the lack of marketability for sale of ferro<olumbium, the NRC could determine whether or not potential customers in the United States would rquire a license to possess the material in question. He Petitioner believes that few, if any, domestic companies will be willing to obtain any NRC licenses that may be required for the use of this material.

3. Finally, the Petitioner stated that the only customer SMC has bean able to locate, to date, was not in the United States, but in an ur.derdeveloped third-world country with little p;otection After adverse publicity in the affected country, the facility purchasing the material canceled its orcer, and SMC has been unable to develop a new market during the succeeding 3 years.

A. Regulatcry Framework I, Summary of 10 C.F.R. f IO.36 Under section 40.36, a licensee is required to submit a detaiied 6eommis-l sioning funding plan, Jescribing both the plan for decommissioning the site upon termination of operations and the method of assuring funds to complete the ac-tions described in the <lecommissioning plan. The purpose of this requirement is to ensure that a licensee possesses sufficient funds to eventually decontami-nate and decommission the site to a level at which public health and safety i; assured. This rule was originally implemented in 1990. The NRC generally requires its licensees to provide financ al assurance sufficient to decommission a site for unrestricted release consistent with the definition of decommission-ing in 10 C.F.R. 6 40.4. To meet these unrestricted release criteria, licensees generally transfer any radioactive waste generated during decommissioning to a licensed disposal facilitv, liowever, in some cases the Staff has used its dis-cretion to accept lesser amounts of financial assurance, based on a finding of the acceptability of alternative approaches (e.g., in situ disposal) or a binding commitment (such , a license condition or NRC order) from the licensee to pursue alternative approaches. In cases that involve a major federal action and where the potential environmen'al impacts of the alternative approaches may be significant, the NRC prepares an Environmental Impact Statement (EIS) and Record of Decision in eccordance with the requirements of 10 C.F.R. Part S t. 342 1 w n

2, Application of 10 C.F.R.140.36 to Licer,se No. ShiB 743

         . Prior to 1990, the NRC did not require financial assurance for decommis-sioning from its licensees. During the period prior to the rule's implementation, SMC amassed large quantities of slag at the site contaminated with source ma-terial. Because SMC was in timely renewal at the time, SMC was only required w provide certification of financial asste ance for $750,000 to meet the financial assurance requirements pursuant to 10 C.F.R. 5 40.36(c)(2).

In 1993, after SMC notified the NRC that it could not provio: adequate-financial assurance to meet unrestricted release limits, the NRC began to develop an EIS for the decommissioning of the SMC Newfield site in respense to the Licensee's request to dispose of the contaminated sing and baghouse dust in stru, The NRC susg, ended EIS development in 1995 when the Licensee informed the

    - NRC of its intent to transfer the slag for use in steel smelting and the baghouse dust for other, nonlicensed ourposes, in December 1995, SMC submitted a modified decommissioning funding            i plan. Dat plan proposes that the licensed slag be exported for use in steel production as a fluxing agent that also remc re impurities from the steel mixture, the result being a derived slag cont?ining the impurities including the source material. This derived slag would be sold as an aggregate with no restrictions, because the consentrations of uranium and thonum would be, on average, well below the NRC's 10 C.F.R. 640.13(a) " unimportant quantity" limit, ne concentration of source material in the derived slag is

l. less than in SMC's' slag because it is diluted with other inert materials (such

! as time and alumina) during the smelting process. He latest decommissioning l funding plan also proposes that SMC sell the baghouse dust domestically for other purposes (e.g., cement manufacturing) without restriction because the contaminated baghouse dust wcaid also be, on average, less than 0.05% of source materie.1 by weight. By letter dated June 24, 1996, SMC requested permission fo the proposed domestic sale of the baghouse dust; the Staff l is currently reviewing the request. Finally, under the new decommissioning funding plan, SMC would decontamint :e e ad decommission the remainder of the Newfield site to conform to the NRC's utrestricted release limits; contaminated structures, soils, and radioactive wastes generated during decontamination and decommissioning would be sent to a licensed disposal facility. SMC calculated the cost for executing the decommissioning activities described in the 1995 modified decommissioning plan to be slightly less than $750,000. The NRC has held a Letter of Credit for $750,000 from SMC, pursuant to 10 C.F.R. I40.36(c)(2), since 1990. On February 26,1997, at SMC's request, the NRC drew upon the Letter of Credit and is currently holding the funds in . 343 w

trust.s Because SMC has in place the required decommissioning funding plan and a financial assurance mechanism that encompasses the cost estimates to perform the actions proposed in the decommissioning funding plan, SMC is c>nsidered to be in compliance with section 40.36 until such time as the NRC d:termines whether the submitted decommissioning funding plan is acceptable (ts discussed below). Herefore, the issue beias decided herein is whether the Licensee's current decommissioning funding plan is asceptable. H. Acceptability of Decommissioning Funding Plan - In MCY-96-210, dated October 1,1996, the NRC Staff informed the Com-mission of its concerns regarding the accepcability of SMC's decommissioning funding phn and described its plan to resolve the associated issues. As part of its plan, the Staff informed the Commission of its intent to permit interim ac-ceptance of the decommissioning funding plan to allow renewal of the licensa; however, the Staff's plan also requires that SMC present adequate evidence (e g., obtaining NRC approval of an export license application) regarding the marketability of the slag within one year after renewal of License SMB-743. If SMC cannot provric such evidence, the NRC will econsider the acceptability of the Licensee's dscommissioning funding plan. His could include rr juiring the plan': revision to include a different approach for decommissioning and d.sposal of the rndioactive slag (e.g., in situ disposal). The NRC transmitted a copy of SECY 96-21G to the Petitioner as an enclosure to the November 14, 1996 acknowledgment let cr. i in the Petitioner's February 7,1997 supplementary letter, the Petitioner elaborates upon his belief that the current decommissioning funding plan should i be considered unacceptable and the Licensee is not in compliance with the segulations in section 40.36 by stating that SMC's proposed plans to disposition the slags are neither technoigically nor financially viable. He Petitioner argues that the NRC has already stated that the sale of ferro-dolumbium slag is not viable, as referenced in the " Draft Environmental Impact Statr ment on Decommissioning of the Shieldalloy Metallurgical Corporation, Cambridge, Ohio," NUREG 1543, July 1996 : Draft E14. His is not correct.

        "Ib respective viabilities of the Newfield and Cam'xidge ferro-columbium slags for use in steel production are considered by the NRC to be different in each ca.se. As stated below, the Newfield ferro-coliimbium slag was produced using the same process that produced a previously marketed Newfield ferro-vanadium slag, demonstrating that the process using the Newfield ferro-columbium slag appears to be viable. In contrast, the Cambridge ferro-columbium slag was pro-S To racihtate its pimned exit from bankruptcy proceedings and with ttie Bankngscy Court's approval. SMC requested by letter dated October 25.1996, that the NRC draw upon the ensung tetter of Credit.

344 (

duced using a different process and different feedstock materials. Consequently, the metallurgical properties of the Cambridge slags have not yet been demon-strated to be technologically viable. For this reason, the export sale alternative v.is not included for consideration in the Draft EIS for decommissioni ng of the Cambridge site. With regard to the previously marketed ferro-vanadium slag, SMC delivered, on aver. ige, 7000 tons of ferro-vanadium slag per ye,tr to the domestic steel industry from 1991 to 1995, with the highest annual amount reaching 9000 tons. By comparison, SMC currently stores approximately 70,000 tons of ferro-columbium slag at its Newfield site. De licensed ferro-columbium slag at the Newfield site was produced in a manner similar to the ferro-vanadium slag. SMC's extensive metallurgical evaluations indicate that the ferro-columbium slag has metallurgical properties relating to the proposed steel process that are similar, if not superior, to retevant properties of the ferro-vanadium slag. He NRC Staff acknowledges the Petitioner's statemt that.the domestic use of ferro-columbium slag would likely require an nil or Agreement State license for possession and use, thus possibly constraining domestic commercial interest in the product and thereby impacting the financial viability of the slag product. liowever, SMC is marketing the material to international locations where regulatory conditions may be less of a f tor in cetermining the product's finacial viability. As part of any international export application and prior to issuance of an export license, the NRC will inform the importing government of , the proposed importation and use of the product containing the source material. l in accordance eith the International Atomic Energy Agency's Code of Practice on the Internoonal Transbour.dary Movement of Radioactive Waste. Finally, the Petitioner argues that the only potential customer SMC has ! been able to locate, to date, has been in Trinidad. Because of internal L country concerns, the customer purchasing the material canceled its order, and i SMC has been unable to develop a new market during the succeeding years, thus significantly decreasing viability of the product. The NRC agrees with the Petitionet that this raises a concern as to the viability of the proposed decommissioni.ig funding plan and therefore grants the Petitioner's request in part. He NRC intends to require, in the form of a license condition as part of any future license renewal, that SMC provide additional proof (in the form of an NRC-approved export applicat i on) of the vin',ility of thv propc d disposition method within 1 year of the license's renewal. If such proof is not forthcoming within the time limit, the NRC Staff plans to issue an order requiring the submission of a new decommissioning funding plan along with appropriate mechanisms for financial asswance. Furthermore, the NRC will include a condition in any renewed SMC license requiring SMC to provide financial assurance commensurate in value for the costs of offsite disposal for future source material possession increases. Rese two conditions are intended 345 l

m xvent SMC from continuing to accumulate licensed muerial at the site in perpt'.uity without adequate financial assurance. IV. CONCLUSION

         'Ihe Staff has carefully conddered the request of the Pe;itioner, Nr the reasons discussed above, I conclude that no substantial public health and safety concerns warrant NRC action concerning the request. Ilowever, because the Staff is proposing to impose certain restrictions on the Licensee for reasons
   - similar to those presented by the Petitioner, I grant the Pet tioner's request to that extent and deny it in other respects.

A copy of this Decision wili be placed in the Commission's Public Docnment Room, Gelman Building,2120 L Street, NW, Washington, DC, and at the Local Public Document Room for the named facility. A copy of this Decision will also be filed with the Secretary for the Commission's review as provided in 10 C.F.R. I2.206(c) of the Commission's regulations.

       ' As provided by this regulation, the Decision will constitute the final action of the Commission 25 days after issuance, unless the Commission, on its own motion, institutes a review of the Decision within that time.

l FOR THE NUCLE 6.< REGULATORY COMMISSION Carl J. Paperiello, Director

                                                                       - Office of Nuclear Material Safety and Safeguards Dated at Rockville Maryland, this l$th Jay of April 1997.

346 I 4 _ _ u

Cite as 45 NRC 347 (1997) DD-9711 UNITF.D STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION -- 1 Samuel J. Collins, Director in the Metter of Docket Nos 50-245 . 50-336 50-423 (License Nos. DPR 21 DPR 66 NPF-49) NORTHEAST UTILITIES

    - (Millstorw Nuclear ' Sower Station, Units 1,2, and 3)-                                                                              April 29,1J97 j '-       The Director, Office of Nuclee Reactor Regulation, has ejanted in part and                                      i denied in part a petition filed by Anthony L Ross requestir.g that the Commission take action with regard to Millstone Nuclear Power Station Spe,:ifically, the
    - Petitioner requested that accelerated enforcement action be taken for violations at Millstone involving procedure compliance, work control, and tagging contro!.

As a basis for his request, the Petitioner alleged that violations in these areas have - increased significantly, that many of these violations had never been assigned a severity level, and that when the violations are considered collectively, escalated enforcement action is warranted due to the repetitive nature of the violations. Ihr reasons fully explained in the Director's Decision, to the extent that the Petitioner requested that the NRC take action against the Licensee for violations in these areas, the petition has been granted; in other respects, the petition has

    . been d :nied, i

347 i

DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206 I. INTRODUCTION On October 28,1994 Mr. Anthony J. Ross (Petitioner) filed a petition with the Executive Director for Operations pursuant to section 2.206 of Title 10 of the Code of Federal Regulations (10 C.F.R. A 2.206 . By letter dated December 15,1994, the NRC informed the Petitioner that he had not provided a sufficient factual basis to warrant action under section 2.206. The NRC stated that if the Petitioner wished the SCf to take action under section 2.206, he needed to provide more information desent>ing tte specific technical violations that he alleged the NRC had not adequately addressed. By letMrs dated January 15, February 8, and February 20,1995, the Petitioner supplemented his petition by submitting lists of alleged violations. In the petition, the Petitioner reqursted that " accelerated enforcement action" be taken against Northeast Utilities (NU) for violations at Millstone' involving procedure compliance, work control, and lagging control. As a basis for his request, the Petitioner asserted that since August 1993, violations in these areas had increased significarJy, that many of these violations had never been assigned a severity level by the NRC, and that when al' of the violations are considered collectively, escalated enforcement action is warranted because of the repetitive nature of the violations. l, On February 23,1995, the NRC infonned the Pet 'er that the petition hao been referred to the Office of Nuclear Reactor Reg ilation, and that action would be taken within a reasonable time regarding the specific concert.a raised la the l petition. ! NU responded to the NRC on May 12,1995, regarding the issues raised in the petition; the l\titioner submitted a response on July i1,1995, regarding issues raised in the NU submitt al On October 14,1995, the Petitioner <ubmitted a petition requesting that the NRC take immediate enforcement action consisting of immediate suspension of he licenses to operate the ihree units at the Millstone Station, and immediate imposition of the maximum daily ::ivil penalty allowed because of the numer- t ous continuing and repetitive violations commuted by the Licensee since early 1989. The NRC informed the Petitioner by letter dated November 24,1995, that because his October 14,1995 Petition did not contain any new information but merely raised again the same issues as in his previous petition, his October 14, I Nonheast Nuclear Energy Company (NNECo/1.ieence). an electric. power cperatmg subsidiary or NU. holds Ecenses for the operation of Mdtstone Nuclear Power statJon. Uruts 1,2. and 3. p 348 D 2 9

1995 Peti; ion would be considered as an additional supplement to his January 15.1995 Petition.2 II. DISCilSSION He Petitioner requested that " accelerated enforcement action" be taken sgainst NU for violations at Millstone involving procedure compliance, work control, and tagging :ontrol. As a basis for liis request, the Petitioner alleged that since August 1993, violations in these areas had increased significantly, that many of these violations had never been assigned a severity level, and that when these violations are considered collectively with violations that had been assigned a severity level, escalated enforcement action is warranted because of the repetitive nature of the violations. In his October 14,1995 supplement to the petition, the Petitioner requested that the NRC suspend the Licensee's licenses to operate all three Millstone units, and impose a daily civil penalty until the Licensee can assure the public and NRC that ther9 will be no more violations in certain areas. In the petition and its supplements, the Petitioner provided numerous exam-pies of what he belie"ed were violations in the areas of procedure compliance, work control, and tagging control. He NRC had been aware of the examples described by the IMtioner. Rese examphs were taken from NRC inspec-tion reports dating back to 1989 and from other NRC documents. He NRC considered whether enforcement action should be taken for taese violations in accordance with the guidance provided in the " General Statement of Policy and Procedures for NRC Enforcement Actions"(Enforcement Policy)in effect at the time that the violations occurred.' As provided in the Enforcement Policy, the basic enforcement sanctions available to tiie NRC include Notices of Violation (NOVs), civil penalties, and orders of various types, includmg Suspcusion Or-l ders. As further provided in the Enforcement Policy, for those cases in which a l strong message is warranted for a significant violation that continues for mor- ! 'han one day, the NRC may exercise discretion and assess a separate violation and attendant civil penalty for each day that the vic'? ion continues. In accordance with that guidance, some of the exa.ples cited by the Petitioner were violation- for which the NRC issued a NOV, but for the majority of the 2 The Pett'iorwr aho assened in hir October 14, 1995 Peutir- that. since many of the violations tal been subumuated by the NRC inspectors and/oe the ticensee. but ha.4 not been idenufted as violations by the NRC.

the Gffue of the Inspector oeneral folG) shostd conduct a futt invesagation of the NRC's neglect. In its November 24.1995 letter, the NRC informed the Peuuoner that ttus asseruon would be referred to the Oto. In adshuon, in this letter the Pcubocer's request for immediate r.non was denied. The Peauoner's asseruon of neglect by the NRC was refened to the olo I

The Enforcement Puhey in effect at the ame that the violations occurred was set forth at 10 C.F.R. Part 2. Appendia L The Comnnwon's present Enroecement Polecy is desenbed in NUREG-160t1 349 -

examples, no NOV was issued. In some instances in which no NOV was issued, the example was considered to be of enly minor safety significance s because it was not a violation that could reasonably be expected to have been prevented by the Licensee's corrective actions for a previous violation, it was-or will be, corrected within a reasonable time, and it was not willful, and therefore, was not cited in accordance with the above-mentioned Enforcement Policy. With regard to other instances, the examples cited by the Petitioner did not constitute violations of NRC regulatory requirements, but instead were deviations from established procedures in non-safety-related areas, or simply constituted certain equipment problems or weaknesses in certain areas, which required further clarification or the attention of Licensee management. Nonetheless, the NRC shares the Petitioner's concern about the number and duration of :tese examples of failures in the areas of procedural compliance, wotk control, and ragging control. If the NRC were to reassess the examples provided by the Petitioner, it is possible that many could be classified as repetitive violations under the Enforcement Policy.' However, the NRC has determined that these examples are indicative of a more significant problem; specifically, a programmatic breakdown in management at the Millstone facility. Tine NRC has been aware of weaknesses in the Licensee's operations at Millstone, and has taken significant regulatory action as a r:su'.t. Specifically, programmatic concerns in the areas of procedural compliance, work control, and tagging control, were among the programmatic weaknesses comman to all three Millstone units, which were identified in the most recent systematic assessment l- of licensee performance (SALP) rept of Augurt 26,1994. Rese weaknesses i__ it. eluded continuing problems with praedure quality and implementation, the ) i informality in several maintenance and eagiuering programs that contributed to ircances of poor performance, and the failure to take proper corrective action at the site. Based o., these identified weaknesses, the NRC continued its increased inspection and oversight advities at the facility. On November 4,1995, the Licensee shut down Millstone Unit I for a scheduled refueling outage. During an NRC ir.spection of licensed activitica at Millstone Unit 1 in the fa:1 of 1995, the NRC identified refueling prxtices and operations regarding the spent fuel pool cooling systems that were inconsistent with the updated 'inal Safety Analysis Report (UFSJ), The NRC sent a letter to the Licensee on December 13, 1995, requiring that, before the restart of Millstone Unit 1, it inforra the NRC, pursuart to section 182a of the Atomic Ei.ergy Act of 1954, es amended, and 10 C.F.R. 6 50.54(t), of the actions taken to ensore that in the future it would operate that focility according to the terms 4 Section IV.B or the Enrorcement Pohey dews a repenove violanon as a violaion tha nasonably could have been k. anted by a twenace's correca's action for a previous violation normally occumng (1) within the past 2 years or the inspecunn at issue, or (2) <*uring the penod within the last two inspections, wtucheur is longer. 350 t

and conditions of the plant's operating license, e Commission's regulations.- and the. Ji ant's UFSAR. In Janury 1996, the NRC designated the units at Millstone as Category 2 plants. Plants in this category have weaknesses that warrant increased NRC attention until the Licensee demonstrates a period of improved performance, in libruary and March 1996, the Licensee shut down Millstone Units 2 and 3, respectively, due to design issues. In response to (1) a Licensee root cause analysis of inaccuracies in the Millstone Unit 1 UFSAR thr.t identified the potential for similar configuration-management conditions at Millstone Units 2 and 3 and (2) design configuration issues identified at these units, the NRC issued letters to the Licenxe, pursuant to section 50.54(f), on March 7 and April 4,1996. These letters required that the Licensee inform the NRC of the corrective actions taken regarding design contiguration issues at Millstone Units 2 and 3 before the restart of each u tit.5 in June 1996, the NRC designated the units at Millstone as Category 3 ' plants due to additional inspection findings regarding design bases and design control, some of which were similar to the examples the Petitioner raised. Plants in this category have significant weaknesses that warrant rr.aintaining them in a shutdown condition until the Licensee can demonstrate to the NRC that it has both establishe.d and implemented adequate programs to ensure substantial imyovement. Plants in this category require Commission authorization tn re.ume operations. On August 14,'1996, the NRC issued a Confirmatory Order directing the Licensee to contract with a third party to implement an Independent Corrective Action Verification i'rogram (ICAVP) to verify the adequacy of its efforts to establish adequate design bases and design controls. The ICAVP is intended to provide additional assurance, before each of the three Millstone units restart,- i that the Licensee has identified and corrected existW problems in the design and configuration control processes. The guidelines for approving the restart of a nuclear power plant after a shutdown resulting from a significant event, a complex hardware issue, or a - serious management deficiency are found in NRC Inspection Manual Chapter (MC) 0350, " Staff Guidelines for Festart Approval." MC 0350 states that the Staff should develop a plant-specific restart action plan for NRC oversight of each plant startup. 'Ihe restart action plan is to include those issues listed in MC 0350 that the NRC restart panel has deemed applicable to the reasons for

   -the shutdown. Ir the case of Millstone, the restart action plan will include those issues that the Petitioner has iaised; specifically, procedure compliance, work 3

By letuer dmed AprH 16,1997, the NRC clashed the inrormation is needed punuant to tecima 50.54(r). 351 l a m

e control, and tagging control. Herefore, the NRC Staff will thoroughly review these areas prior to the restart of each unit. Following a determination that the relevant issues have been identified and conected by the Licensee, the NRC Staff will make its recommendation for restart approval to the Commission regarding restart for each Millstone unit. Upon receipt of the Staff's recommendation, the Comrnission will meet to assess the recommendation and vote on whether to approve the restart of the unit. In addition, during eight NRC inspections conducted between October 1995 and Augus 1996, more than sixty apparent violations of NRC requirements were identified w Millstone, some of which were similar to the examples the Petitioner raised. Dese apparent violations were discussed with the Licensee at a public j predecisional enforcement conference held at the Millstone site on December 5, 1996. During the meeting, the Licensee stated that management failed to provde clear direction and oversight, performance standards were low, management expectations were weak, and station priorities were inappropriate. Following its evaluation of the information presented at the enforcement conference, the

  - NRC will determine whether further enforcement action is warranted for these apparent violations.

In sum, the issues raised by the Petitioner are indicative of a more fundamental problem of inadequate management oversight at the Millstone facility. He NRC has been aware of this programmatic problem and weaknesses in numerous areas of the Licensee's program, including the areas of procedural compliance, work control, and tagging control, und has taken extensive regulatory action. In particular, as a result cf action taken by the NRC, ell three units at Millstone will remain shut down untii the Commission approves restart of operations. Prior to such approval, the Licensee is required to submit a response to the NRC's section 50.54(f) letter dated April 16,1997, identifying what actions the Licensee

l. has taken to ensure tha' in the future it would operate that facility according l to the terms and conditions of the plant's operating license, the Commission's regulations, and the plant's UFSAR. His response-will encompass the areas l identified by the Petitioner and will be thoroughly reviewed by the NRC. In i addition, the NkC is currently reviewing the apparent violations that have been identified as a result of inspections conducted at the facility between October 1995 and August 1996, and, folicwing its review, will take such enforcement action as it deems is warranted.

Rese actions go beyond those requested by th- Petitioner. Herefore, to the ex'ent that the Petitioner has requested that the NRC take action against the Licensee for violations at Millstone involving procedural compliance, work control, and tagging control, the petition has been granted. Given the action niready taken by the NRC, the NRC has determined that the additional enforce-ment action requested by the Petitioner is not warranted at this time. 4 352

                                                                                           - _ - _ - -  l

III. CONCLUSION The Staff has completed its review of the information submitted by the Petitioner in his petition and its supplements. The Staff has concluded that the acticas taken by the NRC against NU are appropriate and encompass the Petitioner's examples of violations in the areas of procedure compliance, work control, and tagging control. To this extent, the Petitioner's requests for enforcement action against NU is granted, in part. In other respects, the petition is denied. As provided for in 10 C.F.R.12.206(c), a copy of this Decision will be fled with the Secretary cf the Commission for the Commission's review. This Decision will constitute the final action of the Commission 25 days after issuance unless the Commission, on its own motion, institutes review of the Decision in that time, FOR THE NUCLEAR REGULATORY COMMISSION t Samuel J. Collins, Director Office of Nuclear Reactor Regulation

Dated at Rockville, Maryland, this 29th day of April 1997.

353 3

                                                                                        -  I

Cite as 45 NRC S$5 (1997) CLl-97 5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMlbSION COMMISSIONERS: Shirley Arnt Jackson. Chairman Kenneth C, Rogers Gre:a J. Dicus Nils J. Diaz Edward McGaffigan, Jr. In the Matter of Occket No. 55 20726-SP RALPH L TETRICK

 - (Denial af Application for Reactor Operator License)                                                                             May 20,1997
          'Ihe Commission remands to the Presiding Officer the issue whether Mr. Tet-rick cor:ectly answered Question 63 of his written Senior Operator examination, and directs the Presiding Officer to :aconsider expeditiously his prior negative ruling in light of new information submitted to the Commission. The Commis-sion also grant a temporary stay of both the Presiding Officer's Initial Decision and iiis order denying reconsideration of the initial Decision (LDP-97-2,45 NRC 51 (1997), and LBP-97-6,45 NRC 130 (1997)).

MEMORANDUM AND ORDER j On February 28,1997, the Presiding Officer issued an hiitial Decision in this

 - proceeding, concluding that Ralph L Tetrick, who is currently a reactor verator -

at the Tu Ley Point Nuclear Generating Plant (Units 3 and 4), had answered correctly seventy eight out of ninety eight valid questions on his Senior Reacier Operator (SRO) written examination. This ruling terutted in Mr. Tetrick's score being changed to 79.59%. The Presiding Officer then rounded Mr. Tetrick's revised score of 79.59 to the nearest integer,80, thereby giving him a passing

 - grade on the written examination. LBP-97 2,45 NRC 51 (1997).

355 J

The NRC Staff filed a Motion for Reconsideration challenging the Presiding Officer's decision to."round up" the score. The Presiding Officer denied the 3 NRC Staff's motion. LDP-97-6,45 NRC 130 (1997). De Staff then filed with ' the Commission both a request for stay and a petition for review of LBP-97 2 and Li3P-97 6, again challenging the Presiding Officer's decision to "round up" Mr. Tetrick's test score, in response, Mr Tetrick asserted that, if the f Commission reviews the Presiding Officer's decisions on the " rounding" issue, it should also examine whether the Presiding Officer was correct in ruling that Mr, Tetrick had answered Question 63 of the SRO examination incorrectly.' In a recent letter submitted by the NRC Staff to the Commission, dated May 1, 1997, the utility's Vice-Presiden: at Wrkey Point has stated that he believes Mr. Tetrick's answer to Question 63 is a correct one. The Staff maintains otherwise. , The matter appears to turn ultimately on the interpretation of langutge in a 1 number of technical documerds, some of which may not be in the record. This issue is, at bottom, a technical one on which we are unwilling to reverse or i < affirm the Presiding Officer without further factual md techr! cal inquiry. We therefore remand in its entirety the issue of Q2stbn 63 to the Presiding Officer and direct hi n to reconsider expeditiously his prior ruling in I!ght of the utility's May 1st letter, "In Commission practice the [ Presiding Officer), rath-r thr.n the Commission itself, traditionally develops the factual record in the first instance." Georgia Institute of Tec/mology (Georgia Tech Research Reactor, Atlanta, Georgia), CL195-10, 42 NRC 1, 2 (1995). Accord Yaniec Atomic Electric Co. (Yankee Nuclear Power Station), Cll 96-7,43 NRC 235,

255 (1996)

[ We will defer a ruling on the " rounding up' issue, which remains pending before us, until after disposition of the remand. In light of our remand and the still pending " rounding up" issue, we grant a temporary stay of LDP-97-2 and p LDP-97 6. The Staff m:iy withhold issuance o: the Senior Reactor Operator

l. license to Mr. Tetrick pending further order of the Commission.

I That quesnon remis as folknvs-Plant conAtions=

                             - Preparanons are beint male for refuchng ope.atwns
                              - The refuehng cavuy is Alled with the transfer tube gae valve open
                             - Alarm annunciators Fin, srP ID LEVEL arl G-WS. CNTM,10MF ..I 1.EVFL are in alarm.

Wluch oNE of the following is the required IMMEDIATE ACTION in responsa to thee condmons?

a. Venfy elarms by checking cmumnnent sump leve! acorde, and spevil ruel level incation.

b. sound the comanment evacuation alarm

c. Imuste comamnwne ventilanon isolmion d inmme control room venulatmn notanon.

The only issue before us on appeal regarding Quesuon 6.1 ss whethe ' Mr. Tetnck's answer or "a" is aho correct (Escryone agrees that answer "b" is currecta 356 T

r IT IS SO ORDERED. Tur the Commission 2 JOllN C. Il0YLE l Secretary of it'e Commission ( l Dated at hockville, Maryland, this 20th day of May 1997.

                                                                                                                 -a 2

Comnunioter Diu was ma available for the affirmation of Gus Order. Hal he been presens, he would have approved alw Order. 357

d. _ Cite as 45 NRC 358 (1997) CLt-97 6 UNITED STATES Or AMERICA NUCLEAR RFGULATORY COMMISSION COMMISSIONERS: Shirley Ann Jackson, Chairman - 4 Kenneth C Rogers Greta J. Dicus Nils J. Diaz Edward McGaffigen, Jr. In the Matter of 4

i. RECENTS OF THE 'JNNERSITY

, OF CALIF ORNIA (Indemnity Claim) May 29,1997

            %c Commission denies tha Regents' claim for the NRC's payment of attorney's fees and expenses incurred in the Regents' defense of two private tort suits against it (subsequently settled) for alleged harm caused by radioactive releases from the NRC-licensed Argonaut nuclear test reactor at the University of California at Los Angeles (UCLA).                                            _ _

The Commission finds that section 170 of the Atomic Energy Act (known as the Price Anderson Act) bars the NRC's payment of licensee legal er,penses incurred in connection with settlements, Furthermore, the Commission finds that even if it were permitted to pay such expenses under the Act, it would not appcave the claim because by statute and under the Indemnity Agreement the Regents should have timely notified the NRC at the point where governmental

      --indemnity arose and should have sought NRC approval of the settlement of the tort cases.

ATOMIC ENERGY ACT (AEA): INTERPRETATION OF SECTION 170h (PRICE ANDERSON ACT) ne Price-Andcrron Act is best understood as barring Commission payment of licensee legal expenses incurred in connection with settlements. 42 U.S.C. 6 2210(h).

                                                  .358 4

NRC: CONSIDERATION OF INDE51NITY CLAthtS The Commission cannot authorize expenditures of government money with-out express statutory cuthority or in the face of a statutary prohibition against such payments. 31 U.S.C. Il 1341,1350. ATOhllC ENERGY ACT(AEA): INTERPRETATION CF SECTION 170h (PRICE ANDERSON ACT) Section 170h of the AEA appeareiin the original 1957 Price-Anderson Act.

      - It provides the authority for the Commission, when it anticipates making in.
      - demnity payments for public liability claims, to collabort.te with an indemnified -
       ~ person, approve p.yments of claims, take charge of such action, and settle or.

defend any such action. ATOhllC ENERGY ACT (AEA): INTERPRETATION OF SECTION 170h (PRICE ANDERSON ACT) he 197511athaway Amendment altered section 170h of the AEA by pro-viding that a Commission approved settlement "shall not include expenses in connection with the claim incurred by the person indemnified." l l ATOhllC ENERGY ACT(AEA): INTERPRETATION OF SECTION 170h (PRICE ANDERSON ACT) he 1988 Price-Anderson Act amendments loosened restrictions on govern-ment payment of legal costs and modified several of the liathaway Amendment provisions, but did not alter section 170h in any respect; therefore, the bar against indemnifying a licensee's expenses in settlements remains in place. ATONilC ENERGY ACT (AEA): . INTERPRETATION OF

      - SECTION 170h (PRICE-ANDERSON ACT) '                                                     -

he Commission believes thet a lawsuit that is dismissed voluntarily after a negotiated arrangement in which a licensee, among other things, forfeits any right to seek costs from plaintiff qualifies as a " settlement" and not a " dismissal." ATONilC ENERGY ACT (AEA): INTERPRETATION OF SECTION 170h (PRICE ANDERSON ACT) The fact that a specific provision of the Price-Anderson Act other than

       - section 170h was modMed by the 1988 Amendments to contemplate government 359 K

payment of licensee lega: costs in some situations does not mean that Congress repealed section 170h by implication,. ATOMIC EriERGY ACT (AEA): INTERPRETATION OF SECTION 170h (PRICE-ANDERSON ACT) The Price Anderson Act contemplates that at the point where governmental indemnity arises in a public 1 ability claim, the licenree will offer the government the opportunity to take over defense of the claims and manage the lawsuit. 42 U.S.C. I 2210(h).

 - ATOMIC ENERGY ACT (AEA): -INTERPRETATION OF SECTION 170h (PRICE ANDERSON ACT)
     ' Dy statute, a licensee is required both to notify the NRC that it has reached the point where government indemnification payments will be required under a publie liability claim and to seek NRC's approval of the settlement of such a claim.

ATOMIC ENERGY ACT (AEA): INTERPRETATION OF SECTION 170h (PRICE ANDERSON ACT) The Price Anderson Act 'provides for indemnification of expenses incurred defending claims against licensees, not reimbursement for expenses incurred in presenting claims to the government. DECISION

1. INTRODUCTION In a series of letters beginning on January 17, 1996, the P.cgents of th(

University of California have demanded that the Commission pay $91,375.22 in indemnification for attorneys' fees and expenses incurred in defending two private tort suits against the Regents.' The Regents seek indemnification under

 ' The Regents' imiial letter, daied Linuary 17.1996, demandi.J NRC payment of 576.102.26 More recemly,in a                        ,

letter dased Lanuary 34 1997, the Regtnis amended their cl.um to include an nahuonal $15,272.96 in legal costs. an anmunt that apparently refIcets attorneys' fees and costs the Regems have incurred in pursumg their indemmty claim wish the NRC. The Regems'subnunmas do not make clear who bears the risk of loss in the esent that the NRC tejects the inemmty clamt That presumably is a maswr of contract anong ther Regents, the r pnvate insurer, and iba law hem that has handled this matter.

.M

section 170 of the Atomic Energy Act,42 U.S.C. 6 2210 (known as 6e Price. Anderson Act), and.under their indemnity agreement with the Commission executed pursuant to that Act. - 2%e two underlying tort suits, known as the Miller and Redisch cases, sought damages for harm to plaintiffs' penons allegedly caused by releases of radioactivity during normal operations of the NRC licensed Argonaut nuclear - test reactor at the University of California at Los Angeles (UCLA) between 1979 and 1984. By late October 1996, the Regents had settled bof.i cases, which therefore were never tried or decided on the merits. He settlements resulted in the payment of no damages to plaintiffs. Under their terms, plaintiffs voluntarily dismissed their lawsuits, and the Regents relinquished all rights to seek legal costs from plaintiffs. Undes the Price-Anderson Ace and under the Commission's indemnity agree-ment with the Regents, the Commission agreed to indemnify the Regents for "public liability" exceeding $250,000 when such liability arises from a "nu-clear incident /' See section 170k,42 U.S.C. 6 2210(k). The Regerts' January 17,1996 claim for indemnity asserted that expenses incurred in defending the Miller and Redisch cases exceeded the $250,000 threshold by roughly $76,000. De Regents' private insurer apparently palu the first $250,000 in legal costs, in a Ictter dated August 6.1996, the Commission's Office of the General Counsel advised lawyers for the Regents that it was disinclined to recommend - payment of the indemnity clairs More than 6 months later, on Jamtary 31, 1997, the Regents replied and asked that their claim be presented directly to the Commission,

               . After reviewing the factual background of the Regents' indemnity claim, the relevant provisions of he Price-Anderson Act, and the Regents' letters and
          ' submissions to the NRC detailing thir claim, we have decided to deny it-- for -
          ; two independent reasons. First, the Price-Anderson Act is best understood as
          . barring Commission payment of licensee lega: expenses incurred in connection :

^ with settlements See section 170h, 42 U.S.C.12210(hk Second, even if we were able to construe the Act to permit Commission payment of such expenses as a general matter, we would not approve an indemnity payment in this case because the Regents failed to give the Commission reasonable notice of the extent of their expenses in time for the Commission to take y uctive measures. See id. Some of the expenses also appear unreasonably excessive or insufficiently related to defense of the underlying tort suits.- We detail'the reasons for our decisio;. below. We ' issue our decision

 *...       as a' formal opinion because the Regents specifically requested Commission consideration of their indemnity claim, and because our views may shed some light on seldom invoked provisions of the Price-Anderson Act.

361 L i

                                                                                                   ,                                                                             ---e

- - -- - ~. ~- .- .- II. DISCUSSION The Commission plainly cannot authorize expenditures of government money without express statutory authority or in the face of a statutory prohibitior cgainst such paymentt Both the Constitution (the Appropriations C;ause, art.1, 9 9, cl. 7) and federal statute (31 U.S.C, il 1341,1350) impose this restriction on

 ' Commission expenditures. See OJ] ice of Personnel Management v. Richmond, 496 U.S,414,424 30 (1990), Under the related " sovereign immunity" doctrine (id. at 432), a claimant may not pursue monetary relief against the government absent authority " unequivocally expressed in statutory text." lene v. Pena, i16 S. Ct. 2092, 2096 (1996).

This background law requires Jhe Commission to scrutinite the Regents' claim against the public treasury in this case with great care. We cannot discern the clear authority necessary to pay the claim. Nor would we find the claim otherwise payable even if we were able to answer the authcrity question differently.

1. Authority to Pay Contrary to the Regents' view, we believe that section 170h of the Atomic Energy Act provides the governing law. That section appeared in the oriFinal 1957 Price-Anderson Act and to this day provide the authority for the Com-mission to collaborate with an indemnified person, approve payments of claims, appear through the Attorney General an behalf of the person indemnitied, take charge of such action, and settia or defend any such action. Section 170h fur-ther provided, in its original form, that a settlement "may include reasonable expenses in connection with the claim incurred by the person indemnitied."2 Section 170h has had only one substantive alteration. Dat cama in 1975 as part of a series of changes presented as an amendment by Senator flathaway, Senator Hathaway's aim was (at least in part) to ensure that government indemnity mancy ended up in the hands of victims of nuclear incidents, and was not diserted to attorney's fees and other costs. See generally Damage Clainis Under the Atomic Energy Act, i U.S. Or, OLC 157 (1977).

The llathaway Amendment altered a number of the Act's provisions, includ-ing section 170h, which as revised provided that a Commission-approved settle-ment "shall not include expenses in connection with the claim incurred by the person indemnified"(emphasis aAled). "Therefore," concluded the Comptroller General in a 1980 opinion, "the .ict must be interpreted as follows: the gov. 2 See H R. Rep No 2% 85th Cong.. Ist Sess 23 (19$h (nonng that the eipenses *coul snelude reasonable attorney's fees sneurred by the person inJemnihed in etanuning any clainn") 362

            - -            ..                          .            ..              -           - - .          --- - - - - _ - . . - .. ~_. _

ernment will not indemnify a person for his legal expenses." See " Interpretation of Price Anderson Act," File B 197742,1980 WL 16980, at *4 (C.G.). In 1988 amendments to th- Price Anderson Act, after revisiting the' legal costs issue in cognizant committees, Congress loosened the across-the board restrictions on government payment of legal costs and modified several of the 11athaway Amendment provisions, but did not alter section 170h in any respect. This_ leaves in place the section 170h bar against indemnifying a licensee's expenses in settlements and prevents the Commission from paying the legal expenses incurred by the Regents in settling the Afiller and Redisch cases. Congr 4 may have assumed that licensecs' own insurance would be adequate to cover ) I costs in such cases. See Damage Claims Under the Atomic Energy Act, ! ,,, Op. OLC at 158 & n.3 (discussing legislative history of flathaway Amendmet.;), The Regents argue that section 170h does not apply here because the Miller and Redisch lawsuits in actuality were dismissei not settled. We find this argument wholly unpersuasive. The documents the Regents themselves have provided us show plainly that the two cases were dismissed voluntarily and only after the parties reached a negotiated arrangement in which the Regents, among other things, forfeited any right to seek costs from plaintiffs. By any standard, this qualifies as a " settlement." The Regents' only other argument is that the section 170h bar must give way . because it is less " specific" than another provision, section 170k, which applies to educational institutions and appears to contemplate government payment of licensee legal costs in some situations? As noted above, the " legal costs" language currentiv found in section 170k (and in other Price-Anderson Act provisions) dates from the 1988 Amendments that modified some aspects of the 1975 llathaway Amendment but made no changes in section 170h. Standard principles of statutory construction prevent.us from assuming that Congress repealed sectior 170h by implication. Watt v. Alaska. 451 U.S. 259, 266-67 (1981). On the contrary, we are obliged to give effect to all statutory provisions. 3 secuon 17Ws appheabihty here is far imm crystal clear by its own terms That pnwiuon estabbshes that the Comrmssma shall inkmmfy educauonal heensees "from pubhg habihty in excess of s?50.ou0 for tiuclear trici&ms." and says that the

aggregate indemmty' in connection with exh inclear inci&nt nusy nnt etceed SiO0htE000,'"induding such legal cmts as are approved by the Commission
But in this case the aggregale indenuuty hmit was never approached And no pubhe habil.6y payment was made, much less one m excess

. of $250.000 By dehmnon. *pubhc habihty" does not inchide legal cous; by contrast, heensers' own "Anancial proirctma'is & fined as inclueng damages and legal cmts sce sectens llL llw. 42 U S C. 4120 lek). (wk Ivr educarmaal insatutiom the Anancial preeectwo requirenwnt was waived and instead the requirement for execeding - $250.0tM in pubhc habthey was estabhshed as the ertager for governnwntal m&mmty See section t 70k. 42 U S C. 8 2210t k) 363

Id. See Bennett v. Spear,117 S. Ct.1154,1166 (1997).' We cannot, therefore, accept the Regents' invitation simply to ignore the section 170h prohibition. We see no basis,in sum, for disregarding section 170h's apparent prohibidon against paying licensee legal expenses incurred in settling cases. He Regents

   - themsel t have offered us none. We therefore decline to approve their indemnit, ,laim.

2. I'rior Notice and Reasonableness ofindemnity Claim Even if section 170h did not bar Commission reimburse nent of licensee legal costs in settled cases, as we think it does, we would not approve payment of the Regents' indemnity claim in this case. The Price-Anderson Act, and the NRC's indemnity agreement with the Regents, indisputably contemplate Commission " approval" of claims for legal costs. Such a right of approval implies Commission review for reasonableness. Here, we cannot fmd the Regents' claim reasonable.

a. As a matter of procedure, the Price Anderson Act contemplates that at the point where Fovernmental indemnity arises, here at the $250,000 threshold, the licensee will offer the government the opportunity to take over defense of the claims and manage the lawsuit. See section 170h,42 U.S.C. I 2210(h). One purpose of this provision, presumably, is to allow the government to take over representation or active management of the case with a view toward minimizing public expenses.

Here,' a series of letters from counsel for tha Regents did alert the NRC Staff to the existence of the Miller and Redisch cases, and to the possibility of exceeding the $250,000 limit. But the Regents' letters also indicated that plaintiffs' merits claims were insubstantial and that the case would be " tendered" to the NRC if expenses reached the $250,000 limit. See, e.g., Letter dated August .10,1995. No " tender" ever occurred until the two cases ended, after the Regents had exceeded the $250,000 limit by nearly $80,000, ne lack of timely tender prejudiced the NRC. Eight days before the parties agieed on the acttlement in Redisch, with the Miller suit having already been dismissed, the Regents' insurer sent the NRC a letter reporting $28,534.08 in remaining "available financial protection" from the private insurer and indicating that under to NRC was expected "in the very near

future since [the Redisch casel is still unresolved." See Lettcr from Dochner, dated October 18,1995. But it now appears that in actuality the Regents' law d

our reading or sceuon 170h does not nulhfy the -legal costs" authoruanon found in sceuon 170k or in other provimms of the Prwe-AnJmon Act Those proviuons rem.un apphcable in the absence of a settlement Moreover, even la conr<,.uon Wue a settlenrnt. the Cumnusuun could approve payment of plamtgr

I gal com See secuon lijj. 42 J S C. 5 2014(ut Secuon 170h rnply prevents Convromon payment of heenwes' legal posts in senhng L case

- 364

                                                                                -     . - . - - . - . ~

firm at that time already had incurred additional billable hours amounting to more than $30,000 and already had paid out additional expenses in excess of $20,000 (many apparently incurred much earlier). In other words, the ReFents already had entirely consumed and substantially exceeded the $28,534 that supposdly remained as "available financial protecison." Thus, if the Regents were correct that their legal expenses wer i psiyable by the NRC after $250,000 (but see note 3, mpra), they had reached an appropriate tender .ime and passed it before they negotiated the Redisch settlement. By statute, they not only ought to have notified the NRC but they also should have sought NRC approval of the settlement. See sectien 170h,42 U.S.C. 6 2210(h). As part of the settlement, however, and without NRC approval, they relinquished any right to claim legal costs against plaintiffs et monetary sanctie:a under Rule 11 of the Itderal Rules of Civil Procedur,. flad the NRC been given presettlement notice that the $250,000 limit had been reached, it might have ; insisted on some recompense from plaintiffs or their lawyers for the substantial expenses their insubstantial lawsuit had caused. The government almost surely would have limited any further expenditures by the private lawyers. Even the Regents' letter reporting termination of the case indicated that there still remained $3,654.94 of the insurance money. That letter suggested only that "some expense in excess" of $250,000 might be expected. See Letter dated December 6,1995. By then, of course, there was no case for the rovernment to take over and no opportunity to minimize government costs. In udition, when read in conjunction with the prior letter's reference to $28,000 in remaining financial protection, the close-out letter's language raised no expectation of more than a de minimis exceeding of the $250,000 limit. The NRC therefore was quite surprised a few weeks later, when counsel for the Regents demanded

$76,000 from the Commission. The substantial excess, one third again 'ver the                           ,

insuraoce amount, apparently occurred in some measure because oflate-arriving bills for earlier performed services. In these circumstances, the government was not given a timely opportunity to tah over these cases and minimize public costs. The Regents have since suggoted that the NRC Staff ought to have been aware that experts' fees' would be high and that pretrial preparation would be expensive; however, the people in the best position to make that assessment were the defendants' counsel themselves. De Regents' correspondence did not call attention to the apparently lengthy lag time between incurring obligations for expenses and notification of them as expenditures. And, as we stressed above, the Regents did not make its tender in time for the NRC to monitor and approve the ultimate settlement . or otherwise to take action in an attempt to min' nize the potential costs to the U.S. government. 365

In short, given the Regents' failure to timely tender the case to the NRC, we do not find it reasonable for the government w pick up the bill for the Regents' expenses.

h. In addition, some of the expenses incurrW t y the Regents in reaching and exceeding the $250.000 limit appear questionable substantively. To begin with, we see no basis in the Price-Anderson Act to approve the Regents' claim for approximately $ 15,000 in attorney's fees and costs incurred after termination of the underlying tort suits, apparently as part of the Regents' effort to persuade the NRC to make indemnity payments. See note 1. supra. The Act provides for indemnification of expenses incurred defending claims against licensees, not reimbursement for expenses incurred in presenting claims to the government.

      'the Regents' fee claim raises a number of additional questions. Itr ex.

ample, the billing records' descriptions of law firm hours are often vague and insu'ficiently segregeted as to tasks as well as being chronologically out of or-der - with significant expenses for billed hours appearing considerably later than previous invoices represented as being rfor services rendered through" a specified date. Moreover, the billing records indicate that counsel incurred sub-stantial expenses on matters not directly related to defense of the tort cases, such as correspondence with the insurer-client and organizing what were apparently disorganized UCLA files. Finally, the records show thN M,% priced law firm partners, rather than associates or parategals, conducted such fairly mundane tasks as document and privilege reviews and also that they traveled extensively to meet with experts rather than conduct conferences by telephone, at signiti-cantly less expense. The Regents might be able to provide adequate answers to some or all of our substantive questions. But we need not resolve these questions defmitively in view of our decision on other grounds not to pay Price-Anderson Act indemnity in this case. III. CONCLUSION ihr the foregoing reasons, the Commission declines to approve the Regents' indemnity claim. For the Commission JOHN C HOYLE Secretary of the Commission Dated at Rockville, Maryland, this 29th day of June 1997. 366

_ . . _ _ . _ - _ . . _ _ _ _ . - . _ _ . _ _ . - _ _ _. _ - _ . -. _. _m. -. . - . Cite as 45 NRC 367 (1997) LBP-97 8 UNITED STATES OF AMERICA - NUCLEAR REGULATORY COMMISSION - ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: Thomas S. Moore, Chairman - Richard F. Cole Frederick J. Shon in the Matter of Docket No. 70-3070-ML (ASLBP No. 9164102-ML) (Special Nuclear Material License) 8.OUISIANA ENERGY SERVICES, L.P. (Claiborne Enrichment Center). May 1,1997 in this Final Initial Decision in the combined construction permit-operating license proceeding for the Claiborne Enrichment Center, the Licens5g Board (1) determines that a thorough NRC Staff investigation of the facility site selection process is essential to determine whether racial discrimination played a role in that process, thereby ensuring compliance with the nondiscrimination directive contained in Executive Order -12898; (2) resolves in favor of the Intervenor portions of the contention concerning the adequacy of the Staff's treatment in the final environmental impact statement of the impacts of relocating the parish road connecting the Afncan American communities of Forest Grove and Center Springs and the economic impacts of the facility on properties in

             ' those communities; and (3) denies the Applicant's requested authorization for a license.
             .NEPAt ENVIRONNIENTAL JUSTICE On Rbruary 11,1994, the President issued Executive Order 12898. 3 C.F.R.

859 (1995), titled "Rderal Actions to Address Environmental Justice in Minority 367

Populations and Low-income Populations," and an accompanying Memorandum for the Heads of All Departments and Agencies,30 Weekly Comp. Pres. Doc. 279 (Ith.14,1994). The President's memorandum i,tates that the Executive Order is designed "to focus lideral attention on the environmental and human health conditions in minority communities and low-income communities with the goal of achieving environmental justice" and "to promote nondiscrimination in Federal programs substantially affecting human health and the environment." NEPA: ENVIRONMENTAL JUSTICE As an independent regulatory agency the NRC is not mandatorily subject to Executive Order 128~l. Nevertheless, on March 31,1994, the then Chairman of the Commission wrote the President stating that the NRC would carry out the measures in the Executive Order, By voluntarily agreeing to implement the President's cavironmental justice directive, the Commission has made it fully applicable to the agency and, until that commitment is revoked, the President's or6 r, as a practical matter, applies to the NRC to the same extent as if it were an executive agency. He NRC is obligated, therefore, to carry out the Executive Order in Food faith in implementing its programs, policies, and activities that substantially affect human health or the environment. NEPA: ENVIRONMENTAL JUSTICE Although Executive Order 12898 does not create any new rights that the Intervenor may seek to enforce before the agency or upon judicial review of the agency's actions, the President's directive is, in effect, a procedural directive to the head of each executive department and agency that, "to the greatest extent practicable and permitted by law," it should seek to achieve environmentaljustice in carrying out its mission by using such tools as the National Environmental Policy Act. NEPAt ENVIRONMENTAL JUSTICE Pursuant to the President's order, there are two aspects to environmental justice: first, each agency is required to identify and address disproportionately high and adverse health or environmental effects on minority and low income populations in its programs, policies, and activities; and second, each agency must ensure that its programs, policies, and a.tivities that substantially affect human health or the environment do not have the effect of subjecting persons and populations to discrimination because of their race, color, or national origin. 368

NEPA: ENVIRONSIENTAL JUSTICE It is clear that Executive Order 12898 directs all agencies in analyzing the environmental effects of a federal action in an EIS required by NEPA to include in the analysis. "to the greatest extent practicable," the human health economic, and social effects on minority and low-income communities. NEPA: ENVIRONNIENTAL JUSTICE in using the terrr ' uman health and environmental " effects" in Executive Order 12898 and the accenpanying memorandum the President's order tracks the regulations of the Council on Environmental Quality ("CEQ") that define

 " effects" to include both direct and indirect effects and states that "[c]ffects includes ecological (such as the effects on natura! resources and on the com-ponents, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative."

40 C.F.R. I 1508.8(b). NEPA: ENVIRONNIENTAL JUSTICE

   -Executive Order 12898 does impose duties on the NRC because the Com-mission has undertaken to carry out the President's directive, but no party to an agency proceeding has a remedy with regard to the manner in which the agency carries out its commitment to the President to implement bxecutive Order 12898.

l TAHl.E OF CONTENTS

1. ENVIRONMENTAL JUSTICE CONTENTION .. . ., . 372 A. Contention J.9. . . ., ... . ... . . 372 B. Exceutive Order 12"98. . . . .... .. .... . 374 C. Witnesses and Exhibits . . .. . . .. . ... 376 II. DISCRIMINATION ELEMENT OF ENVIRONMENTAL JUSTICE . . . .. . . ... . ... ... . . 380 A. The CEC Siting Process. .. . .. .. . ,, . 381 B. He Parties' Positions. .... ... .... . ... .. 385

1. He Applicant . . ... . .. .. , 385

2. De Intenenor . .... ... . .. 385

3. The NRC Staff. . . . ... . . .. .. . . 389 C. Licensing Board Dercrmination . . . . . .. . . 390 369

Ill. ENVIRONMENTAL IMPACTS . . . . . . . . . . . . . . . . . . . . . . 397 A. Worst Case Accident Analysis. . . . . .. . . . . . . . . . . . . 399 B. Irrpacts of Road Closing / Relocation . . . . . . . . . . . . . . . 403 C, Property Value impacts . . . . . . . .. . . . . . . . . . . 406 D. Other lmpacts . . . . . . . . .. .. .. . ....... . . . 411 IV. CONCLUSION . .. . . .. . .......... .. . . 412 FINAL INITIAL DECISION (Addressing Contention J.9) This Final Initial Decision addresses the remaining contention - environ-mental justice contention J.9 - filed by the Intervenor, Citizens Against Nu. clear Trash (" CANT"), in this combined construction permit-operating license proceeding. He Applicant, Louisiana Energy Services, L.P. ("LES"), seeks a 30-year materials license to possess and use byproduct, source, and special nu-clear material in order to enrich uranium using a gas centrifuge process at the Claiborne Enrichment Center (" CEC"). The Applicant plans to build the CEC on a 442-acre site in Claiborne Parish, Louisiana, that is immediately adjacent to and between the unincorporated African-American communities of Center Springs and Forest Grove, some 5 miles from the town of Ilomer Louisiana. There is serious dispute between the parties regarding the essential facts concerning the site location and area demographics. Claiborne Parish is in northern Louisiana and lies along the southern border of Arkansas. The proposed CEC site is located in the approximate center of the parish some 50 miles northeast of Shreveport, Louisiana. The site, called the LeSaga property, is a rough approximation of a square and the CEC will occupy the center 70 acres of the site. The LeSage property is currently bisected by Parish Road 39 (also known as Forest Grove Road) running north and south through the property, immediately to the north of the site, Parish Road 39 crosses State Road 9 that rur.; in a northeasterly direction from the town of Homer 5 miles away. De community of Center Springs, roughly centered on the Center Springs Church, lies along State Road 9 and Parish Road 39 and is located approximately 0.5 kilometer (about 0.33 mile) to the north of the LeSage property. The community of Forest Grove, again very roughly centered on the Forest Grove Church, lies approximately 3.2 kilometers (about 2 miles) south of the site along Parish Road 39 (and other intersecting unnamed local roads). De Forest Grove Community runs south along Parish Road 39 to where Parish Road 2 ;rosses State Road ^. that runs in an easterly direction from the town of Hc.ner. He two community churches, which share a single minister, are appr.aimately 1.1 miles apart. with the LeSage property lying between them. 370

           . -                     -.-              ~        -        - .-         __ ~ . . . . . -. - .

A The community of Foiest Grove was founded by freed slaves at the close of the Civil War and has a population of about 150. Center Springs was founded around the turn of the century and has a population of about 100. The populations of Forest Grove and Center Springs are about 97% African American. Many of the residents are descendants of tbc original settlers and a large portion of the landholdings remain with the same families that founded the communities. Aside from Parish Road 39 and State Road 9, the roads in Center Springs or Nrest Grove are either unpaved or poorly maintained. There are no stores, schools, medical clinics, or businesses in Center Springs or Fe est Grove. Thc Intervenos's evidence was undisputed that from kindergarten through bigh school the children of Center Springs and Forest Grove attend schools that are largely racially segregated. Many of the residents of the communities are not connevted to the public water supply. Some of these residents rely on groundwater wells while others must actually carry their water because they have no potable water supply. Although none of the parties put in any specific statistical evidence on the

      ;ncome and educational level of the residents of Rrest Grove and Center Springs, the 1990 United States Bureau of the Census statistics in the record show they are part of a population that is among the poorest and most disadvantaged in the United States. Claiborne P. irish is one of the poorest regions of t!e United States with a total populatior, in 1990 of 17,405 and a racial makeup of 53.43%

white and 46.09% Africa". American. Over 30% of the parish population live below the poverty level with over 58% of the black population and 11% of the white population liviag below the poverty line. Per capita income of the black population of Claiborne i'arish is only 36% of that of the white population, compared to a national average of 55%. Over 69% of the black population of Claiborne Parish earn less than $15,000 annually,50% earn less than $10,000, end 30% carn less than $5,000 In contrast, among whites in the parish,33% carn ! css than $15,000 annually,21.5% earn less than $10,000, and 6.5% carn less than $5,000. In Claiborne Parish, over 31% of blacks live in households in which there are no motor vehicles and over 10% live in households that

    - lack complete plumbing. Over 50% of the African American households in the parish have only one parent,58% of the black population have less tiian a high school education, including almost 33% of the parish black population over 24 years old that has not attaiacd a ninth grade educa'M.,

The Inter /enor's environmentaljusuce contention is grounded in the require-taents of the National Environmental Policy Act of 1969,42 U.S.C,14321 et seg. ("NEPA"). As origin?lly filed, the contention essentially asserts that the negative economic and sociological impacts of closing Parish Road 39 con-necting the minority communities to make way for the plant and placing the facility in the midst of a rural black community of over 150 fam: lies have not been appropriately considered in the Applicant's Envirtmmental Raport ("ER"). 371 T r y -- -

Further, the contention claims that the sitis of the CEC follows a national pat-tern of siting hazardous facilities in minorg e mmunities and that no steps to avoid or mill Fate the disparate impact of the Cf1' m this minority community have been taken. With this Final Initial Decision addressing contention J.R all of the issues in the licensing proceeding will have been addressed. The history of this proceeding may be found in three previous decisions, Sec LDP-96-7, 43 NRC 142 (1996); LBP-96-25, 44 NRC 331 (1996); LDP-97 3, 45 NRC 99 (1997), Suffice it to say that the three earlier Partial Initial Decisions decided all of the Intervenor's other health, safety, safeguards, environmental, financial qualification, and decom nissioning funding contentions in the proceeding. Like a number of the other contentions in this proceeding, the Intervenor's environmental justice contention J.9 presents questions of first impression in NRC licensing proceedings.

1. ENVIRONMENTAL JUSTICE CONTENTION A. Contention J.9 la its entirety, the Intervenor's contention J.9 asserts that the Applicant's Environmental Report does not adequately describe or weigh the various en-vironmental, social, and economic impacts and costs of operating the CEC, In support of the contention, it then states:

ilASIS: NEPA requires the NRC 10 fully assess the impacts of the proposed beensing action, and to weigh its costs and benefits LES' Enytronr9 ental Report contains a bnef

    " benefit cost arJysis" that is improperly slanted in fasor of the benetits of the project, and contains httle discuuton of the potentially significant impacts and their enviroamental and social costs. The discussion is inadequate with respect to the following inues:

9. The proposed plant will 1]so hase negatise economic and sociological impacts on the mmonty communities of Forest Grove and Ce[nterl Springs. Forest Grove Road, which } oms the two commumties, must be closed in order to make way for the proposed plant, which would he between them. If de road is t, med off, it will cause hardships to famihes who use the road, residents w ho car-pool to work, school transportation, sports related activities that mvolve children hving in both commtmities, and church sersiees that are divided between the two commumties.

Moreover, the ER does not teflect consideration of thr? fact that the plant is to be placed " n the dead center of fl a rural black community censisting of over 150 fanuhes." The proposed sitmg of the CEC in a nunorirv commumry follows a pattern noted in a 1987 study by the United Church of Christ "Touc Wastes and Race in the United States A National Report on the Racial and Socio-Economic Charactenstics of Communities With flazardous Waste Sites." The study found that *[rlace prosed to be the most sigmftcant among vanables tested in nuociation with the location of commercial ha2,udous waste facihties This represented 372 i 1

. - _ , . = ~ ~ __ _~ . -- _ . _ . . .- - _- -_ a consistent national pattern" It alw found that "In comnumities with one commercial

       ' hatardous waste facihty the aserage runonty percentage of the population was twice the average minonty percentage of the population in communities without such facthties (24 percent vs.12 percers)." The ER does not demonstrate any attempts to avoid or nutigate the disparate impact of the proposed plant on this minonty community ICatations and footnotes orrutted 1 in opposing the admission of the contention before the Licensing Board, the Applicant argued that CANT's " allegations are premised on geculation" and that the Intervenor had provided "no support for the proposition that closing off Forest Grove Road and building the plant will have negative impacts on the two communities." LDP-91-41, 34 NRC 332, 353 (1991). The NRC Staff did not oppose the admission of the contention. The Licensing Board, as then constituted, admitted contention J.9 ruling that " CANT has identified an issue with sufficient basis and specificity to meet the requirements of [10 C.F.R. 9 2.714(b)(2))." Id.~ As in the case of several of the Intervenor's other contentions that were heard in this proceeding, CANT contention J.9, which was required by the Commission's Rules of Practice to be tiled before the issuance of the environmental impact statement ("EIS"), is phrased only in terms of a challenge to the Applicant's ER. See LDP-96-25,44 NRC at 337 38.

Nevertheless, the Intervenor's contention neces<arily encompasses the Staff's later. filed final environmental impact statetrent and all pastics in their evidentiary presentations ou contention J.9 included evidence on al! aspects of the issues. See id.; 10 C.F.R. 5 2.714(b)(2)(iii). Ibrther, as i.idicated in the earlier decisions in this proceeding, the Commis-sion's Rules of Practice,10 C.F.R. 9 2.732, provide that the Applicant has the burden of proof in the proceeding. Therefore, in order for the Applicant to pre-vail on each contested factual issue, the Applicant's position must be supported by a preponderance of the evidence. See LBp-96-7,43 NRC at 144-45, As LBP-

   '96 25 indicates, however, where environmental and NEPA issues are involved, care must be taken in applying the Commission's general burden of proof rule -

because the NRC, not the Applicant, has the burden of complying with NEPA. AccordinF ly, because the Commission's regulations require the Applicant to file an ensironmental report and prescribe its contents, the Applicant has the burden on contentions, or portions of contentions like J.9, asserting deficiencies in the ER. Similarly, because the Staff is ultimately responsible for preparing the EIS - required by NEPA, the Staff generally has the burden on contentions, or portions of contentions like J.9 that are taken to assert deficiencies in the FEIS. Addition-ally, because the Staff relies extensively upon the Applicant's ER in preparing

   - the EIS, when the Applicant becomes a proponent of a particular challenged position set forth in the EIS, the Applicant, as such a proponent, also has the burden on that matter. See LBP-96 25. 44 NRC at 338 39, 373

Finally, we reiterate the additional NEPA obligations the Commission placed upon the Licensing Iloard in the hearing notice. De Commission directed the Board to determine w hether the Staff's environmental review conducted pursuant to 10 C.F.R. Part 51 was adequate and whether the agency had complied with the tequirements of section 102(2)(A), (C), and (E) of NEPA. In addition, the Commission instructed the Board independently to consider the cost-benefit balance renong the conflicting factors contained in the record of the proceeding. See 56 Fed Reg. 23,310 (1991). As we noted previously in LDP-96-25,44 NRC at 339, "[a]Ithough obviously related, these otiligations placed upon us by the Commission to ensure the agency's compliance with NEPA are independent of the parties' burdens with respect to the Intervenor's environmental contentions." 11 Executive Order 12898 Subsequent to the admission of the Intervenor's contention .l.a and the Staff's issuance of the draft EIS, on li:bruary 11,1994, the President issued Executive Order 12898, 3 C.P.R. 859 (1995), and an accompanying Mernorandum for the lleads of All Departments and Agencies, 30 Weekly Comp. Pres. Doc. 279 (Itb.14,1994). De President's ord;r, titled " Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations," contains a number of nrovisions but two arr: most pertinent here. In subsection 1 101 under the heading " Agency Responsibilities," the President directs that [tjo the greatest extent practicable and permitted by taw . cach Rderal agency shall make achieving environmental justice part of its mission by identifying und addressing. as l appropnate, dnpropordonately high and adverse human health or emironmental effects of its programs, pu icies, and activines on nunonty populations and low-income populations in the Umted States. 3 C.F.R. at 859. Further, in section 2.2, the President orders that [elach Rderal agency shall conduct its programs, policies, and activities that substantially affect human health or the emironment, in a manner that ensures such programs, pohetes, and activities do not base nie effect of excluding persons On.:luding populations) from particaption in, den > mg persons Oneluding populatior t) the benefits of. or subjecting persons Oncluding populatmns) to disenmination under, such programs, pohcies, and activities. because of their raec. color, or national ungm-hL nt 861. The President's directive also contains a number of general provisions. In subsection 6-604, the President requests that independent agencies comply with the provisions of the order. See id. at 863. Finally, subsection 6-609 states that the order is intended to improve the internal management of the 374

I executive branch and that it does not create any substantive or procedural rights in any person or create any right of judicial review. See ld. The President's memorandum accompanying the order states that the Exec.

-utive Order is designed "to focus Federal attention on the er.vironmental and human health conditians in minority communities and low-income communities with the Foal of achieving environmental justice" and "to promote nondiscrim-ination in Rderal programs substantially affecting human health and the envi-ronment." 30 Weekly Comp. Pres. Doc, at 279. To accomplish these goals, the Presidential memorandum specifically states that, in conducting analyses required by NEPA, "[elach Federal agency shall analyze the environmental ef-fccts, including numan health, economic and social effects, of Rderal actions, including effects on minority communitics and low-income communiti:s." /d.

at 280. It is the NRC's position that, as an independent regulatory agency, the NRC is not mandatorily subject to Executive Order 12898. Nevertheless, on March 31,1994, the then Chairman of the Commission wrote the President stating that the NRC would carry out the measures in the Executive Order, in furtherance of this agency commitment, the NRC has participated in the interagency 'Vorking Group on Environmental Justice created by the Executivo Order and tne NRC has drafted an envimnmental justice strategy as called for by the President's - order. Although Execufve Order 12898 does not create any new nghts that the Intervenor may seek to enforce beinre the agency or upon judicial review of the agency's actions, the President's directive is, in effect, a procedural . directive to the head of each executive department and agency that, "to the greatest extent practicable and permitted by law," it should seek to achieve environmental justice. in carrying out its mission by using such tools as the National Environmental Policy Act. Pursuant to the President's order, there are two aspects to environmental justice: first, each agency is required to identify and address dispropoitionately high and adverse health or environmental effects on minority and low income populations in its programs, policies, and activities; and second, each agency must ensure that its programs, policies, and activities that substantially affect human health or the environment do not have the effect-of subjecting persons and populations to discrimination because of their race, - color, or nasional origin. Thus, whether the Executive Order is viewed as calling for a more expansive interpretation of NEPA as the Applicant sugests' or as merely clarifying NEPA's longstanding requirement for consideratioa of the impacts of major federal actions on the " human" environment as the Intervenor I Apptwar's Proposed End.no of fact and Concluuons of law (May 26.1995) at 2D 24 thereinafwr App. P F.] 375

argues,2 it is clear the President's order directs all agencies in analyzing the environmental effects of a federal action in an EIS required by NEPA to include in the analysis, "to the greatest extent practicable," the human health, economic, and social effects on minority and low-income communities.) Dy voluntarily agreeing to implement the President's environmental justice

-directive, the Commission has made it fully applicable to the agency and, until that comisment is revoked, the Prevdent's order, as a practical ma >
- applies to the NkC to the same extent as if it were an executive agency. 'i;.e NRC is obligated, therefore, to carry out the Executive Order in good faith in implementing its programs, policies, and activitics that substantially affect human health or the environment. Further, because NRC licensing actions are activities that substantially affect human health and the environment, the Executive Order is applicable to the licensing of the CEC.

Thus, in carrying out the additional obligation the Commission has placed upon us in the hearing order (i.e., to ensure that the Staff's environmental ' review is adequa'e and in compliance with section 102(2)t \), (CL and (E) of NEPA), we necessarily also must ensure agency compliance with the President's environmental justice directive. Hence, contrary to the Applicant's assertion,* Executive Order 12898 doc' impose duties on the NRC because the Commissien bas undertaken to carry out the President's di::ctive,- but no party to this proceeding has a remedy with regard to the manner in which the agency canies out its commitment to the President to implement Executive Order 12898. C, Witnesses and Exhibits Before turning to the substance of the environmental justice issues bcfore us, we first brictly detail the witnesses and exhibits that were presented by the parties. Consistent with the Commission's burden-of-proof rule and in accordance with the stipulation of the parties, the Applicant presented its case first, followed by the Intervenor, and then the Staff. In support of its position .on contention J.9, the Applicant pusented the grenled direct testimony of Peter - G. LeRoy, the Licensing Manager of the CEC, and the prefiled testimony of a panel of witnesses consisting of B. William Dorsey, William H. Schaperkotter, Larry Engwall, Jesse B Swords, and Peter G. LeRoy. Although the App!icant's 2 Cltirens Agamst Nuclear TraWe Proposed Reply Fuuhngs of twt and Conclunons or t.aw Regarang Contention J 9 Oune 26.199h at 20 therein.tftr CANT R F1 3ln usmg the term human health and environmenial"effectt'* In (Dierutne order 12898 and the accompa tying menuwandum, the Pres. dent's order trads the regulationsdc the Council on Environmental Quahty ("CLQ") that de6ne " effects" to include both direct and mdirect enects and states that *(c)ffects meludes ecological (such as the effects on naiural resources anJ on the components, structures, and funettomng of affected ecosystenut aesthenc. hist <wic. cultural economic, social, or health. whether direct. indirect. or cumulative " 40 C F R. I t 508 8th) See dw 40 C F R. I150814 d App. P F. at 221 376

                    -- .                 -    -         ,                          .-~                _.        .-- - _ , - -

witnesses appeared as a single panel, the two sets of testimony are separately numbered and appear bound in the record one ..ter the other. (LeRoy fol. Tr. 840; Dorsey et al. fol. Tr._840.) hir. LeP,oy was responsible for compiling the information in the Applicant's ER and several ER amendments on the potential environmental, economic, and sociological impacts associated with the CEC. (leRoy at 12 fol. Tr. 840.) lie also had primary responsibility for the preparation of section 7 of the ER that describes the CEC alte selection process, although hir, leRoy had no direct involvement in the siting process, having first become involved with the CEC

 - in July 1989. (/d. at 1; r 1rsey et al. at 5-6 fol. 'l). 840.)

hit. Dorsey is employed by Fluor Daniel. Inc..' as Director of Siting and Consulting Servicet a position he has held since 1974 In that capacity, he is responsible on a worldwide basis for coordinating, directing, and performing consulting services for industrial clients in all areas of project development, including feasibility studies, site 1, cation analyses, and management consulting. Firom appruimately h1 arch 1987 through November 1989, he provided services under contract to one or more of the original participants of the venture that subsequently became LES as a site selection consultant and he directed and had overall responsibility for the site selection process for the CEC. hir. Dorsey has earned a BA degree in economics and an h1BA degree and he has moie than 25 years of experience in site selection for industrial facilities and has been involved in hundreds of siting projects while at Fluor Daniel. (Dorsey et al. at i 1. 5 & Attach. I fol. Tr. 840.) hir. Schaperkotter, who also is employed by Fluor Daniel, Inc., reported to

 - hir. Dorsey at the cecir.ning of the CEC site selection process. Ile holds a BS degree in business administration and an h1BA degree and he served as blanager of Facility Siting and Consulting Services frcm 1984 through 1988. During this time, he supervised dozens of site selection proiects for industrial facilities and, from the spring of 1987 until the end of 1988 when he was promoted and transitioned out of his position, he had principal operational responsibility for the siting of the CEC. He also was involved in the preparation of section 7 of the ER in 1990. (Dorsey et al. at 2-3,6 & Attach. 2 fol. Tr. 840.)

At the time of the hearing, hit. Engwall was employed by Fluor Daniel, Inc., as an Operations Coordinator. He has carned a BS degree in engineering and an h1BA degree. From approumately h1 arch 1989 to January 1990, he worked in the Facility Siting and Consciting Services Group. In April 1989. he was assigned principal operational responsibility for .he siting of the CEC 8 Fluor Danet inc, is involved in the LES grosest as the parent corporation of Cl.ukne ruels, Inc.. Le sole general parmer of the Iklaware hnured partnership, Claiborne Fuel, LP.. aluch h a LES general partner. Fluor Ibniet lac, ts, in turn. a wholly owned subudiary of riuor Corporanon. (tkesey et al at Il fol Tr. 810) See L.nP423,44 NRC at 379 377

and concluded his involvement with the CEC in November 1989.' Before Mr. Engwail began work or the CEC project, he received several weeks of training in site selection. After completing the CEC site selection he worked on several other site selection projects and then moved into other areas a' Fluor Daniel. (Dorsey et al. at 3,6 & Attach. 3 fol. Tr. 840; intervenor's Exhibit 1 RB.56, at 9 10.) Mr. Swords is employed by Duke Engineering and Services, Inc., as an Engi-neering Manager

lie holds a BS degree in engir,cering and has approximately 16 years of experience in the nuclear industry, including 4 to 5 ; =ars of ex-perience in site selection for nuclear facilitio in the last stages 01 the CEC siting process, from June 1989 until November 1989, he provided technical site tr!rction services with regard to the physical evaluation of specific sites under contract to LES. He also was involved hi drafting section 7 of the ER in 1990.-

(Dorsey et al. at 4,6 & Attach. 4 fol. Tr. 840.)

      "Ihe prefiled direct testimony of the Applicant's witnesses war admitted pursuant to a pretrial stipulation of the parties and without further objection at the hearing. (Tr. 840.) Because the Applicant did not offer these witnesses as l experts and, in light of the parties' admissibi .;y stipulation, the Board did not l rule at ...e hearing on the qualifications of these witnesses as experts. Obviously, however, as the LES of tkial responsible for compiling the informatian in the ER on the site selection process and on the various impacts associated with the CEC, Mr. LeRoy was qualified to testify concerning that information. Additionally, we find that, as participants in the CEC site selection process, Mr. Dorsey, Mr.

Schaperkotter, and Mr. Swords are qualified to testify concerning that process and also are qualified by knowledge and ca.perience to testify as experts on site selection for industrial facilities. Further, we find that, as a participant in the process, Mr. Engwall is qualified to testify concerning that proccas but we do not find him qualified as an expert on industrial facility site selection.' In support of its contention 1.9, the Intervenor presented the testimony of Dr, Robert D, Bullard, Ware Professor of Sociology at Clark Atlanta University. (Bullard at I fol. Tr. 853.) He holds an MA deFree in sociology from Clark

  " Duke E ngmeenng and hentces, Inc.. is a subskhary of Duke Ptmer Company (Swords Tr 95h which, in turn, is a LI3 gesicral and Imuted partner See LbP-96 25. 44 NRC y .180 I

Punuant to a supulatmn of tte parues she followmg Appheant ethibus were adnutted mio endence relatmg to contennon j 9 appheant's Labbn 16. LLS lener to NRC dated March 30.1992 (wnh attachnent A contaming respome to NRC requcn for aabnonal mformanon)( App ith 16L Appheant's i ahibit 18. letter dated December 8.1994. from Re';ert L Draper, Wmston & Strawn. Washmgton, D C., to thane Curran, Hamon. Curran, callagher & Spielberg, Takoma Psk. Maryland (wnh enclosure ,f 1990 U S Cemus data for Homer, imuanal ( App. Enh 18L Apphcint's Lahihu 19. Certet of Chuhorne innchnwne Center "Communny Newsletter"(App Lth 19L Appheant's Lahibu 20. State of I oumana Air and Water Fernuts for LLS (App Lah. 20t Apphcant's ! Lahabit 23. Makes Search Corpnration. (muana Quahty of t.ife Survey duly 1989 (App Lah 2.)L Apphcant's tahibts 24 Maket Search Corporanon. Imumana Quahry of Ufe survey (Sept 19'30)(App Lah 24t Apphe:vit's labbit 23. LES letter to NRC dated september 29.19% (with enclosures contaming LR Reuuon 17. SAR Revision 20, and beense Appheauon Reymon 10)(App fah 25) (Tr. 98182 ) Previously. the Appheant's LR, Apphcant's inhibit 1(h). wh ch is relevant to contentwi19. was admmed into evidence (Tr. .il ) 378 m

Atlanta University and a PhD in sociology from lowa S ate University. Dr. - Bullard has worked, conducted research, lectured, and written prolificly in the areas of urban land use, housing, comraunity development, industrial facility siting, and environmental quality for more than 15 yea s and his scholarship and activities have made him one of the leading experts on environmental justice. l Ile current y serves on the United States Environmental Protection Agency National Justice Advisory Council. Of the many works he has written, Dr. Dullard's book Dumping in Di. tie: ; Race, Class and Environmental Quality (Westview Press 1990) has become a standard text in the environmental justice field. lie also authored Confronting Environme:ttal Racism: Voicesfrom the Grassroots (South End Press 1993) and Unequal Protection: Environmental Justice and Communities of Color (Sierra Club Hooks 1994). Most recently he cc . Jited Residential Apartheid: The American Legacy (UCLA Center for Afro-Ameiican Studi.s Publications 1994) (1d. at 12; Intervenor's Exhibit 1-RD-48.)

            'the Intervenor offered Dr Bullard's prefiled direct testimony as his expert 1

opinion on contention J.9 and m t of an expert in socioeconomic impact analysis. (Tr. 843 44.) llis direct testimt ny was admitted pursuant to a stipulation of the i parues and without further objection at the hearing. (Tr. 853.) We find that Dr.

- Bullard is qualified by education, knowledge, and experience to testify as an expert on the issues involved in contention J.9.8: Pursuant to a sopulanon of the parties the followitig Intenenor eshitnts were atmitted mio evience relaung to contunnon 19. Imenenor's Enn:Nt l-RB-48, Vita of Robert D Bullard (1-RB-48 ; latenenor's Exhibit 1 RB-49. Esecuuve order IDt98, "fveral Actions to Address Ennronmental Jusuce in Mmoney Populanons and tawdacome Populations" (Ith. II,194o and accompanying Memorandum for the HeaJs of J.ll Departmeins and Agenaca tieb II.1994)(I-RB-49K Inicrvemw's Eshibit I RB-50, EPA lxan Envinmmental Jusuce 5irmacgy

[ lor Esecunve or&r 12898 (lan 19951(I-RB-50x Intenenor's !shibit i RB-St. NRC Draft Strategic Plan - l'auronmental Justice (undated)(1 RB,$IL Intervenor's EsNht I-RB-52, Comment of Eula Mae Malone Center . Sprmgn commumsy. on scoping of EIS (1 RB 52h Intenenor's EsNbit 1-RB 53. HanJwntien map of Center Spnngs and l'ovest Grove commutunes prepared by Norton Tompkms il992) (1-RB-53t imervenor's Estutut 1-kB-54. Eener dated lune 25, 1991. from Cluwles J. Haughney Cinef, luel Cycle $afety Branch. NRC, to EES, Anennon W. Howard Arnold (I-RB-54). Intervenor's Eshibit I-RB-55. Ptwtwns of *posinon of Wilham S. Schaperkoster (Dec. 21.1994)(1 RB-55). Intenenor s Eshabit l-RB.36, IWuons of dpsmon of larry Engwall dan. 26.19951 (1 RB 56A Intervenor's Eshibit 1-RB-57, Purtions of depositma of B Wilham Doney (Dec. 21.1994) (1 Rlb5h intenenor's Eshbit i RB-58. Map and Analysis. Nor Households as Percent of Total County Households - 1989. Thirteen Southern States?' Southern Regmnal Council. Voting Rights Programs (Aug 1991) C-RB-58h Intenenor's Estutut I-RB 59, Map and Analysis. "I lack Populaimn as Percent of To al County Populanon - 1990 and Congtemonal thstnets, Eleven Southern States? Southem Regional Council. Vonng Righti Programs (Sept 19911 tl-RB 59L Intervenor's Eshbit I-RBM letter dared November 2.1994, from Robert L Draper, Wmston & Strawn. Washirgton, D C, to Thace Curran. Harmon. Curran, Gallagher

       & Spwlberg. Takoma Park Maryland (1 RB 60L Intervepor's Ethibit 1-RB41. -CEPP. Cent tuge Entschment Plant Proiect. Sue Selectmn." Earry Engwalt Proteci Manager (May 17,1989) 0 RD.6t h Intenemw's Eshibit I-RB 62, Ecuer dated July 30.1990.fmm A.M Segrest. Manager. Projects and Adnunastranon. Duke Engme-nna
       & Services. Inc.. to R.D Belprez, Fluor Damel. Inc. (wim anachment) d-RB42h intervenor's Eshibit I RB-63.

thmt Daruels?5ite Recommemlatwn Report for the Cemnfue %hment Plant Project"(Aug 1989)0-RB43h j intenenor's EsNht I-RBM Memo to rile from Pa,er G tsRoy Oune 13.1990) d-RC .W (Tr 853 ) AdJmonally, the following Intenenor ethibits thas were not subject to the parues' minussibihty supubnon mere adimtted into evidefice wnhout nb l ecuen or, in the ca,e of I-RBM after the Appheant withdrew its elleetwn; IContmoed) 379

in support of its position on comention '.4, the Staff presented the testimony of Merri L. Ilorn, Dr. Ibrahim 11. Zeitoun, and liarry Chernoff, (llorn et al. fol. Tr, 904.) Ms. llora is an environmental engineer in the Enrichment Branch, Division of Fuel Cycle Safety and Safeguards, Office of Nuclear hinterial Safety and Safeguards. She holds a BS degree in physics and an MS degiec in environmental engineering and she is the Environmental Project Manager for the CEC license application. (/d. at 1 & Attach.1.) Dr. Zeitoun is employed by Science Applications international Corporation ("SAIC") as a - Senior Environmental Analyst and he has earned both an MS degree and a PhD in fisheries biology lie is the SAIC project manager for the NRC contract to prepare the EIS for the CEC and has over 20 years of experience in directing and supporting multidisciplinary progiams and projects in the areas of waste management, energy, and the environment. (Id. at 1 & Attach. 2.) Mr. Chernoff is also employed by SAIC as a Senior Economist and he has over 15 years of experience in energy economics, research and development isogram analysis, energy cost modeling, policy and iegulatory analysis, and socioeconofnics lie has carned a BS degree in economics and an MM degree and he participated in preparing she EIS for the CEC. (/d. at ! & A%ich. 3.) Pursuant to the pretrial stipulation of the parties and without funher objecnon at the hearing, the prefiled direct testimony of the Staff witnesses war admitted. (Tr. 9N.) We find that Ms. llorn, as the Staff's primary regulator with regard to the environmental impact analysis in the FEIS, and Dr. Zeitoun and Mr. Chernoff, as participants in the preparation of the FEIS for the CEC, are qualified to testify on the matters raised in their prefiled testimony.' II. DISCRIMINATION ELEMENT OF ENVIRONMENTAL JUSTICE Although the Intervenor's contention was filed before the President issued Executive Order 12898, CANT's contention 19 is aimed at two concerns that f are components of the Executive Order as well. Contention 19 essentially asserts I Imetveniw's Exhibit i RB 65.1ES Site selecuon riles. "Numensal tasung (158 of Potennal Sries" O-RB-65K Imer enor's Exhibit 1 RD46,105 site Seleenon rilet 4' x II' tousuana topngraphkal map hsung potennal seten O2091 Al.Tht-100)(1982) 0-RB46); intervenor's Exhibit i RB-67,194) U S Bureau of the Cemus Data hr Cluborne Pansk, Iouinana d-RB-67K Intenenor's cahibit I R BAR. Populanon by Race (Jving Within one Alsle of LES Candidare Sites demed from U s Bu.au of the Census Pt. 94-171 data on CD RoNt amt TIGER /t.ine files 0-RB-68 A Intenenor's Exhibit I RB-69, bl.ip. Cluborne Pansh. H90 Enterpnse Zones (oct.1994) 0-RB. 695 (Tr 845,853. BR 987 )

   ' Without objecten. Staff Exhibit 3, Ectier dated htarch 10.1995. fnwu htana E. Lopea onn. NRC Environnwnral Jumee Coorchnator, to Kathy Alerno. Chair Enuronmental Jusace Subcomnunce for Puhey and Coordinanon.

U S rnvironmemal Protection Agency (with enekwure of Anal NRC Emironnental Jumee Strategy)(Staff Exh 3L was offered into evidence by the Staff ami adnutted (Tr.10l% ) Previously, the Staff's IEIS. Staff Exh 2 which 6s relevant to comention J 9, was admitted into eude' e. (Tr Sol ) 380

                                                                                                                -l w

that the Applicant's ER and the Staff's l'EIS have not adequately weighed the negative economic and sociological impacts on the minority communities of ihrest Grove and Center Springs caused by closing Forest Grove Road that

         . now joins them and placing the facility in the midst of these communities -

a siting practice that follows a national pattern of locating hazardous facilities in minority communities. Further, the contention asserts that there has been no attempt to avoid or mitigate the disparate impact of the facility on this minority community. Thus, the Interrenor's contention has the same general focus as the President's environmental justice directive: disproportionate impacts on a minority population and racial discrimination. Indeed, all parties apparently aFree that the CBC will affect residents of a low income minority populated community and that consideration of the

         - environmental justice implications of the project is warranted. Similarly, all parties presented evidence on these factors with respect to contention J.9. In this Part II, therefore, we consider the discrimination aspect of environmental justice with respect to the Applicant's site selection process, a process that both contention J.9 and the Intervenor's expert witness charge was racially biased.

A. The CEC Siting Process The site selection process that ultimately led to the selection of the LeSage property as the site for the CEC began in the first half of 1987 and, al.er several stops and startn, concluded in the fall of 1989. (Dorsey et al, at 5-6,12,22,25 fol. Tr, 840.) The process took place before t he' Applicant, Louisiar.a Energy Services, LP., was formed in 1990 and was conducted by employcos of Fluoc Daniel, Inc., under contract to one or more of the original venturers in the project that subsequently became partners in LES. (/d at 10-11.) Representa.ives of the original participants in the venture comprised the Steering Committet: that, inscr alia, oversaw the selection process, participated in formulating the various site selection criteria, and acted upon the recommendations of Flucir Daniel. (Id at 13, 16, 21.)"' The CEC siting process consisted of a number of phases and the Applicant's description of the siting proecss is set forth in the Applicant's ER. (App. Exh. l(h), at 7.1 1 to 11.) The Staff's recitation of the siting process in the FEIS reproduces that set forth in the ER. (Staff Exh. 2, at 2-3 to -20.) A second description of the siting pacess is contained in Intervenor's Exhibit I-RB 63, Fluor Daniel's " Site Recommendation Report for the Centrifuge Enrichment Project" (Aug.1989). That August 24, 1989 report, prepared by Mr. Engwall i

            "'Lven ilmugh LLS hat not yet been forned at the une the CI C sue was wlected, all twties nevertheless refer to the site telecuon pocess as though LES conducted it hw case of reference. me generally follow that converunon, recogiunng that u is techrucally in.necurate 381

and submitted to the Steering Committee by Fluor Daniel, is the report that the Stecting Committee had before it in making the final site selection. Clearly, a* the Applicant's witnesses testified, ths Fluor Daniel report was the piincipal document in the site selection process and a key document factored into the desetiption of the site selection process in section 7 of the Applicant's ER. (Dorsey et al. at _44,48 fol. Tr. 840.) For current purposes, it suffices to note that, although similar, the description of the site selection process contained in ,, the Applicant's ER and the Fluor Daniel Report do not reflect identical phases i for the selection process or the same site selection criteria or even the same 4 number of criteria fm the various phases of the selection process. We recognite ' that some of these differences are significant; however, to minimize confusion, we refer to the phases of the process used in the ER, which also appear in the FEIS and were used in the testimony of the Applicant's and the Intervenor's witnesses.

 ' he CEC site selection process began with a coarse screening of the forty-eight contiguous states to identify a region of the United States for the facility.

his Coarse Screening Phase applied various selection criteria involving the service area of sponsoring electric utilities, transportation distances, and seismic and severe storm factors. In October 1987, the siting consultants recommended northern Louisiana to the Steering Committee as the regional location for the facility and the Steering Committee adopted this wcommendation. (Dorsey et al. at 10,21 fol. Tr. 840; App. Exh. l(h), at 7.12 to -5.) Because of a 1.old on the project, it was not until the spring of 1988 that the site selection consultants conducted what the ER labels a two-phase intermediate screening process to select the most suitable host community. (Dorsey et al. at 15, 22; App. Exh. l(h), at 7.1-5.) In Intermediate Phase I, communities across northern Louisiana within 45 miles of Interstate 40 were solicited with the oc istance of the Louisiana Department of Economic Development. The candidate communities were asked to nominate potential sites based on a set of criteria that, imer alia, indicated the proposed facility was a chemical plan.. In answer to the solicitation,21 communities in 19 parishes with over 100 sites responded and expressed an interest in hosting the project. (Dorsey et al. at i1, 15, 24, 28; Apn. Exh.1(hk at 7.1-5 to 6.) According to the ER, during Intermediate Phase I, the site selection personnel then visited each of the communities and, applying a second set of criteria, reduced to ni c the number of candidate communities. (App. Exh. l(h), at 7.l-6.) Actually, however, during the spring and summer of 1988, only Mr. Schaperkotter visited nineteen of the twenty-one communities and met with or spoke with representatives of the other twe communities. Specifically, he spoke by telephone with the mayor of Farmerville and eliminated that community, lie also met in Shreveport with members of a regional economic decelopment group representing Claiborne Parish and the town of flamer and learned that they were 382

busy pursuing another project at that time. Using reconnaissance-level data, Mr. Schaperkotter eliminated twelve communities for failing to meet one or more of the Intermediate Phase I criteria, leaving nine candidate host communities of the original twenty one communities. (Dorsey et al. at 25, 28-30 fol. Tr. d40.) Although Mr. Schaperkotter did not visit ilomer or any site in Claiborne Parish, the ER indicates llomer was one of the remaining nine candidate communities. (App. Exh. l(h), at 7.1-6 & Fig. 7.1-6b.)

          'the purpose of the second phase of intennediate screening was to select a -

host community from the nine communities still under consideration. (Dorsey et al. at 25 fol. Tr. 840; App. Exh. l(h), at 1.16.) When Mr. Schaperkotter left the siting group at I'luor Daniel in late 1988, he had completed most of the work for Intermediate Phase 1. 'the project was agaia dormant until the spring of 1989 when Mr. Engwall was assigned principal operating re ponsibility for what the ER describes as Intermediate Phase 11. (Dorsey et al. at 32-33 fol. Tr. 840.) During this phase, Mr. Engwall scored the remaining nine candidate com-munities against another set of criteria that had been refined and expanded from those used in the first intermediate phase. (/d. at 22 23, 34-35.) In ranking the candidate communities he emplo, d the Kepner-Tregoe ("K-T") method of de-cisional analysis. The K-T decisional analysis method is a widely used means for comparing alternatives on the basis of multiple criteria using a ten-point , weighted scoring system in which criteria are divided into those that must be met (" musts") and those that are desirable ("wants"), with the wants weighted according to relative importance." (Id. at 34; App. Exh. l(h), at 7.16.) Further, in applying each "want" criterion to an alternative, the top rated ahernative for that criterion always gets a ten and each of the other alternatives is compared relative to the best one. (Engwall Tr. 947.) When assigned to the project in April 1989, Mr. Engwall visited a number of the communities previously visited by his predecessor to learn more about Mr. Schaperkotter's evaluative process. His visits included several communities that had been climinated in intermediate Phase i because they had expressed a renewed interest or proposed additional sites. Mr. Engwall also visited each of the nine remaining candidate communities, including Homer, which he visited for the first time on May 22,1989. (Dorsey et al. at 26 fol. Tr. 840; Engwall Tr. 936.) In every comrmnity. Mr. Engwall viewed nominated sites and, accordirq to his report to the St sering Committee, half of tne fifteen criteria he applied were related to community characteristies and the other half were site specific. (I RB. 63, at 20.) In any event, as long as there was at least one site in each community meeting the established criteria the community remained in contention. (Dorsey H in Nfemng to K.T desmonal analpes in llw rk. the Apphcant references Charles H Kepner & Denganun B Tregm Th New hiscnul Afdas. gee. Pnnecton Research Press o988 A (App Esh. Hh). at 7 l-12.) 383

 - et al. at 35 fol. Tr. 840.) hir. Engwall assigned values for the nine communities, in consultation with Mr. Schaperkotter and Mr. Dorsey. (Id. at 36.) Based on Mr. Engwall's scoring, llomer was the highest rated community, with Winnsboro the runner up. (App. Eth.1(h), at 7.1 8,) The Steering Committee then selected flamer as the host community. On June 9,1989, the then Senator of Louisiana, Bennett Johnson, came to llomer and announced that it had been selected as the CEC host community. (Bullard at 57 fol. Tr. 853.)

After selecting flomer as the host community, the ER states that a fine screening process, in two phases, was employed to obtain the three most preferred si*es from the six sites nominated by llomer commrnity leaders. (App. Exh.1(h), at 7.19.) in what the ER describes as Fine Screening Phase I, W. Engwall scored each of the six sites us:ng the K-T decisional analysis against another set of criteria developed in conjunction with the Stecting Committee. (Dorsey et al. at 39 fol. 'Ir. 840; App. Exh. l(h), at 7.19.) Although eleven sites in Claibome Parish were 'ni.ially nominated by community leaders, five sites were immediately dropped by Mr. Engwall for failing to meet the selection criteria and only six sites were setiously considered and scored. (Engwall Tr. 944.) On the basis of the K T analysis, the LeSage site was top rated and recommended for selection, pending confirmatory onsite studies. The second and fourth rated sites, the Emerson and Prison sites, respectively, also were carried to the next phase as alternatives to the LeSage property. The third most preferred site, the Baptist Children's Home site, was dropped for failing to meet the mandatory low Ikod risk criterion. (App. Exh. l(h), at 7.1-10.) l During Fine Screening phase 11 the three remaining sites were examined in more detail to select a final site. At this juncture, Mr. Swords, an engineer, joined the siting process. (Dorsey et al. at 39, 41 fol. Tr. 840.) A number of technical criteria relating to, inter alia, the cost of site work and grading, preliminary geotechnical evaluation, and the cost of providing electric power to the site were added to the criteria used in the first phase of fine screening. Again using K-T decisional analysis, Mr. Engwall apparently scored the three sites, with the LeSage property receiving the highest rating, followed by the Emerson site, and then the Prison site. (Id. at 39; App. Exh.1(h), at 7,1 10 & Fig 7.19.) 'lte Applicant's ER notes that "[allt three properties are a' quate site ..nneating the CEC and relatively indistinguishable in their environ,aental characteristics." (App. Exh. l(h), at 7.l 11.) Because it was the highest rated site, however, the site selection consuhants, in August 1909, recommended the LeSage property to the Stecting Committee. (Dorsey e4 al. at 39; I.RB 63, at ES-l.) On November 3,1989, th selection of the LeSage property was publicly announced. (App. Exh. l(h). at 9.5-9.) 384

I 1 B. The Parties' Positions All parties presented evidence on the question whether race was a cor.sid-eration in the selection of the site for the CEC, in sum, the Applicant and the Intervenor took diametrically opposed positions, while the Staff took the posi. tion it found nothing in the Applicant's ER to indicate that racial considerations were a factor in the site selection.

1. The Applicant All of the Applicant's witnesses on contention J.9 testified in their prefiled direct testimony that the CEC site selection process was not racial y biased or based on r@l considerations. Ahhough not dire-tly involved in the siting process but with primary responsibility in the year after the LeSage site had been selected for preparing section 7 of the Applicant's ER, the LES Licensing Manager, Mr. LeRoy, stated that he was unaware of any instance in which, or evidence that, the race or color of any individual or groap of individuals was a '

factor in any decision regarding the siting of the CEC. Similarly, he stated he had no knowledge that the siting of the CEC involved any intent to discriminate against the communities of Forest Grove and Center Springs on the batis of race or socioeconomic status. (LeRoy at 33-34 fol. ~1r. 840.) Wrther, he testified that, in his judgment, the site selection process was not biased in any regard. (D. 951.) In like vein, the Fluor Daniel consultants that oversaw and conducted the site selection process, Messrs. Dorsey, Schaperkotter, and Engwah, and Mr. Swords, the Duke Engineering and Services, Inc., engineer who was :::.olved in the technical analysis for Fine Screening Phase !!, together stated that the racial mix or racial makeup of the local population was not considered as a site selection criterion. (Dorsey et al. at 24 fol. Tr. 840.) Together these witnesses also stated that they were unaware of any instance in which, or evidence that, the race or color of any individual or any group was a factor in any decision concerning the siting of the facility. Further these witnesses together stated that the siting v the CEC did not involve any intent to discriminate against the communities of Forest Grove or Center Springs on the basis of race or socioeconomic status. (/d. at 48-49.) Finally, each of these witnesses testified that, in his judgment, the site selection pro,ess was not biased in any regard. (Tr. 951.)

2. The interrenor Intervenor witness Dr. Bullard in his prefiled direct testimony stated that, in his opinion, the process for selecting the CEC site was, among other things, biased and that racial considerations were a factor in the site selection process.

385

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(Bullard at 39,43 fol. Tr. 853.) Dr. Bullard based his conclusion that the CEC siting process was racially discriminatorp on four major points. According to Dr.

    ' Bullard, the first factor and the moe: significant indication nat institutionalized racism played a part in the hite selection, was the fact that, at each progressively narrower stage of the site selection proce,s, the level of poverty and African Americans in the local population rose dramatically, ur.til it culminated in the selection of a site with a local population that is extremely poor and 97'/c African American. (/d. at 43.) Speifically, Dr. Bullard stated:

Ti.is progresme trend, involving the narrowing of the site selection process to areas of increasmgly high poverty and African American representation, is also evident . tron. an evaluation of the actual sites that were considered in the Internwdiate and Fine Screening stages of the site selection process. At my request, the Amencan Civil Liberties tinion of Virginia performed an analysis, using census track data. of the percentage of black population withln a one mile radius of 78 of the 79 sites that LES claims it seriously considered as candidaic sites.taiThe ACLU's analysis shows that the aggregate average percentage of blick population for a one mile radius around all of the 78.ites examined (in 16 parishes)m g3 2835E When LES completed its initial site cuts, and reduced the Inst to 37 sites within nine communities (parnhest includmg liomer, the aggregate percentage of black population rose to 36.78E When IIS then further hmited its focus to sta sites in Claiborne Pansh, the aggregate average percent black population rose again, to (A74E 1he final site selected, the "LeSage" site, has a 97.1% black population within a one-mite radius.

           *Becauw LIT site selectmn documentanon is so contrashetory. it is difhcult to deternune how many pics were actually conu& red at any particular point in hrse by LES However, counsel for LLS stated m shicovery that an un&ied docunent edited "Nunwrical haung (158) of potenual mes" ll RH431. and a
          " Huge topo map - 1982 Basarop/touinana - Misussippi (32091.[ All-TM 100)" {1- RB 661 prev >& the
          'nosi comprehennve Inung of snes that were conn & red See lener from Ruben L. Draper to Diane Curran tNovemtwr L 1994)iJentifyisig [ thew eshitsats) as providing the most comprehennve hsting of sites that receped senous conuderanon in the site selectin y , cess [l-kB-60). Based on these docunrna the ACLU was able to idennfy. by descripuon andter nup location. 79 cands&te site

Because one of thew sites, the Arrmsicad Cagean ute, was i&nnhed on the hit or 58. but was not clearly idennhed on the map, it was not conndered m the analyus

          *The twenty sites that were not idenufled on the $1 of 58 sites were placed in the appropnale parish by map hwahon for computation purpows. rather tL a attempung to associate each um&ntihed ute with a parucular commumty. An escephon to thn was made for Homer, where sis utes that were not included in the bst of 58 sites were all i&nnhed in the draft and final LIS as being consiered connected wuh tie town of Homer. -

(Id. at 46-47.) The tabulation of the ACLU analysis was received in evidence

as Intervenor's Exhibit 1-RB-68.-

          'Ihe second point showing discrimination according to Dr. Bullard, is LES application in Fine Screening Phase 1 of the " low adjacent population within a 2 mile radius" criterion in a biased and discriminatory manner in connection with the LeSage and Emerson sites to protect the white, middle class lifestyle on La'e Claiborne next to the Emerson site. (Bullard at 44, 51-52 fol. Tr.

853.) delying on Mr. Engwall's deposition testimony (1-RB 56, at 105 06), Dr. Bullard testified that, as the principal person responsible for site selection process 386

      .                      .                        .      .-             .    ~      -          .,          - _- -- -_._ -_     .

at this stage involving winnowing the six ilomer sites to three, hit, Engwall initially evaluated and scored the low population criterion for the LeSage site based upon an "cyeball assessment." As hit. Engwall described this process, he drove along the road through Forest Grove and every now and then he drove up - a dirt road where he saw "a small cluster of houses" and " boarded up houses." firom this survey, hir. Engwall concluded that in this area there were "maybe ten

      . people living there at most." (I RB 56, at 105-06; Bullard at 52 fol. Tr. 853.)

Dr. Bullard further testifivJ that it did not appear hit. Engwall drove through Center Springs at all. As a result of this survey, hir. Engwall gave the LeSage site a " low population" score of 9 out of a maximum of 10 and, when multiplied by the "want" wc;ght of 8, it yielded a weighted score of 72. (Bullard at 52 fol. Tr. 853.)

              - Dr. Bullard declared that, in fact, there are 150 people living in ihrest Grove and 100 in Center Springs. According to Dr. Bullard, had Mr. Engwall taken the most basic measures to assess population levels, such as consulting aerial photographs or county land records or talking to inhabitants of Forest Grove, he -

would not base rendered this African American population essentially invisible or taken the condition of the housing as empirical evidence of the number of

     . people living there. (/d. at 52.)

Next, Dr, Bullard asserted, hir. Engwall compounded the problem by using invalid and biased considerations in comparing the population level of the LeSage site to that of the Emerson site. The Emerson rite, which was the overall second highest rated site in Fine Screening Phase I, was given a " low _ population" score of 7, yiciding a significantly lower weighted score of 56. Again relying on hit. Engwall's deposition testimony (I-RB 56, at 102,105, 10810), Dr. Bullard asserted that the Emerson site score also was based on hit. Engwall's observations from driving around the si te, which led him to conclude that between 50 and 100 people actually lived there Yet when asked what he saw that caused him to score the site a seven, hir, EnFwall aaswered "[p]robably the proximity to the lake." h1r. Engwall went on to explain that +1w]c just felt opinion-wise people _ would probably not want this plant to be close to their pride and joy of their lake where they go fishing" (I RB-56, at 109; Bullard at 53 fol. Tr. 853.) *Ihe significance u a e lake, Dr. Bullard assened, also was emphasized a few pages earlier in his depcsition when hir. Engwall testified that the Emerson site was rated neuiral to slightly negatise because li)t was nght on the edge of this lae. This take h a very nice lake. This tae is the pnde and joy of this pan of Lou;:,iana, nice boatmg, nice homes along the take. It was felt that an industrial racihty real close to that lake would not tw in keeping with the exhting usaFe. which was nice homes vacation and 6shmg. hunting (1 RB 56. at IWJ 387 t l

Based on Mr. Engwall's deposition testimony, Dr. Bullard :oncluded it was clear that quality of life considerations improperly affected Mr. Engwall's scoring of the low population criterion for the Emerson site given that, at this stage of the evaluation process, there were no site specific criterion related to quality of life, He further maintained that Mr. Engwall's biased judgment on the quality of life concern regarding the desirability of avoiding the lakeside site where white, middle class peuple lived was directly related to the relative scoring of the low population crit:rion. Dr. Bullard asserted that the total effect ; of Mr. Engwall's actions was to discriminate against the Forest Grave and Center Springs communities because their residents' lifestyle and serioeconomic status were on a much lower plane (Bullard at 54 55 fol. Tr. 853.) ne third factor Dr. Bullard testified about was racial discrimination inherent in the Fine Screening Phase I criterion of not siting the facility within at least 5 miles of instituticas such as schools, hospitals, and nursing homes. (/d. at 13,43 44.) He asserted that by its own terms, this criterion is inherently biased toward the selection of sites in minority and poor areas because these areas generally lack institutions such as schools, hospitals, and nursing homes that are the focus of this criterion. Dr. Bullard stated that even though Forest Grove and Center Springs are 5 miles from the nearest town, there are no schools, hospitals, or medica' facilities of any kind or, for that matter, any other service institution in either community. He stated that, while it is not necessarily inappropriate to attempt to site a hazardous facility in an area that is far from these institutions, this criterion cannot be applied equitably unless the process is enlightened by consideration of the demographics of the affected population. OtherQ, he stated, disadvantaged populations will it. variably be favored as hosts for more hazardous facilities as is evidenced by the fact that minority communities already host a disproportionate share of prisons, half way houses, and mental institutions. (/d at 13.) he fourth and final point, according to Dr. Bullard, was the use of various community support criteria in the selection process that had the effect of - discriminating against 'he people of Forest Grove and Center Springs. He testified that during the siting process LES relied upon the opinions of Homer, a community 5 miles from the actual host community. His was inappropriate, he concluded because Homer stood to minimize the risks and maximire the benefit to itself by placing the facility a good distance from its own residents. In contrast, the actual host communities of Forest Grow, and Center Springs were never infermed of the siting decision until it was too late for the residents to affect the selection process. (fd. at 1314.) His was particularly significant, Dr. Bullard testified, because the principal criteria for site selection were support from the community and opinion leaders in the community. Indeed, LES considered it of primary importance that the facility 388

i

                                                                          *,hould be located in a locale w here it would be considered a comrounity aartM Dr. Ilullard testified, however, that, despite the importance of such community                                                         '

support, LES did not eveh recognite the esistence of Ibrest Grove and Center Springs as commurities, let alone consult their leaders. Instead, LES defined the " community" as llomer, a town $ miles away whose government contains I no representation from !brest Grove or Center Springs. Further, he dedared that the concert of community leadership, which was Ley to the assessn..nt of community support in the selection process was biased hward consultation with individuals who, rather than having an 6nterest or stake in the welfare of Ibrest Orme or Center Springs,instead stood to benefit from imposing the risks of the facility on therc neighboring cornmunities u hile the community of Ilomer reaped the benefits According to Dr.13ullard, the groups of community leaders with whom LES met and with whum it consulted to form its opinion of" community support," " active and cohesive community leadership" and " community leader preferences," were dominated by the Claiborne parish Industriel Development Ibundation - on w hich Ibrest Grove and Center Springs have no representatives

                                                                         - and elected offlcials from the towns of Ilomer and llaynesville, rather than Ibrest Grove and Center Springs. Thus, Dr. Ilullard concluded that a facially neutral site .clection process was perverted to give certain communities the discretion to decide who should accept the adscrse impacts of the proposed facility. (Id. at 47 $1.)

3. The NRC Staff

In chapter 2, section 2.11, of the I1!!S at the end of its description of the LES site s, election process, the Staff concludes that "the LES upproach fut selecting the e,ite was reasonable." (Staff Esh, 2, at 219,) Thereafter, in chapter 4, section 4.2.1,7.4 titled " Environmental Justice," the Staff states, inter alla, that it considered environmental justice from the perspective of whether there is evidence LES selected the CEC site based on racial considerations, it states that, although many comments on the draf t envirt e..nental impact statement alleged ths.t 1.ES deliberately chose the site because it is in an African American community, none cited any specific evidence to support the charge. In the FEIS, the Staff asserts that based on its review of the public comments and the LES description of the site 6elec ion process, it concluded that '1t]he LES proecss O An endesse or ihr unportahre or tius futor,14 Duitiid twird that in Internediate phase ll alen the ricid had i licen nanomed to rune comnemue , % cal suppwt ' man a snierum that had the highest powbie sconng mesght er 10 kwlarly. he obserwe ._. ,. in lah InternrJiate 8% airs t and !!. *acuw. cohrshe ntnmuritty lc ership" was esaluaicd ahd I8 fhaW t! (WIKfe bT analpil m 41 WWd IUr the brli Unt) that Cntert04 mal glWh 4 'mani" meighs or 10 linally. he truhemed that, ahhough at the line screciong stage when t.t$ man cimosing anumg the sit Honwi snes comnnatuty tuMw1 man no longer considered because it was Jerned alreaJy to hase twen estabhthed in ow scleetmn of Honet. la choomng anung the sa enr6. LLS nonetheless gase a "mant" meight or 10 to "cuenmusty tradet perrrenwes' eBullard at 47 4R fel it 501 389 e*. , ..-4. .v.--- -+--- n- -- -

1 1 1 appears to be based solely on business and technical considerations" and it found i "no specific evidence that racial considerations were a factor" in the process. l (Id. at 4 34.) In th-ir prefiled direct testimony, the Staff's witnesses. Ms. Ilorn and Dr. Zeitoun reiterated the findings in the ITIS and stated that the LES site selection criteria " appeared to be objectively applied in "ch phase of the selection process; anf none of the criteria appear to be bas.d on racial considerations." (llorn et al. t 12 fol. Tr. 9N.) The Staff witnesses further testified, however, ti.at

        "[tlhe Staff did not co.. xt a detailed evaluation of the site selection proccas.
       'the Staff did not evaluate cach individual ci.terion and rnale a determination if that particular criterion was appropriate. 'lhe Staff only considered the infortnaiion provided in the Environmental Report." (/d.) Finally, Ms. Ilorn and Dr. Zeitoun reitera4cd that "[b]ased on the information in the Environmental Report, the Staff did not see any evidence that racit considerations were a factor in the site selection process." (/d.)"

C. Liceming floard Determination

            'the nondiscrimination component of Esecutive Order 12898 requires that the NRC conduct its licensing teethities in a manner that " ensures" those activities do not have the effect of subjecting any persons or populations to discrimination because of their race or color. 3 C.F.R. at 861, in the ITilS and in its prefiled direct testimony, the Staff stated that it sought to determine whether raec played a role in the CEC site selection process by reviewing the information in the Applicant's ER. In taking this action, the Staff necessarily recognized the agency's obligation under the nondiscrimination component of the President's environmental justice directive to make sure the site selection process conducted by the original venturers in what subsequently became the LES project was free from racial discrimination.

In the circumstances presented in this licensing action, however, by limiting its consideistion to a facial review of the infortnation in the Applicant's ER, the Staff has failed to comply with the Prnident's directive. As we discuss more ful'y below, a thorouFhand in depth insestiFation of the Applicant's siting pro-cess by the Staff is essendal to ensure comphance with the President's nondis. crimination directive if that directive is to have any real meaning. Moreover, such a thorough Staff investigation is needed not only to comply with Esecutive U ln Hs popmed rinengt drahn3 muti the sne scketmn pucess; ite stafr suggesti that me arpoach the mue try %&og al itw quethon or whethre He sekeuun pocesi man mettly facist " NRC staft's Pritoned hnengs

     . or f act and Cumluuons or L.aw in dw form of a F unal Imual Drctuon Regareng Comentum B.1, K. and Q
     - (slay 26.1995) at SL 390

___-_____ _ __ -______=____ - __ _ _ ___ _ _ ___________-______- _ -______--_-____ Order 12898, but to avoid the constitutioral ramifications of the agency becom-ing a participant in any discriminatory conduct through its grant of a license. Racial discrimination in the facility site selectiott process cannot be uncovered with only a cursory review of the description of that process appearing in an applicant's environmental report. If it were so casily detected, racial discrimination would not be such a persistent and enduring problem in American ' society. Racial discrimination is rarely, if ever, admitted. Instead, it is often rationalired under some other seemingly racially neutral guise, making it difhcult to ferret out, Moreover, dit t evidence of racial discrimination is seldom found.

               'Iherefore, under the circu..istances presented by this licensing action, if the President's nondiscrimination directive is to have any meaning a much more thorough investigation must be conducted by the Staff to determine whether racial discrimination played a role in the CliC site selection process.

11efore turning to a discussion of the evidence in this proceeding, we wish to emphasite that our determination that the Staff's limited review of the description of the siting pmcess set out in the Eit was inadequate and that the Stalf now must undertake a thorough investigation,is not intended as a criticism of the Staff. The obligations imposed upon the Staff by the Commission's commitment to the President to implernent the provisions of the Executive Order are new to the agency. Ilecause thh agency's primary responsibilities historically have dealt with technical concerns, investigating whether racial discrimination played a part in a facility siting decision is far afield from the Staff's past activities. Indeed, because racial discrimination questions have not previously been involved in agency licensing activities, this is an area in which the Staff has little experience or expertise. Nevertheless, if the president's directive is to have any meaning in this particular licensing action, the Staff must conduct an objectise, thorough, and professional investigation that looks beneath the surface of the description of the site selection process in the ER. In other words, the Staff must lift some rocks and look under them. Substantial evidence presented by the Intervenor in this proceeding demon-strates why it is imperative that the Staff conduct such a thorough investigation. As we have noted, direct evidence of racial discrimination is rare. Nonetheless, the Intervenor's evidence, the most significant portions of w hich are largely un. rebutted or ineffectively rebutted, is more than sufficient to raise a reasonable inference that racial considerations played some part in the site selection pro-cess such that additional inquiry is warranted. In so stating, we do not make specific findings on the current record that racial discrimination did or did not influence the site selection process. When stripped of its abundant irrelevant chaff, the record is simply inadequate, objectively viewed, to reach any con. clusion with the requinte degree of confidence. A finding that the selection process was tainted by racial bias is far too serious a detennination, with poten-tially longlasting consequences, to render without the benefit of a thorough and 391

profcujonal Staff insesti fation aided by whateser outside experts as may be necessary. Additionally, the Applicant, because of the allocation of the burden of proof in the adjudicatory procca and the nature of this particular subject matter, is, to some extent, in the position of proving a negatise. 'thes, in this instaate any imding that racial considerations either did or did not play a part in the site selection process should be made only after the Staff has undertalen a complete and systematic examination of the entire proccu. leoling to the record of this proceeding, the Intervenor's statistical evidence presented by Dr. Ilullard and set out in Intervenor's lithibit 1 RD.68, shows that as the site selection proccu progressed and the focus of the search narrowed, the lesel of minority representation in the population rose dramatically. Ser supra p. 386. The Intervenor's analysis did not include one of the seventy nine seriously considered proposed CEC sites because it was not clearly identified on the large map on which the siting consultants had marked the proposed sites. (Dullard at 46 n 121 fol. Tr. 853; src l RH 66.) Of the remaining seventy-eight proposed sites, however, the Intervenor's analysis reveals that the aggregate average percentage of black population within a I mile radius of each of the sites across sixteen parishes is 28.35L After the initial site cuts reduced the list to thirty sesen sites in nine parishes, including the sites in Claiborne parish, the aFFregate percentage of black population rose to 36.781 Then, w hen the search nanowed to the six sites in Claiborne Parisn, the aggregate average percent of black population increased to 64.74% Ultimately, the process culminated in a chosen site with a black population of 97.1% within a 1 mile radius of the 1.cSage site, which is the site with the highest percent black population of all seventy eight examined sites. (Ilullard at 46-47 fol. Tr. 853; l RB 68, at 2-4.) This statistical evidence very strongly suggests that racial considerations played a part in the site selection process. It does not, of course, rule out all possibility that race played no part in the selection process. Nonethelen, the Intervenor's statistical evidence clearly indicates that the probability of this being the case is unhkely. Certainly, the possibility that racial considerations played a part in the site selection cannot be paued off as mere coincidence. Nr its part the Applicant did not attempt to rebut the Intervenor's statistical analysis with any statistical evidence of its own or present any witness challeng. ing the statistical validity of the Intersenor's evidence." Rather, Mr. l.cRoy,

                                                        " Ahhimgh al the he.aring the Apptwant did not 5%Ilenge the intenema a statatnal rudeixe tuih any staustwal evideme or munesses of its oma the Apphsant in ns ptopoicd hndings t App P L at 319 a 19% argues that it has no may of snommg -ahether the Intenemv s stansthat data are concet and sletter the site swanons on uhwh they are based mese properly adrnuhed Alter Liung ses imnat objechon sustuned Apphsant u nh. hew us obpecuon to inten*nor's [ shibn i RB 6A (Tr ph so thai estubit was sJnuned imo euilerwe. Thus. u is too late now for prwedural argunruin challenging that eudetwe. har9er as tir intersemv's eshibns shom - Ilr inap used by the tmervenor lo kwate camh of tir propmed soci(I Rh 666 e as surned met by the Apphcant to the Imersenor dunng damery f,am the Applaani s      '

4 G,nts.u.esh 392

    .        _         __          _ _ _ _ _ _                              . . _ _ _ _ _ _ . _ . . -              . . . . .  . .~.         _ _ _ . _

the LES Li6ensing Manager, although not difectly involved in the actuai %y process, stated that the siting process was r.st biased in any way and that he was not aware of any instance in which, or evidence that, the race or color of any in(ividual or group was a factor in any siting decision. (LeRoy at 33 fol. Tr. 840; Tr. 951.) lie also testified that it was only coincidence that the selection process ended with a site that has a black population of 9't.1% within a mile radius of it. (Tr. 965.) The three Fluor Daniel siting consultants, Messrs. Dorsey, Schapelkotter, and Engwall gave similar testimony, as did Mr. Swords, ! the Duke Engineering and Services, Inc., engineer involved in the last phase of the selection procci.s. (Dorsey et al. at 48-49 fol. Tr. 840; Tr. 951.) As we have already observed, we would not expect instances of racial discrimination to be admitted. Instances of racial bias are often rationalised in ways that avoid the question, so that a perse i can state, with conviction, that he or she did not discrirninate even when objective evidence suggests otherwise. In so stating, it is not our intent to impugn the integrity of the Applicant's witnesses. Rather: our point is simply that this and similar testimony of the Applicant's witnesses does not adequately sebut the Intervenor's statistical evidence." In response to an inquiry from the Licensing Board on the statistical prob-ability of coincidentally selecting a site that is 97.1% black within a one. mile radius from among the seventy-eight proposed CEC sites, Mr. Dorsey did testify that because of the selection criteria of a large site site and a low population area "the odds are very high that that is going to happen no matter where you go. It may not be 97 ." (Tr. 966.) Mr. Dorsey then added that, if you are in Louisiana or Mississippi or some other states in this part of the country, "[ijt is simply the make up of the rural areas within that region." (Tr. 967.) In this regard, Mr. l.cRoy added that "[tlhe rural population of Claiborne parish, I believe, is about 60 percent African American." (Tr. 968.) Yet, at least with respect to Claiborne parish (on which the record contains considerable data), own sue selecuan hits (1 Ra tio ) 1he 79 pntoned CII sites marked nn dw n,ap were placed there by oc fluur Damel smns comuhants durmg the selecuon pucess, not by the Interwnie, so the Arpheanfs confl ant piat it dwa not know how De bulled located the nues is mell stae of de pwk kloreswer. I r Bullard a pehleJ darest tesumony contaimng the trwthodology and enuha of the statntwal anal >us was served on dw Arrivant by owevught maal on february 24.1993. to it had that ininnnahon for mell ow 2 weeks twfore tn Bulled test hed on slsch 16.1991 Accor6ngly dw Appheant's posi heanng olyechons are mHhout tnefit H 1he Appl 6 cant also argues that to accept as essJence of tactal dissnpunanon llw huernm(s testmum) that at esth pogresuw stage of the selection potess the le el of nononly populatum ime dramancally.

mould be to suggest that any attempt to build a facildy in the ucinits of rorna orow and Ceruct spnngs or sinulat commumucs is inheremly tacially daennunakry"(App pin al 3:2p and "as a tuntier c'l.iw would dernve comnanunes such as ivrest Grtwe and centet spnnge of Ilw stpmumly ewn to be conuJered a the site for a project " ( App Pi at 323 ) We do imi egree Any condumon that Ow one selecunn prwest m as racially biased necessartly wceld be an elunwe detennmahon of fact bawd on #4 specihc sne selecuan prmess applwd in dus proceedmg if such a hndmg were lunde. u would not tw a deterttunatum "as a nWier of lam" and at nest certainly woukt tot dernve deprenned truntetty commumues of the weswtunny for future improvenrnt

'* Interestingly. to the paruon of his dermitam adnuned into evidence. kir 1.nguali testified that 904 to 9%

of ele cruste populanoa of Cimlunw Panh hwd in Honwr and Haynesville, the two urban centers in the pansh (i kitM si lat 107 ) 393

the record before us does not support the Applicant's assertion that the odds af e sery high that, because of the high percentage of blacks in the rural population, the black population around any rural site inevitably would be markedly higher than the racial makeup of the parish at large or the racial makeup of the rural population." In addition to this statistical evidence, the Intervenor presented additional evidence indicating that racial considerations played a role in the CEC site selection process.11ased on Mr. Engwall's deposition testimony, Dr. Bullard also testified that, with respect to the LeSage and Emerson sites, Mr. Engwall applied the low population criterion durit,F the Fine Screening Phase of the site selection process in a biased and discriminatory manner to protect the white, middle clan lifestyles on Late Claiborne nest to the Emerson site. See supra pp. 386-88. (Bullard at $155 fol. Tr. 840.) A thorough and careful reading of all the parts of Mr. Engwall's deposition admitted in evidence clearly supports Dr. Bullard's assertion that racial and economic based quality of life considerations influenced Mr. Enguall's scoring of the Emerson site. (1.RB 56 at 108-09,102.) Overall, Dr. Bullard's testimony fairly recites and reasonably characterires Mr. Eagwall's deposition testimony on this point. At a minimum, that deposition testimony raises a strong inference that race and economic status played a role in the scoring of the two sites. Moreover, Dr. Bullafd's testimony on this matter was not persuasively and effectively rebutted. Mr. Schaperkotter testified that LES did not apply the low population criterion in a biased matter. (Tr. 929.) But Mr. Schaperkotter had lef t the project prior to that time. Instead, at the Fine Screening Phase of the site selection process, it was Mr. Engwall w ho had primary operational responsibility for the project and it was Mr. Engwall who visited and scored the Lesage and Emerson sites.

 "The reowd sims that the gmpulatmn of toutmana is 30 8% Aincan Anwncan %Itard at 43 foi Tr 540 I Ril $9 i Drammg on census data. the Il15 semes that the populaima or Claihtwtw Parnh is 17.403 and that
 $) 414 of de populaimn is atute arnt 46 UM bimk (sian Esh 2. at 3102 to 101 ) 1hus, there we shghtly snore than 60uu African Anwrtcans to Clastuwne Paruh Ahhough no party introduced cemus figures on dw urban. rural brc adoma of dw ptulatum of Cl.utswne Parish to the ractal nukeup c4 that lucakdown. that inf<wmatum can be reasonably derned from Oltwr rWird tuJrthe There are only two urban areas in Claitxane Pansh llorner and Haynenille. altimugh there are nunwnms rural enclaves lhe cemus data sa Appiscant s latubit 18 on thewr, the largest loma sa the pensh, shmks a blad ptulatum of 2M6 sw $6 $4 of the total pTulauon of 4152 ( App lah 18. at 16111e ra&al techw map anJ correspon&ng ptulauon table in uw Apphcanf a I R f App I sit 1(ht.

at hg 2 2 6 & Table 2 2 91indieses thm dw peutanon of Haynesulle as appronmwiety Milio Herwe tte total urban peulatum ad Cisterne pur.sh is altrounutely 7000 and the rural pyulatmo u altrusmiately la,400 11mebus, approumately 60% of the total ptulahon of Claituwne Pensh ines in rural areas t ven assunung tlw enure blad ptulatun of de pansh culude of ihmer resides in rural areas and diat no blads hve in Han nesulle, or accend urban creuct m ttw parah. dw enaumum percentage of blads in uw rural estulauca would be less than $M Makmg pie uvasonable assuntium piat one th.sd of tte populmion of Haynesulle is blad. then the rural b4h htulanon of de paruh 6s approumately 4W and thus essennally the same an Ow radal makeup of dw panth stuimmn In bgte of ttwse populmum figures denved from dw endennary rened for Claihnine pansh, et is not at all apparent that the rural blad populanon of de parnh creates a Mtualum utwre the " odds are wry high' that any rural sue in etw pansh woulJ have a surrourkhng blad ptulanon that is much higler than the raani makeup or tte parnh at large or the ramal makeup of tte rural black ptulanna 394 l

Even more troubling, howevers is hir. Engwall's attempted revision di the hearing of his deposition testimony regarding how he arscssed the population of the 14 Sage and Emerson sites that was neither credible not convincing. At his deposition, hit. Engwall no less than seven times testified under oath that he performed his evaluation of the population of the LeSage and Emerson sites by driving through the area and performing a visual or eyeball" assessment. (1-kil 56 at 106; id, at 102-0N.) Indeed, he even asked his questioner, Intervenor's counsel, llow else afe you goinF to do it?" and indicated that, in his site selection training prior to his work on the CEC project, he learned to esaluate population by driving around and looking. (1.Ril 56 at 106.) In his rel,uttal testimony at the hearing, however, hir. Engwall testified that although he had said that at his deposition, he later was looking through the siting files and saw a map that he recalled using to gather information on the proximity of houses near the Emerson and LeSage sites. lie also declared that he remembered taking an airplane flight around three or four sites to get an idea of the population levels. l lie then stated it was this later information that he used in scoring the sites for the Kepner-Tregoc analyses (Tr. 93132,)

            %c marked difference in hit. Engwall's testimony on this matter from the l    time of his deposition to the time of trial causes us seriously to doubt the credibility of this revised esplanation. Further, his demeanor at the hearing l    in responding to his counsel's question and the substance of his response, in pafticular the generality of that response, convince us that hlr. Engwall's earlier deposition testimony is a more accurate accounting of the process he used to gauFe and 7, core the population of the LeSage and Emerson sites.

in the same vein, hir. EnFwall's attempt in his rebuttal testimony (Tr. 933) to distance himself from his emlier deposition testimony regarding the low population scorinF for the Emerson site and his view that the proposed CEC facil.ty was not compatible with the land uses around Lake Claiborne was neither credible nor persuasive." Accordingly, we find that this specific esample of the application of a riite selection criterion raises a reasonable inference, which wra U lte esample, str I nguall diJ nel Ntwrmise 6demify Itw ' map" Imm the litmg files that tw "Used in gather informanon on Ow prussivty of houws near each one of the sites

Or 9.121 ant was it intrnduced into evhlence.

W in in proposed finJings, the Applicani suggests that tir llultad prettJed no basis for tus cotwiushin that ttw lakeude commuruty around L.ake Claubome a mhete, nuddle class (App P F at 310 n 189 t Dr Bullsd's areas on espertne. howeser, include land use anJ tranoney thmung 4Ril.4sl and he testified thu 7e es sery simple to tell who ines where onen the demographics of its parnh given the nature of f orest ovove and residennat segreganon in stus parah. p u fauty simple to kiok at etw numbers and the chans and tell who bses where " Or s74 ) lie Appinant presenicJ no evhlence or any LinJ that itw residrnual commumt) around take Claiborne was not a mhete. nmidle class area as,J thai Dr ilullmJ mas trwtwrect in his descitpuon indeed, in light of Ltw Buread of the Census statnuce in Inserwn#s I thibit i Rit-67 on etw hnuieholJ incomes of stuw and tilAk tww%)Js tn Claiborne Panth 6 Ra 67 at IDL u is renumably inferred that tie 'sery suce lake' mith *fuee h<mes along Ow lake

that the Appheant's niinen, kli 1.ngmall descrited d kD46 mi 102) are thit ttw homrs of Cistwwne Pansh Afncan Anwrhaia.

395 __ _ =_ k

not effectively rebutted by the Applicarl that racial bias played a part in the selection process *' To summarire, the Intervenor's statistical evidence and its evidence concern-ing the application of the low population criterion Mand as significant probative evidence in the current record that racial considerations played a part in the die selection process. 'this evidence demonstrates that a thorough Staff investiga-tion of the site selection process is needed in order to comply with the hesi-dent's nondiscrimination directive in Esecutive Order 12898. The Intervenor did provide other evidence concerning the inherent racial bias in the fine screening

       . criterion of siting the facility 5 miles from institutions such as schools, hospitals                          o and nursing homes and evidence on the manner in which vafious community opinion and support criteria in the selection process discriminated against the minority cornmunities of Ibrest Grove and Center Springs. 'Ihis evidence is, at most, only indirectly indicative that racial considerations played a part in the site selection process. Nevertheless, when coupled with the Intervenor's statis.

tical evidence and its evidence concerning the application of the low population E la tus rebittal ten num). hit. tekoy tesuhed that puw to the hearing te had a houw coute pertamed that conhrned kit. I ngmall's scorms for the I nwrmn and 145 age snes He stated that dus dnw-by survey showed apvusmimely 140 Imuws unkn a 2 nule sad us of dw 1 nrrma site and altrosmiately 70 houses for the is5 age sale, irt 932.) There are several traumn why hit leRoy's test # mony Ars not rebut effectnely (tw inferetwe of racial dacnnunatsun in de althcation of de Ptolation scieng cinenon Thai couw has no real relevatne lo dw quahiy of ble conuderatums atmut tte trwompauhthey of dw popowd Cl.C faahey enh the wluie, truddle class inmes on the lake that we haw found impopenly influenced kle 1.ngwall s kteng of the I rirrson site relative to , the issage sHe In any e=ftat, vung a house couni instead of an actual htulation enunwrahon for deternuning the j g fulanon around de is5 age ute arhi that portue of itsest crow withm 2 trules of de i nerwa site does hin } povide accurate 6minrnution tecause stw uw of de standad mulupher of 2 8 perums per hwacimid umlettounts nanonty Imuwtu. ids and yiekh etwalty unreshst c results tnultad 1 W8 R9 ) Aahtumally, the Althcant's 1.k stairs shas 50'4 of the houses kwaled on t ske Claatsene wittun $ nules of the le5 age ute are aid pernunent resulrines (App rsh l(hk at 2 2 21 Tirrefore, et appears that ume ognificant petam. If not all. of thise tumws are hicluded to his isRoy't house count Hence, ttat house count ducs nie rehably estabhsh the population amural de te$ age and I.nweson uses Iinally. la an enott to bolster tu hiw poput.uhm sucing defenw, dw Apphcant argues that intersems's I shibit i RB 68 shoe mg de stulauon wnhin i trule of the tesage sue as 138 and the populanon mittua i nule of the i nwtwa sitt as 393 effectnely conhrms the low p ipulatue scanng of the two uses tiercauw the fine screentng stage low populaima cnictum 6s a 2 nule radius, de pesence of a smai peruon of Lake Claihonw metn 2 neles or the i nrrum saw precludes any accuraie concluuon from the t teile rashus hgures in surn. Inw of de estdruce la tlw runent record prownra an anutme te schable h> of the populatum wnhin 2 nules of the I netwa and de t.esage utes ihe record does clearly enabinh, Imwever. tuan hir I.ngwall's count of 10 people fse the lesage use and $0 to 100 people f.a the i nwrwn ute is out correct and that. contrary to his deposition teshnmey. 90419 VM of de pettle in Claitmane piirish do gut hw in Homet and Haynemlic d RBA at 104, 101,107) luettwr, we tune that de figures "charactended" from census data in dw direct testinumy of de Stafr wHnesses on ttw populanon and f acial makeup of the area around the 145 age sue, uwiuibng the I.nule ute ra.hus (Hora et al at ll 12 fol. Tr vo4h is markedly different from Itw t nule radius around tre ute denwd from de census daa tiy the latervenor in l Ril 68 Inut the stati witnesses conceded that dw nunters actually were nunh h'5h er W ) 396

criterion, this further intervenor evidence raises concerns that deserve attention and should be further carefully analyred as part of the Staffinvestigation? l 111. ENVIRONMENTAL, IMPACTS 1 i Although the Staff now must undertake a thorough ingestigation of whether i racial considerations played a part in the CEC site selection process, we nev-ertheless turn to address the second conectn ot' the Intervenor'8 environtnental justice contention. In the event it is ultimately determined that f acial consider-f ations played a role in the site helection processi inese findings would become ta la tus le huumy, Dr Itallard also clained that de CIC use selettue posean was and tle orderly, s)stenuius pucess depeted in de Appluant's 1.R but rettet a pocess that coma ned septufhant inegulantws, gaps, and innensiernes He assened that dwse nunwrous kh5wncscs ta sed an enference td bias se de sne seierhon pot'ess titullard at SS 66 foi 1 831 ) In hght or our conslouon that ttw $taff must corniuct a durough investigatue of de sne selection portat me have not etwmpted to resolve all of tie adhuntal ev6&nhary esputes termeet. Sw Intervenor anJ de Applu are over de sanous aspects ad dw selection proccan. ll sbiund tw reird. homewr, det a companu a of de fluot Damel Site ReciennenJahna Report il RBW - itw repet betwe de Steenng Comnuttee uten the Couvrunee selected de leSage one - utth secthe 7 of de Apphcats't Ok ( Apr i sh 1(ht. at 7 l 1 to .lli dews not support the Appinani's astertion that de desenpuon of ele site selection ptwest in de i k is connueni with the f luct lianiel repet d Awary et al at 46 48 i !ven aucpitop h Apphtant's tharactensaine of dw ennelatma letween dw one selectma phases of dw f lu v Damel rebirt and itw phases stated in de I k ud at 44 de sniens that dw flunt Danel repwt states were apphed at several phases of the selecuon process samply do not makh ttw rntena that lie iR states mere opphed at done terrespimhng stages lot esample, de Apphcani states that phase 111 of de f luat Damel rep <wt corresgu nds in what is called lmernwame 1%se I in dw 1 R. dd i Yet of the 10 cruena apphed at phase 111 of the iime Daniel terwt d RH 63 at 18 Ib 5 of those orttrna O e . square siw configuratum, topography, no sphs om twiship of land and nuneral righin atte noccu. and mellands) haw no romuerpan an ite 10 cntena the I R states trere apptwnble at lmerne& air f%se I (App I.sh l(ht al 714 ) lie Apphcara also snaies that the l'arst Stage of l%se IV of , de llunt I antel report ennespmda to Inteturaste 5%se 11 n the I R (ikwicy og al at 46 lol Tr. 840 i Vet of the if Mtens apphed at dw Itrot 5tage of phase IV of the time Daniel report d kD4.4 at 2424 at least 8 of those entens H e, access tonerol (musti, low nood nd (muss). k m adjaceta pipulatuits, inshtutsetts withan $ teules, hu airport wHt ua $ nules. sitiple ou ter, site sist. and baschte enstrunnwisal datal haw no counle part in the 14 6ntena tte I.R simes mere apptwable to Internweaic praw 11 Mpp lish lihi, at 7.17 to 4 ) hhwemer, gtwn dw saung cnteria that de 1%w (1aniel reput statra mere apphed, it is not apparent how tlw Iesage sne sculJ sunsw tlw early screetuna sniena much less become she favwed sne. for esample, ttw limw Datuct ecpat states that in phane 11, u hwh de Apptwam states storespotuts to Imernw& ale phase i in tlw 1 R. He i subcnannn to roosnumtwa weOng ttw nonunatmn of potennal nues indnaird thai utes should ims have operahng al and gas melts or separaie nuneral nghts O RH 61 at 16 ) itw l R rentes dw sanw sohcitatmn entenon and stairs thas lmernwame 1%se I snes *cie screened usms a crtienon to "talvmd property wish opersiang gasioil wells * (App ITli Itht at 714 ) The I secuuse Summary of de fluss Damel report. homesce. sintes "The le$ age sue has a numhet of tharactenukt mbch appear to best sausf) the need for a ute for C1.1 p.1hese can be sumnunted as folkrant ] I mironnerwal Cuneni lat.s use tm luks oil and gas wells, hmher farming and a ecunty toad " d Ril 61 at lad ) Thut is appears that d e f loor Damel samg consuhams beheved throughout the amng pusess that there was an operaung oil arkl gas isell on the lehage sne lhes faa scenungly should have esquahhed the lx5 age sne ewn though it would not base daquahhed the thiner commumty of cowr thitrunsied saws in Clashwnr pansh sull nwt the cibet cinena inkrd, nonenmeJ siges in other conutmmues such as the Yestan Tesaco sne d RB 63 at 2) were shiquahned ie having an od mell on de nonunaird sne Yet de early sercenmg cntena nevet d squahncJ dw IE5 age one Althsugh de Applwam's SAR mduates that LeSage well 44 la in fact outside the final soutlern sne bourdary (App Lah lish al 21 13 to 144, that fact d ws not alter tie apparem behef of dw siung tonsuhant dunng the stung paceu shal ttw LE5 age ute containcJ ct! nml gas mells Sinularly, de I hkw thanwl tepart indwates that dunng the lust 5tage of phase IV. whkh the Appikard stmes corresponds to Internw& ate l%se 11 sn tfe i R. a

nut" acteu control cturnon was aftl eed Thai cnictm) stated that the site must be situated and ananted so the a6cen by unauthwised persons could be pevented and 4 Continued) 397

i moot. Should the opposite prove to be the cat.e, however, these issues will have been decided so that any appropriate Staff licensing action can proceed.

                %e Intervenor's contention 19. much like the similar cornponent of Executive Order 12898, is concerned with the disparate impacts of the proposed CEC                                                             1 facility on the minority cornmunitiers of ihrest Grove and Center Springs. More                                                      l particularly, the Intervenor's contention asserts that the Applicant's ER and the Staff's 11115 do not adequately describe and weigh the various ensironmental, social, and economic impacts of placing the CEC in the midst of Ibrest Grove and Center Springs. Similarly, as applicable here, the President's Executive Order instructs the agency, to the greatest extent practicable and permitted by law, to make environmental justice part of its mission by identifying and addressing disproportionately high and adverse human health and environmental elfects on minonty and low income populations as part of its licensing activities.                                               '

in the FEIS, the Staff addressed the various impacts of the CEC in chapters 3 and 4. Additionally, in chapter 4, section 4.2.1.7.4, on environmental justice, it states that,in addition to considering environmentaljustice from the perspective of whether race played a part in the site selection process, the Staff also considered whether minority and economically disadvantaged populations will be disproportionately affected by the CEC. (Staff Eth. 2, at 4 34.) In this regard, the Staff concludes they will not. (/d. at 4 35.) in making this determir,ation, the Stalf declares that, to the extent the CEC affects the environment, those livinF closest to the facility will be most affected, but that all aspects of facility operation will be required to comply with State and Federal environmental regulations. Specifically, the Staff asserts that all effluent releases from the CEC will be below established regulatory limits and doses are espected to be well within regulatory limits. Further, the Stuff states that it has not identified any significant ofIsite adverse impacts that would occur as a result of facility etmstruction and operation. The Staff thus concludes that because the impacts of the CEC will be relatisely small and there will not be a disproportionate adverse impact on minonty or low income populations, operating the LES facility will not promote environmental injustice. (/d.) In their prefiled direct testimony, the Staff witnesses, Ms. Ilorn and Dr. Zeitoun, stated that in evaluating whether there were disproportionately high endwated a este croswd in a pubbe hikmg trad. for esamg le, mould tw unacceptable (I k(14) al 211 By applying tte reconnaissan6e level mtormanon that man uwd at this early screenint stage. ttw esiste we of pansh Read 39 bnectmg tie 145spc site seenungly should have duquahhed the sde even though it would smt have daquahfied tiw Honrt communit3 d there were other norrunated sites in tte parnh that strt the entena Indeed, nimunated anet la olhet corimmtutes such as the Drlhe sud nl. oak Grose $heldom sne, and Wmnsboro Magee tne (l Ra 63 at H mere duquahhed fos havins a road across de sne Yet this early screenmg entenoo never daquahfwd de tasase sne A smular situation involving the lesage sHe la presented t$y the protirnay to airport entenon applaatsle to the ritA Stage of the IV m the fluor Daruel report il kB 6) at 22. I kB-63 at 13 Nnther or strie cruena are indudcJ in any of the hmngs or sniena hited m dw i R Accorthngly, tiwie anorruhes in ttw proscas should be analysed as part of the Staff teventigation 398

n and adverse impacts to minority and low income populations from the CI!C facility, the Staff considered the term "high and adverse" to mean a significar t _ impact such as one above regulatory limits. *lhe Staff adso used the term disproportionate to mean greater. (llotn et al. at 22 fol. Tr. 9N.) They further testified that the Staff recegnised that to whatever degree the CEC affects the environment, those living closest will be the most impacted. Accordingly, concentrations of uranium in the air or water will be higher close to the facility than in llomer; construction noise will be louder close to the site; and traffic impacts will be greater near the site than in llomer or other parts of the parish. (/d. at 21.) The Staff witnesses concluded, however, that, "[although Ibrest Grove and Center Springs residents will receive greater impacts due to CEC . operation [,) . . . these impacts are not considered by the Staff to be significant or above regulatory limits, and are therefore not considered to be high and adverse." (14. at 22.) In its evidentiary presentation on contention J.9, the intervenor challenged the adequacy of the Staff's 11!!S treatment of a number of CEC related effects on the communities of Ibrest Grove and Center Springs. We most judge the adequacy of the Stalf's treatment of the various impacts in the 1111S by the rule of reason. Scr, e.g., Mainc l'rmArc Atomic Power Co. (Maine Yankee Atomic Power Station). ALAll 161, 6 AEC 1003,1011 12 (1973). *lhat standard is , not one of perfection; rather, it is a question of reasonableness. As the Appeal l Iloard long ago recognited, " absolute perfection in a FES [ Final Environmental Statementi being unattainable, it is enough that there is 'a good faith effort . . . to dersribe the reasonably foreseeable environmental impact' of a proposed action." /d. at 1012 (citations omitted). A. Worst Case Accident Analysis First, the Intervenor asserts that the FEIS does not adequately consider the worst case accident risk to the neighboring communities of Ibrest Grove and Center Springs.22 in his prefiled direct testimony, Dr. Bullard asserted that the FEIS identifies the greatest harard associated with the operation of the CEC as a UF, storage area fire. He also conceded that the FEIS sets out the predicted intake of uranium at various distances from the release point in the event of that accident and indicates these accident related intakes are in excess of the NitC guidance criteria of 10 milligrams (mg). Dr. Bullard further claimed that, other than recognizing it would be released in an accident, the FEIS contains 22 I wa though ttw Interwmu's contentwn is amwd at the Arrlicarw's i R amt is umlerstooJ aho to challenge the Staff's lance hied tils oet supra p M.4), the intervenoe's euknce is areded esciumuly to the a&quacy of flw l'I ls Accor&ngly, the fosus of mar hnangs la on the Staff's ilis. although such Anangs necessanly encompass the a@quacy of the Apphcant's I.R twcauw of the Staff's heavy rehance on the i R to writing the IIis 399 'l

no information about the release of hydrogen fluoride, which combines with atmospheric moisture to form potentially dangerous hydrofluoric acid ("Hir'), nor does it discuss the effects of uranium or ilF releases on nearby populations, other than to state the bare conclusion that the potenhal consequences of such an accident are unacceptable. (flullard at 23 24 fol. Tr. 853.) Dr.11ullard declared that the asserted Staff failure to address adequately the consequences of a severe accident is based upon the Staff's conclusion that various mitigative measures will keep such an accident froro occurrinF- - According to Dr. Ilullard, by relying on such mitigative measures the Stalf has i improperly analyicd the nature of the CEC facility. Instead, the Staff should l have recognized that the CEC is a harardous facility with a certain level of risk that cannot be climinated by t gulation and that licensecs, for whatever reason, do not always comply with safety regulations intended to protect the public lie thus claims that there is a foreseeable risk of such an accident and that the minority communities close to the CEC bear that risk to a siF nificantly higher degree than people living further away. Dr. Ilullard states that this disproportionate accident risk for Forest Grove and Center Springs should have been analyred and discussed in the 11!!S. (/d. at 25 26.) We agree that the catastrophic failure of a hot cylinder containing liquified UF, presents the greatest offsite hazard associated with the CEC. Ptom the record before us, it appears there are two worst case accident scenarios that can result in such a failure: an autoclave heater malfunction and a UF, storage yard fire. In the IlilS, the Staff states that an autoclave heater malfunction in prevented by redundant Class I control systems and, therefore, such an event is neither considered credible not analyred. (Stalf Esh. 2, at 4 53,4-62.) The Intervenor did not challenge the Staff's treatment of an autoclave malfunction accident.

     'the Staff also evaluated a UF, storage area fire as part of its ac6.a analysis for the CEC Specifically, it considered an accident involving a cylinder trr.nsporter schicle collision in which the vehicle fuel tank ruptures and the spilled fuel is ignited engulfing the UF, cylinder in llames. Relying on an earlier study of the consequences of this accident scenario that it performed in connection with emergency response requirementa for fuel cycle facilities, the Staff set out in the FEIS the quantities of uranyl fluoride and hydrogen fluoride escaping from a ruptured UF, c)hnder In a table in the IEIS, the Staff also reproduced from its earlier study the predicted uranium intakes at various distances from the release point under two release scenarios. (/d at 4 62 to 63.) The 1111S then states:

Intakes in escens of the NURtiG l.W1 guidance cntena (NRC. lWtb) are predwted ror consideraNe datances from the release pnmt. Intakes of uranium below the tu mg Imut i and esposurr to liF tielow the 25 mg/m hnut are not espected to came adscrse health 400

                               --       - - - ,        - , . - -                 ,.m   .             ,             ,-. - - - , ,

effects SutistanuaHy higter intales can tause ser6ous injunes and fatahuet 'the potennal wm.equenten of stos type of anident are unaacptat.le (/d at 4 63.) llecause it concludes that the consequences of a storage y3rd fire are unac-certable, the Staff then states in the IElS that measures to prevent this accident are being imposed by license condition to limit transportet fuel inventories to le:s than the quantity of fuel that could sustain a fire causmg cylinder rupture. , lhither, aLhough the ITIS does not expressly state that offsite HP concentrations from a storage yard fire would esteed NRC limits, the Staff witnesses testified that "[ilf a ryhnder were to overheat and rupture, uranium and ilF concentra-tions would eseced the criteria at offsite kications and result in some health impacts." (llorn et al. at 20 fol. Tr. 904.) 1he Staff witnesses aho testified that, because 1.11S will havs in pl cc mitigative measures to prevent an accident as well as an NRC approved emergency plan, "the Staff does not believe that the accident risk to local residents is significant," (/d) Contrary to the Intervenor's assertion, we conclude that the Stsif's treatment in the ITIS of the worst case storage yard fire accident is minimally adequate to inform the reader of the consequences and 1:Lehhood of such an accident - the two components of the overall r;.A. Recoghiring that the standard for judging the suffickney of the discussion of environmental impacts in the IEIS is one of reasonableness, we. cannot find that the Staff's discussion of environmental impacts is so defi;ient that it requires remediation. As Dr.11ullard conceded, i the ITIS sets out, albeit in a table format. the representative predicted uranium intakes from'a storage yard fire accident at various distances from the point of release of UF,6, in addition,it is also obvious from the Flits table that uranium intakes in excess of the NRC limit of 10 my are predicted in both hypothesired release scenarios at various distances from the point of release. Further, the 1111S states that intakes substantially abose the NRC limit can cause serious injuries and death. Thus, contniry to Dr. Ilullard's assenion, the flilS does more, although not a great deal more, than merely state the conclusion that the consequences of an accident are unacceptable. There is no question that the infonnation in the 11115 could be stated more clearly and meaningfully. Indeed, one of the purposes of the 1115 is to serve as an environmental full disclosure statement to, among others, interested members of the public. Scr, e.g., Minnemra l'/RG n Itur: 541 F.2d 1292,1299 (8th Cir, 1976), crrr denird, 4.to U.S. 922 (1977). Nonetheless, the essential information regarding uranium intales and health consequences of a worst case accident is provided. No doubt, the FlilS would be more informative if it outlined the various levels of uranium intakes that cause serious injury and those that cause death and if it correlated the distances set forth in the table of representative 401

predicted uranium intales with the local populations around the CEC.1he FE!S is not, however, inadequate for failing to include this information. Further, as Dr. Ilullard asserts, the IT,lS does not expressly address the ' exposure of the surrounding population to llF releases from c storage yard fire, flut the FEIS does imply that IPi exposures. like uranium intakes, will exceed the agency guidance criterion of 25 mg/m' and that such exposures can cause serious injuries and fatalities - a fact conbrmed by the Staff witnesses at the hearing.1hus, in the circumstances, the FEIS is minimally adequate in this regard as well. Finally, we do not find incritorious Dr. Ilullard's claim that the Staff may not rely on accident prevention measures that lessen the probability of an accident as a basis for concluding the rhk to surrounding populations from a worst case storage yard fire is not significant._ llerc, the Staff relies upon a license condition litniting the fuel quantities carried by cylinder transporters to ensure that a storage yard fire would be deprived of a sufficient fuel source ior heating a UF, cylinder to the rupture point. (Stalflish. 2, at 4 63 to 64.) Similarly, the Applicant's ER indicates that a combination of enginected safety features and administrative controls inust fail to have a worst case storage yard fire. (App. Eth.1(h), at 5.l 9.) *Ihe Intervenor's disagreement wkh the Staff's conclusion that the risk to surTounding populations from such an accident is not significant, is supported by nothing more than Dr. Ilullard's bare assertion that licensees do not always follow safety regulations. ~1his is hardly sufficient to establish that the Staff's deterministic analysis of the accident risk is flawed.22 Tvr these reasons, we find that the Staff's treatment of the worst case storap yard fire accident in the FEIS is adequate. I'ltw Insenetme's pesans that the iIis as 6na&quate alic is not aJsaened by tir. Ilullard a echaine on the Cosanussum's tirating pa the final fuelcysle enregriwy preparedness sule thal releases of uranium braalluondr in a newer a6cklent twcut rapdly with hide warneng. street y leasing close trighbors no tinw to esasuale or esen to wek shcher $ce $4 led 1(eg 14 031.14.052 09t4M lie speed with mluch t)le elcaws r may occur in a moest caw storage )md fire does not ad. tress the hkchhood of the sendent accernng when etere are a number of presensause tiratures in place. AAhinmally, me snee ow tie toimnale fue the rule requiring senain fuel cycle facibhes hke the cl.C to have energency plans reued. in pan. on the f a,1 that 1@y sysican of irnpincered safrgu.uds is etmukred to have pnr poushshly of failure No syseem sould eget be pertes1 $4 led iteg at 14 036 on its fate. n stut tu appear incongruous fos the agency to druk, on the one hand that the genenc enk of failure of enganceerd safeguards is sufhcartel,t signihtani to requue the enregetwy preparcJersa rule but en the other, thal enginected sateguardt aleQ milh the t I3 enrtgin() plan, make the ink of a CLC murst rate slutage yard hfe scrikte Inugmficant Na arthelen. H ts important to recosture Hun the stali's il is concluuon is based u,,on Ha deternurustic analysis of e 4 spcoric nungahve measures that redine de hkehhmd and hence de nsk ci a worst case accidrnt to a pr s % ow hak as not conukted sigtuscant Tn he sure. Ihr staff's aswunirnt of He acculcis risk te not l 0011 a quanhtahve probabbltif nsk auessnrfit The inicrvemw, immesce, has not simen any ernw in the k aucunwei-402 i ( , ___ _ , -. - --. -~

11, impacts of Road Closing / Relocation "the intervenor also asserts that the 11:15 is deficient because if fails to address the impacts of closing Parish Road 39, which currently bisects the LeSage site ! and joins the communities of Forest Grove and Center Springs. (!!ullard at 33 l fol. Tr. 89.1.) $rc genrrally apta p. 370, Dr. Ilullard testified that in the FEIS the Staff assumed that Ibrest Grove Road would be relocated after it is closed. lie claimed, however, that it is by no means clear that the road will be relocated because any decision about the road rests rmt with 1.ES, but with the Claiborne Parish Police Jury that rnust pay for any road relocation Dr. Ilullard testified that if the road is not relocated it would impose upon the residents of Center Springs and ihrest Grove an aalitional 8. or 9-mile trip by way of Homer to go from one community to the other, (!!ullard at 33 fol. Tr. 853.) Additionally, Dr. Ilullard asserted that even if Parish Road 39 is relocated around the site, the Staff incorrectly corcluded in the FEIS that the impacts would be very small and not pose unacceptable risks to the local community. According to Dr. Ilullard, it is apparent that the Staff did not even consult with any of the residents of ihrest Grove and Center Springs before reaching its conclusion for li it had, the Staff would have found that Ibrest Grove Road is a vital and frequently used link between the two communities, with regular pedestrian traflic. (/d at 33 34.) Ibr its part, the Stalf does indeed state in the ITIS that Parish Road 39 will be relocated to pass to the west of the plant area and that the esisting road will not be closed until the relocated road is fully constructed and open. (Staff Enh. 2, at 2-21; sre (d. Fig. 2.8 at 2 22.) Ibrther, the FE!S indicates that the road relocation will add approsimately 120 meterri(0.075 mile) to the trascling distance between State Roads 2 and 9 and will add an additional 600 meters (0.38 mile) to the 1800 meter (1.1 mile) distance beteen the Ibrest Grove Church and the Center Springs Church, which we the apprmdmate centers of the respective minority communities. The Staff also concludes in the FEIS that the impacts associated with the road relocation "are scry small and would not impose unacceptable risks to the hica, community." (/d. at 412 to -13.) Finally, in the chapter 4 5ection on environmental justice, the Staff states that "(Ilhe mirmrity commumtics of Ibrest Grove and Center Springs would be inconvenienced by the Parish Road 39 rehication, increasing the driung time between the communities." (/d. at 4 35.) %e Staff then generally con:ludes that there will not be a disproportionate adserse impact on minority or low income populations. (/d.) i in their prefiled direct testirnony, the Staff witnesses added that the relocation of Parish Road 39 is espected to result in the largest disruption to the residents of ihrest Grove and Center Springs and that it will certainly affect those living near the road to a greater entent than those lising in other locations around the parish,- (llorn et al. at 14, 2122 fol. Tr. 904.) ncy also testified that 1.ES 403

had stated in a letter to the agency that the road would not be closed until a new road was built. (/d. at 14.) Ibrther, Ms. Ilorn, the Environmental Project Manager for the LES application, ter.tified the Steff concluded that Parish Road 39 would be relocated because the Applicant's ER so stated and Claiborne Parish had passed a resolution (which she had not seen) indicsting the road would be relocated. (1r. 90910.) Similarly, Dr. Zeitoun testified that a member of his stafIconfirmed by telephone with a parish police juror that a resolution had been passed, but admitted no inquiry was inade whether funds had been allocated to relocate the road. ('11. 910-11.) Ms. Ilorn did adnowledge that the Staff had not considered the impacts on the Ibrest Grove and Center Springs comtnunities if Ibrest Grove Road was closed and not relocated. (Tr. 912.) In their prefiled direct testimony, the Staff witnesses also stated the comments on the draft iE!S suggest that much of social interaction between Ibrest Grove l and Centu Sprinp center on the community churches. They asserted that the tclocation of Parish Road 39 should not affect those activities and residents who attend church scryices at either shurch will still be able to do so, although driving distances will be slightly increased. 'ihe Staff witness funhet indicated that the road relocation may require residents of the communitNs to adjust corpools. Ibr these reasons, the Stalf concluded the road relocation would cause an incomenience, but it is not expected to have a significant impact. (llorn et al. at 1415 fol. Tr. 9N.) 1he Applicant's Licensing Manager, Mr. l.cRoy, also stated in his prefiled direct testimony that Parish Road 39 will not be closed. Rather, he stated the segment stossing the LeSage site will be relocated to the western edge of the property and the relocation should not cause hardship to anyone, (LeRoy at 12-13 fol.11,840; App. Exh. l(h), at 4.12). lie testified it was not foreseeable that the police jury would not relocate the road because "[tlhey voted unanimausly to relocate the road." (Tr. 925.) Ahhough neither the Applicant nor the Staff offered the parish police jury resolution in evidence, and the Staff witnesses apparently have not even seen it, that resolution is in the record as an attachment to the Intervenor's original cententions " As adopted on November 9,1989, I y the Claiborne Parish Police Jury, that resolution hardly can be characterlied as the "open and shut case" portrayed by the Applicant and Staff witnesses. It is only a resolution - not an ordinance or other binding legislative enactment with the force of law - and thus merely expresses the prevailing sentiment and opinion of the then police jury. Moreover, the significant "usolved clause" of the resolution uses the disjunctive "or" when it declares the jury agrees to "close or relocate" the road Therefore, contrary te the apparent belief of the Applicant and Staff witnesses, M 5cf Catueng Agenst Nmicar ' trash's Contentens ce the Constrwtmn tyrmiVoperaisng rAense ApplNmmn for Our Cimbnrne 1.nrwhna tit Center Al .h 4WI)roliemir 3 Atlash l) 404 i l

1 Qe police jury ha only espressed a sentiment either to close or to relocate the segment of Paiish Road 39 that crosses the LeSage property, but not necenarily to do both. The record before us thus does not support Mr. LeRoy's optimism that the parish will relocate the road. Rather, w hen all of the record evidence is considered, including that which shows that the minority communities of Ibrest Grove and Center Springs now are underserved when it comes to receiving even ba31c parish services (Bullard at 18,36 fol. Tr. 853; Tr. 870), we have no basis to accept Mr. LeRoy's assurance that the road will be relocated by the parish instead of just closed. Moreover, the record is clear that the Staf f did not analyre the impacts on the comtnunities ofIbrest Grove and Center Springs of closing Parish Road 39. This I substantial shortcoming in the FEIS was remedied at the hearing, however, w hen j LI!S indicated, for the first time, that it would rekicate the road, if necessary. Specifically, Mr. LeRoy, in response to a direct inquiry, testified that LES will relocate the road in the event the police jury fails to do it. (Tr. 925.) We take this as a conecuion by the Applicant that the impacts of closing the road are sufficiently detrimentel to the communities of Forest Grove and Center Springs that those isnpacts must be addressed by road relocation. Mr LeRoy's answer thus is a direct commitment that,if the parish does not relocate the road, l.ES will take all necepary steps, including paying for the road relocation itself, - to ensure the segment of Parish Road 39 bisecting the LeSage site is relocated I before the current road is closed. Accordingly, we direct that a license condition to that effect must accompany any construction permit and operating license authoritation.

      'lhe intervenor also challenged the adequacy of the Staff's treatment in the

FEIS of the impact from relocating (as opposed to closing) Parish Road 39 on the communities of Ibrest Grove and Center Springs and the Staff's conclusion .

that tho$c impacts were very small. In particular Dr. Bullard asserted that the Staff did not consider at all that ihrest Grove Road was a vital and regularly used pedestrian link between Ibrest Gmve and Center Springs. The Staff's FEIS treatment of the ir,; pacts of relocating Parish Road 39 does not discuss ihrest Grove Road's status as a pedestrian link between ihrest Grove and Center Springs and the impacts of relocation on those who must walk the

, distance between the communities on this road. In the FEIS, the Staff calculates how much additional gasoline it will take to drive between the communities w hen the road is reh>cated and the added trasci time the road relocation will cause for various trips. (Staff Esh. 2, at 412.) Similarly, it its hearing testimony, Staff

witnesses acknowledged the interaction between the Ibrest Grove and Center Springs communities but only noted that "[tjhc driving distance will be slightly increased." (llorn et al. at 1415 fol. Tr. 904.)

Dr. Bullard testified, however, that Ibrest Grove Road is a vital and frequently used link between the communities with regular pedestrian craffic. Neither 405

the Staff nor the Applicant presented any esidence disputing Dr. Ilulhttd's testimony in this regard. Ibrther, the Bureau of Census statistics introduced by the Intervenor show that the African American population of Claiborne Parish i is one of the poorest in the country and that over 31% of black households in the parish have no motor vehicles. (I Ril 67, at 12 ) See .tupra p. 371. Again this evidence is undisputed. It thus is obvious that a significant number of the residents of these cominunities have no motor vehicles and often must walk. Adding 0.38 mile to the distance between the Ibrest Grove and Center Springs communities may be a mere " inconvenience" to those who drive, as the Staff suggests. Yet, permanently adding that distance to the 1. or 2 mile walk between these communities for those who must regularly tr. ale the trip on foot may be more than a "very small" impact, especially if they are old, ill, or otherwise ; infirm. The Staff in the 11!!S has not considered the impacts the tekscution of Ibrest Grove Road will have upon those residents who must walk. Accordingly, we find that the Staff's treatment in the 11!15 of the impacts on the communities i of Ibrest Grove and Center Springs from the relocation of Parish Road 39 is inadequate and rnust be revised, in doing so, the Staff should identify any impacts of the relocation on local pedestrian traffic and factor those impacts into ha welphing of the costs and benelits for the facility and in its environmental justiec determination. Further, consideration must be given to whether actions can be taken to mitigate the impacts. In this regard, as we emphasised in Lilp 96-25,44 NRC at 370, it must be remembered that "NEpA is a procedural environmental full disclosure law and it does not dictate any panicular substantive outcome as a result of the cost benefit analysis." C, Property Value Impacts in line with that portion of contention J.9 claiming that the CEC will have negative economic impacts on the minority communities of Ibrest Grove and Center Springs, the Intervenor asserts that property values in the neighboring communities will be adversely affected by the facility and that this economie effect will be borne disproportionately by the minority communities that can

                                                             -least afford it. (Ilullard at 22 fol. Tr, 853,) In his prefiled direct testimony, Dr.

Ilullard acknowledged that the StafIin the FEIS found that some property values may be negatively impacted by the proposed plant, but criticized the Staff for failing to identify the location, extent, or significance of this ef fect. Instead, Dr. Dullard claims the Staff merely concluded that there will be r,ome unspecified positive and negative changes in property values from the CEC. (/d at 35.) In support of his assertion that the Staff analysis is inadequate, Dr.11ullard stated that his research shows that negative impacts on property values will occur in the immediate area of the plant and that, because of the housing barricts faced 406

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l by African Americans, the residents of Ibrest Grove and Center Springs will not have the same opportunities to relocate as do whites living in the parish. lie asserted that the general beneficial effects on kical housing values frorn the plata cited in the FEIS will have little, if any, effect on the sninority communities of lbscst Grove and Center Springs. In this negard, Dr. Bullard testified that ! the general" benefit streams" to counties with large industrial taxpa) cts do not i have significahl positive effects on low iner me minority cornrnunities, w hich are i already receiving a disproportionately low share of the servien offered by the county, l'urther, he stated that the increased demand for property and housing attributable to the facility from migrants coming into the area is unlikely to affect ll.c minority communities of Ibrest Grova and Center Springs very much, ' if at all. Dr. Ilullard esplained that, at the period of peak employment when the ; proposed facility is espected to have its greatest cifect on the loca; population, which is during the fourth year of construction when some operation already ha started, the FEIS states migrants will amount to only 12% of the work force, or 65 workers. lie further observed that the FEIS indicates these workers will all be at the very upper end of the skill and pay scale and are expected to be predominantly white. Therefore, according to Dr. Bullard, these workers are extremely unlikely to seek housing in the poor, isolated African American communities of Ibrest Grove and Center Springs that already receive a relatively low level of senices from the parish. (/d. at 35 37.)

                    'lhe Intervenor's espert thus concludes that, although the FEIS acknowled.es the proposed facihty will deptess some property values and increase others, the Staff has failed to address the central fact that in all likelihood the negative impacts of depressed property values will disproportionately affect the minority communities nest to the plant. Similarly, he asserts the FEIS fails to address the fact that the minority residents of Ibrest Grove and Center Springs are among the poorest residents of the parish and are less hkely to be able to absorb the diminution in property values than other ucahhier, more mobile residents of Claiborne parish Dr. Bullard states that the FEIS should hase analyred and disemsed these adverse, inequitable impacts. (/d. at 17.)

In Fels section 4.2.1.7 entitled " Socioeconomic at ' Community Support Services " the Staff " describe [d] the social, ceonomie, and community impacts of CEC operations." (Staff Exh. 2, at 4 31.) It stated that "[t]he towns of Ilomer and llaynesville base been emphastred due to their pioximity to the proposed facility location and their status as providers of community senices." (/J.) In subsection 4.2.1.7.1, the Staff stated with respect to housing that hit the let 2 years there has twen an ciersupply of lower qualpy and oldet honws on the market Howeser, there are very few honws. apartmera or nobde imnws asattable for tent Construcuan and operaunn of CEC would be espected to bid up tental pnces and, to a leswt estent, hanie purthine prkes, and will probably mn ulate new wastrueuon Any 407 \:

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l nhaft of this riature is expected to be nunimal since tirre is an mertupply of hones for sale and people can shoose residctnn over a w6de area (/d. at 4 32.) In subsection 4.5.2 on property values in its cost benefit analpis, the Staff then stated: 1.L5 is hkely to have a signihcant erfect on Irwal housing salues and. ulimmtely. anrednes There is toritiderable et6dente to suggest that property salues and artwnsttes are enhanced in counnes with large industrial tatpayers (e g , fossil power planto (Garnble and () owning.1982) Tlese terwhis are not only via the dm ct pa)nient to the tasing juttsdiction, t>ut through the increnwd tatue of real property as the beneht stream to tiw property ou rwts is sapitahred into property tatues . Tic facilty is likely to increaw teth housing and land prices tecauw of increawd derna.d (e g frorn rnigranto and tecauw of ilw tenefil4apture effect }nt descrited 1h h a tencht to aF hting property oeners. Including thow acquirtog preperty prior to itw actual receipi or% tas resenues. Tte negnitude of the terwht is dirhcult to quantary but is not neghrible Real estate pnces in the area are tiLely to te t>6d up in anticipanon of the property tan st'vam (/d. at 4 83.) Thereafter, in the summary of the cosi. benefit analysis the Staff notes that there will be "chanFes in property values (some positive, some negative)." (/d. at 4 86.) In its preliled direct tes_ nony, the Staf f witnesses stated that impacts such as property values "would ha distributed throughout the region and are not espected to dispreportionately or adscrsely impact thest Grove or Center Sprir.gs." (11orn et al. at 20 fol. Tr. 9N.) Further, they asserted that "li]mpacts on individuals cannot be predicted" and that "(alll of these types of impacts and benefits will occur throughout the reF ion; however, there is no way to determine if a specific indisidual or area will benefit or be adversely impacted." (/d.) Ms. llorn and Dr. Zeitoun also stated that the Staff did not consider the racial rnateup of the homes sunounding the site when it assessed the impacts of the CEC. (/d. at 21.) For its part, the Applicant uated in its ER that LES anticipates that real estate values of some adjacent properties may be enhanced due to the facility. It indicated that neither the specific adjacent properties nor the precise increase in value can be predicted but that the "[p]roperty value enhancement would t e pained primarily through the location of business ventures supporting LES operations (e F., food service, equipment vendors)." (App. Exh. l(h), at 8.14 to 5.) Further, the Applicant's Licensing ManaFer, Mr. LeRoy, testified that, in his esperience with Duke Power Company nuclear power plants, property values around the plants dramatically increased after the facilities were constructed. (Tr. 919, 954.) lie indicated that he was refening to the Oconce Nuclear Station on Lake Keowee and the Cataw ba Nuclear Station on Lake Wylic in South Carolina, 408

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and the McGuire Nuclear Station on Lake Norinan in North Carolina. (Tr. 956.) Mr. LeRoy then provided one example of residential or vacation property on each of the lakes before and after the nuclear facilities were built showing substantial increases in values from the 1970s and early 1980s through the 1990s. (Tr. 9$7 59.) lie conceded, however, that he did not know whether any of the ' communities around the three later were African American comtnunities. (Tr. 961.) Additionally, Mr. Dorsey tedfied that in his 25 to 30 years of experience on a number of significant projects in a wide range of industries, property values have increased in the immediate vicinity of the fmal site. (Tr. 919.) Likewise,

   ' Mr. Schaperkotter added that in his cxperience the presence of new developrnent quite often creates an increase in property values. (/d.)
           'the Stalf's treatment of the economic impacts of the CEC on property values in the IEIS does indeed recognite that the CEC will depress some property values while increasing others, bt.t the Staff fails to identify the location, extent, i

or significance of impacts. Ibrther, although, the IEIS generally indicates the CEC is likely to increase both housing and land prices because of increased demand and the benefits capture effect, the Staff makes no attempt to allocate the costs or benefits. Dr. Dullard directly challenges the Staff's failure to assess the irnpacts of the CEC on property values in the communities of ihrest Grove and Center Springs asserting that when facilities like the CEC are placed in the midst of poor, minority communities, the facility has negative impacts on property values in the immediate area of the plant. Ibr the reasons specified below, we find his testimony on the negative economie impact of the CEC on property values in these minority communities reasonable and persuasive.

          'ihe focus of Intervenor contention J.9 and Dr, ilullard's supporting testirnony is that the negative economic impact of the CEC inust be auessed as it operates on the minority " communities" of Ibrest Grove and Center Springs, not just on a particular parcel of property. Dr. Bullard explained that unlike white residents of the oarish, the black residents of Ibrest Grove and Center Springs face substantial " housing barricts" that preclude them from leaving when a large industrial facility is sited in the midst of their residential area. As a consequence, these already economically depressed communities must fully absorb the further adverse impact of having a heavy industrial facility nearby meking them esen more undesirable lie testified that the beneficial effects on housing values from increased demand by new migrating employees and the
  . berefit capture effect relied upon by the Staf f in the FEIS will have no effect -

on these minority communities that currently receive almost no parish services, arv sinually 100% African American, and are inhabited by some of the most economically disadvantaged people in the United States. As Dr. Bullard stated, it is " extremely unlikely" new workers to the area will seek to live in Tbrest Grove and Center Springs. Dr. Ilullard concludes that these factors lead to an 409

l overall negative impact on property values in the minority communities that must host the CEC; yet these communities are made up of people w ho can least afford the dirninution in property values. The Staff witnesses made no attempt to explain how or why Dr. Ilullard might be snistaken. Rather, they testified that the impact 6 on property values from the ' CEC would be distributed throughout the tegion and, therefore, the impacts "are not expected to disproportionately or adversely impact Ibrest Grove or Center Springs." (llorn et al. at 20 fol. Tr. 948,) purther, they claimed "there is no way to determine if a specific individual or area will benefit or be adversely impacted" (/d) We find that the testimony of these StafI witnesses in this regard is neither persuasive not reasonable in this instance, indeed given the Staff's recognition in the ITIS that there will be some negative impacts on property values from the CEC, it is difficult to envision an economic rationale that would demonstrate those adverse impats from the CEC are likely to occur to pr'aperties well temoved from the facility, such as in llomer et llaynesville, as opposed to the Ibrest Grove and Center Springs areas next to the facility. O also find the Interrenor's position persuasive because we find this witness both credible and convincing. Dr. Ilullard is a recognised expert on the subject of environmental justice who for years has conducted research, lectured, and written extensively in the areas of housing and community development. lie has presented a reasoned, persuasive, and unchallenged explanation why the CEC will neFatively impact property values in these minority cornmunities. Additionally, even a cursory look at the references cited by Dr.11ullard in his prefiled direct testimony show there has been substantial research indicating the negative impacts on minority communities in analogous circumstances. In reaching this conclusion, we recognite that the Staff witnesses stated it was not " expected" the impacts from the CEC on property values would

                                                           - disproportionately or adversely impact Ibrest Grove or Center Springs. Yet the same witnesses also specifically testified that the Staff did not consider the racial makeup of the homes surrounding the site when they considered the impacts from the CEC. Thus, the Staff appaiently has not considered the economic impact on property values of siting the CEC in the midst of these neighboring minority communitics, qua minority communities. Indeed, the exploration of this matter would likely be another circumstance that merits scrutiny under Executive Order 12898.

Nor is the Applicant's evidence about property value increases persuasive here. Applicant's ER undoubtedly is correct in predicting that a number of adjacent properties will increase in value as sites for food service and equipment vendors supporting the plant. But the number ofimmediately adjacent properties involved will be relatively few, most hLely on State Road 9. The thrust of contention J.9 and Dr. Ilullard's testimony is the impact on the minority communities of ihrest Grove and Center Springs as a whole, rather than on two 410

or thice individual parcels of property. "Ihe Applicant's ER simply does not address that impact. fly the same token, the opinions of Mr. Dorsey and Mr. Schape Lotter to the effect thai industrial facilities often increase property values in the vicinity of a facility are far too general to draw any reasonable conclusions about the impacts on property values in the circumstances presented here. Likewise, Mr. LeRoy's testimony about the positive impact on lakefront vacation home values frorn the construction of nuclear power plants is neither useful not reasonable in making a comparison with the economically disadvantaged minority communities ofIbrest Grove and Center Springs. Certainly, the reality of Ibrest Grove and Center , Springs hardly seems comparable to the description of Lake Wylie in Applicant's Exhibit 19, which states that "It]he Catawba plant was built on a beautiful late, dotted with hundreds of expensive homes and homesites." (App. Exh.19 at 7.) Nor do these communities resemble the description of Lake Keowee in Exhibit 19 as "[o]ne of the most prestigious resorthetirement communities in the United States [which) is less than a mile from Oconee Nuclear Station. At Keowce Key more than 15(K) people golf, boat, fish, relax and retire next door to a nuclear plant." (M. at 8.) On this basis, we find that the Staff's treatment in the 11115 of the impacts from the CEC on property values in the communities of Ihrest Grme and Center Springs is inadequate. Therefore, the Staff must consider these impacts and factor them into its weighing of the costs and benefits of the facility and in its environmental justice determination. D. Other imparis Finally, the Intersenor also challenges the adequacy of the Staff's treatment in the 11:1S of the impacts from the CEC on the communities of Ibrest Grove and Center Springs concerninF a number of other matters, includinF (l) contamination of surface and groundwater;(2) impacts on groundwater supply; (3) impacts . noise; (4) impacts of traffic, development, and crime; and (5) impacts from the diiproportionate distribution of benefits. We have carefully stamined all of the evidence regarding each of these claims and find that the 1111S adequately considers the impacts. Ibrther, we find that none of these impacts will cause a disproportionately high and adverse impact on the residents of Ibrest Grove and Center Springs. In addition to the foregoing findings on contention J.9, we have considered all of the other arguments, claims, and proposed findings of the partier, on this contention and find that they either are without merit, immaterial, or unnecessary to this Final Initial Decision. 411

IV. CONCLUSION lbr the teamns detailed in Part 11 C, we conclude that a thorough Stalf inses-tiration of the CEC site selection process is essential to determine whether racial diwrimination phiyed a role in that process, thereby ensuring compliance with the nondiscrimination directive contained in !!secutisc Order 12898. Addition. ; ally, for the reasons set forth in Part !!!.11, we conclude that the Staf f's treatment in the 11115 of the irr. pacts of relocating Parish Road 39 on the cominunities of Ibrest Grove and Center Springs is inadequate and the Staff must take steps to revise the FELS consistent with this Decision. Also in connection with the - relocation of Parish Road 39, consistent with this Decision a license condition must be ',ocluded in any ultimate construction permit-operating license autho-riiallor, that makes the Applicant responsibic for ensuring that the current road is rel<cated before the segment that currently bisects the facility site is closed. , Furtter, we conclude in Part Ill.C that the Staff's treatment in the 1111S of the ecoromic impac' of the CEC on the properties in the communities of Ibrest Groic and Center Springs is inadequate and that the Staff must take steps to revise the Fels consistent with this Decision. In light of the floard's conclusions in the earlier Partial Initial Decisions in LilP 96 2$,44 NRC 331 (1996), and Lt.lP 97 3,45 NRC 99 (1997), the Staff also rnust take appropriate steps to address the other identified insufficiencies in the FEIS. Further, the Applicant's requested authoritation for a combined construction permit and operating beense is hereby denird, albeit without prcjudice to the Applicant amendinF i ts license (fplication in accordance with the Partial trutial Decisions in this proceeding. Pursuant to 10 C.F.R. 5 2.760 of the Commission's Rules of Practice, this Final Initial Decision will constitute the fmal Decision of the Commission on thi", contention forty (40) days from the date of its issuance unless a petition for review is filed in accordance with 10 C.F.R. 5 2.786, or the Commission directs otherwise. Within fifteen (15) days after service of this Final Initial Decision, any party may file a petition for review with the Commission on the grounds specified in 10 C.F.R. I 2.786(b)(4). The filing of a petition for review is mandatory in order for a party to have eshausted its administrative remedies before seeking judicial review at the appropriate time. Within ten (10) days after service of a petition for review, any party to the proceeding may file an P 412

                                                                                                                                        ,                        - - ,, ,,. ,        .-~ -n

answer supporting or opposing Commission review. The petition for review and any answers shall ec iform to the requirements of 10 C.F.R. 6 2.786(b)(2)-(3). It is so ORDER!. Tile ATOMIC SAlETY AND LICENSING DOARD Thomas S. Moore, Chairman ADMINISTRATIVE JUDGE Richard F. Cole ADMINISTRATIVE JUDGli l'tederick J. Shon ADMINISTRATIVil JUDGE May 1,1997 l Rockville, Maryland 413

Cite es 45 NRC 414 (1997) LBP 97 9 UN11ED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION AYOMIC SAFETY AND LICENSING BOARD PANEL Before Adminletrative Judgest G. Paul Sollwerk, lit, Presiding Officer Dr. Charles N. Kolber, Special As.sistant in the Matter of Docket No. 40 3463 MLA (ASLBP No. 97 723-02 MLA) ATLAS CORPORATION j (Moeb, Utah Facility) May 16,1997 ' in this 10 C.F.R. Part 2. Subpan L informal proceeding concerning pro se _ petitioner John l't ancis Darke's challe. ge to a request by Atlas Corporation to ar i the license for its Moab, Utah uranium milling facility to extend ; the completion date for placing a final rmion b;..rier on the facility tailings piic, the l' residing Ollicer rules (1) Petitioner Darke's hearing request is timely and specifies areas of concern that are permane to the subject matter of the proceeding; (2) l\titioner Darke has failed to establish any grounds for using 10 C.F.R. Part 2, Subpart O formal adjudicatory procedures; and (3) despite-midtiple opportunities to address the issue, Petitioner Darke has failed to meet W burden to establish his standing to intervene in this proceeding. RUI.ES OF PRACTICEt INFORNIAL HEARINGS (PARTY

                                    . ADhllSSION REQUIRESIENTS)

To be admitted as a party to an informal adjudication under Subpan L of 10 C.F.R. Part 2 regarding a licensee initiated materials license amendment, the individual or rrganitation fihng a hearing / intervention request must establish three things: (1) the p titioner is a " person whose interest may be affected by the proceeding" within the meaning of scetion 189a(l)(A) of the Atomic linergy Act of 1954 ( AEA),42 U.S.C. I 2239(aX 1)( A). in that the petitioner has standing

                                                                                                                                          .t 414

 . m._  _ .                . . _ _ _ _ _ _ _                          _ _ _ . _ _ _ _ _ _ _ _ _ . . _ _ _ _ . _ . _ _ _ _ . _ _ _

to participate in the proceeding consistent with the standards governing standing in jedicial proceedings generally; (2) the petitioner has " areas of concern" : regarding the requested licensing action that are germane to the subject matter of the amendment proceeding; and (3) the hearinghntervention petition was timely filed. Src 10 C.F.R. I 2.1205(c), (h). RULES OF PRACTICE: INFORMAL llEARINGS (USING OTilER i PROCEDURES) in an informal adjudication under 10 C.F.R. Pan 2, Subpart L, the petitioner ! may request that the proceeding be conducted employin procedures other ! than those set forth in Subpart L, which could include use of the procedures for formal, trial type adjudications set forth in Subpart O of Part 2. See Id.

                     - l 2.1209(k).

i RULES OF ?RACTICE: INFORM AL llEARINGS (SPECIFYING ! AREAS OF CONCERN)

                             "Ihe " areas of concern" specified in support of a hearing request under Subpart L **need not be extensive, but (they) must be sufficient to establish that the                                                             +

issues the requester wants to raise fall generally within the ranFe of matters that properly are subject to challenge in such a proc eeding." $4 Fed. Reg. 8269,8272 r1989). Like the requirement that a 10 C.F.R. Part 2, Subpart O fonnal hearing petition must define the " specific aspect or aspects of the subject matter of the proceedinF as to which petitioner wishes to intenene," 10 C.F.R. 6 2.714(a)(2), the i obrart L direction to define "arens of concern" is only intended to ensure that the matters the petitioner wishes to discuss in his or her written presentation are generally within the scope of the proceeding. RULES OF PRACTICE: INFORMAL llEARINGS (USING OTilER PROCEDURES) A request to use other procedurcs in a 10 C.F.R. Pan 2, Subpart L proceeding ; should involve consideration of whethch given the particular circumstances involved in the proceeding, permitting the use of additional, trial. type procedures such as oral cross-examination wou:d add appreciably to the factfinding process. See Sequoyah Turls Corp. (Sequoyuh UF, to UF, Facility), CL18617,24 NRC

                    . 489, 497 (1986).

415

       , , _ . _ . _ . .                     ,_.-.~._.__m .

RULES OF PRACTICI: ilEARING REQUIREhlENT (hlATERIALS LICENSE) As a request for a revision to a 10 C F R. Part 40 source materials license, a licensce't. amendment application falls squarely within the designation of a

     licensee-initiated amendment" under 10 C.F.R.12.1201(a)(1) - an opposed to being a 10 C.F.R. Part 2 Sub .l art 11 Staff imposed arnendment that would be subject to the fortnal hearing procedures in Subpart G - and thus propeily is the subject of Subpart L informal procedures.

ATOhllC ENERGY ACT: STANDING TO INTERVENE RULES OF PRACTICE: STANDING TO INTERVENE To establish standing to participate as of right in an adjudicatory proceeding regarding an agency licensing action an individual petitioner must demonstrate that (1) he or she has sulfered or will suffer a distinct and palpable "injur) in fact" within the " tone of interests" arguably protected by the statu!:s governing the proceeding (e.g., the AEA, the National Environmental Policy Act of 1969); (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable decision. Ser l'anArc Atomic Elrrrric Co. (Yankee Nuclear Power Station), CLI 961,43 NRC 1,6 (1996). RULES OF PRACTICE: STANDING TO INTERVENE (CONSTRUCTION OF PETITION) Although the petitioner bears the burden of establishing his or her standing,it also is cicar under Commission caselaw that in making a standing determination a presiding oflicer is to " construe the petition in favor of the petitmner." Grotgla

  /mtitute of Technology (GeorF ia Tech Research Reacter, Atlanta. Georgia), CLI-9512,42 NRC 111,115 (1995).

ATOhllC ENERGY ACT: STANDING TO INTERVENE (INJURY IN FACT) RULES OF PRACTICE: STANDING TO INTERVENE (INJURY IN FACT) A licensee's claim ihat " regulatory limits" are not being eseceded by offsite radiological releases from a facility is not, standing alone, sufficient to show that a petitioner lacks standing. As was noted in the face of a similar assertion,

  ."blelative to a threshold standing determination, . . . even minor radiological esposutes resulting from a proposed licensee activity can be enough to create 416
                  . - - , , ,           , - - - - -             -w,,,---   -              -        n-, -

s--: er,-, - , .s ..,g. , + e-- -

    .-         .-.                 -.         .      --                 ~        .    , , . .- - .- -..

General Public Utilities Nuclear Corp. (Oyster the uquisite injury in fact." Creek Nuclear Generating Station), LDP-90-23,44 NRC 143,158 (1996).- ATOhllC ENERGY ACT; STANDING TO INTERVENE ! (INJURY IN FACT) RULFS OF PRACTICE: STANDING TO INTERVENE (INJURY IN FACT) A showing that there may be some offsite radiological impacts to someone is not enough to establish standing for a particular petitioner. As the Commission +

has made clear on a number of occasionsi in the context of a proceedings other than those for the grant of a reactor construction permit et operating license, a petitioner who wants to establish "injary in fact" for standing purposes must make some specnic showing outlining how the particular radiological (or other cognizable) impacts from the nuclear facility or materials involvea in the licensing action at issue can reasonably be assumed to accrue to the petitioner.

See Yc, Lee Atomic Electric Co. (Yankee Nuclear Power Station), CLI 96-7,43 NRC 235, 246-48 (1996). ATOhllC ENERGY ACT: STANDING TO INTERVENE (INJURY IN FACT) RULES OF PRACTICE: STANDING TO INTERVENE (INJURY IN FACT) in proceedings other than those for the grant of a reactor construction permit or operating license, petitioners Fenerally establish their " injury in fact" by quantifying the distance from the nuclear facility or materials impacts. Sec, e.g., Opfer Creek, LBP-96-23,44 NRC at 157 59. ATOhllC F,NERGY ACT: STANDING TO INTERVENE - (INJURY IN FACT) RULES OF PRACTICEt STANDING TO INTERVENE (INJURY IN FACT) A petitioner has not shown any reasonable nexusilbetween himself or herself

              - and any purported radiological impacts when, despite assertions about potent a facility-related airborne and waterborne radiological contacts that is sufficient to provide him or her with standing. By not providing any 417

information that indicates whether wa tr-related activities are being conducted upstream or downstream from a facility and b/ describing other activities only using vague terms such as "near,""close pro: mity," or "in the vicinity" of the facility at issue, the petitioner fails to carry his or her burden of establishing the requisite " injury in fact." RULES OF PRACTICEt STANDING TO INTERVENE (FACTUAL REPRESENTATIONS) It generally is the practice for participants making factual claims regarding the circumstances that establish standing to do so in affidavit form that is notarized or includes a declaration that the statements aic true and are made under penalty of perjury. MEMORANDUM AND ORDER'

                                             -(Denying IIcaring Request)

Pro se petitioner John FTancis Darke has filed a hearing request challenging Atlas Corporation's (Attra) December 20, 1996 application to amend its 10 C.F.R. Part 40 license for its uranium milling facility in hioab, Utah. The l amendment in question would modify License Condition (LC) 55 A.(3) of the

                , Atlas license (No SUA-917) to extend by 4 years - until December 31,2000
                 - the completion date for placing a~ final radon barrier on the existing mill tailings pile at the hioab facility. Licensee Atlas opposes Petitioner Darke's i

hearing request asserting, amsng other things, that he lacks standing and has ( failed to specify any litigable issues. 1 For the reasons stated below, I find Petitioner Darke has not established his standing to intervene in this proceeding. Accordingly, I deny his hearing request. I. BACKGROUND A. Atlas Reclamation Plans for the Moah Facility Atlas' hioab urarium milling facility, which is located on the west bank of the Colorado River approximately 3 miles northwest of hioab, Utah, ceased commercial operation in 1984. At present, on site at the facility is a 10.5-million-ton mill tailings pile that needs to be reclaimed (i.e., stabilized) for long term disposal.' This pile, which currently occupies approximately 130 acres of land - and rises to a height of some 90 feet, is located within 750 feet of the Colorado River. See Office of Nuclear hiaterials Safety and Safeguards (NhtSS), U.S. 418

Nuclear Regulatory Commission (NRC), NUREG 1531, Draft Environmental Impact Statement [(EIS)] Related to Reclamation of the Uranium Mill Tailings at the Atlas Site, Moab, Utah (Jan.1996) at 1-4,2-1. To comply with agency requirements regarding site stabilitation Atlas ini-tially submitted an onsite reclamation plan in 1981, which the NRC Staff ap-proved the following year. Then,in 1988 Atlas submitted a license anadment application that included a revised onsite reclamation plan. Staff review of that plan resulted in requests for additional information and redesign. Thereafter, in June 1992 Atlas submitted another revised onsite reclamation plan. In July 1993, the Staff issued a notice of its intent to approve this Atlas reclamation plan and made available for public comment an environmental assessment regarding the proposed Atlas plan. See NMSS, NRC, NUREG 1532, Draft Technical Evalua-tion Report l(TER)] for the Revised Reclamation Plan ror the Atlas Corporation Moab Mill (Jan.1996) at 1-4. Based on public comment, in October 1993 the Staff withdrew the July 1993 notice of intent, anu in March 1994 issued another riotice declaring its intent to prepare a full blown EIS. The Staff also began a reevaluation of the entire revised Atlas reclamation plan. Ser id. As part of this reevaluation process, in March 1994 the Staff also issued a notice that included an opportunity for a hearing on the revised Atlas reclamation plan. See 67 lid. Reg. 16,665, 16,665 (1994), No hearing requests apparently were filed in response to this notice, however. The Staff finally issued a drafi EIS and a draft TER on Atlas' proposed onsite reclamation plan in January 1996. A final TER regarding the plan was issued in March 1997, while a final EIS apparently is not expected until the fall of 1997. See Licensee's Response (Apr,7,1997) at 2 & n.2 [ hereinafter Atlas Response).

11. Atlas Request to Extend Radon !!arrier Completion Date Related to the approval of a reclamation plan for the Atlas facility is the item of central interest in this proceeding: the December 31,1996 target date initially set for the placement of a fmal carthen cover on the Moat, facility tailings to limit radon emissions to a flux of no more than 20 picoeuries per meter squared per second (pCi/m2 /s). 'lhis date came into play by reason of an October 1991 memorandum of understanding between the Environmental Protection Agency and the NRC that set out target dates for final radon barrier emplacement for a number of tailings impoundments, including the Atlas Moab facility. Ser 56 Fed. Reg. 55.4 t4, 55,435 (1991). Subsequently, the December 31, 1996 date for final radon banier emplacement at the Moab facility was incorporated into the Atlas license as LC 55 A.(3) by Amendment No.17 issued on November 4,1992.

419

Under LC 55 C., which also was adopted under Amendment No.17 any request to revise the final radon barrier completion date specified in the license "must demonstrate that compliance was not technologically feasible (including inclement weather, litigation which compels delay to reclamation, or other factors beyond the control of the licensee)." Ser Letter from Sherwin E. hrk, NRC Staff Counsel, to Presiding Officer and Special Assistant (ftb. 14, 1997), encl.1, at 11 (License No. SUA 917. Amendment No. 27) [ hereinafter Wrk Letter). Relying on this provision, see Atlas Response at 8 9, on December 20,1996, Atlas asked to amend the Moab facility license to extend by 4 years 31, 1996 date specified in LC 55 A.(3) for final radon barrier i the December completion. As the basis for this request, Atlas declared that (1) the December l 1996 deadline was footed on the assumption the Moab facility reclamation plan would be approved in 1993, thereby allowing 3 years to perform construction work and still provide an adequate period for consolidation of affected materials I placed in the impoundment before placement of th: final radon barrict; and (2) because the agency EIS and TER were not completed, Atlas did not have the f plan approval needed to begin construction. See Turk Letter, encl. 2, at 1-2 (Letter from Richard E. Blubaugh, Atlas Corp., to Joseph J. Ilolonich, NMSS, NRC (Dec. 20, 1996)). C. Adjudicatory Proceeding Procedural Posture On January 14, 1997, the Staff issued a notice stating it had received the December 20 Atlas license amendment application and was offering an opportunity for a 10 C.F.R. part 2, Subpart L informal hearing on the Licensee's 3313, 3313 (1997). In a one-page letter dated January request. Sec 62 Ibd. Reg. 30,1997. Petitioner Darke asked for a hearing regarding the Atlas amendment 30,1997) request. Srr Letter from John Francis Darke to Secretary, NRC (Jan. [ hereinafter Darke ficaring Request). Besides asserting the requested licensing action "is without factual or legal basis," Petitioner Darke sought to have the matter heard under the rules for formal adjudicatory proceedings set forth in Subpart G of 10 C.F.R. Part 2. Id. Further, addressing his standing to become a party to such a proceeding, he stated only that the pn posed amendment was

                         " predominately adverse to the health and safety of the requestor and his family, who reside in the viciniy of the subject site." /d.

After being designated as presiding officer for this proceeding, see 62 Fed. Reg. 7279 (1997), on Itbruary 12,1997, I issued an initial order. That order established a deadline for the Staff to specify whether it wished to be a party to this proceeding. It also provided Petitioner Darke with an opportunity to supfl ement his hearing petition to address more fully the issue of his standing and to explain in more detail his areas of concern regarding the Atlas amendment request and his reasons for claiming that a formal adjudication under Subpart G 420

was appropriate. See Presiding Otheer hiemorandum and Order (Initial Order)- (Itb.12,1997) at 2 3 [hereinalter Initial Order). In a libruary 21, 1957 response to this order, the Staff declared that, in accordance with 10 C.F.R. 5 2.1213, it would not participate as a party in this proceeding. See Letter from Sherwin E. Turk, NRC Staff Counsel, to Presiding Officer and Special Assistant (Tib. 21 1997). Petitioner Darke responded t to the initial order with two substantive filings.' in the first, submitted on Ibbruary 24, 1997, he addressed the question of why this proceeding should be conducted under Subpart O formal procedures. See [First Response to Presiding Officer's hiemorandum and Order Dated Itbruary 13,1997) (Itb. 24,1997) [ hereinafter Darke February 24 Response], in his second filing, dated htarch 3,1997 Petitioner Darke discussed his areas of concern regarding the proposed amendment and the basis for his standing to intervene in this proceeding. Sec [Second Response to Presiding Officer's hiemorandum and Order Dated Ibbruary 13,1997) (hiar. 3,1997) (hereinafter Darke htarch 3 Response]. On h1 arch 5,1997, the Staff submitted a letter declaring that, in accordance with 10 C.F.R.' 5 2.1205(m), the previous day it had issued the license amend-ment sought by Atlas, thereby revising LC 55 A.(3) to change the date for final radon barrier placement at the hih facility to December 31,2000 See Letter from Sherwin E. Turk, NRC Staf ounsel, to Presiding Officer and Special As-sistant (htar. 5,1997). Although a petitioner may contest a Staff determination to issue a license amendment during the pendency of a hearing, see 10 C.F.R. 1 2.1263, Petitioner Darke did not initiate such a challenge. Thereafter, in a h1 arch 11,1997 memorandum and order, I afforded Petitioner Darke an opportunity to make an additional submission addressing the issue of standing. See Presiding Officer hiemorandum and Order (Permitting Additional Filing) (hiar. 11,1997) at 2 3 [ hereinafter Additional Filing Order]. Ile filed , that pleading on h1 arch 24,1997. See (Response to Presiding Officer's hlarch 1I,1997 hiemorandum and Order] (htar, 24,1997) [ hereinafter Darke h1 arch 24 Response]. Atlas then submitted its response to all of Petitioner Darke's prior filings, asserting he lacked standing and had failed to specify areas of concern germane to the proceeding or to establish an adequate 1 asis for his request that formal adjudicatory procedures be used. See Atlas Response at 4-

11. In lieu of a prehearing conference / oral argument on these issues, I permitted Petitioner Darke to file a reply to this Atlas response. See Presiding Officer Order (IYrmitting Reply Filing)(Apr. 11,1997) at 2 [ hereinafter Reply Filing Order]. Petitioner Darke did so on April 21,1997. See [ Response to Presiding

     'in adhnen. IYnnoner tkuke Aled a third plemhng in which he provided conecuons to the rust two piemhngs See [ Third itespome to Preudmg otheer's Menorandum and order Dated lebruary 13 IW7) (Mar.13, IW7) 421

l Officer's April 11,1997 Memorandum and Order) (Apr. 21,1997) (hereinafter Darke Reply). II. ANALYSIS Section 2.1205 of title 10 of the Code of federal Regulations makes it clear that to be admitted as a party in an informal adjudication under Subpart L of Part 2 regarding a licensee-initiated materials license amendment, the individual or organization filing a hearing / intervention request must establish three things: (1) the petitioner is a " person whose interest may be affected by the proceeding" within the meaning of section 189a(l)(A) of the Atomic Energy Act of 1954 ( AEA),42 U.S.C I 2239(a)(1)(A), in that the petitioner has standing to participate in the proceeding consistent with the standards governing standing in judicial proceedings generally; (2) the petitioner has " areas of concern" regarding the requested licensing action that are germane to the subject matter of the amendment proceedin;;; and (3) the hearing / intervention petition was timely filed. See 10 C.F.R. 5 2.1205(e), (h). In addition, as Petitioner Darke's hearing request illustrates, the petitioner may request that any proceeding be conducted employing procedures other than those set forth in 10 C.F.R. Part 2 Subpart L, governing informal adjudications, which could include use of the procedures for formal, trial. type adjudications set forth in Subpart G of Part 2. Ser id. 9 2.1209(k). A. Timeliness, Areas of Concern, and Additional Adjudicatory Procedures As he seeks to address these threshold matters, Petitioner Darke's various filings present a decidedly mixed bag. ihr instance, as he points out in his h1 arch 3 response, because he filed (i.e., mailed) his hearing request within 8 days of Federc' Register publication of the Staff's notice of opportunity for hearing, Petitioner Darke's hearing request clearly is timely. See Darke h1 arch 3 Response at 5. So too, his hearing request, as supplemented by his filings of h1 arch 3 and h1 arch 24, sets forth " areas of concern" that are sufficient to support the grant of his hearing request. As the Commission has indicated, the " areas of concern" specified in support of a hearing request under Subpart L "need not be extensise, but [they] must be sufficient to establish that the issues the requester wants to raise fall generally within the range of matters that properly are subject to challenge in such a proceeding." 54 fid. Reg. 8269, 8272 (1989). Like the requirem-nt that a Subpart G formal hearing petition must define the " specific aspect or aspects of the subject matter of the proceeding as to which petitioner 422 l

wishes to intervene," 10 C.F.R. 6 2.714(a)(2), the Subpart L direction to define

  " areas of concern" is only intended to ensure that the matters the petitioner wishes to discuss in his or her written presentation rre generally within the scope of the procecoing. In this instance, Petitioner Darke has made it apparent that, among other things, he wishes to address the validity of the reasons cited by Licensee Atlas for requesting the amendment (i.e., whether completion under the prior schedule "was not technologically feasible"in accordance with LC 55 C.

and 10 C.F.R. Part 40, App A, Criterion 6A(1)) and the efficacy of the extended completion date, both of which are appropriate subjects for consideration relative to the license amendment in question. See Darke March 3 Response at 5-8. On the other hand, Petitioner Darke's request that Subpart G formal adjudica-tory procedures be used for this proceeding is well off the mark. The Commis-sion has indicated that such a request should involve consideration of whether, given the particular circumstances involved in the proceeding, permitting the use of additional, trial type procedures such as oral cross-examination would add ap-preciably to the factfinding process. Sec Sequoyah FucIs Corp. (Sequoyah UF, to UF, Facility), CLI-86-17, 24 NRC 489, 497 (1986). Petitioner Darke has taken a different tack, asserting this proceeding should be held using Subpart G formal procedures because it does not involve the type of " licensee-initiated amendment" of a nuclear materials license to w hich Subpart L is applicable un-der 10 C.F.R. 5 2.1201(a)(1). See Darke February 24 Response at unnumbered 2-3. There is not the slightest doubt, however, that as a request for a revision to its 10 C.F.R. Part 40 source materials license, the Atlas amendment applica-tion falls squarely within that designation - as opposed to being a 10 C.F.R. Part 2. Subpart D Staff-imposed amendment that would be subject to the formal hearing procedures in Subpart G - and thus properly is the subject of Subpart L informal procedures. Because Petitioner Darke has made no other showing in support of his request for the use of Subpart G formal procedures. I have no basis for recommending to the Commission that such procedures be used. H. Standing to Intervene My decision on Petitioner Darke's request to convene a hearing thus comes down to the question whether he has made a showing sufficient to establish he has standing to intervene in this proceeding. To establish standing to participate as of right in an adjudicatory proceeding regarding an agency licensing action, an individual petitioner must demonstrate that (1) he or she has suffered or will suffer a distinct and palpable " injury in fact" within the "ione of interests" arguably protected by the statutes governing the proceeding (e.g., the AEA, the National Environmental Policy Act of 1969); (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable decision. See YanAre Atomic Electric Co. (Yankee Nuclear Power Station), 423

CL196-1,43 NRC 1,6 (1996). Further, while the petitioner bears the burden of establishing his or her standing, it also is clear under Commission caselaw that in making a standing determination a presiding officer is to " construe the petition in favor of the petitioner." Georgia Institute of Tedmology (Georgia Tech Research Reactor Atlanta, Georgia), CL19512,42 NRC 111, i15 (1995). As was noted previously, in his initial hearing request Petitioner Darke's only statement regarding his standing to intervene was that the Atlas amendment request was " predominately adverse" to his health and safety and that of his family,"who reside in the vicinity of the subject site." Darke llearing Request at 1. In an effort to learn more about his standing claim, in my February 12 initial order i gave Petitioner Darke aa opportunity to supplement his hearing petition to address "in detail" the basis for his standing. Initial Order at 2-3, Petitioner Darke did discuss his standing further in his March 3 response, declaring in toto: ,

                                                '.      Werest (the heahh and hafety of the requestor and his family, w ho reside in the vicinity of tr= Moah facihty) would be challenged by the grantmg cf the amendment proposed by the Apphcation as offered t*y the Applicant /L.icensee submittal of December 20.1996.

The undenigned and his family would suffer direct harm, radiological and other wise by l such gt:inting. Darke March 3 Response at 8 9. After reviewing that pleading, I issued an additional order that described the parameters of the agency caselaw on standing, including the need for an individual petitioner to make a specific showing of the " distance (in miles)" from the facility at which the petitioner either resides or engages in recreational or other activities, and permitted Petitioner Darke to make a further filing on the subject. Additional Filing Order at 2-3. lie made that submission on March 24, l 1997, the substance of which is discussed below. Dereafter, although Licensee Atlas in its April 7 response challenged Petitioner Darke's asserted bases for standing, see Atlas Response at 5-8, and Petitioner Darke had an opportunity ta respond to any of the arguments in that response, are Reply Filing Order i at 2, he made no further assertions concerning the grounds for his standing to intervene in this proceeding. See Darke Reply at 4. Consequently, on the question of Petitioner Darke's standing to intervene in this proceeding, the pertinent pleading is his March 24,1997 response in which he provided essentially all the information now before me regarding the basis for his standing. In that filing, Petitioner Darke declared that while he does not live within or on the boundary of the Moab facility, he and his family do undertake certain activities that establish his interests are affected by the facility such that he has standing to intervene in this proceeding. These include (1) obtaining potable water for drinking and cooking from "a source that is within 424 _ _ . _. . _ - _ . .. .. ~ . . _- .. .. . .. .. l

a short walk" of the bioab facility; (2) using fire fuel driftwood taken from the Colorado River, which flows by the hioab facility; (3) bathing with or in the waters of the Colorado River;(4) using a public telephone that is a "short walk" from the h1oab facility; (5) undertaking various other activities, including recreational and educational activities, on public and private lands in "close proximity" to the hioab facility; and Q) using local transportation corridors in "close proximity" to the hioab facility. Darke h! arch 24 Response at 2-3. Petitioner Darke also declared that certain structures, systems, or components l found within or " nearby" the facility impede his use of the Colorado River in violation of 33 U.S.C. 95 401-413 and that the facility precludes him from l using certain "necessary" amenities provided by the Colorado River that are l " proximate (a short walk)" from the facility. Id. at 4. Petitioner Darke then concluded that as a result of these various activities, he and his family "most probably intercept numerous overloaded exposure pathways (some radiological) which originate" within the bioab facility, thereby resulting in " direct harm" to hirr, and to them. Id in its April 7,1997 response to Petitioner Darke's filings, Licensee Atlas argued that he had failed to make any allegation of" injury in fact" sufficient to

support a finding that he has standing to be admitted as a party to this proceeding.

According to Atlas, the tailings pile at the hioab facility has an interim cover that virtually eliminates windblown particulate emissions so that Atlas complies with the applicable aFency dose limits in 10 C.F.R. ll 20.1301.1302. Licensee Atlas further declared that Petitioner Darke's assertions regarding use of water from the Colorado River for drinking, cooking, and bathing are not sufficient because

                                    - he has not indicated whether the source of this water is surface water or ground water and whether it is upstream or downstream from the hioab facility. Licensee Atlas also maintained Petitioner Darke% concern about exposure pathways is
                                      " nonsense" that bears no relationship to the license amendment at issue. Atlas -

Response at 5-7. To be sure Licensee Atlas' claim that " regulatory limits" are not being exceedcJ by offsite releases from the hioab facility is not, standing alone, sufficient to show that Petitioner Darke lacks standing. As was noted recently in the face of a similar assertion,"[t]clative to a threshold standing determination, even minor radiological exposures resulting from a proposed licensee

                                    ~ activity can be enough to create the requisite injury in fact." General Public Utilities Nuclear Corp. (Oyster Creek Nuclear Generating Station), LBP-96-23, 44 NRC 143,158 (1996). As Licensee Atlas' own annual dose calculations indicate, currently the facility does provide at least some radiological exposures -

to offsite individuals, albeit small. See Atlas Response, exh. C. Further, on this tecord there is nothing to suggest there is a reasonable expectation that such exposures will not occur during the additional period that is the subject of the 425

license amendment. As such, the potential for offsite radiological impacts from the facility, and thus for injury in fact to offsite individuals, exists. By the same token, a showing that there may be some offsite radiological impacts to someone is not enough to establish standing for Petitioner Darke. As the Commission has made clear on a number of occasions, in the context of a proceedings other than those for the grant of a reactor construction permit or operating license, a petitioner who wants to establish " injury in fact" for standing purposes must make some specific showing outlining how the particular radiological (or other cognizable) impacts from the nuclear facility or materials

           -involved in the licensing action at issue can reasonably be assumed to accrue to the petitioner. See, e g., limAce Aramic Electric Co. (Yankee Nuclear Power -

Station), CL1-96-7,43 NRC 235,247-48 (1996); $5 lid. Reg. 36,801, 36,804 (1990); 54 id. at 8272. As I noted in my Marcf. II, i997 memorandum and order, see Additional Filing Order at 2, petitioners generally do this by quantifying the distance from the nuclear facility or materials at which they reside or engage in other activities they believe are likely to result in radiological impacts; See, e.g., Oyster Cicek, LBP-96-23,44 NRC at 157 59. Petitioner Darke's problem in this instance is that he has failed to carry his , burden to provide the specific information needed to establish his injury in fact.2 Simply put, he has not shown any reasonable nexus between himself and any purported radiological impacts. Petitioner Darke certainly has made assertions about potential facility-related airborne and waterborne radiological contacts, lie has not, however, delineated these with enough concreteness to establish some impact on him that is sufficient to pmvide him with standing.5 For instance, Petitioner Darke claims he may suffer radiological impacts as a result of drinking, bathing, and cooking with water from the Colorado River that flows next to the Moab facility. Yet, he has not provided any information that indicates whether these water-related activities are being conducted upstream or downstream from the facility, a fact critical to establishing whether these activities will provide the requisite injury in fact. So too, his description of his other activities near the facility are all quantified with vague terms such as "near,"

             "close proximity," or "in the vicinity." Notwithstanding the Commission's J

Petmoner Darke also refen to impacts on tus fanuly in seeking to estabhsh lus standmg to be a party to this proceedmg - His abihty to gaan standing for lumself based on 6njury in fut to the interests of his spouse or children tespecially if time rtuldren are not nunws)is prelemauc. See Dernnt LJuon C, (Ennco Ferme Atoma,: Power Plant. Umt 2 A Al.AB.470. 7 NRC 47A 474 a 1 (1978Hamther cannot represent mterests of nonnunor son attemhng 6ardical school in vionity or proposed nuclear fxihtyk Nonethelen, tm.ause Peuuoner Darke has inn sought to estabhsh his interests are based on circumsunces different from those of the members of his fanuly, I need not reach this issue. 3 Peuuoner Darke does refer to " numerous overloarled esposure pathways uome rahologicalf' emanatmg from the Moab frihty ibat will harm him and his fanuly, see Darke March 24 Response at 4. apparently suygesang there aho ts a nonradiological component to tus injury in fxt He has not, however provided any detail about the nature of any purponed nonratiological imputs so as to give me a basis for conudenng them in malung a siandmg deternunaann 426

general guidance to afford a liberal construction to petitioner hearing requests, I am unable to find these cryptic references adequate to eschlish the required nexus with any facility radiological impacts, particularly in light of the repeated guidance given Petitioner Darke about the need to make a specific showing in this regard.* I thus conclude Petitioner Darke has not met his burden of showing that Atlas' requested license amendment will result in injury in fact to him or his family,5 Decause he has failed to establish this element that is vital to demonstrating his standing to intervene in this proceeding, his hearing request must be dismissed. Ill, CONCLUSION in accordance with 10 C.F.R.12.1205(e), (h), Petitioner Darke has estab-lished that his hearing request challenging applicant Atlas' December 20,1996 liccase amendment application is timely and specifies areas of concern that are germane to the subject matter of the proceeding. Nonetheless, despite multi-pie opportunities to address the issue, for the reasons outlined above Petitioner Darke has failed to meet his burden to establish his standing to intervene in this proceeding. Accordingly, I deny Petitioner Darke's hearing request and terminate this proceeding.' For the foregoing reasons, it is, this sixteenth day of May 1997, ORDERED that:

1. He January 30,1997 hearing request of John Francis Darke is denied and this proceeding is dismissed.

2. In accordance with the provisions of 10 C.F.R. I 2.1205(o), as it rules upon a hearing request, this Memorandum and Order may be appealed to 4

in my initial order, t also adviwd Peutmner thrke that it generally is the praeuce for parucipants nukmg factual claims regarding the circumstances that estabhsh stanihng to do so m affidant form that ti notarued or includes a declaration that the statenwnts are true and are made under penalty of perjury. see Imnal order at 1 As IAensee Atlas notes. Pruuoner Darke apparently has made no effort to comply with this guidance. See Atlas Response at 5. Providing this assurance of the accuracy of factual represetuauons about stanihng is important, nonetheless, because Peutmner Duke appears pro se and generally is makmg reprewntauons about lumself (rather than about other mihudvahk I am not dismissmg this case because of his fadure to comply muh stus mstrueuen 8 As was noted ahow ur supra p. 411 Peuuoner Darke also has made aswruons about facihty-relmed impacts imp,unng tus use of navigable waters in violanon of 33 U.s C 11101413 Besides suffenns from the vagueness problem already identif ed. It is not apparent how tlus claim meets the stakhng regiurement the any purported injury in fact come wittun the ' cons of interests" that is being protectcJ by the statutes govenung tlus proceeding 'In lus pleadings. Prunoner Darke repeatedly champwns the need to estabhsh a local pubbe document room in the vistnoty of the Moab fxihty See, e g. Darke Heanng Request at 1 Because I am denying his heanng request and ternunatmg slus proceeding, there 6s no cause for rne to consider that entreaty funher. Peuuoner Darke dtes of course, have toll-free access to mformanon regarding the kloab fxihty through reference assistance and a publie users' on-hne data base prended in conjunct on wnh the ageney's %ashmgton. D C pubhc document room or he can seek facihty relmed documents through requests under the Freedom of Informauon Act. $ U.S C i551 427

the Commission by filing an_ appeal statement that succinctly sets out, with supporting arguments, the errors alleged. To be timely, an appeal statement must be filed within 10 days after this Memorandum and Order is served (i.e., on or before Monday June 2,1997). O. Paul Bollwerk,111 ADMINISTRATIVE JUDGE - Rockville, Maryland - May 16,1997 428

Cite as 45 NRC 429 (1997) LbP 9710 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

                            - ATOMIC SAFETY AND LICENSING BOARD PANEL-Before Administrative Judges:

Peter B. Bloch, Presiding Officer Charles N. Kolber, Special Assistant in the Matter of Docket No. 40-8681 MLA (ASLBP No. 97 726-03 MLA) (License Amendment) (Re: Alternate Feed Material) ENERGY FUELS NUCLEAR,INC, (White Mesa Uranium Mill) May 27,1997

                  - he Presiding Officer in this proceeding under 10 C.F.R. Part 2, Subpart L, explained what was required for a party to show standing, including affidavits of residence, a statement of authorization to represent particular members of the organiiations, and a plausible allegation of injury in fact resulting from the amendment that is the subject of the licensing proceeding Petitioner were permitted to file supplemental filings to fulfill these requirements, in addition, various procedural requirements for Subpart L filings were explained.-

1 RULES OF PRACTICE: STANDING To attain standing, petitioners should show a plausible way in which activities licensed by the challenged amendment would injure them. The injury must be due to the amendment and not to the license itself, w hich was granted previously. The injury must occur to individuals whose residence is demonstrated in the filing and whom the orge.nizations are authorized to represent. I 429

MEMORANDUM AND ORDER (Additional Filings Required) - his proceeding involves a challenge to a license amendment that was issued

    . by the Staff of the Nuclear Regulatory Commission (Staff) on April 2,1997.1 Re amendment permits the receipt and processing of alternate feed material-(l.c., material other than natural ore) at Licensee's White Mesa Uranium Mill l loented near Blanding. Utah; See 10 C.F.R. Part 40, Appendix A, which sets forth several_ design criteria and requires that licensing decisions "take into account the risk to the public health and safety and the environment with
     ' due consideration to the economic costs involved . . ."; 40 C.F.R. Part 192, .

Subparts D & E. See also the following nonbinding Staff guidance: "Firal< Position and Guidance on the Use of Uranium Mill Fred Material Other Han

    . Natural Orcs," 60 Fed. Reg. 49,2% (Sept. 22,1995).-

The following requests for a hearing have been filed:

1. Native American People's Historie Foundation, April 16,1997, Winston .

M. Mason, Head of Council.

2. Mr. Norman Begay, April 30, 1997. Mr. Begay' writes on behalf of

                  ' himself and his community.                                                     .

3. Westwater Navajo Community, May 5,1997, Lula .l. Katso, Community l

Spokesperson. _.

            ' 4. U.S. Department of Energy, May 5,1997, G. Leah Dever,' Assistant
                   - Manager for Environmental Management; ne Staff. filed its response to these filings on May 21,1997 (Staff Re.

sponse). Although the Staff Response is admittedly untimely, based on "some confusion,"2 I have decided to permit its filing out of time. The Staff Response

    . is very helpful because it reviews in detail the. Commission's requirements for standing. In particular, the Staff draws attention to the need to specify "the par.

ticular manner in which those persons or entities may be affected by the instant . license amendment."

          . My review of. the filings persuades me that there is a need for greater particularity concerning standing. Among petitioners, Mr. Begay comes closest to alleging a ground for standing. lie states:                                                              -l
           ;Our Community and our water wells lie adjacent to, as well as downstream and downwind -

from the EFN Mill. The radionucleids which make up the Cotter Concentrate enginally came from Belgium Coogo Ore containing approximately 60% Uraniom. and now still contam 10% I tetter ftom Joseph' J. Holonkh. Chief. (Jranium Recovery Branch. Divmon of waste Managenent. onke of Nuclear 14atenal safety and safeguants. Aptd 2. IW7. Attai:hment 4 to the tener of the Nauve Anenean Perples htoncal Foundauon. Apnl 25. IM7..

    .2 5taff Respome at 2 al.

r-

Uranium Not only does this hazardous waste contain estremely high radioactiuty and radon gas propcrties, but each tme it is proccased at adds further harmful constituents, which are perhaps tnore imnediately dangerous to human health than the radionuchden. According to reports, your sgency, and the Departrrent of Energy have stated that DOE is unable to stabihn the Couer Concentrate. Therefore, on the basis of concerns for the health and safety of myscif, my famdy, and tny community, I a4 for standing to argu; against bnnging these contananants to the White hiesa ht:19 Because the license to operate the White Mesa Uranium Mill is not at issue in this proceeding, a petitoner's standing must not be based on harm resulting

 - from the license to operate, ne only issues that may be raised must relate to the specific actions proposed to be taken under the license amendment. To show
 ' standing, an individual or an organiiation must show how it may be harmed -

(" injury in fact") by the amendment.' It is typical in our proceedings that an individual would submit an affidavit concerning where they live and how far that is from the proposed activity. An organization typically would file an affidavit showing that its interests as an organization will be injured or that a particular ' person or group of people, whom it is authorized to represent, live in particular addresses, stating how far they live from the proposed activity, in addition to proximity, petitioner should show a plausible way in which activities licensed by the challenged amendment would injure them. For. example, Mr. Ilegay is concerned about the contamination of water wells, and he states that the Cotter Concentrate is " unstable." Dis, in itself, does not show a _ plausible mechanism for injury. He license permits these materials to be stored according to prescribed procedures and methods of monitoring If a petitioner alleges a way in which it fears that this particular material would fail to be

 . properly confined and would escape into the groundwater, then a ret,uirement for standing would appear to be met,5 Alternatively, if intervenor can show that there is a law preventing this particular material from being stored pursuant to
 - the amendment, then there may also be a presumption of injury sufficient to establish standing. One way or another, a petitioner must show the specific =

injury that is feared and how that injury might occur. At this stage of the proceeding, I will interpret the petition favorably to the petitioner and will not require the same kind of proof of injury that would be required to render a decision in its favor. But a plausible mechanism for I I Naman Begay's tstter of April 30,1997, at 1.

   'The requirernent of

injury in fxt" rnusi not be taken beetally li is fulfilled by dernonstranng that there is reason .

to beheve an accident rmy occur Caratore of #Ae Unnerun y Afuwert t.BPMI8. 31 NRC 539, SM 0990) Nose that ihn Subpart t. case amerprets " injury in fact

in hght of the extent to which fxts may be available to a titmner.

{A peutioner may rmt allege an injury to anyone other than iqwlf f or etample, a nwmber of the general pubhc may not allege an injury to a worket at the plant Florida Power and lighs Co (Si Lucie Nuclear Power Plant, Umts I and 2A CLI-89-21,30 NRC 325,329 0989t 431 ( ( 1

injury 'must t,e described. I recommend that Petitioners become familiar with - an excellent discussion of standing found in Consumers Power Co. (Palisades Nuclear Plant),1.BP.79 20.10 NRC 108 (1979).

                       -I note that it is the policy of the United States Nuclear Regulatory Com4 mission to encourage settlement in cases pending before it. Pursuant to that policy, I have encouraged the parties to negotiate and have offered my services in on.h record mediation, At this time, there is no interest in those efforts and Ihavi 4candoned them. Parties are still encouraged to negotiate. Even if they do not negotiate a_ settlement, parties may find negotiations fruitful in facilitaung .

the exchange of information and devising efficient ways of proceeding with this case. 'Ihere is no rule prohibiting contact among parties. The Presiding Officer continues to offer, on request, either his own mediationi services, which must be on the record, or the mediation services of a Settlement Judge, who could be

                   . appointed on request and could assist in private discussions.

Procedural Requirements in accordance with my authority under 10 C.F.R. 62.1209, I set forth the' following directives regarding the further conduct of this proceeding: ! I. SCHEDULE FOR ADDITIONAL FILINGS REGARDING PETITIONERS' HEARING REQUEST. A. Supplements to Petitioners' licaring Requests On or before Monday, June 9,1997 Petitioners may file supplements to their hearing requests, in the supplements, a petitioner should address in detail the following items:

1, _ An interest in the proceeding and how that interest may be affected by the results of the prdeceding, including the reasons why the judicial-standards for standing are met,'so as to be permitted a hearing, with particular reference to the factors set forth in 10 C.F.R. 9 2.1205(h); and

2. Amended areas of concern about the license amendment.

Any factual information provided in support of the petitioner's supplement (such as statements providing details regarding the petitioner's proximity to the facility) should be set forth in an accompanying affidavit that (a) is notarized, or

                   --(h) states that all statements in the affidavit are true to the best of the affiant's knowledge and belief and are made under penalty of perjury.

432-

II. Answer to Petitioner's Ilearing Request and Supplement This order is being served by express mail. Any Applicant answer to a petitioner's hearing request and any supplement thereto shall be filed so that it is received by all recipients on or before Afonday, June 23, 1997. A Staff answer likewise shall be filed so that it is received by all recipier:ts on or before AIonday, June 23,1997. II. NOTICE OF APPEARANCE If they have not already done so, within 15 days of the date of this Memorandurn and Order, each attorney or representative for each participant shall file a notice of appearance complying w e.h the requirements of 10 C.F.R. 6 2.713(b). In each notice of appearance, in addition to prmiding a business address and telephone number, if an attorney or representative has a facsimile number and/or an Internet e-mail address, the attorney or representative should provide that information as well. III. SERVICE ON TIIE PRFSIDING OFFICER AND , Tile SPECIAL ASSISTANT l l For each pleadir.g or other submission filed before the Presiding Officer or the Commission in this proceeding, in addition to submitting an original and two confonning copics to the Office of the Secretary as required by 10 C.F.R. 5 2.1203(c) and serving a copy on every other participant in accordance with sections 2.701(b) and 2.1203(e), a participant should serve conforming copies on the Presiding Officer and on the Special Assistant by one of the following methods:

1. Regular Mail. To complete service via United States Postal Service first class mail, a participant should send conforming copics to the liesiding Ofticer and the Special Assistant at the following address:

Atomic Safety and Licensirg Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555@01 Ihr regular mail service, the Staff may use the NRC internal mail system (Mail Stop T-3F23) in heu of first class mail.

2. Overnight or lland Delivery. To complete service via overnight (e.g.,

express mail) or hand delivery, a participant should send conforming copies to the Presiding Officer and the Special Assistant at the following address: 433 i l l

Atomic Safety and Licensing Board Panel Third Floor. Two White Flint North 11545 Rockville Pike Rockville, MD 20852

3. Facsimile Transmission.' To complete service by facsimile transmis-sion, a participant should (1) send one copy by facsimile transmission to the attention of the Presidmg Officer and the Special Assistant at (301) 415-5599 (verification (301) 415-7405), and (2) that same date, send conforming copies to the Presiding Officer and the Special Assistant by regular mail at an address given in paragraph 1, above.

4. Timely Service. To be timely, any pleading or other submission served on the PresidinF Officer and the Special Assistant by hand delivery, facsimile transmission, or e-mail must be received by the Presiding Officer, the Special Assistant, and each of the other parties no later than 4:30 p.m. Eastern Time on the date due. The Secretary of the Commission also should receive a copy, which may be mailed regular mail at the same time the other service is effected.

5. Parties may send, for my convenience, a computer readable copy of any filing, either on a floppy disk or as an attachment to e-mail. Any format l readable by Wordperfect 6.1 would be useful.

IV. hlOTIONS FOR EXTENSION OF TIN 1E Ibr any motion for extension of time filed with the Piesiding Officer in this [ proceeding, except upon a showing of good cause, the participant requesting i the extension shall:

1. Ascertain whether and when any other participant intends to oppose or otherwise respond to the motion and apprise the Presiding Officer of that information in the motion; and

2. Serve the motion on the Presiding Officer and the parties so that, if possible, it is in their hands at least three business days before the due date for the pleading or other submission for which an extension is sought.

V. EXilllllTS/ATTACilN1ENTS TO FILINGS If a participant files a pleading or other submission with the Presiding Officer that has additional documents appended to it as exhibits or attachments, a

 *0 mad Alms also win be accepedt rmidmg pare' wpes also are wtsed The Prenang ofheer wdl respond to qwumns about e nul servtce 434

separate alpha or numeric designation (e.g., Exhibit I, Attachment A) should be given to each appended document, either on the first page of the appercled document or on a coser/ divider sheet in front of the appended document. Each ! attachment also should have a tab so that it may bc casily accessed without l thumbing through all the pages. It is so ORDERED. l Peter B. Bloch, Presiding Officer ADMINISTRATIVE JUDGE Rockville, Maryland May 27,1997 435

Cite as 45 NRC 437 (1917) CLl-97 7 4 UNITED STATES OF AMEFICA NUCLEAR REGULATORY COV AISSION COMMISSIONERSt Shirley Ann Jeckson, Chairman KennethC Rogora Greta J. Dipus Nils J. Diaz Edward McGaffigan, Jr. In the Matter of Docket No. 70-3070-ML LOUISIANA ENERGY SERVICES, L.P. June 30,1997 (Claiborne Enrichment Center) The Commission grants petitions filed by the Staff and Louisiana Energy 4 Services for Commission review of the Atomic Safety and Licensing Board's May 1,1997 Final Initial Decision, LBP.97 8,45 NRC 367 (1997), and sets a briefing schedule pursuant to 10 C.F.R. 5 2.786(d). 7he Cornmission also denics Nuclear Energy Institute's (NEl'd motion for leave to file an amicus

  - curiac brief in support of the petition for review.

i RULES OF PRACTICE: AMICUS CURIAE Our rules contemplate amicus curiac briefs only after the Commission grants a petition for review, and do not provide for amicus briefs supporting or opposing petitions for review. See 10 C.F.R. 6 2.715(d). ORDER

       'The Nuclear Regulatory Commission Staff and Louision Energy Services (LES) have filed petitions for Commission review of the Atomic Safety and
   - Licensing Board's May 1,1997 Final Initial Decision, LDP-97-8, 45 NRC 367 (1997), concerning contention J.9 (raising " environmental justice" claims).

437 j

This proceeding involves LES's application for a license to construct and operate the Claiborne Enrichn.ent Center (CEC) near Homer, Lcuisiana. He Intervenor, Citizens Against Nuclear Trash (CANT), opposes the petitions for Commission review. In accordance with the considerations set forth in 10 C.F.R. 6 2.786(b)(4), the Commission has decided to grant the petitions and will review the issues raised in the Staff's and LES's petitions.1

1. SCHEDULING OF BRIEFS Pursuant to 10 C.F.R.12.786(d), the Commission sets the following briefing schedule:2 q

              - 1. De Staff and LES shall file their briefs on or before August 8,1997,                                       '

Each brief shall be no longer than 30 pages. 2.- CANT shall file a single responsive brief on or before September 18, g 1997, its response shall not exceed 40 pages. We allow 40 pages for CANT's brief so that CANT will have adequate space to respond to separate approaches that may be taken in the opening briefs of the Staff and LES. It is also possible that CANT will face an amicus curiac brief filed by NEl Ser discussion below.

3. The Staff and LES may file reply briefs on or before September 30, l 1997, heir replies shall not exceed 10 pages each.

! Briefs in excess of 10 pages must contain a table of contents, with page references, and a table of cases (alphabetically arranged), statutes, regulations, and other authorities cited, with references to the pages of the brief where they are cited. Page limitations on briefs are exclusive of pages containing a table of contents, table of cases, and of any addendum containing statutes, rules, reFulations, etc. II. MOTION TO FILE AMICUS CURIAE BRIEF. IN SUPPORT OF PETITIONS

              , he Nuclear Energy Institute (NEI) has sought leave to file an amicus curiae brief in support of the petitions for review, We deny the motion. Our rules I

The Constession also has before it three pennons for review two by CANr and one by L.ES. raisng vanous challenges to the Board's handhng or waste disposal issues. including its decision in LBP.97-3. 45 NRC 99 (1997k in a&hoon, the Comnusuon is considenng the bnefs Sled by the pernes afur tle Comnussion gramed

       - earher pensions for review rsung NEPA and 6aancial quah6 canons issues. See CLI-97 3. 45 NRC 49 (1997)

The Comnussion win act on those ninners in due course.

.I

ta a tener dased June 5.1997. CANr's lawyers asked the Comrr.iuion, in setung a bne6ng schedule. to take into conuderanon thnt "previously scheduled family obhganons out of town dunng the ennre month of August."

        .1.Es opposes any delay in the proceeding. The Comnussion has taken into account both concerns la estabbstung the bnc6ag schedule in this case.

438

                                                                                                                - - - ~ - ._-   , --

contemplate amicus curlar briefs only after the Commission grants a petition

 - for review, and do not provide for amicus briefs supporting or opposing petitions for review. See 10 C.F.R. I2.715(d); cf Sequoyah Fucis Corp. and General Atomics (Gore, Oklahoc.a Site), CLi 96-3,43 NRC 16,17 (1996). No special circumstances here warrant an exception to our rules.

Without further motion, however, we will permit NEl to file an amicus brief on the merits, not to exceed 20 pages, should it choose to do 50. See Sequoyah furts Corp.,43 NRC at 17. NEl must file its amicus brief no later than the filing date of the briefs for the parties whose position NEl supports. See 10 C.F.R. I 2.715(d). IT IS SO ORDERED. For the Commission $ JOHN C. IlOYLE Secretary of the Commission Dated ai Rockville, Maryland, this 30th day of June 1997, 3 Comnussioner Dieus was not available for the afrirmanon of pus order If she had been present, she would have . approved the order. 439

                -.                                          -        - . -     _-   .~ - - .- , ,- -

Cite as 45 NRC 441 (1997) LBP 9711 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL Before Administrative Judges: Peter B, Bloch, Presiding Officer Dr. Peter S. Lam, Special Assistant in the Matter of Docket No. 55 20726-SP (ASLBP No. 97 727 01 SP-R) (Re: Senior Reactor Operator License) RALPH L TETRICK (Denial of Application for Reactor Operator License) June 25,1997 The Presiding Officer in this Subpart L proceeding, having requested further inforraation in this remand proceeding, affirmed his earlier determination that Mr. Tetrick had incorrectly answered the remanded question on his Senior Reactor Operator's examination. Plant procedures involved in this question were interpreted to require an understanding of the root cause of the incident described in the question. RULES OF PRACTICE: MO110N FOR RECONSIDERATION:

REMAND The Presiding Officer expressed confidence that in deciding this case the Commission will be aware that motions for reconsideration are frequently filed before presiding officers, both at the end of cases and after interim orders. Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), ALAB-648, 14 NRC 34,37 38 (1981).

441

MEMORANDUM AND ORDER (Determination of Remand Question)

                                                                    - Memorandum he purpose of this Memorandum is to determine the question remanded to me by the Commission, in light of the additional evidence provided to the Commission on appeal and then to me in response to questions asked of the parties.

I. PROCEDURAL HISTORY On May 20.1997, the Commission issued CL197-5,45 NRC 355 (1997), - concerning an appeal of my initial decision, LBP 97 2,45 NRC 51,53 (1997). In that decision, the Commission charged me with redetermining the correctness of Mr. Tetrick's answer to Question 63 on his examination, in light of a letter of May 1,-1997, from R.J. Hovey, Vice President of the nrkey Point Plant (Hovey l letter)' The Hovey letter was submitted by the NRC Staff to the Commission as an attachment to a Staff brief filed on May 2,1997.' On May 27,1997, I issued an unpublished Memorandum and Order in which I asked the parties a series of questions designed to clicit information helpful in determining this remand. In response, the parties filed: (1) Memoranda from Ralph L. Tetrick, with attachments (including plant procedures, a letter from

                       . R.J. Hovey of May 1,1997, and a Memorandum from Brian J. Stamp, undated) datcJ June 6,1997 (Tetrick Answers); and (2) "NRC Staff's Response to the Presiding Officer's Memorandum and Order (Questions Relevant to Remand),

June 13,1997 (Staff Answers) and " Supplemental Affidavit of Brian Hughes and homas A. Peebles, June 13,1997 (Staff Supplemental Affidavit).

11. QUESTION 63 Examination Question 63, which is the subject of this remand. stated as follows:

I Unless there is a showing of "compelhng cause." maners raised for the 6rst ume on appeal generally will not be considered especially when they involve factual maners that sould have been raised before the preuding of 6cer. Puerto Rico Sectric Power Aarhorrry (North Coast Nuclear Plant. Umr IL ALAB-688.14 NRC 34,37 38 (i981k in accordance with Ow Comnusswn's direcuons in tius remanded cast. the partes' Shngs before the Conmussion are considered to be a part of the decmoual record. 442 a l _ _ _______a

I'lant eondstions:

                       ; Preparations are being madefor refuelsng operations.
                  ~ The refuehag'casty in fdled with the transfer tube gate who open.
                -~
                      ' Alarm annunciators H.1/l Sfr LO LEVEL and Ge9/3. CNThfT Suht? HI LEVEL are in alarm Which DNE of the following is the required IhlkfEDIATE ACTION in respo..se w these
            - condaions?

a Vertfy alarms by checking conwinment sump level recorder and spent fuel level inchcation

               . b. Sound the etmsainment twcuation alarm.

c.' inttiate containment ventilation holatirm. d initiate control roem ventilation isolation,

                                          -111. THE INITIAL DECISION in my initial decision, LBP-97 2, I decided, based on the record then before me, that:

The Staff has persuaded me that when two concurrent annunciators sound,inucating that there is an off normal event that could cause harmful radiation withm the containment, that the operator should take the required IMMEDIATE ACTION. Given the important safety problem that is being indicased by two different annunciators, there is not the time to venfy that each of the annunciators is working properly.: That they sound together is enough -. corroboration to act immediately to prevent injury to the heahh of plant employees.

       - 45 NRC at 55. Thus, I concluded that the correct response to this question was                                   ;
         "b" rather than "a," which was Mr. Tetrick's answer, p_

IV. ADDITIONAL INFORMATION A.- Applicable Plant Procedures Mr. Tetrick has demonstrated, in his memorandum of June 6,1997, that 3 [> ONOP2-033.2 - Refueling Cavity Seal Failure is not the only plant procedure L that requires an immediate action. The phrase "immediate action" also occurs in 3-ARP.2 097.CR - Control Room Annunciator Response and in 3 ONOP-033.1 Spent Fuel Pool (SFP) Cooling System Malfunction.- 2 oNOP stands for "off normal operanns procedure

3 ARP stands for
annunciator response procedure" and also is referred to as *annunciarne response guidehnes."

443 i

c H, important " Note" Contained in Procedure in the attachments filed with me by Mr. Tetrick, on page 7 of 3-ARP-097,CR. there is a box that sets forth a general principle that the indicated actions are "a guide for operators in responding to single annunciafors." Note that they are

                                  a guide " Note also that they apply to single annunciators and not to multiple annunciators, where understanding the pattern or the root cause becomes more i*nportant and where " applicable off normal and emergency procedures" come into play. The relevant section of 3 ARP 097.CR, called NO7ES, states:

1. The annunciator panel attachments indicate appropriate operator action for Control Room panel annunciators. The actions hsted are intended to be a guide for operators in respondmg to hagle annunciators and not intended to be a substitute for good judgment based on thorough understanding of plant conditions and equipment.

2.- Many off normal plant conditions will result in several annunciators hghting almost simultaneously, in such a case, operators are expected to respond to the root cause of the problem and mamtam the unit in a safe condition LAW [in accordance withi apphcable off, normal and emergency procedures. This action may not necessarily correspond to that of the attachments. C. Staff Argument

                                                   'The Staff has discussed extensively the root ceitse of the signals postulated to be present in Question 63, it bases its answer to the question on this understanding of root cause, it states (Staff Supplemental Affidavit at 9-11):

We leve carefully considered Mr. Tetnck's answer to this question. In our view, it reflects a fundamental nusunderstandmg of the importance and significance of an ONOP,in contrast to a nuclear facihty's many other plant procedures. Ibrther, Mr. Tetrick's answer ignores the signincance of the specinc plant conditions described in the stem of Question 63, which must be considered in an SRO appheant's selection of the proper answer to this question. [ Question 63 expheitly postted the following specinc plant condiuons: Plant condioons:

                                                            -   Preparations are bemg made for tefuehng operations.
                                                            -   The refuehng cavity is Alled with the transfer tube gate valve open.
                                                            -   Alarm annunciaton El/l, SFP LO LEVEL and 0-9/5, CNTMT SUMP HI LEVEL air in alarm.

Under these plant conditions, where these two mutually suppomve and connrmatory annun-clators (spent fuel pool low level and containment sump high level) are sounding together, a competent applicant for a semor reactor operator license should have recognized, unequivo-cally, that the operator is regmred to sound the containment evacuation alarm, in accordance with 3 ONOP 033.2. We note that ahhough Mr. TetricL's July 1996 submittal did not discuss this ONOP,in his fihngs before the Presidmg Of6cer in September and December 1996 he 444 1 _j

                    . - . . -            .m   _        _         _ - . _ _ _ _

agreed the two annunciators specihed in Question 63 are "mutuall'y supportive and sufncient to enter 3-ONOP-033.2 " REFUELING CAVITY SEAL FAILURE?

         , , Question 63 does not constitute an abstract question of only theoreticalinterest. Rather, the question seeks to test applicants on their fundamental competence to respond to actual plant condauons, specined therein. Question 63 describes a potential refuchr.,, svity seal         I failure, during refuchng operations. The initial plant conditions provided in the stem of the question state that "the refuehng cavity is Alled with the transfer tube gate valve open? This condiuon means that the Spent Fuel Pool is connected (through the transfer tube) to the refuehng cavity in the Coinainment Buildmg. Another initial condition states
      Alarm annunciaton H l/1, SFP LO LEVEL and G 9/5, CNThfT SUMP HI LEVEL are in alarm? The concunent sounding of these two alarms wovM indicate that the water level               j has decreased in the Spent Fuel Pool and has increased in the Containment Buildmg sump.

Because the Spent Fuel Pool is connected to the Refuehng Cavity (inside the Containment Building) through the transfer canal, the actuation of these two alanm at the same time would conArm leakage from the Refuehng Cavity to the Contamment Building esmp. This _(

   . leakage would most probably be due to the refuehng cavity seal leaking or faihng. Under the conditions described in Question 63, prompt notincation to plant personnel of the nature of the emergency by soundmg the containment evacuation alarm is the only ap.oropriate IMMEDIA1E ACTION.
     , , , Question 63 is based upon a real-life incident that occurred at the Haddam Neck plant, where a tofuchng cavity seal failure resulted in a substantial drainage of the water in the refuehng cavity within a matter of minutes - an event which could have potentially resulted it. lethal radiation doses to plant personnel This event led to the issuance of IE Bulletin 84-03 on August 24,1984. At the time of the event, the refuchng cavity was Alled in preparation for refuehng and, fortuitously, the transfer tube gate valve (which connects the spent fuel pool to the refuehng cavity) was closed. The Staff evaluated this event as Generic Issue 82, and determined that it has signincant safety implications for all water cooled nuclear power plants in the United States,- and each such feelhty, includmg Turkey Point, w1ss required '

to address this problem. See NUREG/CR-4525 "Closcout of IE Bulletin 84-03: Refueling Cavity Water Scal"(June 1990)(portions of which are provided as Attachment I hereto), it should be further noted that Question 63 posits a situation in which "the refuchng cavity is 611ed with the transfer tube gate valve open"- unhke the event at Haddam Neck, where the gate was closet While signincant radiation doses may 1. ave been avoided at Haddam Neck

   ' due to the transfer tube gate being closed, a different result nught have occurred at Turkey Point, under the conditions stated in Question 63, if the plant operators. decided, like Mr.
   . Tetrick, to verify alarms before tsking the required "IMMEDIATE ACTION" of sounding the containment evacuation alarm.
                           - V. ANALYSIS AND CONCLUSIONS -

I am persuaded by the Staff that I should uphold my initial determination, I An operator must act on an understanding of the root cause of an event, trusting ; the pi nt's instruments to deduce what is happening. 'Ibrkey Point does have procedures for " responding to single annunciators." Note from 3-ARP-097.CR, discussed above at p. 444. As also discussed above, at p. 444, these procedures 445 [

specifically state that they are "not intended to be a substitute for good judgment based oi, thorough understanding of plant conditions and equipment."d I asked several questions in my order of May 27. Among those questions were the following: What precisely would he (Mr. Tetrickl do dunng these 20 : conds [that he says he would use to verify the vahdaty of instrurnent remhngs]? What evidence trught he hnd that would persuade him not to take the required IMMEDIATE ACTION aher he took steps to verify the alarm? The answers to these questions were very important because they would show whether there was any legitimate reason to hesitate in taking the immediate action required by the ONOP. For example, is there some instrumer.t reading that could be easily taken and that would give an operator confidence that the instruments were wrong if so, then the decision to check further could be based on cn understanding i f what was happening in the reactor and not based solely on a mechanical reading of a tangential provision that relates to single annunciators. However, Mr. Tetrick did not respond directly to my question. In particular, he gave no indication of any instrument reading or set of readings that would persuade him not to take the required immediate action in the 3-ONOP-033.2. Tetrick Answers, bottom of p.1 (respondinr to Question #2). I conclude that Mr. Tetrick should have acted from an understanding of the root cause of the event portrayed in Question 63. Had he donc so, then only answer "b." would be correct. His fai'ure to understand that failed to mitigate the risks described by Staff and quoted at p. 445, above. I am unpersuaded by Mr. Tetrick's. attempt to rely on the %rkey Point train:ng program and " management expectations" See Tetrick Anaers at 1, second paragraph from the bottom. He is responsible for knowing the correct, safe action to take in response to plant conditions. De NRC cannot be expected to certify an operator based on his reliance on an incorrect response allegedly taught to him. NRC licenses only those operators who demonstrate that they will respond correctly and safely to plant conditions. I am not convinced by the setter from R.J. Hovey of Florida Power and Light to Mr. Stuart A. Richards of the NRC, (Tetrick Reply, unnumbered Attachment.) Mr. Hovey str.ies, in one key sentence, "If the question is interpreted to be asking for an immediate action for the receipt of an annunciator, response (a) is correct." I do not interpret the question as Mr. Hovey suggests. There is not one annur.ciator, but two. What is called for by the question is an understanding of plant conditions and how to respond to two consistent,

 ' Procedure 3-ONo60Rl requires an "immeihate setion" consisting of: "venfy annunciated alann is vahd."

140 wever, with the sirnultaneous indicauons postulated in Question 6A tte two alarms venfy the validity of one another. Thus, there is no funher need as venfy thew alarms. 446

~-

simultaneous annunciators, htoreover, the Annunciator Response Procedure (ARP) contains a note that makes it clear that it cannot be mechanically applied undet these circumstances. (See Note . of 3 ARP4M, CR, above.) Similarly,I am not persuaded by the memorandum of Drian J. Stamp, Acting Operations Supervisor, because I considet his understanding of Question 63 to be the same as that of Mr. Tetrick and thus incorrect. (Tetrick Reply, unnumbered Attachmerit). I conclude, after considering all the information before me, that hir. Tetrick answered Question 63 incorrectly. VI, PROCEDURAL, th1PLICATIONS in this remand, I have addressed information filed by hit. Tetrick that was not filed in a timely manner prior to my Initial Decision. I would note that the Staff's appeal also seems to be based on new information. I am confident that in deciding this case the Commission will be aware that motions for reconsideration are frequently filed before presiding officers, both at the end of cases and after interim orders. It is important for the cfficiency of!! censing procedures that there be a clear principle that requires parties to file information prior to the decisions of judges rather than waiting for an opinion before adding new information to the record. Ortler For all the foregoing reasons and upon consideration of the entire record in this matter, it is, this Pth day of June 1997. ORDERED that: In res;nne to CLI FT 5,45 NRC 355 (1997), tbc Presiding Officer reaffirms ht deten..ination that the response of Ralph L. Tetrick to Question 63 of his Examination to be a Senior Reactor Operator (SRO) was incorrect. Peter D. Bloch, Presiding Officer ADhtlNISTRATIVE JUDGE Rockville, htaryland 447

  . . _.-._.______ _ _                                        _____.______.____._m__...._.                                                         _.____ _ . . . __ _

I 4 i Cite as 45 NRC 449 (1997) 009712 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i 1 0FFICE OF NUCLEAR MATERIAL SAFETY AND SAFEQUARDS ) Carl J. Paperiello. Director in the Metter of Docket No. 040 4544 (License No, SMS 1607) SHIELDALLOY METALLURolCAL COMPORATION (Newfleid, New Jersey) June 6,1997 By a letter dated July 27,1996 Mr. Sherwood Bauman (Petitioner) requested i , that the, following actions be taken with regard to NRC Licenset Shieldalloy Metallurgical Corporation (SMC): (1) that the previous site Licensee have . its license reinstated such that it and SMC become co responsible for the remediation snd decommissioning of the SMC sitet (2) that all NRC or State of Ohio parties involved in wrongdoing related '. this issue be dismissed from employment and criminally charged where appropriate; (3) that the NRC terminate i s development of an environmental impact statement (EIS) for the SMC site; (4) in place of the EIS, the NRC order SMC and its predecessor to submit a decommissioning plan limited to remediation of licensed material; and (5) that the Ohio Environmental Protection Agency and Department of Health , should evaluate all unlicensed slag found at the SMC site. De request was considered as a petition submitted pursuant to 10 C.F.R. 6 2.206, in a Director's Decision issued on June 6,1997, the Director of Nuclear-7 Material Safety and Safegurrds denied the relief sought by Petitioner. De Director concluded that it would be inappropriate to reinstate the previous Licensee's license for the SMC site, as SMC was the currei.t Licensee and therefore responsible for decommissioning the site. For sin,ilar reasons, the Director denied Petitioner's request to order SMC and the previous Licensee to submit a occommissioning plan. With regard to Petitioner's allegations of wrongdoing, with respect to any such activity by NRC employees the allega'.lon was referred to the NRC Office of the Inspector General. De Director also 449 e t s e h

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i i t 5 2 l I concluded that the cunent EIS was properly evaluating all slag at the SMC site, ! contrary to l' titioner's claim that the scope of the EIS exceeded NRC authority. l Finally, the Director concluded that Petitioner's request for action by State of , Ohio agencies was properly addressed by those agencies and not the NRC, ; DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206 I. INTRODUCTION By letter dated July 22. 1996, addressed to the U.S. Nuclear Regulatory Commist.lon (NRC) and Ohio Department of Health (ODH), Eherwood Bauman, Chairperson of the organitation "Save Wills Creek Water Resources Commhtee" ; (Petitioner), requested certain actions concerning NRC Licensee Shieldalloy Metallurgical Corporation (Shieldalloy) and fonner NRC Licensec ibote Mineral ' (now Cyprus Ibote Mineral Company (CIN)), NRC is treating the request as a petition under 10 C.F.R. I 2.206 of the Commission's regulations, The Petitioner , requested that the following actions be taken: t (l) NRC should reinstate Ibois Mmeral's original hcense so that $hleidal!oy and CTM kcone co. responsible licensees concerning the proper renedinuon and , deconu466pn6ng of the $hieldalloy site; , -r (2) Any and all par'nes involved in any w rongdoing, as alleged in the lvutioner's lenet, i should te ternunated from ernploynent, and, sitere appropriale, crindnal charges pursued, (3) - NRC should ternunse the developnwns of the environnwntalimpact stawnwns (El$) (t for the $hwldalloy site; (4) In place of the EIS, $hieldalloy and CI'M shouid be joindy ordered to submit a decommissioning plan, for hcensed materint, that includes only a plan to remediate beensed matenal, includmg gradmg and enluation or all various assorted opuans. t One opuon considered should te offsite daposal at a hcensed disposal facihty; and (5) The Ohio F.nvironnental Protection Agency (OEPA) and Ohio Departnwnt or , ficalth (ODil) should evaluate all unheensed stag round at the $hisi dalloy site.

                     - NRC acknowledged receipt of the petition in a letter to the Petitioner dated                                                                                 ;

October 11. 1996, The petition was also noticed in the rederal Register on April 10,1997 (62 red, Reg, 17,650),8- , s I Nwmally, the Peutioner (by levier) and the pubhc ohrough a faderal Argiure notice) are nou6ed at approumswly the sane line, la dus case, tecause or en aJnunaitranve endssion, the fedraal Attture mouce was aos pubhshed untd Arnt 1997. 450 4 T R L L

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ne Petitioner also sent an undated letter to President Clinton at approximately the same time as his July 22,1996 letter to NRC. %c White llouse referred j that letter to NRC for response. All of the substantive issues raised in that letter ' are addressed in this Director's Decision. l II, llACKGROUND l'lant llistory Shieldalloy owns and operates a plant that produces fertoalloys, near the city of Cambridge, Ohio Cambridge is in castern Ohio, approximately 130 km (80 miles) east of Columbus, Ohio, on Interstate 70. *lhe facility is between Cambridge and !!yesville, Ohio, and within the valley of Wills Creek, the major stream in the area. lirtualloys are mixtures (alloys) of iron and one or more other clernents (e.g., vanadium, titanium, and niobium) that are typically used in steel production or other alloy manufacturing processes. %e principal alloy produced today at the Shieldalloy plant is a 60% vanadium /40% iron alloy. Shieldalloy sells its product to steel manufacturing companies, which then add it to batches of steel to produce vanadium alloy steels with a fraction of 1% concentration of vanadium. Vanadium impans increased strength and hardness to steel. Facility operations beFan in the early 1950s under the ownership of Vanadium Corporation of America (VCA). Foote Mineral Company merged with VCA in 1967. In 1987, Shieldalloy purchased the facility from Foote Mineral Company and has continued alloy production at the site since then. De plant has produced a variety of alloys for the steelindustry over the years. He production of metal alloys has resulted in waste byproducts, the principal one being slag, a hard, rock.like residue. During alloy production, almost all radionuclides contained in the incoming ores were incorporated into the waste slag. Since the inception of operations until the late 1980s, the facility disposed of most of its waste slags and other wastes on site. At the present time, the facility's waste is larrely contained in the East and West slag piles (named for their onsite locations). Together they contain approximately 250,000 cubic meters (seven million cubic feet) of slag and cover approximately 5.7 hectares (14 acres) of land. Be slag itself contains both radioactive materials, such as uranium and thorium it.otopes (including their daughter products3 such as radium and radon), and nonradioactive metals such as vanadium, chromium, arsenic, copper, and rine. He slag produced today is largely recycled in steel IrAndter /mducts are storme species (or p"ichdes) rQtiy the radioactne decay or another auchde, utuch is called de ' parem

M etarrene. when U drea)s. T h is produced Tius thanum isotope also decays and produces bl.buonal" daughters
Radium and taJon are daughter products M Gw uramum decay chain.

451

manufacturing as a flus, t.e., a material that removes impurities. Shieldalloy halted onsito slag disposal in the late 1980s. Several types of radioactive slag are contained iri the East and West piles. In the early years of plant operation, ferrocolumbium (now known as fenoniobium) ores were used for alloy production. Rese ores contained licensable quantities of source material (l.c., uranium (U) and/or thorium (D) in concentrations greater than 0.0591). Ser 10 C.F.R. H 40.4,40.13(a). He slag from processing these ores contains elevtted concentrations of Um and D m and their daughter products, and emits gamma radiation that is casily detected. Two other types of slag at the site, ferrovanadium and Orainal*, are also radioactive, but neither was produced under the original license that expired in 1975. Radioactive ferrovanadium slag is believed to have resulted from the plant using vanadium concentrates as feed material for alloy production. Dese concentrates probably resulted from ores processed in another facility to remove the uranium for use in weapons and/or nuclear fuel production. De radioactive daughter products of the uranium, such as %*, and valuable elements, such as vanadium, remained in the byproduct material. Only small amounts of the parent radionuclides, Um and Um, and much less than would be expected in material that had not been processed to remove these radionuclides, are present. Unlike the ferroniobium slag produced under the original license, the ra-dioactivity of the fenovanadium and Orainal* slags is difficult to detect, Some radionuclides in the ferroniobium slag are strong emitters of gamma radiation, which can casily be detected with hand. held instruments. %c ferrovanadium and Orainal* slag radiation is principally emitted as alpha particles from Th*, which are much more difficult to detect with field instruments. De significant radioactivity in these slags was not discovered until after they were produced. De license issued to Shieldalloy in 1987 is for " uranium and thorium . . . as a contaminant in slag from previous alloy furnace operations." lloth the radioactive materials and metals contained in the onsite East and West slag piles could have potentially adverse effects on human health and the environment, in fact, some metals have leached into streams and sediments next to the slag piles. Little or no migration of radioactive materials has taken place to date. Ilecause of the potential effects of the slag on the environment and human health, both the State of Ohio and NRC plan to oversee remediation and cleanup of contamination at the site, rvrrovanadium slag containing small amounts of radioactive contamination and possibly other slag with radioactive elements .have been used in some tesidential and commercial properties in the Cambridge, Ohio area. De slag was sold or given away by the company for use as construction and driveway fil material before 1987. He shortaerm hazard from this slag is negligible. De long term haard is small and principally derives from unlikely r,cenarios such as a family growing crop adjacent to their driveway for their consumption as 452 I

food. Most calculated doses are a fraction of background radiation. Cl%i has a separate program under way to identify these properties, evaluate any long term hazards, and perform any necessary remediation. Several properties have been identified for remediation, and Cili is taking steps to remove the material and safely store it elsewhere. Although the homeowners possess the slag. CFM is carrying out measures to ensure that the offsite slag is addressed, although - Cl%i is no longer a licensee. NkC and the State of Ohio are overseeing Cill's evaluation and remediation of these offsite properties,-and have met with the public in the area to discuss the issue. NMC Regulatory Program Nelated to Decommlastoning the Shieldelley Facility VCA and its successor, Ibote Mineral Company, held a license to possess , source material from 1953 to 1975. At that time, !bote Mineral allowed the license to expire and did not request its renewal, although it continued to possess source materiali In 1987, Shieldalloy obtained an NRC license (SMB.1507) for , the possession of the source material at the facility, When a licensee is no longer performing the principal activities for which the license was issued (in this case, metal alloy production from radioactive ores), NRC regulations require that the site be decommissioned and the license terminated. See 10 C.F.R. 6 40.42, Dus, NRC's regulatory program for the Shieldalloy site is directed toward there goals, in 1987 and 1990, Shicidalloy submitted decommissioning pirons to NRC proposing in-situ disposal of the slag piles. Subsequent to the development of these plans, however, NRC determined that an environmental impact statement , (EIS) would need to be prepared, in accordance with NRC regulations contained - in 10 C.F.R. Part 51, which implements the National Environmental Policy Act of 1969 (NEPA). In order to evaluate Shieldalloy's proposal for onsite disposal of the slag piles, it is necessary to assess impacts on the environment, through _ preparation of an EIS. %c EIS examines onsite disposal alternatives, as well as other alternatives including offsite disposal of the slag. Under the Atomic Energy Act of 1954 (AEA) NRC is rer.ponsible for regulating the safe use of certain radioactive materials (source, byproduct, and specht nuclear radioactive materials) to ensure that public health and safety are protected from the effects of radiation. Under NEPA, NRC is obligated to take a range of environmental impacts into account in its d:cisionmaking process on decommissioning alternatives. He environmental costs of an action are to be weighed against its benefits. As described above, NRC considers the regulatory decision on decommissioning of the Shicidalloy facility to be a major federal action that may significantly affect the quality of the human environment. For . 1 that reason, and pursuant to NRC regulations in Part 51 implementing NEPA, NRC is preparing an EIS. De scope of the EIS includes both radiological and 453

i I nonradiological impacts of the proposed action and alternatives to it, including impacts on land use, air quality, noise, and transportation, in addition to the radiological impacts to the pubhc that NRC regulates under the AEA. When the EIS is completed (expected to be in late 1997), Shieldalloy will be required, under NRC regulations in section 40.42, to submit a revised de. cornmissioning plan consistent with the findings of the EIS. Thus, Shieldalloy's previous submittals of decommissioning plans will be superseded by the newest one. Ohio's Regulatory Program for Remediation of the Shieldalloy Site he Ohio Environmental Protection Agency also has a program to oversee remediation of the Shieldalloy facility, consistent with its implementation of the Comprehensive Environmental Response, Cornpensation, and Liabilities Act (CERCLA), Ohio's effort covers contamination at the facility and on property next to the site (mostly wetlands and stream sediments). Vanadium compounds and other waste have miFrated into soils and sediments, both on site and off site, and into a stream that runs through the property. De State has entered into a proposed Preliminary injunction Consent Order (Consent Order) to require Shieldalloy and CIS1 to carry out a remediation plan described in Ohio's Decision Document.2 he proposed Conseit Order would also require Shicidalloy and Cl%1 to pay civil penalties to Onio. Public comments were received by the State of Ohio on the proposed Consent Order, and it is expected to be made final in the near future. Relationship lictween State of Ohio and NRC Programs for Shieldalloy Remediation of the Shieldalloy site involves various potential pollutants regu-lated under overlapping laws. Ohio is responsible for overseeing the remediation of contamination under the CERCLA process. Pursuant to NEPA, NRC is re-sponsible for considering the impacts on the environment from all contamination at the facility in evaluating various alternelives for site remediation. Under the AEA, and once the EIS is completed and a decommissioning program approved. NRC is also responsible for ensuring that the site is properly decommissioned, in this case meaning that tadiological contamination is reduced to safe levels, and if onsite disposal is approved, that appropriate institutional controls for long. term land use and monitoring are established and implemented. NRC and the State of Ohio have been coordinating their individual efforts to ensure that a 3 oleo Lawwonnental Protecima Agetwy Dennon thunwm for the Shridalloy Metallegical Coq oranon sne. Candedge, otuo I.PA. Apnl 1.1997. 454

coordinated approach to site remuliation is required of Shieldalloy and CFM by the Federal and State governments. Ill. DISCUSSION NRC Staff has exaniined the Petitioner's requests in his Petition of July 22, 1996, as follows: (1) The NRC should reinstate IWs enginal liceme so that Shieldalloy and CIM be-come co responsible licensees with regard to de proper renwdiauon and decom-niissioning of ite $hieldalloy site, De Petitioner argues that Foote Mineral should now be made a co-responsible licensee along with Shieldalloy because Foote Mineral allowed the license expire and it was not appropriately retired by NRC. %e Petitioner states - NRC did not investigate the Licensee's claims that no materials of licens concern were remaining on site when the license expired. In a September 9,1975 letter, the NRC notified Foote Mineral Company ti. Its Source Material License (SMB 850) had expired on August 31,1975. FMC submitted a " Certificate of Disposition of Materials. AEC 314" to the NRC on September 15,1975, and the NRC tetired the license on October 14,1975. A site visit was not conducted by NRC Staff to verify disposal of the licensed material. As NRC stated to the Petitioner in a January 19, 1995 letter from NRC's Region lit office, f Ahhough the license record is unclear, it appears to NRC staff that Ibute Mmeral may have nustakenly assumed that thonum and urantum in the slag were no longer considered source material tanuse petr concentrations were generally less than 0 0M by weight Tlw NRC retired ow heense bawd on the completed AEC 314 tonn, which indicated that "No matenals have been procured by the il cemee9 Retirement of expired licenses without conducting an onsite inspection was accepted NRC practice in 1975, although the policy has since changed to require onsite inspection to verify that sites of this type have been properly decontaminated. There is no evidence that Foote Mineral Company personnel committed any wrongdoing in this matter.

                            *17w January 19.1995 lener trom NRC's Region Ill orrice so tis IYuuoner stated dias At:C Itum 314 indicated that *all remaining source maienal (e 3. ovest had been transfened and no kmger tusied on the Candedge ute since dw beense was reured and bcensed opernuons ceased. the NRC did not mopect dunng the genod of october 1975 until early 1987? ALC Ftwen 314 staics thai *No matenals have beca procured by de beensee? as noted abone in any case, there sprears to have twen conivuon by the tJcensee over what consututed source matenal, and dw tacensee appears to have ernstakenly assunwd that the slag mas not covered by the eusting beense. NRC's retiring of de beente was based on the thfornauon in At C 314 dia no heemable masenal was on use 455 1

1 l With respect to issuing a license to CIS1, NRC's licensing authority is contained in the AEA, and specific licensing provisions have been incorporated into NRC's regulations in 10 C.F.R. Part 40. See 10 C.F.R. 6 40.l(a). The regulations generally require that, where applicable, a possessor of radioactive materials obtain an NRC license. Shieldalloy is the owner and possessor of the slag piles, and controls them in accordance with NRC license Shill 1507. "Ihus, NRC regulates the radioactive materials on the Shicidalloy site through its Licensee, Shieldalloy Metallurgical Corporation. The State of Ohio, however, has entered into a proposed Consent Order with Shicidalloy and CFM that would require those companies to implement l remediation activities at the site. 'ihus, the Petitioner's request that CFht be i made c> responsible for semediation of the site is satisfied in part by that Consent Order. CI41's responsibility, however,16 defined and required by the proposed Consent Order with the State of Ohio and not by NRC license as the Petitioner had requested. NRC is satisfied that this approach is adequately protecting public health and safety. Ibr the above reasons, the Petitioner's request that CFM be made a co-responsible Licensee for remediation of the site is denied. (2) Any and all parues tavolved in any wrongdoing, as alleged in the htitioner's letter, should tw terminated trom employment, and where apprepnate, criminal chntges pursued. As a general matter, NRC takes enforcement action against individuals who engage in deliberate misconduct involving NRC regulated activities, flowever, the Petitioner has not pcovided any specific information to support a charge of deliberate misconduct by any individual. As noted cariier in this response, Foote Minetal did provide inconect information more than 20 years ago to support NRC's retiring of the license, it appears that they mistakenly assumed that the uranium and thorium in the slag were no longer considered source material and thus did not require a license. There is no evidence of deliberate misconduct by Foote Mineral Company in this matter, As a separate matter, Petitioner's assertions of wrongdoing by NRC employ. ces (i.e., collusion with Ohio agencies regarding jurisdiction of offsite slag so as to avoid '1egal problems"), have been referred to the NRC Office of the inspector General (010). (3) The NRC should terminate the development or the environnwntal impact statenrnt tEIS) for the Shieldalloy site lhe Petitioner requests that the current EIS being developed for this facility be terminated, as federal law, according to the Petitioner, does not allow NRC to evaluate waste streams that fall outside of itsjurisdictional control. According to 456

the Petitioner, the EIS is evaluating both " licensed" and " unlicensed" slag, which enceeds NRC's authority. De Petitioner also argues that NRC consideration of

    " unlicensed" materials will result in inadequate protection of the public from "liccased" materials.

De Petitioner is correct that NRC is evaluating all of the onsite slag as part of the EIS, including nonradioactive slag containing metals such as vanadium. He Petitioner is in enor, however, in stating that federal law does not allow NRC to evaluate these wastes. The requirements to assess environmental impacts of major federal actions affecting the environment under NEPA are quite broad and extend beyond NRC's usual licensing authority under the AEA. Environmental impacts that are to be assessed under NEPA include iq,nts on local schools, traffic, and noise that result from different ahernatives for remediating the site. The environmental impacts that are required to be evaluated also include those resulting from onsite chemicals (including vanadium and other metali contained in the slag and their possible miF ration into groundwater),in addition to radioactive materials. NRC's draft EIS issued for public comment (NUREO. 1543, July 1996) contains a comprehensive discussion of all environmental impacts, not just those from radioactive materials. Thus, contrary to the Petitioner's assertion, federal law in this case requires NRC to consider a broad range of environmental impacts and, therefore, all of the slag at the facility. Whether the slag is " licensed" or " unlicensed" is not a factor in determining the scope of the EIS. De Petitioner also states, as a reason for this request, that the radiation doses to members of the public would be well above 600 millirem / year (mrem /yr) from licensed materials, and higher than those calculated for " licensed" and

    " unlicensed" waste when included together. The Petitioner is incorrect, in the draft EIS (NUREG 1543, July 1996), NRC has modeled the slag piles as they currently exist, and used conservative modeling assumptions to help ensure that actual releases, if any, will be bounded by the EIS calculations.

Rese calculations of radiation doses to members of the pubhc are based on the actual slag piles, and are not affected by any arbitrary divisions of the material into, for example, " licensed" and " unlicensed" slag. Each pile has certair concentrations of radionuclides and chemicals, and each is modeled in the EIS. Releases from both piles are used to evaluate potential impacts on human henhh, in the draft EIS analysis, NRC has calculated a maximum dose of 6 mrem /yr for an offsite individual. He annual cancer mortality risk for this dose is approximately 3 x 106, NRC has also calculated a radiation dose of 42 mrem /yr to an onsite residential farmer, when both piles are capped with clay. The annual cancer mortality risk for this dose is approximately 2 x 105, (De residential farmer scenario assumes failure of institutional controls, such as fences and deed restrictions. Ren, the hypothetical farmer that establishes a residence and farm on site is assumed to drink water obtained from a well that 457

is drilled adjacent to the piles, and eat crops grown on site that are irrigated with groundwater from the well.) In summary, as explained above NRC is appropriately evaluating the envi. ronmental impacts of all slag at the Shieldalloy site. %erefore, this request is denied. (4) In plwe of the l'IS. Sineldalksy and CI~ht should be jointly ordered to submn a

decommissiomng plan for hcensed matenal that includes only a plan to remediate hcensed matettal, including grading and evaluation of all vanous assorted optiont One option considered should tie offsate disposal at a hcensed disposal facthey.

As noted above, Shieldalloy, as the NRC Licensee, is responsible for ra-diological decommissioning of the site. %crefore, this request is denied for the same reasons as the request to require that Ci%i obtain an NRC license. Ibrthermore, as noted above, the sption of offsite disposal of the slag is being considered, albeit pursuant to the EIS and not the Petitioner's suggested joint decommissioning plan, Finally, the Staff has previously noted, in response to the first request, that the State of Ohio has made Cl%1 responsible for cenain aspects of remediation by means of a proposed Corsent Order. ($1 The Ohio linvironnental Protection Agency and Ohio Departnent of flealth should evaluate all unhcensed stag found at tie Shieldalloy site. His request can only be implemented by the State of Ohio and is, therefore, not properly addressed here. De Petitioner did contact the Ohio Department of Ilealth regarding his request. As noted earlier, however, the State of Ohio has entered into a proposed Consent Order with Cili and Shieldalloy, and has been conducting its own review of all of the materials at the site in accordance with CERCLA. IV. CONCLUSION Ibr the reasons discussed above, the Petitioner's requests for action pursuant to section 2.206 are denied. A copy of this Decision will be placed in the Commission's Public Document Room at 2120 L Street, NW, Washington, DC 20555, and at the local public document room for the Shieldalloy facility in the Guernsey County Public Library. De Director's Decision will also be made available on the NRC Electronic Bulletin Board at 1 800 952 9676. A copy of this Decision will be filed with the Secretary for the Commission's review, in accordance with section 2.206 458

As provided by this regulation, the Decision will constitute the final action of the Commission 25 days after issuance, unless the Commission on its own motion institutes a review of the D. cision within that time. FOR Tile NUCLEAR REGULATORY COMMISSION Carl J. Paperiello, Director Office of Nuclear hinterial Safety and Safeguards Dated at Rockville, Maryland, this 6th day of June 1997. 459

Cite as 45 NRC 460 (1997) 0D 9713 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS Carl J. Paperiello, Director in the Matter of Docket No. 03016066 ADVANCED MEDICAL SYSTEMS, INC. (Cleveland, Ohio)- June 13,1997 l he Director of the Office of Nuclear Material Safety and Safeguards (NMSS) denies a petition filed with the Nucwar Regulatory Commission (NRC or Commission) by letter dated March 3,1993, by William 13, Schatz. Esq., on behalf of the Northeast Ohio Regional Sewer District (District or Petitioner), requesting that actions be taken regarding Advanced Medical Systems, Inc. (the Licensee). De petition was partially granted, as esplained in the Decision. %e Director denies the remaining requests of the petition on the basis of analysis of the technical issues and the Commission's authority to grant the requested relief, set forth in the Decision, which analysis showed that the Commission did not have such authority and that no technical basis warranted granting the petition. JURISDICTION No statute or regulation grants the Commission authority to rcquire a licensee to pay, in effect, compensatory damages to private individuals. )*anAce Atomic Electric Co. (Yankee Nuclear Power Station), CL196 7, 43 NRC 235, 269 (199S A court of competent jurisdiction, and not the NRC, is the proper forum for such an individual to seek compensatory damages from a licensee. TECHNICAL ISSUE DISCUSSED Re following technical issue is discussed: Contamination of sewer line. 460

DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206 I. INTRODUCTION lly letter dated March 3,1993, addressed to Mr. James Taylor, former Executive Director for Operations, U.S. Nuclear Regulatory Commission (NRC), William 11. Schatz, Esq., on behalf of the Northeast Ohio Regional Sewer District (District), requested that NRC take action with respect to Advanced Medical Systems, Inc. (AhtS), of Cleveland, Ohio, an NRC Licensee. The District requested, pursuant to 10 C.F.R. I 2.206, that NRC: (1) modify AhtS License No. 34 19089-01 to require that AMS assume all costs resulting from the offsite release of cobalt 60 that has been deposited at the District's Southerly Wastewater Treatment Center (SWTC); and (2) order AMS to decontaminate the sewer connecting its London Road facility with the public sewer at London Road, and continue downstream with such decontamination to the extent that sampling indicates is necessary.

             'the D. strict alleges the following bases for its request: (1) cobalt 60 has been discovered in the ash piles resulting from the incineration of sewage sludge at the District's SWTC;(2) AMS is the only Licensee in the District's service area authorlied to process cobalt-60 in a loose metallic form consistent with the form present in the ash; (3) AMS is the only entity (except for the former owner of the London Road facility) that has reported discharging cobalt 60 to the sanitary sewer system leading to the SWTC; (4) NRC documents present ample evidence of cobalt 60 contamination at the London Road facility, including numerous drains inside the building; (5) there are excessive exposure rates in the sewer connecting the building to the public sewer system; (6) this sewer line has been classified as a restricted area, which effectively denies the District access to the manhole for sampling industrial discharges; and (7) the AMS London Road facility is the source of the cobalt 60 at the SWTC.

By letter dated April 2. WL the Director, Office of Nuclear Material Safety and Safeguards, NRC 4 haally acknowledged receipt of the petition and informed the District that its request was beind treated pursuant to section 2.206 of the Commission's regulations. A notice of the receipt of the petition was published in the federal Rrghter on Tuesday, April 13, 1993 (58 Fed. Reg. 19,282). Staff sent a copy of the letter dated April 2,1993, with a copy of the petition, to AMS. By letters dated September 13,1994, October 13,1994, and April 29,1996, the District filed supplements to its March 3,1993 petition. The District's September 1994 supplement requested that NRC commence enforcement actions against AMS for violations of 10 C.F.R. {l 20.401(c)(3) and 20.303(a), based on assertions that the disposal records maintained by AMS are grossly inaccurate, in 461

violation of 1,cetion 20.401(c)(3), and that AhlS discharged material to the sewer that was not readily soluble in or dispersible in water, in violation of section 20.303(a). In addition, the Septernbec 1994 supplement requested that the March 3,1993 petition be granted immediately insofar as it requested that AMS be held responsible for all costs arising from contamination of the District's treattnent plant and that AMS be required to decontaminate the sewer downstream from the lamdon Road facility. In hs October 1994 supplement, the District requested that NRC commence an enforcement action against AhiS for violation of 10 C.F.R. 1 20.2003, based on the assertion that AMS had recently discharged cobalt.60 to the sewer that was not soluble or readily dispersible biological anaterial, in violation of that provision. In its April 1996 supplement, the District requested NRC action on a license requiring AMS to safely and reasonably decontaminate the landon Road interceptor (the sewer), or, if NRC's position is that such action has already been ordered, NRC action requiring AMS to actually complete the decontamination. Since receipt of the March 3,1993 petition, NRC has amended AMS' licent,e such that one of the District's requests has already been partially granted, as set forth below. I have completed my evaluation of the remaining matters taised by the District and have determined that, for the reasons stated below, the other requests in the petition and its supplements should be denied. II. IIACKGROUND NRC issued License No. 34 19089 01 to AMS on November 2,1979. Picker Corporation had previously owned and operated the licensed operation, facilities, and equipment since 1959. From 1979 te mid 1991, the AMS license authorired the possession of 150,000 curies ($$50 ternbecquerels) of cobalt 60 in solid form for the purpose of manufacturing sealed sources for distribution to authorized recipients for use in teletherapy units (us,ed at medical facilities for treatment of medical conditions). The AMS license currently limits possession to 150,000 curies (5550 terabecquereis) as solid metal and 135,000 curies (4995 terabecquerels) in scaled sources, for use in installing and servicing teletherapy units, and training; the current license does not authorire manufacture of scaled sources for distribution he license also authorites possent. ion of 40,000 curies (1480 ternbecquerels) of cesium-137 in scaled sources, and 4NO kilograms of plated depleted uranium shielding, incident to teletherapy and industrial radiography installatkm, maintenance, and service. The facility that houses the licensed material is located on London Road in Cleveland, Ohio. De District is responsible for operating three wastewater treatment facilities in and around the Cleveland, Ohio metropclitan area. He District's SWTC has been operating since 1927 to remove grit and debris from wastewater that the 462

l l District services.1his process involves incineration of sludge, transport of the residual ash in a slurry to settlement and evaporation ponds, and eventual transfer of the dried ash to landfills. The S% It also incinerates sludge generated at other facihties, including the District's Easterly Plant, which services the area where AMS is located. In April 1991, NRC identified cobalt 60 at the SWlC in ash piles coincidental to an aerial radiation survey of an unrelated site. In Septernber 1991 and March 1992, at the request of NRC, Oak Ridge Institute for Science and Education I (ORISE) performed surveys at the S%TC to determine the extent of the cobalt. 60 contamination at the facility. The results of the OklSE surveys are repor ed in Radiological Characteritation Survey for Selected Outdoor Areas. Northeast Ohio Regional Se Act District, Southerly Wastewater Plant, Cleveland Ohio," Final Report, August 1992 (hereafwr referred to as ORISE report"). The ORISE report indicated tl at there were elevated dkect radiation readings that were caused by cobalt 60 contamination, with elevated concentrations in soil and sediment samples. Based on this ORISE report and information collected and examined by NRC Staff, NRC estimated that a total activity of 414 millicuries (l$.3 gigabecquerels) of robalt 60 existed at the SWTC in 1992. ' Since the District needs to transfer the dried ash from the evaporation ponds to continue operations, NRC approved the site remediation strategy for ash removal, and had ORISE perform an independent survey to evaluate the radiological status of the remediated area. Tht District perfonned a radiological characterization of the facility to better determine the amount of cobalt 60 that is actually present on the 5%TC site; the District's consuhant estimated the quantity of cobalt 60 in the North Fill Area, as of 1993, to be about 443 millicuries (16.4 gigabecquerels). As discussed below, NRC has evaluated the District's concerns and bases for its requests for NRC action. Although IG ' has amended AMS' license to require remediation of the interceptor sewer i operated by the District in the vicinity of the connecting line from the AMS facility, which partially grants one of the District's requests, the District's remaining requests are denied for the reasons discussed below. III. DISCUSSION A. Timing and Source of Contamination Identified at the SMTC in 1991, cobalt 60 was discovered in the North Fill Area.' The Staff'> review of the history of the SWTC revealed that, after renosation of the incinerators

                                                                               *sagnascent levels or cobah-60 requmag semedisuon were discovered in the Ninth FiH Area. in Ow eusting in-liace Ash secten or the South liu Area and in 8e northere scenon or the south rin Arca only te North lin Area conianunauon can be deed with any drgree or certaanry ahhough AMs records indicate that 1989 was the last year AMs dwharged cobah 60 directly inin the sanitary newer system 463

J l l l between 1975 and 1978, th: incinerators came back on line in November 1978, and the current ponds were put into m.e for the first time. 'Ihc ponds were then cleaned for the first time from December 1982 to htarch 1983. The District . removed the ash from the evaporation ponds and placed it in the North Fill Area, which was then landscaped. This was the only time the North Fill Area was used for ash disposal. Accordingly, the cobalt 60 entered the District's system and was deposited at SWIC between late 1978 (when the ponds were first used) and December 1982 (when the ponds were first cleaned and the ash placed in the North Fill Arcat See hiemorandum for Carl L Paperiello, former Deputy Regional Administrator NRC Region 111, from leren J. Ilueter, Radiation Specialist. Division of Nuclear hinterial Safety NRC Rerion 111, on the subject of Report on Trip to General Chemical Corporation (Non licensee),

                                                                        $000 Warner Road, Cleveland, Ohio, and to Northeast Ohio Regional Sewer District, 6000 Canal Road, Cleveland, Ohio" (Docket No. 03018276; License No. 3417726 02) dated June 13,1991. 'lhe Staff's conclukn as to when cobalt 40 contamination entered the sanitary sewer system is supported by the District's letter, dated September 13,1994, which stated that the earliest possible                                                  .

. date that the cobalt 40 could have been discharged into the sanitary sewer was not more than a week or two before the opening of lagoons in October i178. In an attempt to determine all possible contributors of cobalt 60 contamina-tion to the SW7C, NRC conducted a file review of all licenses issued since 1975, active and terminated, for activities at facilities in the tip code areas serviced by the District. NRC contacted existing and previous licensees for additional information. The U.S. Department of Energy was also contacted to determine if any of its operations in the Cleveland metropolitan area could have contributed to the cobalt 40 contamination at the SWTC. Although other cobalt 40 users were found in the NRC's file scarch, it was concluded that no facility, other than AhtS' facility at 1020 London Road, Cleveland, Ohio, was authorized to possess the quantities of unsealed cobalt 40 that could have contributed to the levels of cobalt 40 contamination found at the SWTC. hiemorandum from Roy Caniano, Chief, biaterials inspection Branch Division of Radiological Safety & Safeguards (DRSS), Region Ill, to William L. Axelrion, Director, DRSS, dated November 7,1994 (hereafter Caniano hiemo"). Given the information as to the timing of the disposals into the sewer system that caused the cobalt 40 contamination at the SWTC, the Staff included Picker, which previously used the facility under NRC license, in its review and inspection, although the District did not seek action aFainst Picker. Current and former Picker employees, as noted in inspection Report No. 030-160$$/93003 (Section 3.C), issued November 7,1994, stated that liquid radioactive waste was routinely discharged from the London Road facility. They stated, however, that the 1 cune (37 gigabecquerels) per year annual gross quantity disposal limit (10 C.F.R. 6 20303) was never exceeded during their respective tenures. 464

liased on the information gathered during the inspection, it is highly likely that Pi(Let Corporation discharged cobalt 40 into the sanitary sewerage system every year that it operated the 1,ondon Road facility, including the 1978 and 1979 tin e period of interest. As for AhtS, its records indicate that a total of 209 rnilliruries (7,73 gi Fabecquerels) of unscaled cobalt.(0 was disposed of into the sanitary sewerage system during the period 1980 to 1989. Canlano hicmo at 3. Ah15 records indicate that 1989 was the last year that cobalt 40 was discharfed threctly into the sanitary sewerage system. NRC Inspection Report No. 03016055/93003 (DRSS) at 7, issued Nmember 7,1994. AhtS records also specifically list releases during the 1980 1982 time frame, inspection Report No. 030-160$$/93002 at 17, issued August 2,1993. 'the information gathered by the Staff indicates, therefore, that cobalt.60 was likely released from the London Road facility during the 1979 1982 period of interest by both Picker and AhiS. Ahls has recorded discharging cobalt 60 to the sanitary sewer system that eventually leads to SWTC, as described above. AhtS tecords indicate, however, that it had been discharging cobalt 60 in accordance with the quantities and concentrations authorited by the then applicable regulations and license. NRC's inspection and review of records have not revealed any documentation at Ah15 oi other evidence that would indicate discharges in excess of authorised limits. H, Request for NRC Action to Require AhtS to Assume the Cost Resulting from Offsite Release of Cobalt 60

     'lhe Staff has carefully considered the action the District has requested and the bases stated by the District for its request. In addition, the Staff has evaluated the results of its inspections and all available information related to the District's requests. None of the available information, individually or taken together, demonstrates that AhtS violated NRC regulatory limits or other requirements related to the discharge of cobalt 60 into the sanitary sewer system.                  ,

in a proceeding involving the decommissioning of the Yankee Nuclear Power Station near Rowe, hiassachusetts, the Commission stated that it had no authority to grant an intervenor's request for compensation similar to the District's. l'anAce Atomic Electric C<t (Yintee Nuclear Power Station), CL196-7,43 NRC 235 (1996). In the l'antee proceeding, the licensee had initiated substantial decommissioning of its facility through a " Component Removal Project" (CRP) under a new Commjssion policy interpreting the decommissioning rule (10 C.F.R. 6 50.82) and had removed and disposed of many radioactive components through the CRP. 'Ihe intervenors succeeded in challenging the Commission policy, w hich had allowed the licensee to initiate the CRP without an opportunity for a hearing. CAN v. NRC, 59 F.3d 294 (1st Cir.1995). As relief for the failure to offer an opportunity for a hea ing, and based on their assertion that 465 1

the CRP had caused workers and the public to receive doses far above those as low as reasonably achievable, the intervenors requested the Commission to require the licensee to establish a fund for the treatment of cancers ..aused by the doses resulting from the CRP, l'anter, CL196-7,43 NRC at 26? In rejecting the intervenors' arguments, the Commission held that "no statute or regulation grants the Commission authority to require the Licensee to pay (in effect) compensatory damages to private individuals." /d. at 269. The District's lequckt for compensation from AMS for costs resulting from offsite releases of cobalt 60 from the London Road facility is not materially different from the ranAre intervenors' request for compensation. No statute author.m the NRC to require any licensee to pay such compensatory damages, especially in a case in which the releases that resulted in the third party's damages were within applicable NRC limits.

                                 'Ihe District, in addition to filing its petition with NRC, instituted a court action against AMS and other defendants for tort remedies, including property damage and remediation costs, resuling   t    from the discharge of cobalt 60 into the District's system. The action, wlich was pending before the United States District Court for the Northern Distriu af Ohio Eastern Division (Case No.1:94 CV 2555), has been settled. Letter daica Ja'iuary 2,1997, from L.K. English, Esq., Northeast Ohio Regianal Sewer District, to J, Madera, Division of Nuclear i

Material Safeguards NRC, A court of competent jurisdiction, and not NRC, is the proper forum for the District to seek compensatory damages from AMS, Accordingly, the District's lequest for NRC action to require AMS to assume the costs resulting from the release of cobalt 60 is denied. l I C, Request to Require AMS to Decontaminate the Sewer Connecting its I endon Road racliity with the Public Sewer at London Road and Continue Downstream to the Estent AMS/NRC Sampling Indicates in Necessary fly letter dated April 29,1996, the District supplemented its original petition with a request that AMS be required to " safely and reasonably" decontaminate the London Road interceptor, in addition, the District requested that NRC take action to have AMS complete the decontamination of the in'erceptor if NRC believed that it had already ordered AMS to take action to decontaminate the interceptor, 'Ihe indicated sewer connection that was identified as having excessive exposure rates is on AMS property. NRC did issue a Notice of Violation (NOV) for AMS' violation of 10 C,F.R. l 20.105, in that the exposure rates in the accessible sewer line on the AMS facility were excessive for an unrestricted area. NOV issued to AMS, License No. 3419089-01, dated May 5,1988, resulting frorn a special safety inspection conducted on April 13,1988 (NRC Inspection Report No. 160$$/88001 (DRSS)). Ilowever, the M

=__

manhole controlling access to the sewer connection was designated a restricted area; the sewer cover on the AMS property was secuted with a lock and bat; and the sewer connection area was partially decontaminated, reducing the contarnination and esposure rate levels.12 iter from T.J. liebert, Chairman, Radioisotope Cemmittee AMS, to R.E.11urgm, Senior Radiation Specialist, NRC Region 111, dated May 23,1988. "Ihese facts were confirmed by Oak Ridge 6ssociated Universities, contra;ted by NRC to perform a radiological survey to determine the then-cunent conditions at the AMS facility. See Oak Ridge Associated Universitics Report, " Radiation Survey of the Advanced Medical Systems, Inc., London Road FaciF'y, Cleveland, Ohio" Final Report, at 20 (April 1989). 'the exposure rates am no longer considered excessive as a result of the decontamination performed by AMS and the designation of the manhole as a restricted area. Moreover, in 1995 AMS permanently scaled the lateral from the old manhole to the vwer line. AMS also removed most of the original foundation underdrain system and replaced it with a new, clean system. AMS is currently required to test the groundwater pumped hom the new foundation underdrain system, to ensure compliance with set. ion 20.2003. ,

                                                                         'Ihe NRC has taken action by issuing Amendment No. 32 to AMS' license, dated March 17, 1995, in which the NRC, through Condition 19.F. required                                                  ,

AMS to remediate the lamdon Road interceptor in the vicinity of the abandoned lateral, as described in an AMS letter proposing action to remediate contaminated piping. See " Action Plan for the London Road Facility" at 2 (Jan. 27,1996). License Condition 19 required that remediation of the interceptor be completed within 90 days (i.e., by June 15, 1995). In Amendment No. 35 to AMS' license, dated June 16, 1995, NRC required AMS to initiate remediation activities no later than July 8,1995, and to notify NRC no later than July 14,1995, to confirm initiation of the remediation of the interceptor. Amendment No. 35, however, deleted the June 15,1995 date for completion of remediation of the interceptor imposed by Amendment No. 32. Ily a letter dated July 12,1995, AMS informed NRC that it would not start the remediation of the interceptor until July 29, 1995, and did not provide an estimated completion d:.te for the remediation, as AMS further informed NRC that it needed the District's approval to access the interceptor. Letter from R. Meschter, Radiation Safety Officer (RSO), AMS, to J. Caldwell, NRC, dated July 12,1995, Dy a letter dated July 19,1995, AMS informed NRC that, for the same reasons given in the July 12,1995 letter, it would not initiate remediation until August il,1995. Letter from R. Meschter, RSO, AMS, to J. Caldwell, NRC, dated July 19, 1995. At that time, AMS and the Distric, til' had not agreed on arrangements for entry and evaluation of the interceptor. In a letter dated January 2,1997, from L.R. English, Esq., Northeast Ohio Regional Sewer District, to J. Madera, NRC, the District forwarded a copy of a settlement agreement between the District and AMS regarding. their court 467

litigation The $cttlement indicates that AMS agreed, infer alia, to pay the D. strict a fised sum, and the District agreed to allow reconnection of the AMS facility to the London Road interceptor after AMS' taking certain actions pertcining to conditions of the facility, and to design and construction of the connection. The part of the agreement concerning reconnection provides an alternative to use the present manhole located in London Road, provided that the plans include decontamination of the interceptor, at AMS' cost, before such use.1he agreement specifies conditions and procedures under which AMS may plan to use the present manhole in the interceptor, in a meeting with NRC and AMS on liebruary 10,1997 AMS Indicated that it was its intention to reconnect. Official Transcript of Proceedings: "Public Meeting with Advanced Medical Systems, Inc.." at 50-51 (Feb,10,1997). AMS stated that it will probably take from 9 months to a year and a half for reconnection to actually happen. ,

14. at St. In stunmary, insofar as Amendments No. 32 and 35 require AMS to temediate the sewer connecting its London Road facility with the public sewer, this request of the District has been partially granted. Although access to the interceptor is now cortrolled, License Condition 19.F requires AMS to rernediate the interceptor, lhe Staff intends to pursue this matter in the near future, it is the Staff's intent that the access concerns be resolved promptly, so that remediation may begin and be completed as soon as practical.

D. Other lasues Raised in Supplements to Petition Dy letters dated September 13, 1994, and October 13, 1994, the District suppletaented its original petition with a request that NRC commence an appropriate enforcement action against AMS for the maintenance of grossly inaccurete records of disposal of radioactive material from 1978 to 1993, in violation of section 20A01(b)(3)(in effect through December 31,1993). The District also asserted thst AMS had disposed of cobalt-60 that was not "readily r.oluble or dispersible in water," in violation of section 20.303 (in cf fcct through Decembei 31, 1993), and had more recently discharged cobalt 60 which was not "readily soluble or dispersible biological materini, in violation of section 20.2003 (in effect on January 1,1994, and thereafter). The Staff has conducted numerous recent inspections at the London Road facility to address the District's concerns over cobalt-60 discharges into the sanitary sewerage system. On March 15,1995, NRC issued a Notice of Violation to AMS for failures to: (1) evaluate the quantity of cobalt-60 released to the sewer system resulting from facility floods and certain decontamination activities; and (2) remove nonsuspendible solids by the use of a cloth filter, as required by AMS' license conditions. The background relating to unmonitored releases resuhing from facility floods and certain decontamin:.jon activities is set forth below, 468

l 1 i he information as to when the unmonitored releases occurred came from current and former Picker and AhtS employees and identified several occasions ) in the late 1960s and the mid to late 1980s when the basement was flooded, l resulting in backflow into the sewer system. %e available information indicated l that not all of these occurrences were evaluated to identify the amount of radioae-tivity that may have been released. Inspection Report No. 030160$$/93003, at , 1619. Based on the estensive information provided by the interviewees, the l Stalf concluded that it was unlikely that the cumulative total quantity of cobalt 60 ; released during these unmonitored releases escceded a few hundred millicuries. id. As to the filtering of the wastewater pumped from holding tanks in the Wasts lloid Up Tank room, v information gathered from the interviewees strongly indicated that the filter was not always in place from the mid 1970s through . the mid 1980s, thus raising the potential for cobalt-60 pellets to have been discharged through this toute into the sewer system. Id. at 14. De NRC has already taken enforcement action for the failures to: (1) evaluate and report certain releases into the sewer system as a result of facility floods or decontamination activities that likely included cobalt 60; and (2) ensure that wastewater in the holdup tanks was paned through filters that should have captured any cobalt 60 pellets before the release of the water to the sewer system. De Staff does not believe that further enforcement action for the matters identified in the September 1994 supplement is warranted. Regarding the October 1994 supplement's request for enforcement action for violation of section 20.2003, the Staff has not found evidence, based on NRC interviews and review of records, that Ahts intentionally disposed of cobalt 60 into the facility's drains leading to the District's sanitary sewerage system since hiay 1989. De AhtS records contain no discharge log entries after this date. Ibrthermore, AhtS has not generated liquid radioactive waste from manufacturing operations in several years, and has no plans to do so in the future, because of termh.ation of source manufacturing operations. See Inspection Report No. 030-16055/93002, flowever, both the District and the Staff performed sampling (postdanuary 1,1994, the effective date of Mvision of 10 C.F.R. Part 20) that identified cobalt 60 at the point of discharge of the sanitary sewerage piping from the London Road facility into the District's sewer line. See the District's supplement to its petition, dated October 13,1994, and Inspection Report No. 030 16055/94003, issued on December 6,1994. De presence of the cobalt 60 appears to be a result of plate-out of cobalt-60 onto the walls of the piping leading from the London Road facility. De Staff had characterited the results of its sampling as indicating an apparent violation of section 20 2003.14.

                                                    %c sampling performed by the District and subsequent sampling performed by the Staff in early 1995 indicated that some or all the cobalt 60 detected mi,ght 469

be " soluble " as that term is defined in NRC Infonnation Notice No. 94-07, dated January 28,1994. 'Ihe uncertainty as to the solubility of the cobalt 4) prompted the Staff to begin preparations for a solubility analysis of the sample taken on August 17, 1994. In accordance with Region til policy, those samples had been transferted back to the District, on whose property the samples had been taken. Ilecause of further analyses the District had pe formed on the samples, the samples no lonfer esisted in their original form; therefore, further solubility analyses could not be performed, lirther rtpresentative samples of the water at this point in the waste stream could not be taken because of the District's plugging of the pipe. In view of the inability of the Staff to determine that the cobalt.60 in the sampled water was, in fact, insoluble, there was an insufficient basis to cite AhtS for a violation of section 20.2003. Ibrthermore, there is not now a significant potential for discharge of cobalt 60 from the London Road facility to the District's system because: (1) old piping connecting the facility l to the District's lines has been plugged;(2) the District has not permitted AhtS to connect new clean piping installed by AhtS to the District's lines; and (3) AhtS collects and treats all water used on the site and holds it in tanks before it is determined not to contain insoluble cobalt.60.

     'The Staff believes that the vast majority of cobalt 60 inventory and activity discharged into the District's sanitary sewerage system was dispersible. It can be espected that a small amount of readily dispersible snaterial would plate out onto the sewer synem pipes over the long history of cobalt 60 discharges by l  Picker and AhtS. Staff concludes that the fact that a small amount of cobalt 60 built up over time in sewer pipes leading from the AhtS facility, by itself, does not support the District's assertion that a discharge in violation of section , ').303 or 20.2003 occurred.

IV, CONCLUSION lbr the reasons discusted above, no basis exists for taking any action, in addition to the action described above, in response to the requests in the petition and its supplements. Accordingly, no further action pursuant to section 2.206 is being taken in this matter. As provided by 10 C.F.R. 5 2.206(c), a copy of this Decision will be filed with the Secretary of the Commission for the Commission's review. The De-61sion will become the final action of the Commission twenty five (25) days after 470

r issuance unless the Commission on its own motion institutes actiew of the Decision within that time. FOR Tile NUCLEAR REGULATORY COMMISSION Carl J. Paperiello, Director Office of Nuclear Material Safety and Safeguards Dated at Rockville, Maryland, this 13th day of June 1997. L 471

_ . _ . . - _ ____m.. _. . _ . _ ___ .______ _ _ _ _ _ . _ _ _ _ _ _ _ . _ _ _ _ 4 Cite as 4$ NRC 472 (1997) 0D 9714 l UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION I OFFICE OF NUCLEAR REACTOR REGULATION Samuel J. Collins, Director in the Metter of Docket No. 60 219 GENERAL PUBLIC UTILITIES NUCLEAR CORPORATION ! (Oyster Creek Nuclear Generating station) June 18,1997 By a petition dated April 1.1997. Berkeley Township Environmental Com-mission (Petitioners) requested that the NRC direct Oyster Creek Nuclear Gener. ating Station (OCNOS or Licensee) to shut down its operations during a planned transfer of fuel 1 om wet to dry storage. The request was considered as a petition submitted pursuant to 10 C.F.R.12.206. In a Director's Decision issued on June 16, 1997, the Director of Nuclear

               . Reactor Regulation dismist.ed Petitioners' request as premature. The Director concluded ths.t because OCNOS would first have to submit a request for a license amendment to perform the action in question, which it had not yet donc and on which the Petitioners would have an opportunity to comment, there was no basis for the Commission to take the requested action at this time.

DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206

1. INTRODUCTION By a petition submitted pursuant to 10 C.F.R. 6 2.206 and dated April 1, 1997 (petition), Berkeley Township Environmental Commission (Petitioners) requested that the U.S. Nuclear Regulatory Commission (NRC) take action with regard to Oyster Creek Nuclear Generating Station (OCNOS) operated by GPU Nuclear Corporation (GPU or Licensee). The Petitioners requested that the NRC 472 l

drert the Licensee to shut down OCNOS during an upcoming planned transfer of fuel from wet to dry storage. The Petitioners based their request on the following assertions: (1) the load transfer path for the 1(Kbton fuel transfer casks panes over the reactor's containment mechanism and other safety.related equipment; (2) NRC 11ulletin 9M12, dated April 11, 1996, states that a dropped cask could damare both isolation condensers and the torus, creating the possibility of an unisolable leak, which in industry jargon describes a situation perilously close to a nuclear meltdown;(3) the operating record of GPU demonstrates it is capable of human enor, including dropping heavy loads; (4) llerkeley Township could not be successfully evacuated in the event of a serious nuclear accident at OCNOS; and ($) the safer, simpler alternative of turning off the reactor while lifting l(Kkton loads over the containment can be easily implemented. Ibr the reasons stated below, I have dismissed the Petitioners' request as premature,

11. DISCUSSION 1hc Petitioners have requested that the NRC take ection against the Licensee on a matter involving the potential transfer of spent fuel during plant operation.

Ilowever, this is an activity foe which the Licensee has not yet requested authoritation from the Commission. At a public meeting on February 29,1996, the NRC informed OPU that it would have to obtain a license amendment to move fuel from wet to dry storage, using the facility's existing crane, while the reactor is operating at power. The Staff had reviewed the Licensee's safety evaluation of its crane, including the crane upgrades, and concluded that all safety concerns had been addressed and resolved and that the planned movement of spent fuel to the dry storage facility during plant operation would be safe and in accordance with alllicense requirements. Ilowever, the NRC also determined that because the possibility of an unreviewed safety question existed before OPU made modifications to upgrade its reacter building crane, GPU would have to submit a request for a licent.c amendment for the proposed cask movement. If GPU submits such an amendment request to the NRC, pursuant to 10 C.F.R. 650.91,8 it will be published in the Fedemi Register for public comment, and an opportunity for a public hearing will be provided. The Petitioners and other

       . interested members of the public then would have the opportunity to express their concerns about the amendment. As noted above, the Licensee cannot I secuan 5091 spult.es de Conurustina procedures to be sullowed when at recehes an applicauon seguesting an anwndnwns to a operaung hceme, inclusbag prticedures for consulung the state in which Die facshly la located and pnwedures for notilpng the pubhc or de bcense anwndnent and the opptwtunny fut a heanns 473

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transfer the fuel while opereing with its current crane configuration wl;hout being issued a licerise amendment.* 111. CONCLUSION

        'Ihe NRC Staff has reviewed the Petitioners' request that OPU shut down its reactor during its transfer of fuel from wet to <try Storage. The Licensee does not now have a request before the Commission to amend its license to allow such a transfer. As a result, before any Commission action could even be contemplated, the Licensee would have to make such a requeret pursuant to NRC regulations, with the aforementioned opportunities for public participation in the resolution of any such request. For this reason, the petition is dismissed as premature.

A copy of this Director's Decision will be filed with the Secretary of the 4 Commission for the Commission to review as stated in 10 C.F.R. 6 2.206(c). This Decision will become the final action of the Commission 25 days after issuance, unless the Commission, on its own motion, institutes a review of the Decision within that time. FOR Tile NUCLEAR REGULATORY COMMISSION Samuel J. Collins, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 16th day of June 1997.

 - 3The ticenwe is cunenily ctuisadenns various opuona for neving the spent fuel from wet to dry storage, such as requestmg a bienne enriutnent based on already complewd upgrades to the reactor huskhag crane, transiemng the spers fuel wtwa tte reactor is shut down, and furttwr upgradmg the reachw teuskhng crarw to pret sie entens for a smgle failurepoof crane la aluch cane an anwndmes to transfp fuel from wet to dry storage snay not tie required The Comnusainn has not required bcense amendrrents for facihues handhng twavy kwin that employ a crane rircung the specaficanons and design emens 6a NURIO.0$$4. "Smgle talure Proof Cranes for Nucleat Pimer Plants" thmeser. NitC technical staff mill evaluate any opcon selected to ensiste that all safety concerns are adrquately addrested and documented 474
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t Cete as 45 NRC 475 (1997) 0D-9710 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS Malcolm R. Knapp, Acting Director in the Matter of j WISCONSIN ELECTRIC POWER Decket Nos. 50 266 ' COMPANY 60 301 (Point Beach Nuclear Plant, 72 5 Units 1 and 2) CONSUMERS POWER COMPANY Docket Nos. 50 255 (Polisades Nuclear Plant) 72 7 ENTERGY OPERATIONS, INC. Docket Nos. 60 313 (Arkansas Nuclear One, Units 1 (,0 M 4 - and 2) 72 13 SIERRA NUCLEAR CORPORATION Docket No. 721007 June 18,1997 By a petition filed on October 18, 1996, the organir.ations Don't Waste Michigan and Lake Michigan Federation requested, pursuant to 10 C.F.R. 6 2.206, that the NRC prohibit the loading of Ventilated Storage Casks until an independent, third-party review of the design has been performed to address their concerns and the certificate of compliance, safety analysis report, and safety evaluation report for the casks have been amended to contain operating controls and limits to prevent hazardous conditions. '!he Director of the Office of Nuclear Material Safety and Safeguards, in the following Decision, denies the Petitioners' request. 475

DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206 1 INTRODUCTION On October IR,1996, Don't Waste hiichigan and the Lake hiichigan Fed. eration (Petitioners) filed a petition pursuant to section 2.206 of Title 10 of _ the Code of federal Regulations (10 C.F.R.12.206) requesting that the U.S. Nuclear Reguletory Corrmission take the following action: Prohibit loading of Ventilated Storage Cads (VSC 24s) until the certifica*e of comphance (COC). the safety analysis repon (S AR). and the safety evaluation repon (SER) are amended following an independent, third pany review of the VSC-24 design. to address concerns raised t>y the Petitioners' engmeering consuhant, Dr Rudolf Hausier. The petition has been referred to me pursuant to section 2.206. By letter dated December 10, 1996, to Dr, biary Sinclair and his. Eleanor Roemer, on behalf of the Petitioners, NRC acknowledged receipt of the petition and provided the NRC Staff's determination that the petition did not require immediate action by the NRC, Notice of receipt was published in the federal Register on January 13, 1997 (62 Fed. Reg.1783). On the basis of the NRC Staff's evaluation of the issues and for the reasons given below. I have determined that the Petitioners' request should be denied. II. BACKGROUND On hiay 28,1996, a hydrogen gas ignition occurred during the welding of the shield lid after spent fuel had been loaded into a VSC 24 at the Point Beach Nuclear Plant. The hydrogen was formed by a chemical reaction between a zinc-based coating (Carbo Zinc 11) aad the borated water in the sper.t fuel pool. On June 3,1996, the NRC issued confirmatory action letters (CALs) to those licensees using or planning to use VSC-24s for dry storage of spent nuclear fuel, i.e., Licensees for Point Beach Nuclear Plant, Palisades Nuclear Generating Plant, and Arkansas Nuclear One (ANO). The CAL issued to the Licensee for ANO was supplemented on June 21,1996, and the CALs issued to the Licensees for Point Beach and Palisades were supplemented on June 27, 1996. The CALs, as supplemented, documented the Licensees' commitments not to load or unload a VSC-24 without resolutian of material compatibility issues identified in a forthcoming generic communication and subsequent NRC confirmation of corrective actions taken by the Licensees. The generic communication was issued on July 5.1996, in the form of NRC Bulletin 96-04," Chemical, 'laivanic, or Other Reactions in Spent Fuel Storage and Transportation Casks. NRC 476

4 Bulletin 166-N notiSe4 addressees about the potential for adverse chemical, galvanic, e other reaction; among the materials of a spent fuel storage or transportation M, its contents, and the environments the cask may encounter during use. 'lle actions requested in Bulletin 96-04 included reviewing the cask t materials for potential adverse reactions, evaluating the short-term and long-term effects of any identified reactions, and d6ermining the adequacy of cask operating procedures to minimize the consequences of any identified reactions. The NRC Staff has acknowledged tbt the event demonstrated that the cask vendor's (Sierra Nucicar Corporation) SAR for the VSC 24 and related NRC review, as documented in the NRC Staff's SER, did not adequately address the use of a zine-based coating and its reaction with the acidic water in spent fuel pools. In response to Bulletin 96 04 and to subsequent NRC Staff inquiries, the Licensees for ANO, Point Beach, and Palisades submitted to the NRC evalu-ations of possible material interactions and the effects of such interactions on cask performance and operation. The Licensees also submitted information on the operating controls and limits that were implemented to prevent hazardous conditions that may result from adverse material interactions. De operating controls and limits included controls for the environments that the casks en-counter during use, requirements for inspections and environmental sampling, and additional precautions for various cask operations. He NRC Staff evaluated the responses submitted by the Licensee for ANO. As documented in the Staff's safety evaluation dated December 3,1996, the Staff determined that the Licensee's submittils provided the necessary level of confidence that the VSC 24 can be used to safely store spent fuel over the 20-year period of the certificate. The Staff also determined that the operating controls and limits proposed by the Licensee are acceptable and satisfy regulatory requirements. By a separate letter, also dated December 3, ?996, the i actions had been verified Staffinformed the Licensee for ANO that its correct ve l by inspections performed by the NRC Staff. Shortly thereafter, the Licensee initiated cask loading activities. He NRC Staff also evaluated the responses submitted by the Licensees for Point Beach and Palisades. As documented in the Staff's safety evaluations dated, respectively, April 8, i997, and June 12, 1997, the Staff determined that the Licensees' evaluations and proposed operating controls and limits are acceptable and satisfy regulatory requirements. However, the CALs placed on Point Beach and Palisades still remain in place until an NRC inspection is performed to verify taat the Licensees' corrective actions are properly implemented, 477

III. DISCUSSION The petidon requests an NRC order to users of VEC49s not to load additional casks until: 'l) the COC, SAR, and SER are amled to contain operating controls and limits to prevent hazardous conditim s; (2) an independent third-party review team has examined the safety isto:s raised by the Petitioners; (3) the potential impacts of all material aspects of the casks have been fully assessed; (4) there is experimental verification of temperature calculations and heat transfer assessments and other design assumptions; and (5) the safety of th- material coatings on components and structures has been justified. Item 1: Prohibit Loading of VSC.24s Pending Amendment of Documents As noted in the NRC letter to the Petitioners on December 10,1996, the Petitioners' request to amend the COC, SAR, and SER is similar to a request made by the Citizen's Utility Board (CUB) in a petition dated September 30, . 1996. The NRC Staff denicc' the CUB petition on April 17, 1997, forthe reasons that are identical to the reasons stated here in denying the first part of the Petitioners' request. He circumstances act forth above made clear that, following the event at Point Beach, the NRC Staff recognized that additional evaluation of potential material interactions was warranted for all spent fuel transportation and storage casks. In regard to the VSC 24, the event and subsequent NRC inspections made it apparent that actual changes in the operating procedures or the design of the cask would be necessary. CALs were issued to confirm Licensees' commitments to refrain from loading VSC-245 pending completion of the NRC Staff's review of the responses to Bulletin 96-04 and verification of the associated corrective actions. As discussed, the CALs established a process by which the NRC Staff could obtain confidence that operating controls and limits to address potential hatardous conditions are developed and implemented by each licensee using VSC 24s. In particular, the CAL process ensures that Licensees will incorporate the necessary operating controls and limits into revised plant procedures. Moreover, under existing NRC requirements, the Licensee must adequately implement those revised procedures. For this reason, no changes to the COC or SAR are needed to ensure that enforceable operating controls and limits are in place to address potentiai hazardous conditions during the loading or unloading of a cask. Furth-r, as previously indicated, the NRC Staff has documented the process, information, and results of its review of the Licensees' responses to Bulletin 96-04 for use of the VSC-24 at ANO, Point Ber.ch, and Palisades in safety evaluations available for public review. 478

Although the actions taken as part of the CAL process provide adequate assurance that technical and regulatory compliance issues raised by the event at Point Beach will be resolved before a licensee loads or unloads a VSC-24, the NRC Staff agrees with the Petitioners that it would be beneficial if the SAR and other licensing basis documents accurately describe the identified chemical reaction and the associated operating controls and limits. The NRC Staff is currently reviewing a proposed amendment to the SAR and COC for the VSC 24 design and will ensure that the information related to the identified chemical reaction and associated operating controls is adequately addressed in the appropriate licensing-basis documents, in addition, the NRC Staff is processing a petition for rulemaking, PRM 72-3, that may lead to additional updating of independent spent fuel storage installation SARs and the inclusion of information on operating controls and limits implemented as a result of the event at Point Beach. However, the previously discussed controls to be implemented by the Licensees and verified by the Staff as part of the CAL process, and the enforceability of hose t controls under existing NRC requirements, make it unnecessary to require revision of the specific licensing documents cited by the Petitioners as a precoMition for resuming cask operations at the facilities using VSC 24s. Herefore, there would be no regulatory basis for granting the first part of the petition to require amendment of the COC, SAR, or SER befare further loading of VSC 24s. Item 2: Prohibit Loading of VSC 24s Pending Independent, Third Party Review Petitioners request the NRC to prohibit loading of VSC 245 until the COC, SAR, and SER are amended following an independent, third-party review to address concerns raised by the Petitioners. He NRC Staff performed a review of the VSC-24 design prior to certification in 1993. As a result of the review, the Staff octermined that the design and operation of the cask system is in compliance with 10 C.F.R. Part 72. The Staff also concluded, with a high deFree of assurance, that the VSC-24 will safely store spent fuel over the 20-year period of the certificate. Notwithstanding the Staff's review and determination in 1993, the Petitioners are claiming that a new, independent review is needed befoie further VSC 24s are loaded. While the event at Point Beach revealed the need for additional evaluation by licensees and NR,C of potential material interactions in the VSC-24 (and other transportation and storage casks), the actions already taken, in the Staff's judgment, provide an adequa?e response, in particular, Bulletin 964% was issued to request additional inforrmba from licensees using the VSC-24 on material interactions and compatibdity x the VSC 24 and on the corrective actions implemented. The NRC Staff then received and reviewed the responses 479 i l u

submitted by the Licensees for ANO, Point Beach, and Palisades. De Staff's reviews (as well as the Licensees') have been exhaustive and were performed by an interdisciplinary team of enF i neers knowledgeable in materials, corrosion, metallurgy, chemistry, structural engineering, heat transfer, nuclear enginecting, and other technical fields needed to perform the review. De results of the Staff's reviews, including the necessary corrective actions, are documented and justified in the Staff's December 3,1996, April 8,1997, and June 12,1997 safety evaluations. Dese corrective actions include: cleanliness checks before placing the cask in the spent fuel pool, venting and monitoring of the air space beneath the VSC 24 shield lid during welding or cutting activities, discontinuing welding or cutting should the hydrogen concentration exceed 0.4% by volume (10% of the minimum amount necessary for a combustible concentration), and sampling the boron concentration in the spent fuel pool and multiassembly sealed basket (MSB) water. While the Staff agreed that the corrective actions were necessary to prevent hazardous conditions during the loading and unloading of VSC 24s, the information submitted by the Petitioners does not raise any new issues or provide any reason for the Staff to question its conclusion that the VSC 24 will safely store spent fuel over the 20-year period of the certificate. In reaching this conclusion, the NRC Staff evaluated the specific concerns raised by the Petitioners related to the design of the VSC 24. He Staff believes that these concerns have already been addressed by the recent evaluations submitted in response to Bulletin 96-04, by information submitted to NRC to support the certification of the VSC-24 design in 1993, or by other information submitted in support of NRC review and inspection activities. Each of the Petitioners' specific concerns is addressed below. (i) The Petitioners claim that the cask design allows for fuel elements to be in contact with the zine primer, creating a galvanic couple that will accelerate the corrosion of the zinc. De NRC Staff considered galvanie effects between the Zircaloy fuel rods and the Carbo Zinc 11 coating he Staff agrees ! that a galvanic effect would increase the corrosion rate of the rine, with a l corresponding increase in the hydrogen gas generation rate, as the zine in the Carbo Zine 11 coating is polarized to a more active potential. However, in the VSC-24 design, several factors reduce the amount of zine polarization such that there would not be a significant increase in hydrogen generation. One factor is the contact resistances between the stainless steel fuel assembly end fittings and the Zircaloy fuel rods and between the end-fittings and the Carbo Zinc 11 paint. Another factor is the geometry of the VSC-24 and the fuel assemblies. He fuel assemblies are placed in fuel storage sleeves with a clearance of approximately 0.1 inch to 0.5 inch between the sides of the fuel assembly and the sleeves. %!s clearance and the physical design of the fuel assemblies create shiciding between the fuel rod surfaces and the Carbo Zine 11 coating. His shielding effectively reduces the galvanic action between the Zircaloy fuel rods and the Carbo Zinc 480

11 coating. The Zircaloy fuel rods could contact the Carbo Zine coated sleeves - if the fuel assembly is not centered in the storage sleeves or if the fuel rods are bowed. However, the shiciding effect and small Carbo Zine/Zircaloy contact area would still prevent si Fnificant galvanic action. Hydrogen concentration measurements made at Point Beach and the hydrogen monitating performed at ANO during loading of a VSC-24 in December 19% (NRC Inspection Report Nos. 50-313/96 25 and 7213/96-02) support the conclusion that significant galvanic action between the Zircaloy and zine coating, and hence, increased hydrogen generation, h not occurring in the VSC 24. In addition, even if there was an increase in hydrogen generation because of the galvanic action, the Staff has determined that the controls implemented by the Licensees for ANO and Point Beach would prevent accumulation of a combustible concentration of hydrogen and its ignition. He Staff will also review and verify the adequacy of the controls imp!cmented by the Licensee for Palisades. (ii) The Petitioners claim that there were numerous discrepancies in the responses to Bulletin 96-N. As noted, the NRC Staff completed its review of responses for ANO, Point Beach, and Palisades. De Staff found these , responses to be acceptable and found no discrepancies of concern. There were minor differences in the operating controls implemented at the three facilities. Huwever, the Staff reviewed these controls and concluded that all three sets of controls are adequate to preclude hazardous conditions during cask operation. (iii) The Petitioners claim that the epoxy coating applied to the exterior of the multiassembly scaled basket (MSB) could not withstand the temperatures developed during long-term storage. Technical data on the type of epoxy coating . used on the MSB were provided by the Licensees in their responses to Bulletin 96-N, The data show that the epoxy is temperature-resistant up to 350*F. De SAR for the VSC 24 (which the Staff reviewed and accepted prior to certification in 1993) shows that under normal or off normal storage conditions, the temperature of the MSB exterior will not exceed 300 F, for the maximum allowable heat load of 24 kW and, therefore, will not degrade the epoxy. (iv) De Petitioners claim that the low-temperature specification in the COC for moving the VSC 24 MSB was not properly translated to the MSB shell material compositions. Low-temperature embrittlement of the MSB shell material was evaluated by the NRC Staff during its safety review before certification of the VSC-24. The composition of the MSB shell material (SA5!5, Grade 70 carbon steel) is specified in the American Society for Mechanical Engineers Boiler & Pressure Vessel Code, Section 11, SA-516. " Specification for Pressure Vessel Plates, Carbon Steel, for Moderate and Lower-Temperatu c Service." The impact testing requirements for the MSB material are found in American Society for Testing and Materials Specification A370 (ASTM A370), " Methods and Definitions for Mechanical Testing of Steel Products." As specified in the COC, SER, and SAR, each MSB shell material must be 481 f _j

Shown, during fabrication, by Charpy test per ASTM A370, to have 15 ft n>s of absorbed energy at -50 F. Further, movement of the MSB must occur only at ambient temperatures of 0*F or above to avoid potential brittle fracture of the MSB material.' The NRC Staff considers the 50*F temperature difference to provide sufficient margin because it places the MSB material at a temperature that is significantly above the temperature where brittle fracture could occur. It should also be noted that the temperature of the MSB shcIlitself would actually be substantially higher than the ambient temperature (e.g.,20'F for 25-year-old fuel), thus providing an even higher margin. In addition, it is highly unlibly that any MSB movement activity would take place at temperatures below 0 F. (v) %c Petitioners claim that zine-steel interaction at 800*F to 1000 F and possible steel embrittlement over a 20-year period were not considered. Zinc-steel interaction at the 800 F to 1000 F temperature range was not considered and is not a concern because, as documented in the VSC.24 SAR, temperatures in the MSB will not reach 800*F during storage. Maximum temperatures would be 688'F under normal conditions and 708'F under off normal conditions, for the maximum allowable heat load of 24 kW. Furthermore, over the storage period, the temperatures within the MSB will continue to decrease as the heat load decreases due to the decay of the spent fuel. (vi) The Petitioners claim that the effect of molten zine on Zircaloy has not been Yerified experimentally, ne NRC Staff evaluated the durability and behavior of the zine coating under the range of storage temperatures. The presence of molten zinc is not expected under the storage temperatures and conditions; thus the effect of molten zine on Zircaloy is not a concern. However, as documented in the Staff's safety evaluations for ANO (dated December 3, 1996), Point Beach (dated April 8,1997), and Palisades (dated June 12, 1997), the Staff did evaluate the potential interaction between zinc vapor and Zircaloy and the effect of this interaction. Based on the information provided in the responses to Bulletin 96-04, the Staff concluded that the potential interaction between zine vapor and Zircaloy presented no immediate or long term safety concern for the spent fuel stored in the VSC-24. (vii) He Petitioners claim that the vacuum-drying process does not seem to have been experimentally verified. Vacuum drying is a well-established, widely used method for removing meisture from spent fuel storage and transportation casks. De process used for the VSC-24 is a common process, which the NRC Staff evaluated and determined to be acceptable during the safety review before I At Pahsades, the Ucensee has adnumstranvely set a puninum ambient lemperature of 10*F for moving the fint four MSBs (CMSB-01 through (>0 to be kuded because the sheD materul for these MSBs does not have l$ ft-lbs of absorbed energy at -50"F. Rather these MSBs have 15 h-lbs of absorbed energy at -40"F. Thus. to tetain the 50*F eemperature marpn. the IJcensee has restncted movenut of these four MSBs to an ambient temperature of 10*F er above The NRC staff has reviewed and approved the Ucenue's administrauve hnut, as dacumented m NRC safety eve Mawn dated september 26.1995. 482

certification in 1993. In the Staff's judgment, experimental testing to verify a well established process is unnecessary. (viii) The Petitioners claim that the thernal analyses for the VSC 24 have not been experimentally verified. The thermal analyses for the VSC 24 contained conservative key assumptions, including a total heat generation of 1 kW per assembly (a total of 24 I;W per cask). This assumption is conservative because it is highly unlikely that each assembly loaded in the cask will generate 1 kW of heat. In addition, the assembly and total cask heat loads will continually decrease over time as the spent fuel decays. In light of the conservatisms in the thermal analyses, the Staff does not see the need for requiring experimental verification of the VSC-24 thumal analyses. Nevertheless, the COC requires that a thermal test be performed or. the first VSC 24 to be loaded. The purpose of the test is to measure the heat removal performance of the VSC 24 system. The Licensee for Palisades petformed such a test and summarized its results in a letter to NRC dated June 10, 1993. He temperatures measured during the test were lower than the predicted temperatures. The results thus indicate that the VSC-24 performs its intended heat removal function. The thermal test at Palisades was performed with a 12 kW heat load To date, no VSC-24s have been loaded with grea*er than 12-kW heat load. As required by the COC, the thermal test must be performed for the first cask to use any higher heat loads, up to 24 kW, Re NRC Staff believes, based on the foregoing, that an independent, third-party review is not warranted by the s'etitioners' specific concerns. However, NRC review activities relating to !! e VSC-24 will nonetheless continue, in l particular, NRC inspection activities e the facilities operated by the Licensees, the VSC-24 vendor, and the VSC 24 fabricators may lead to additional reviews I of the VSC-24. In addition, the Staff is currently reviewing a proposed amendment, submitted by the VSC 24 vendor, to the SAR and COC for the VSC-24 design. His review will be performed m accordance with the Staff's

  " Standard Review Plan for Dry Cask Storage Systems" (NUREG-1536) to ensure the thoroughness, quality, and consistency of the review. Where relevant, recent operational, technical, and safety issues related to the VSC-24 design will be considered by the Staff in this review.2 In addition, it is my judgment that the NRC Staffis fully capable of fulfilling the responsibility for reviewing, approving, and certifying dry cask storage systems to be used under 10 C.F.R. Part 72 which, by law, belongs to the NRC. In conducting its review, the NRC Staff must have reasonable assurance that the cask system will safely store spent fuel over the period of the certificate.

2 Recent concerns relaung b ds MSB closure mekts. as documented in NRC Inspecnon Report No. 72 1007/97 2(M. dared Apnl 15,1997 may result in further evaluauons of the VSC-24 deugn and if necessary. appropnaie regulatory accon to ensure conunued safe use of the VSC.24 483

Further, the Staff will assign the necessary resources and expertise to perform such reviews. When the NRC Staff lacks either the resources or expertise to perform all or portions of the review in-house, the NRC may, and does, supplement its own ranks by using outside specialists, item 3: Prohibit Loading of VSC 24s Pending Assessment of Cask Materials Ittitioners request the NRC to prohibit loading of VSC 24s until the potential impacts of all material aspects of the casks have been fully assessed. . As i previously stated, Bulletin 964% was issued to request information on material interactions and compatibility in spent fuel storage and transportation casks. In response to this request, the Licensees for ANO, Point Beach, and Palisades submitted evaluations on possible material interactions in the VSC 24 and the effects of such interactions on cask performance and operation. The only significant material interaction identified was between the zinc based coating and the borated spent fuel pool water. As previously discussed, the operating controls and limits put in place by the Licensees provide an adequate level of confidence to prevent the adverse effects of this interaction (generation and possible ignition of hydrogen gas and possible depletion of boron in the water). He Staff reviewed these evaluations and, based on the information provided, concluded that none of the identified material interactions would adversely affect the VSC 24's ability to safely store spent fuel over the 20-year period of the i certificate. The results of the Staff's reviews are documented in the Staff's December 3,1996, April 8,1997, and June 12,1997 safety evaluations for ANO, Point Beach, and Palisades, respectively. Item 4: Prohibit Loading of VSC 24s Pending Experimental Verification - of Thermal and Other Design Assumptions Petitioners request the NRC to prohibit loading of VSC24s until there is experimental verification of temperature calculations and heat transfer assess-ments and other design assumptions, ne thermal and other engineering and design analyses for the VSC 24 contained conservative key assumptions which are discussed in the S AR and SER. In addition, the acceptance criteria for these analyses have margins of safety that the Staff considers to be sufficient. In light of the conservatisms and safety margins in the thermal and other analyses, the Staff does not see the need for requiring experimental verification of the thermal and other design assumptions used in evaluating the VSC 24. 484 1

Item 5: Prohibit Loading of VSC 24s Pending Assessment of Material Coatings Petitioners request the NRC to prohibit loading of VSC 24s until the safety of the material coatings on components and structures has been justified. As discussed above, material interactions within the VSC-24 and their effect on cask operations and performance were evaluated by the Licensees in response to Bulletin 96-N and reviewed by the Staff. Specifically, the Licensees evaluated, and the Staff reviewed, the use of the zinc-based coating, its reaction with borated water and other cask environments, and the effect of the reaction or reaction products on cask operations and on the performance of the various cask components and structures. "Ihe Staff concluded that use of existing VSC 24s with the zine based coating is acceptable in light of the operating controls and limits for preventing hazardous conditions that must be properly implemented by Licensees during cask loading and unloading. Based on the information provided, the Staff also concluded that neither the coating itself, nor its reaction with borated water or other cask environments, would have an adverse effect on the performance of the cask components or structures during the period of spent fuel storage. IV, CONCLUSION l l The Petitioners requested that the NRC prohibit loading of VSC 24s until the COC, SAR, and SER are amended to contain operating controls and limits to prevent hazardous conditions. After reviewing each of the Petitioners' ( claims, I conclude that, for the reasons discussed above, no adequate basis l exists for granting the Petitioners' request to prohibit Licensees' use of the VSC 24 for dry cask storage of spent nuclear fuel at Palisades, Point Beach, or ANO pending: (1) revision of the SAR, SER, and COC for the VSC-24 to contain operating controls and limits to prevent hazardous conditions; (2) an independent third-party review to examine the safety issues raised by the Petitioners; and (3) experimental verification of temperature calculations and heat transfer assessments and other design assumptions. Furthermore, I conclude that the Petitioners' other two requests, an assessment of potential impacts of VSC 24 material aspects and a safety justification of material coatings on components and structures, have already been fulfilled through the Staff's review of the Licensees' responses to Bulletin 96-N. A copy of this Decision will be filed with the Secretary of the Commission for the Commission to review in accordance with 10 C.F.R. 5 2.206(c). 485

As provided by this regulation, this Decision will constitute the final action of the Commission 25 days after issuance, unless the Cc. mission, on its own motion, institutes a review of the Decision within that time. FOR TiiE NUCLEAR REGULATORY COMMISSION Malcolm R. Knapp, Acting Director Office of Nuclear Material Safety and Safeguards Dated at Rockville, Maryland, this 18th day of June 1997. 486 i

_ _ _m . .__ Cite as 45 NRC 487 (1997) DD-9716 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Samuel J. Collins, Director in the Mauer of Docket No. 50160 GEORGIA INSTITUTE OF - TECHNOLOGY (Georgia Tech Research Reactor, Atlanta, Georgia) June 27,19C? ne Director of the Office of Nuclear Reactor Pegulation (NRR) denies a petition filed with the Nuclear Regulatory Commission (NRC or Commission) by letter dated October 23,1994, by Ms. Pnmela Blockey-O' Brian (Petitioner), requesting that actions be taken regarding the Georgia Tech Research Reactor (GTRR) operated by the Georgia Institute of Technology (the Licensee). The petition was deferred pending a decision by the Atomic Safety and Licensing Board (ASLB) on Georgia Tech's license renewal application, in which issues substantially similar to the Petitioner's were raised. De petition is denied based on the Director's analysis of the technical issues, set forth in the Decision, which analysis showed no technical basis warranting granting the petition. DISPOSITION OF ISSUES RAISED VIA PETITION PURSUANT TO 10 C.F.R. 5 2.206 THAT ARE ALSO UNDER CONSIDERATION IN A PROCEEDING BEFORE A PRESIDING OFFICER ne Commission ordinarily expects the Staff to deny a petition filed pursuant to 10 C.F.R. 6 2.2% that raises the same issues that are being considered in a pending adjudication on the basis of the pendency of the identical matters in a proceeding involving the same licensee or facility. Georgia Power Co. (Hatch Nuclear Plant, Units I and 2; Vogtle Electric Generating Plant, Units I and 2), CLI 93-15, 38 NRC 1, 2 3 (1993); see General Public Utilities Nuclear Corp, (Three Mile Island Nuclear Station, Units I and 2; Oyster Creek Nuclecr 487 a 4

                                              - - ..              . ~             -.        . .    - . - . .. . . -_

L d Generating Station), CLI 85-4,21 NRC 561, 563 65 (1985); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units. I and 2), CLI-816, 13 NRC 443,446 (1981). (This general rule is not intended to bar a petitioner ;

             - from seeking immediate enforcement action from the Staff in circumstances in which the presiding officer is not empowered to grant such relief. Vogtle, 38 NRC at 3.) The same result can be achieved by the Staff deferring consideration of issues raised in a petition filed pursuant to 10 C.F.R. 5 2.2% that are being considered in a tending proceeding involving the same licensee and facility.
             - TECHNICAL ISSUES DISCUSSED The following technical issues are discussed: Management of the GTRR; Security.

FINAL DIRECTOR'S DECISION UNDER 10 C.F.R. I 2.206 1.' ' INTRODUCTION On October 23, 1994, Ms. Pamela Blockey-O'Brien (the Petitioner) filed a 3 petition with the U.S. Nuclear Pegulatory Commission (NRC) Staff pursuant to 10 C.F.R. 5 2.206. This petition requested that the NRC Staff revoke the license for ihe Georgia Tech Research Reactor (GTRR), shut down this research reactor ard its support facilities, and remove all rad';, active material and contamination off site to a government-created " National Sacrifice [ A]rea" such as the Savannah

River or Oak Ridge facilities. In addition, the Petitioner requested that the NRC Staff withdraw all license authority nationwide ii.volving the discharging or dumping of any quantity of radioactive material into all the sewers or waters in the United States or oceans of the world, and withdraw all licenses to all nuclear facilities, including nuclear powar plants (NPPs), that operate under "as low as reasonably achievable" (ALARA) principles. Finally, the Petitioner requested that the NRC Staff prohibit the transportation of radioactive material by mail and modify every license issued to transporters of radioactive materials and builders -

of NPPs to require these parties to put, in 2 foot high letters, on everything

             - they transport or build, the words "DANGEP RADIOACTIVE" and, in smaller letters, "there is no safe level of radiation, any esposure can effect health."

As bases for the request to shut down und decontaminate Georgia Tech Research Reactor, the Petitioner asserted that (1) a water fiume comes out , of the ground "destabilizing the reactor and the ground in some way"; (2)

               "Irladiation levels in soil and vegetation climb markedly in GA EPD [ Georgia 488 f

Environmental Protection Division) documents" around the reactor; (3) there is no record of air monitoring ever having been done: (4) heavy rainfall causes water to back up in the sewer and drainage lines causing flooding of the reactor parking lot and campus, as well as causing sinkholes, " puff-ups" on campus Fround, and welded-shut manhole covers to be blown off; (5) radioactive contaminants have been routinely discharged into the sanitary sewer from the reactor's wastewater holding tank and contamination spread by backup of the sewage system; (6) should the reactor be further destabilized, the reactor and the tank holding cobalt 60 could " break apart," causing radioactive contaminants to " drain into groundwater /down sewers /into the runoff ditch"; (7) the reactor is in an earthquake zone: (8) there is absolutely no reason to keep the reactor operating; (9) security at the reactor is extremely lax; and (10) in case of an accident or terrorist attack, evacuation of the campus and downtown Atlanta would be impossible, especially during the 1996 Olympics, in a Partial Director's Decision Under 10 C.F.R. 5 2.206, dated July 31, i995 (DD-95-15), the Acting Director, Office cf Nuclear Reactor Regulation (NRR), for the reasons stated in that decision, denied the Petitioner's requests except for the request that the NRC Staff revoke the license of the GTRR, shut down this research reactor and its support facilities, a id remove all radioactive material and contamination off site to a government created " National Sacrifice [A]rea" such as the Savannah River or Oak Ridge facilities, insofar as that request rested on bases numbers (8) and (9), and that portion of basis (10) that deals with potential terrorist attacks, as set forth above. See DD-9515,42 NRC 20,40 n.37 (1995). (De portion of basis (10) that relates to evacuation and emergency planning also is discussed in DD-95-15,42 NRC at 40-43.) Basis (8) includes concerns that substantial management deficiencies persist. Basis (9) involves concerns about security, Basis (10) includes concerns about evacuation in case of a terrorist attack. Since these concerns were related to issues in an ongoing license renewal proceeding before an Atomic Safety and Licensing Board (ASLB), they were not addressed in DD-9515. De Commission ordinarily expects nie Staff to deny a petition filed pursuant to section 2.206 that raises the same issues that are being considered in a pending adjudication on the basis of the pendency of the identical matters in a proceeding involving the same licensee or facility. Georgic Power Co. (Hatch Nuclear Plant, Units 1 and 2; Vogtle Electric Generating Plant, Units 1 and 2), CLI 93-15,38 NRC 1,2-3 (1993); see General Public Utilities Nuclear Corp. (Three Mile Island Naclear Station, Units 1 and 2; Oyster Creek Nucicar Generating Sta' ion), CL185-4,21 NRC 561,563-65 (1985); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CL1-81-6,13 NRC 443, 44 (1981). (Tnis general rule is not intended to bar a petitioner from seeking immediate enforcement r.ction from the Staff in circumstances in which the presiding officer is not empowered to grant such relief. Vogtle,38 NRC at 3.) 489

The same result can be achieved by the Staff deferring consideration of issues raised in a petition filed pursuant to section 2.206 that are being considered in a pending proceeding involving the same licensee and facility, as was done with regard to Petitioner's concern regarding the management of the GTRR. The NRC Staff received additional letters dated November 12 and December 4, 1994, and February 21, libruary 23, biarch 6, h1 arch 28, April 19, h!ay 18, June 27 and July 18,1995, from the Petitioner and also considered these letters , in DD-95-15. His Final Director's Decision addresses the management concerns in issue (8) above and security concerns in issues (9) and (10) above for the request to shut down and decontaminate the GTRR in the section 2.206 petition of October 23, 1994. The NRC Staff received additional letters from the Petitioner dated August 18 August 21, August 28, August 31. September 17, and October 27, 1995; and January 10, January 27, h1 arch 14, and hiay 24, 1996. All letters related to this petition were considered in this Final Director's Decision and have been placed in the Public Document Room and docketed under the GTRR Docket Number (50160). For the reasons set forth below, the Petitioner's remaining request is denied.

11. DISCUSSION A. hianagement of the GTRR Petitioner stated that "[t]here is no reason to keep the [GTRR] operating,"

and asserted that substantial management deficiencies persist. As stated above, DD-95-15 did not address the management issue since it had been admitted in a proceeding on the renewal of the license for the GTRR. De history of the license renewal proceeding is set forth in the ASLD's Initial Decision in that procceling. LDP-97 7, 45 NRC 265, 268-70 (1997), A copy of that decision was sent to the Petitioner. In the Initial Decision, the ASLB concluded, in part, that: !

1. The Appheant's performance in the post restart pe-iod, akhough not enttrely sat.

istactory, has substantially improved since the shutdown of the reactor in 1988 Nther. Georgia Tech's performance in the post-restart period does not support GANE's assenion that management of the GTRR is inadequate and that the hcense renewal application should therefore tw denied Nor has GANE met its burden of demonstratmg that " substantial man-agement deficiencies py:sist."

2. . We conclude t!.at G ANE has not demonstrated "roanagement improprietics or poor ' integrity' . (that) relate directly to the proposed beensing action." or that "the GTRR as presently organized and staffed (fails to] provide reasonable assurance of candor and wittingness to follow NFtC regulations " Moreover, the evidence supports findings that "the facihty's current management encourages a safety-conscious attitude, and provides an environmen* in which employees feel th.'y can freely voice safety concerns." and there is 490

\ ;

         "reawnable assurance that the GTRR facihty can be r,afely operated" m that *the GTRR's current rnanagenent [nleither is unht [nlor structured unacceptably."

3. The Applicant's management of the Georpa Tech Research Reactor comphes with all apphcable regulatory requnenwtus. and provides reasonnble assurance that its managernent of the GTRR facihty upon the renewal of Lkenne No R47, will not be inindcal to the common defense and security or to the health and safety of the pubhc.

Id. at 312-13 (citations omitted). De ASLB's initial Decision considered all the evidence submitted on the record during the proceeding. De Petitioner did not submit any information to the NRC in support of its petition that was significantly different from the evidence considered by the ASLB in the license renewal proceeding on the management issue. Since the ASLB proceeding record closed in June 1996, four additional NRC inspections of the GTRR facility have been conducted (NRC Inspection Reports

   . No. 50-160/96-02, 50160/96-03, 50-160/96-04, and 50-160/96-05 w..ich were sent to the Petitioner). Three of the inspections found no violations; the violations that were found and documented in NRC Inspection Report No. 50-160/96-02, do not provide a basis for changing the NRC Staff's conclusion with regard to Georgia Tech's management of the facility.

De NRC Staff's inspection findings subsequent to the close of the ASLB record do not provide a basis for concluding that substantial management deficiencies have arisen with regard to the GTRR since the record in the license renewal proceeding closed. 'The Petitioner does not otherwise provide any information that would be a basis for the NRC Staff to conclude at this time that the management and organization of the Georgia Tech Research Reactor fails to comply with the Atomic Energy Act and NRC regulations. Although the Petitioner in very broad terms opposes operation of the facility, the application makes clear that its intended purpose is in keeping with lawful uses authorized in the Atomic Energy Act of 1954, as amended. He proposed operation has been found to acceptably comply with all applicable NRC regulatory requirements. Based on the foregoing, the NRC Staff concludes that no infortnation has been { provided on this issue to warrant the action requested by the Petitioner, B. Security Issues Petitioner raised two issues regarding security, asserting that (1) security at the GTRR is extreraely tax and (2)in case of accident or terrorist attack, evacuation of the campus and downtown Atlanta would be impossible, especially during the 1996 Olympics Ihese two issues are discussed below. Georgia Tech has implemented a security plan for the research reactor that is consistent with the applicable requirements of 10 C.F.R. Part 73, " Physical 491 I o

Protection of Plants and Materials." "Ihis has been confirmed through the felatively recent NRC safeguards and security related inspection activitics in NRC Inspection Reports No. 50-160/95 02, 50-160/95-04, 50 160/95-05, 50-160/96-01, 50-160/96-03, and 50-160/96-N, (Inspection Reports No. 50-160/95-02,50-160/95 04, and 50-160/96-01 were admitted into evidence in the license renewal proceeding.) Inspection Report No. 50-160/95-02 identified a violation for a failure to submit material status reports in a timely manner Otherwise the inspection found that the safeguards and security activities were acceptable. On October 26,1995, a television news media crew entered the Neely Nuclear Research Center, which houses the GTRR, and explored and filmed portions of the center, in response, the NRC coriducted an inspection of the GTRR from October 3 to November 3,1995, as doeitmented in NRC Inspection Report No. 50160/95-N, which states: This Special announced safeguards inspection was conducted to review the circumstances surrounding an uninvited tour of port ons of the Neely Nuclear Research Center by a

television news media crew which occurred, apparently, on the morning of October 26,1995.

    ,    , Neither the hcensee nor the inspector could find any evidence of a secunty breach of the protected area. One licensee employee was identified who had seen parts of the video made by the television crew supposedly on October 26,1995; according to that employee,
    .1 e sideo shows two security doors bemg challenged by the television crew which remained J. This employee stated that the video shows the crew tounng intenor and extenor 0           % Center which are open to the public or students and staff. On November 10, the . 4 . .. viewed the television showing of the video taken during this event and could find no indication that the television crew had unauthorized access to the protected / radiation controlled area.        . No violations or deviations were identified.

In view of these inspection findmgs, the television media crew's tour is not a basis for granting the Ittitioner's request. The ASLB discussed these events in the context of the contention regarding management deficiencies, and made fmdings of fact consistent with this conclu-sion. LBP-97 7,45 NRC at 296-98. It stated: Upon review of the evidence of this event, we agree with the [s)taft . that the ibn Television film crew's intrusion into the reactor complex does not reflect inadequate management by the [a]pplicant. To the contrary, the secunty plan appears to have worited as intended, in compliance with applicable regulatory requirements. Further, as observed by the [s]taff, the [alpphcant's subsequent dechion to upgrade its secunty rneasures beyond the requirements of the secunty plan may be viewed as demonstrating good managerial judgment. Thus, this marter does not provide grounds for denying or conditioning the hcense renewal apphcatios Id. at 298 (citation omitted). 492

Inspection Report No. 50-160/95-05 refers to the inspection conducted De-cember 5 7,1995: The special mspect,on addrened the facihty's reactor status, phyi,lcal inventory determi-nations, and other activities associated with maintaimng a material control and accounting program within regulatory requirements, the beensed possession hmit, and authorized uses of special nuclear material. Within the scope of the hispection, no non<omphance issues were identified The inspector deternuned that the hcensee had implemented adequate controls for special nuclear matenal (SNhlt and that accurate SNhl accounting records were being nanntamed. Inspection Report No. 50-160/96-01 refers to the inspection conducted on January 17 and 18,24 and 25,29 and 30, and Febmary 5 7,9.1518, and March 15, 1996. His inspection examined security provisions for fuel processing and shipment offsite. As an additional precaution in regards to security during the Olympic Games, the Licensee had determined to remove all GTRR fuel from the facility prior to the Games and not to replace it until after the Games. The inspection found that in addition to meeting regulatory requirements the Licensee provided additional measures (e.g., a guard was assigned to various observed activities). Inspection Report No. 50-160/96-03 refers to the inspection conducted on June 17,18 and 27, and July 3, 5, and 11,1996. This inspection included onsite and offsite review of security preparations for the Olympic Games. The inspection concluded: "The controls implemented by the licensee and the precautions taken are adequate to protect licensee personnel and the public "

     'lhe inspection documented in Inspection Report No. 50160/96-04 was conducted on July 17 and 29,1996. This inspection reviewed the preparation for the Summer Olympic Games an:1 found that:

IT]he university had taken additional safeguards measures to control access to the Campus and to the Research Contrul Area. The hcensee had taken additional safeguards measures to control access to the Neely Nuclear Research Center (NNRC). De additional security neasures taken as a result of *he 19% Olympic Games were reviewed and/or observed by the inspectors. On July 17 and 29,19%, the inspectors visited the Neely Nuclear Research Center, net with the Director of the Center, toured the facihty and verified contmued comphance with the Physical Secunty Plan (PSP). The inspectors weit granted j unfettered access to the Rewarct. Control Area as well as to the Center and emergency [ access dunng the Olympics was asst'ed because the inspectors and selected management of Region ll had been provided with special picture badge' to facihtate NRC response. The presence of mihtary pohee, Campus police and additional State and Itderal law enforcement officers in the immediate vicimry of the Center was observed by the inspecton. The access controls, barriers, assessment capabihties, communication capabihties and detection equipment required by the NRC were in place. Additional extenor lights had been installed by the hcensee to assist patmlhng ofheers, Additional fencing around the Center was also noted by tu inspectors. . The inspector concl aded that the hcensee was meeting NRC requirements and had effectively imposed proactive secunty measures. 493 1

With regard to the contention on the physical security of the site during the 1996 Summer Olympic Games held in Atlanta, Georgia, the ASLB decision observed that the Appheant, responding to several Comnussion inquines relative to secunty at the Olympic Oance deternuned to renove all nuclear fuel from the site prior to the Olympic Games and not to replace it until after the Games. The Commission accordingly remanded tie secunty contentmn to us for appropriate action . . nnd we issued a Parual Initial Decision dismissing the contention as moot. LDP 97 7. 45 NRC at 270. See LDP-9519,42 NRC 191 (1995). In summary, the physical security plan was verified to provide acceptable procedures for event response and access control, and the security preparations for the Olympics were acceptable. Observations of the facility and activities confirmed the use of security related equipment and controls as required by the physical security plan and consistent with the special nuclear material that is present at the facility. The Petitioner asserted that se,urity at the research reactor was lax; however, access is controlled and moniwred as required. Further, this evaluation confirmed the continued acceptability of the security provisions to deal with potential terrorists attacks. The findings do not provide a basis for changing the conclusion reached in DD-9515 on the adequacy of emergency plans for the facility. DD-9515,42 NRC at 40-43. De NRC Staff has found no reason to conclude that the security at the reactor is not acceptable, ne Petitioner provided no facts to conclude otherwise. IIL CONCLUSION With regard to the requests made by the Petitioner discussed herein, the NRC Staff finds no basis for taking such actions. Accordingly, the Petitioner's requests for action, pursuant to section 2.206 on the Georgia Tech Research Reactor, are denied. A copy of this Decision will be filed with the Secretary for the Commission as provided by 10 C.F.R. I 2.206(c) of the Commission's regulations. As provided by this regulation, the Decision will constitute the final action of the Commission 494

25 days after issuance unless the Commission, on its own motion, institutes review of the Ikcision in that time. FOR THE NUCLEAR REGULATORY COMMISSION ' Frank J. Miraglia, Acting Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 27th day of June 1997, 495

.s

l l 1 I I i l l i CASE NAME INDEX i i ADVANCED MEDICAL SYSTI MS, INC. , REQUEST FOR ACTINI, DIRECTOR'1 DECISION UNDER 10 C.F.R.12 206, Docket Na 1 03016055, DD'9713, 45 NRC 460 (1997) !- ATIAS CORPORATION ) MATERIALS l.iCLNSE AMENf) MENT; MEMORANDUM AND ORDER (Denying Heanng Request), ' ! Docket No 40 3453-MLA (ASLBP Na 97 723-02.MLA). LBP-919. 45 NRC 414 (1997) ' I CONSUMIRS POWER COMPANY , REQUEST FOR ACTION. DIRFCTOR'S DECISION UNDER 10 CF R.12.206; Docket Nos. 50 235. ' 72 7, DD 97 l, 45 NRC 33 (1997); DD 97 5, 45 NRC 135 (1997); DC-97 9, 45 NRC 328 (1997); j DD 97 IS,45 NRC 475 (1997) , LNEROY FUELS NUCLEAR, INC. j q MATERIALS LICENSE AMENDMENT; MEMORANDUM AND ORDER (A&htwnal Fihngs Requiredh / i j Dmket No 40 8681+(lA (ASLBP No. 97 726-03 MLA) (Licen:e Anwndment) (Re- Ahernais fred r ' i Vateriah, LBP4710, 4f NRC 429 (1997) -~ ' I ENTERGY OPLRATIONS, INC. ! I EQUEST FOR ACTION, DIREGOR'S DECISION UNDER 10 C FR.12.206; Dacket Nos 50 313, .; , 50 368. 7213, DD 97 5, 45 NRC 135 (1997); DD 97-9. 45 NRC 328 (1997); DD 9715, 45 NRC - l 475 (1997) ) ENVIROCARE OF UTAH, !NC, ' i REQUEST FOR ACTION, DIRECTOR'S DECISION UNDER 10 C F.R.12.206; Docket No 40 8989 - l (l.acense No SMC 1559); DD47 2. 45 NRC 63 (1997) i l GENERAL PUBLIC UTil.! TIES NUCLEAR CORPORATION v ! OPERATING LICENSE AMENDMENT, MEMORANDUM AND ORDER (Ruling on Summary Dupoution Mimoni; Dockei Na 50 219 OLA (ASLBP No 96-717 02 OLAr, LDP 971, 45 NRC 7 (1997) REQUEST FOR ACTION, FINAL DIRECTOR'S DECISION UNDER 10 C.F.R.12 206 Docket No. > l 50 219; DD-97-8. 45 NRC 315 (1997) l REQUEST FOR ACTION; DIRECTOR'S DECISION UNDER 10 C F R 12.206; Docket No. 54219; l i DD-9714. 45 NRC 472 (1997) ! CLORGIA INSTITIITE OF TECHNOLOGY OPERATING LICENSE Ri.NEWAL; INITIAL DECISION, Docket No 50160-Ren (ASLBP No 95-7%01 Ren) (Renewal of Facihty Licenic Na R-97); LBP 97 7, 45 NRC 265 (1997) REQUEST FOR ACTION, FINAL DIRECTOR'S DECISION UNDER 10 C F R.12J06. Docket No , 50160, DD 97-16, 45 NRC 487 (1997) l GEORGIA POWER COMPANY, er at ! REQUEST FOR ACTION. DIRECTOR'S DECISION UNDER 10 C.F R_ { 2.206; Duket Nos 50 321, l 50 366, 54424, 50-425, DD 97 6, 45 NRC 144 (1997) ILLINOIS POWER COMPANY and SOYLAND POWER COOPERATIVE OPERATING LICENSE AMENDMENT; MEMORANDUM AND ORDER (Ternurmring Proceeding); Docket No. 50 464 OLA (ASLDP Na 97 725 01 OLA); LBP-97 4, 45 NRC 125 (1997) LOUIS!ANA ENERGY SERVICES, L P-CONSTRUCTION PERMIT 4PERATING LICENSE PROCEEDING; ORDER; Docket No 70 3070 ML; CLI-97-7, 45 NRC 437 (1997) l 4 l l l l1 ' l l i i l l i l l 1-.~-.---.--..- .- - - - - - -- - - - - - - - - - - . . . - - - - - - -- - --- - l

CASE NAME INDEX CONSTRUCTION PERMTT-OPERATINO UCENSE PROCIIDINO- PARTIAL INITIAL DECISION (Resolving Cotsennons B and 13); Docket No. 70 3070 Ntl (ASLBP No. 91441 02 ML) (Special Nudear Maierial Ucenic); LBP-97 3,45 NPC 99 (1997) CONSTkUCTION PERMIT-OPERATING UCfNSE PROCEEDNO, l'INAL INTTIAL DECISION (Addressing Coniennon J 9), Docket No 743070-ML (ASLBP No. 9144102 ML) (S ecial P Nuclear Maienal Ucense); LBP 97-4. 45 NRC 367 (1997) MATERIAES UGNSE; ORDER; Docket No. 743070 ML; CU 97 2,45 NRC 3 (1997); CU-97 3,45 NRC 49 (1997). CU-97-4. 45 NRC 95 (1997) NORTHEAST NUCLEAR ENEROY COMPANY kEQULST FOR ACTIO4 DIRECTOR'S DECISION UNDER 10 C.F.R.12.206, Docket No 54245 (Lkenne No. DPR 21); DD.97 4, 45 NRC 86 (1997) NOKrHl'AST UTtWT1LS REQUEST IOR ACTION. DIREGOR'S DECislON UNDER 10 C.F R.12 206. Docket Non 54245, . 54316, 54423 (License Nos DPR 21, DPR45, NPF 49); DD 97 ll. 45 NRC 347 (1997) RALPH L TETRICK SPECIAL PROCLEDIN0; MEMORANDUM AND ORDER; Docket No. 55 20726-SP, CLI-97 5, 45 NRC 335 (1997) SPECIAL PROCEEDING, INITIAL DECISION. Docket No $5-20726-SP (ASLBP No 96 72101 SP) (Re: Operator Ikensek LBP-97 2,45 NRC SI (1997) SPECIAL PROCEEDINO, CORRECTEI COPY OF MEMORANDUM AND ORDER (Denial of Reconsideration, Stay); Dockee No. 55-20726-SP (ASLDP No. 96 72101.SP) (Re. Operator beenie); 1.BP 974, 45 IJRC 13G (1997) SPECIAL PROCEEDING. MEMORANDUM AND ORDER (Detenmnasion of Remand Quesnon); Docket No. 55 20726.SP (ASLBP No 97 727-01-SP R) (Re: Senior Reactor Operator License); LBP 97 Il 45 NRC 44: (1997) REGENTS CF THE UNIVERSITY OF CALIFORNIA INDEMNTTY; DECISION. CLI-974, 45 NRC 358 (1997) SEQUOYAH FUEIS CORPORATION and GENERAL ATOMICS ENFORCEMENT ACTION MEMORANOUM AND ORDER; Docket No. 70 3070 ML; CLI-971, 45 NRC 1 (1997) SHIELDAl10Y METAL 1URGICAL CORPORATION REQUEST FOR ACTION; DIRECTOR'S DECISION UNDER 10 C.I'R 4 2 206, Docket No. 410-07102; DD-97 !0, 45 NRC 338 0997) REQUEST ICR ACTION, DIRECTOR'S DECISION UNDER 10 C.F.R.12 206, Docket No 414 8948 (License No. SMB-1507); DD 9712, 45 NRC 449 (1197), SIERRA NUCLEAR CORPORATION REQUEST FOR ACTION; DIRECTOR'S DECISION UNDER 10 C.F R. 4 2.206; Docket No. 72-1007; DD-9715. 45 NRC 475 (1997) TOLEDO EDISON COMPANY, er al REQUEST FO'l ACTION; DIRECTOR'S DECISION UNDER 10 C.F.R.12 206. Docket Nos 50 346, 721004 DD 97 3,45 NRC 71 (1997) UNIVERSTTY OF CINCINNATI MATERIALS LICENSE AMENDMENT; MEMORANDUM AND ORDER (Dunussing Proceeding); Docket No 3002764-MLA (ASLDP No. 97.722 01-MLA); LBP-97 5, 45 NRC 128 (1997) WETTINGHOUSE E!ICTRIC CORPORATION REQUEST ICR ACTION; DIRECTOR'S DECISION UNDER 10 C.F.R.12.206, DD 97.7. 45 NRC 258 (1997) WISCONSIN ELECTRIC POWER COMPANY REQUEST FOR ACTION, DIRECTOR'S DECISION UNDLR 10 C.F.R. 6 2206. Docket Nos. 54266, 50-301,72-5, DD 97 5. 45 NRC 135 (1997); DD 97-9. 45 NRC 328 (1997); DD-9715,45 NRC 475 (1997) I.2

LEGAL CITATIONS INDEX CASF5 A4f saced Afedical Spreur, fac. (One Factory Row, Geneva, Otuo 44041k CLI-94-6, 39 NRC 285, 299 (lW41 heanng nghis on enforcement actions; DD 97 2,45 NRC 68 (1997) A!/rrd / Aforahro (Semor Operator License for Banver Valley Power Station, Umt .), LBP48-10,27 NRC 417 (198A), LBP.8&l6, 27 NRC 583 (IM) pmpose of reactor operator eu,nunanons; LBP 97145 NRC 52 (1997) Arden.mi v. /YS,112 5. Ct. SIS,116 L Ed. 2d 496 (19911 pl.un language standard for interpretanoa of regulatory gmdance; LBP-916, 45 NRC 132 n.3 (1997) Sennett v. Spear,117 S Ct 1154, 1166 (1997) effect given to statutory penvutons barnns payment of anomeys' fees, CLI 97 6,45 NRC 3M (1997) Blue Cross and Blue Shseld of Alabama v Weit:, 913 F d 1544.1548, rek's dented. 921 F.2d 2s3 (19'?D imerpretanon of regulatory smdes; LBP-97-6, 45 NRC 132 n.3 (1997) CAN v. NRC, 59 F.3d 294 (1st Car.1995) heanng nghis on decomnussiomng: DD-9713, 45 NRC 465 (1997) Carolma Power and Light Co (Shearon Harns Nuclear Power Planti, ALAB-852, 24 NRC 532, 544-45 (1986) apphcanon and status of regulatory gmdes; LBP 97,1,45 NRC 25 (1997) Central Elecrrre Peer Cooperathe (Virgil C. Summer Nuclear Stanon, Uett 1), CL18126,14 NRC 787, 790 (1981) monons for reconsideration resung on a new thesis; CL1-97 2,45 NRC 4 (1997) Coswhdined Eduon Ca of New York tinJian Pomt, Units I,1 and 3), CL175 8, 2 NRC 173,175 (1975) standard for insutunon af show cause proceedings; DD 97 4, 45 NRC 92 93 (1997) Consumers Power Ca (hlidland Pland, Umts I and 2), ALAB 152,6 AEC 516,817 (1973) management organizauonal structure for research reactors, standards for; LBP-97 7,45 b1C 30102 (1997) Conamers Power Co. (Midland Plant, Uruts I and 2h ALAB-235,8 AEC 645 (1974) heensins board junsdiction where monon for reconsiderauen has been filed; LBP 97-6,45 NRC 131 (1997)

       onumers Power Ca (Palnades Nuclear Plant), LDP 79 20,10 NRC 108 (1979) standing to intervene in matenals license arnendment prnceedings. LBP-9710, 45 NRC 432 (1997)

Curuiers of rAe Uniwessry of Afameri. CLI-951, 41 NRC 71, 98 (1995) appucanon and status of regulatory guides; LBP 971,45 NRC 25 (1997) Curatorr of rAc Unurserr of Musouri, LBP-9015, 31 NRC 559, 566 (1990) Mfillment of injury in fact reqmrement; LBP 97-10, 45 NRC 431 o 4 (1997) Derroir Eduon Co (Enneo Fernu Atonuc Power Plant, Unit 2), ALAB-470,7 NRC 473,474 n.! (1978) standing to intervene on basis of injury in fact to spouse and children of petinoner; LDP 97-9, 45 NRC 426 (1997) florida Peer and Light Co. (St. Lucie Nuclear Power Plant, Umts I and 21 CLI-89-21,30 NRC 325, 329 (198 0 alleging an injury to someone other than pennoner; LBP 9710,45 NRC 431 n.5 (1997) I3 j

LEGAL CITATIONS INDEX CASES General Pubisc Urdit es Nuclear Corp, (Three nie Island Nuclear htanon Umts I and 2; Oyster Cae9 Nuclear Generaung $tation), CU 85-4, 21 NRC 561, 563-65 (1985) disposinon of identical issues that are pending before a presidmg otAcer; DD-97-16,45 NRC 489 (1997). General P66 tic Ussittire Nuclear Corp, (Oyster Creek Nuclear Generating Station), LBP 96 23, 44 NRC 143, 158 (1996) rninor radwlogical caposures as basis for staruhng to interverw LBP 97 9,45 NRC 425 (1997) Georgia laerunte of Technology (Georgia Tech Research Reactor, Atlanta, Georgia), CU-9510, 42 NRO I, 2 (1995)

                  'esponsiNlity for developing factual record on issues in contention; CU 97 5,45 NRC 356 (1997)

Georgia institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgish CLI 9512, 42 NRC 111, 115 (1995) construction of peutior.s in makteg standing deiernunanons; LBP 97 9, 45 NRC 424 (1997) Georgia Power Co. (Haich Nuclear Plant Units I and 2; Vogile Electric Generating Plant Uruts I and 2), CU-9315,38 NRC 1,24 (1993) disposition of identical issues that are pending before a presiding officer; Drt97,16, 45 NRC 489 (1997) flouston Ughting and Power Co (South Tesas Project, Units I and 2), CLl-804;,12 NRC 281,291 (1930) bcemee abd: cation of responsihihty or knowledge as basis for license revocanon, DD 97 6,45 NRC 155 (1997) lane v rena.116 5 Ct. 2092,2096 (1996) standad for seeking monetary rehef agamst the governrnent, CLI-97 6, 45 NRC 362 (1997) Afame Lakee Asomsc Power Ca (Maine Yankee Atonus Power Stanon), ALAB-361,6 AEC 1003, 1081 12 (1973; standard for judging adequacy of Staff treatment of various irnpacts in the Fels, LBP 97 8,45 NRC i- 399 (1997) l Aferropolitan EJuan Ca Uhree Mile Island Nuclear Stanon, Umt 1), ALAB-698,16 NRC 1290,1298 99 i (1982), (d an part og other grovads. CU 83-22,18 NRC 299 (1983) l spphcanon and staius of regulato y guides, LDP 97-1, 45 NRC 23 (1997) t Aterropoluan Edison Ca (Three ute liland Nuclear Station, Urut 1), CLI-85 9, 21 NRC 1118,1136 37 (1985) standards for management character sad competence, DD 97 6, 45 NRC 155 (1997) Afillspaugh v. Karam, Civil Actwa Na I;83 cv 312 ODE fND, G4 JW3119) (slip op. as 24 25, 274th ed d per curiam sub ninn. Sharps c. Earam, 976 F.2d 744 (llih Cir.1992) retalianon against employees for engaging in protected sethities; LDP 97-7, 45 NRC 278 n,20 (:997) Afanesota PIRG v. Butz, 541 F.2d 1292,1299 (8th Cir 1976k cert denied, 430 U.S 97 (1977) purposes on environmental impact statements: LBP 97 8,45 NRC 401 (1997) Ofice of Perronnel Afanagement v. Richmond, 4u6 U S. 414, 42430 (1990) restnctions on NRC expenditures: CL1-97-6,45 NRC 362 (1997) Ogice of Personnel Alanagement v. Richmon.L 496 U.S. 414, 432 (1990) standsd for pursuing monetary rehef against the goserament; CL1-97-6,45 NRC 362 (1997) Pacdc Gas and Electric Ca (Diablo Canyon Nuclear Power Plant, Umts 1 and 2), ALAB 763,19 NRC 571, 377 (1984) burden of proof on appheants; LBP 97 2,45 NRC 104 (1997) PacMc Gar and Electric Ca (Diablo Canyon Nuclear Power Plant, Umis I and 2), CU-St 6,13 NRC 443, 446 (1981) disposition of identical issues that are pending before a presiding officer, DD-9716, 45 NRC 489 (1997) Pacdc Gar and Electric Ca (Diablo Canyon Nuclear Power Plant, Umts 1 and 21, LBP 94 35, 40 NRC 180, 192 (1994) review responsibahnes of licensing boards; LBP 97-7,43 NRC 271 a7 (1997) 14

IIGAL CITATIONS IND13 CASES Pbladelphia Electnc Ca (bmersch Genavating Stanon, Umts I and 2), ALAB 889,22 NRC 681,706 (1935 supplenernation of 6aal environnetaal impact staienent by decision and adjudicaory record. LBP 97 3,45 NRC 123 (1997i P411adelpMa Electric Co (Umenck Generating Station, Umts I and 2), A!AB 819,22 NRC 681,720 (1985) burden of proof on apphcants; LBP 97-3,45 NRC 148 (1997) P4iladelphia Electrac Co (1.Jmertek Genernimg Station, Units I and 2) ALAB 819,22 NRC 681,741 (1985) weight given to conclusions of expert wunesses; LBP 97,7,45 NRC 271,72 (1997) Pubhc Service Co of New Hampshire (Seabrook Station, Units 1 ar,s 2), ALAB.862, 25 NRC 44,150 (1987) participanon by arnicus curiae, CL1-97 4,45 NRC 96 (1997) Pubfic Serwu Ca of New Hampshire (Seabrook Stanon, Units I and 2), CLI-8810, 28 NRC 573, 587 (1988) content of decommissioning funding pla6' LBP 97 3,4$ NRC 118 (1997) Pueno Rico Electrk Powr* Authonty (North (., ' Nuclear Plars Umt 1), AL AB 648,14 NRC 34, 37 38 (1981) showing necessary f.v raising matters for Ars oite on appeal, LBP 97 II,45 NRC 442 n.1 (1997) Aandall C Orem. D O, CL19114. 37 NRC 423, 427 24 (1993) denmtma of matenal false statemert, Dn 9% 45 NRC 150 (1997) Ard hon Braadcastmg v. FCC, 395 U.S 367, 380 81 (1%9) resolunon of lat.guage construcuon issues relative to interpretanon of techan,al speci6 cations; LBP 971, 45 NRC 19 (1997) Ae44 Geo P43 rical, fuc., AU 85 l, 22 NRC 941, 962-63 (1985) interpretat.on of "carel as disregard"; DD 97 6, 45 NRC 156 (1997) l Amiser W Elhagwood (Semor Operator License for Catawba Nuclear Station), LBP 89 21, 30 NRC 68 ! (1989) purpose of reactor operator exanunations; LBP 97 2, 45 NRC 52 (1997) Scenic Hudom Prevenorma Cmtference v. federal Power Conia.ission 354 F.2d 608,620 (2d Ctr.1965) review rcspomihihties of beensing boards; LDP 97 7, 45 NRC 271 n.7 (1997) Jequo3u4 fueLe Corp (Gore, Oklahoma Site) CLI-9412,40 NRC 64,74 (1994) standard for review of settlements; CLI-911,45 NRC 2 (1997) Jequea4 fuels Corp and General Asomics (Gore, Oklahoma Stie). CL196-3, 43 NRC 16.17 (1996) amicus curiae briefs supporting or cpposms petmons for review; CLI 97 7,45 NRC 439 (1997) 3eywoya4 fuel,r Corp (Sequoyah UF 6 to UF 4 Facihty), C118617, 24 NRC 489, 497 (1986) inal type procedures in informit ptoceedings, standard for; LBP 97 9, 45 NRC 423 (1997) 3 ruse of Uhah (Agreement Pursuant to Section 274 of the Atomic Energy Act of 1954, as Amended), D(>95-1, di NRC 43 (1995) scope of section 2.206 process; DD97 2,45 NRC 65 a.1 (1997) Tennessee Wiley Aarharity ()lartsville Nuclear Plant, Umts I A. 2A, ID, and 2B), ALAB-418, 6 NRC 1, 2 (1977) inntions for recomideranon resung an a new thesis; CLI-97 2, 45 NRC 4 (1997) Tenneure Wiley AuAonry (Phipps Bent Nuclear Plant, Umts I and 2), ALAB-506,8 NRC 53L 944 (1978) burden of proof en governmetual entiues; LBP 97 7, 45 NRC 271 (1997) Tetas Urihries Elecrne Ca (Comanche Peak Steam Electric Station, Units I and 2), LBP-8410,19 NRC 509, 517 18 (1984) new arguments or evidence in motions for reconsideration, LBP 97 6, 45 NRC 131 (1997) Trans World Aurknes, Inc. v. Thursrun, 83 L. Ed 2d $23, 537 (1985) laterpretauon of "carelea disregard"; DD 97 6, 45 NRC 156 (1997) United States v Chemical foundanon. Inc., 272 U.S. I,14-15 (1926) burden of proof on governmental enthies, LBP-97-7, 45 NRC 271 (1997) 15 s

LEGAL CITATIONS INDEX Ca5LS Vereiont l'anAse Nuclear rewr Corp (Vermont Yankee Nuclear Power Stauen) CLl-74-40, 8 AEC 509, 813 (1974.1-defense-in depth pnnciple; LDP 97 6,45 NRC ?) n.7 (1997) Virginia Electric sad Power Ca (North Anna Pumer $tatwn. Umts I and 2). CLI 76-22, 4 NRC 480, 486, 491 (1976) a5'd sah nom Virgreid Etermc sad ruwr Co. t NAC, 571 F.2d 1289 (4th Car.1978) licensee conminications with NRC, importance of, DD-9' 6, 45 NRC 156 (1997) Warbation Public Pgwer Supply Jpsem (WPP55 Nuclear Project No. 2), DD 84 7,19 NRC B99, 924 (1984) standard fut insatution of show cause proceedings; Di>97-4,45 NRC 93 (1997) lhis e. Alasta, 451 U $ 259, 26447 (1981) sta:utary effect of Prae-Anderson Art muon 170k; CL1-97 6,45 NRC 363 (1997) l'adre Atomic Electrk Co. (Yankee Nuclear Power Station), CLl#1,43 NRC 1,5 (1996) treatment of minonty owner's protective intervention petition as request for heanag; LBP-97-4,45 NRC 126 n.l (1997) knAre Aromac Elecirk Co (Yaniec Nuclear P e,er Station), CLINI, 43 NRC 1, 6 (1996) standing to intervene in matenals beense amendment proceeding. criteria for; LBP.97 9, 45 NRC 423,24 (1997) Ndre Atomic Electric Co (Yankee Nuclear Power Stanon), CLl%7, 43 NRC 235, 24748 (1996) showmg necessary to estabhsh injury in fa:t for purpose of standing to inservene LDP-97 9,45 NRC 426 (1997) knAse Atomic Elerfrac Co. (Yankee Nuclear Power Siauen), CLI 96 7,43 NRC 235, 255 (1996) responsitihty for developing Lctual record on issues in contentmn. CL1-97 5, 45 NRC 356 (19'77) Ndre Atomic Electrk Co. (Yankee Nuclear Power Station), CL196 7, 43 NRC 235, 268, 269 (1996) C<emnusuon authanty to require a licensee to pay compensatory damages to pnvase 6ndividuals: 00-9713, 45 NRC 465-66 (1997) knAse Asomic Electric Ca (Yankee Nuclear Power Station), CLlet,43 NRC 235, 272 (1996) Spec 1Acity required of p(uhons for restew; CLI-97-2, 45 NRC 4 (1997) Laker Atomic Etscrric Ca (Yankee Nudcar Power Stanon), LBP%18,44 NRC 86,92-93, parereon for rrwew desi<d, CLI 96 9, 44 NRC 112 (19%) procedural reqmremer's govermns summary disposition process: LI)P 971, 45 NRC 14 (1997) 16

                                                                                                        -- -- m LEGAL CITATIONS INDEX REGULATIONS 3 C F R 859 (1995) racial duennunanon in siung of nuetear feethry; LDP-97 8, 45 NRC 374 (1997) 3 C.F R 861 (1995) federal acuoas to address racial disennunation in site selection; LBP-97 8, 45 NRC 374. 390 (1997) 10 C F.R. 2109 status of operaung heense pending heensing board decmon cf renewal apphcauon; LBP-97 7. 45 NRC 269 (1997) 10 C F R. 2.202(ax3) revocation of byproduct vnatettal ucense, circumstances appropnate for; DD 97-2, 45 NRC 67 (1997) 10 C F R, 2.204 apphcatien and status of genenc letters, LBP 971, 4.9 NRC 26 a 10 (1997) 10 C.F R. 2 206 l     cobah 60 contanunation of newer hnes; DD.9713, 45 NRC 46171 t1997) design deActeneses in NUHOMS dry-shielded camsters DD-97 3, 45 NRC 7185 (1997) disposition of indeucal issue, that are pending before a presiding of6cer; DD-9716, 45 NRC 488-94 (1997) unancial assurance of decomnussiumns and decontanunation in hght of addinonal radioactive tu rial being stored on site. DD-9710, 45 NRC 339-46 (1997) heensee bnbery of agreement state Rulianon Centrol Director: 00-97 2, 45 NRC 64-70 (1997) load.og of spent fuel in venulated storage casks. design concerns; DD 9715,45 NRC 476 86 (1997) management character and competence DD.97 6, 45 NRC 147 257 (1997) rneasunns and test equipmem sign out procedures. violations of; DD'97 4. 45 NRC 86-93 (1997) quah6 cation and training of he,dth physica technicians, DD-97 7,45 NRC 258 (1997) reactor notemal component and spent fuel pool coohng concerns; DD 97-8, 45 NRC 316-27 (1997) reservonon of 6xed rumber of vacant spaces in spem fuel pool to remtit retneval from; DD-97 9,45 NRC 329-37 (1997) shuthwn dunng transfer of spent fuel from wet to dry storage; DD'9714. 45 NRC 472-74 (1997) ute renwdianon and decommissiomng concerns relative to ra&oacave slag; DD-9712,45 MRC 450 59 (1997) unloading of mutuassembly basket of VSC 24 dry storage suks, resonable assurance of safety of procedures for; DD-97 5,45 NRC 136-43 (1997) utmadng procedures for dry storage casks. violaunns of requirements for; DD-971,45 NRC 33 47 (1997) violations of procedure comphance, work cor rol, and tagging control, DD 9711, 45 NRC 348 53 (1997) 10 C.F R. 2.70ltb) service requir ments for informal proceedings; LBP 97 lo, di NRC 433 (1997) 10 C.F R. 2.710 computation of ume for petmons for renew of decision served by mail, LBP-97 6,45 NRC 133 (1997) deadline for Ehng peutton for review of iniual decision; LDP 97 2. 45 NRC 61 (1997) service of initial decisions; LBP 97 2. 45 NRC 60 (1997) 17 L

IJGAL CITATIONS INDEX REGULATIONS 10 C F R. 2.712(e) date of service tw peutions for revie e; LBP 97 6,45 NRC 133 (1997) service of imtial decisions, LBP 97 2, 45 NRC 60 (1997) 10 CF.R. 2113(b) ocuce of.sprearance requirenents for informal proceedings; LDP-9710, 45 NRC 433 (1997) 10 CF.R. 2.714(a) challenges to technical speci6 canon changes. LBP-97 l,45 NRC 11 (1997) late 6hns requirements for new basis for contention; LBP 971, 45 NRC 18 (1997) 10 CF R 2.714(aK2) specincanon of areas of concern in informal proceed ngs; LDP-97 9,45 NRC 422-23 (1997) 10 CF A 2.714(aK3) standards for standing 9 mtervene and contenuons in operaung beense renewal proceeding LBP 97 7, 45 NRC 269 (1997) 10 C F R. 2.714(bX2) basis and specihcity requirenants for ctStemian adminion; LBP-97 8,45 NRC 373 (1997) challenges to technical specificanon changes; LBP 971,45 NRC 11 (1997) 10 CF.R 2.714<b(2xiii)

   - speclAcity of contennom bued on documents not yet available; LBP 97 8. 45 NRC 373 (1997) 10 C F R. 2.714a Comrainion review of decmon ednuruns contentions; LDP 97 7,45 NRC 270 (1997) 10 CF R. 2 715(a) oral knured appearance staranwnts in operating liceme renewal proceeding; LDP 97 7,45 NRC 270 n.4 (1997) 10 CF R. 2.715(c)

Interesteestate request for heense wndinons; LBP 97 3. 45 NRC 123 0997) 10 CF R. 2.715(d) emicus cunae bnefs support ng or opposhig petibons for review; CLl 97 7, 45 NRC 439 (199i) 10 CJ R. 2.720(hx2) basis for hcensing board review of applicant's managerial denciencies; LBP 97 7,45 NRC 272 n,8 0997) 10 C.F R. 2.732 burden on applicants to licensing procerthugs; LBP 97 3, 45 NRC 104 (1997); LDP 97-a. 45 NRC 373 (1997) 10 CF.R. 2,749(a) procedural requiremems governing sumnury disposiuon process, LDP 971,45 NRC 14 (1997) 10 CF R. 2.749 td) standard for seeking summary disposition; LBP-971,45 NRC 13 (1997) 10 CF.R. 2 754(b) defauh on inues not included in imervenor's indings at hearing; LBP 97,3,45 NRC 119 n.13 (1997) 10 CF R 2.760 authonty to issue ren wal of operating licerue; LBP 97 7,45 NRC 313 (1997) Anahry of decision on operanns license anendnwnt; LDP 971,45 NRC 30 (1997) Anahty of imual decisions. LBP 97-8. 45 NRC 412 0997) Anahty of partial inical decision. LDP-97 3,45 NRC 124 0997) 10 C.F.R. 2.771 heenung board jurisdienon where netion fa recomideration has oeen 81ed; LBP 97 6, 45 NRC 131 (1997) 10 C.F R. 2 786 content of petitions for reyww and responses, LBP 97 2, 45 NRC 6l 0997); LDP 97 6, 45 NRC 133 0 997) deadbne Ice pennon for review of heensing board decision authorizing hcense renewal LBP-97-7,45 NRC 313 0997) deadline for pennons for review; LDP-97 2, 45 NRC 60 (1997); LBP 97 6, 45 NRC 133 (1997) 18

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m. _ _ _ _ _ ._ . _ - -.- .. _ ._ . - - - _._ _ _ m _ __ . - - _ .

h IA J AL CITATIONS INDEX Ritt'tAttoN5 effet of pentius fw terww on 6nahty of decisina, (SP 974,43 NRC 124 (1997) peutions f4 reviee of inihal dedstotis. LDP 91-8. 43 NRC 412 (1997) 10 C F k 3 76 Mkt) tleadhne fu petukins fut review of dedmon on operating htense anetenwns, l.BP 97 l, 45 NRC 30 , (1997) odedule a4usernents fue responw to annus cunar CLI 97 4,43 NRC 97 (1997) 10 C f A 2 711mk2H) , coniem sif rev6ea lawls and anseers, LDP 971,4$ NPC 31 (1997), LBP 974, el NRC 124 (1997) 10 C f R 2 78Mt d ', adedule akustmeu its response to andrus curiae, Cl197 4. 4$ NkC 97 (ifu7) , 10 C f R 17kew4 deadhne fut peuuans int revww; LDP,97,3,4$ NRC 124 (1997) discreuen of Comm6nion to accept retshone fit reviewt 1BP 97.7,43 NRC ll) (1997) growuts fut petiunns int review; 1DP 971,4$ NRC 10 (1997) grounds for pehuons for revice of intual decisions. LDP 97 5 43 NRC 412 (1997) peuuons for rettew, gram of. CL1911,43 NRC 418 (1997) review of beenung bord tubng on setilenent agevenem, C1197 l,43 NRC 1 (1997) slandwd for gram of seview of pwteal intual decision ca errtchnwm facihty beenung,0L197.),43 NkC 49 (1997) 10 C F R 2 76Md) Imehng odedule for Comndssion review, C1197 7,4$ NRC 438 (1997) bnefing adalvle int revww of licenstag board ruimg on settienent agreestent; CLl-971, 43 NRC j (1997) bewfing sdvdule for rev6ew of partial liutaal decision on eJdmem facthey beenung, CtJ 97 3, as NF.C 49 (1997) 10 C F R 2 7Bfge) ruonadevauon of Comminion duinion to dechne review; C1197 2, 4$ NRC $ (1997) 10 C F R Pat 2, $uttatt L piuceduws (tw infirmal Iwanng on snaienals hcense aner'nwnt, LBP.97 9, C NRC 420 (1997) 10 Cf R 2120l(ex1) trial-type procedures in 6mfannal proceedinp standard fur; LDP 97 9, 4$ NRC 423 (1997) 10 Cl R 1.120l(nM2)

        'ifumal p< weeding on reactor operator enanunation resuhs; LBP 97 2, 45 NRC 52 (1997) a
          .* T R- 21203(r), (#1 setske requtrenwnts for informal prweedings; LBP 9710. 4$ NRC 43) (1997) 10 C F R. 2120$(el, th) adnuulun sniana fcv paroes to snatanals h6ense amendnem procesangs,1SP 97 9,43 NRC 422,421 (1997) 10 C F R 21203(10 fathes to tie swidressed to i;uabhah standing to Intervene, LDP 9710,4$ NRC 432 (1997) 10 CJ R. 2120$(en) heanns requuenents on tiutenals heems amendnenW LBP 919. 4$ N"C 421 (1997) 10 C.f R. 21203:o) content of appeals,1SP-97 9,4$ NRC 427 28 (1997) 10 C F R. 21209 sultlemental niings to establish staneng to 6mervene. LhP 9710, el NRC 432 (1997) 10 C f R 2.120Hk) fannal trial-type procedures in infarnul proceedings; LBP 97 9,4$ NRC 422 (1997) 10 CF R 2 621)

Staff participahon in informal proceetbngs, l.BP.97 9,43 NRC 421 (1997) 10 C.F.R. 21211 subnussion of hearing Ale in informal procesangs,1SP 97 2,43 NRC $2 (1997) l9 g,

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                                                                                                                       .,y-   ,-x.                 -r . ---_ ,. _ -

_ __ __ _ _ - __ __ . _ . _. .. m . ._ _ _ _ _ . _ IIGAl, CITATIONS INDEX REGt'LAllONS 10 C F.R. 2123) wensen presentariw la infonrud procce4ngs. LBP.97 2. 4$ NRC 52 (1997) 10 Cik 21231 finahey of Metal deoweas. I BP 97 2. 45 NRC 60 (1997). LBP 974,43 NRC I)) (1997) 10 Cf R 2he) towesting snatena.s ircase anwedness. L'iP-97 9. 43 NRC 421 (1997) 10 Cl R Part 2. A;wd C def6ninone of sever *ry les 4oboons. LBP 97 7, 4$ NkC 27) a l0. 311 (1997) esforcenem policy pplicable w vocedure umphance, work coritrol, and tagging control violeuans; DIk97 II,43 NRC M9 (a997) 10 CI R Part 2. Appens C. t il (1995 ed) stan6ard for u/usal it evitsvere operehrig hcense renemal. LDP 97 7. 4$ NRC 3'l 0 39 (1997) Id C F R Ivt 2, Appenen C. BlV B defirution of repettuve violanon, DD 9711,4 - T CC 330 a 4 (1997) 10 C F R Part 2, Appenen C. Y.A NRC discrenon in 6uuieg Nnuce of Vwlaunn fw Isolated sewnty level V violaten. DD-974,43 NRC 165 fl997) 10 CT R. Part 2. Appendia C, V.01 circumstances under wiuch NRC need not issue a Notice of Violation fat seventy level IV or V violanons. Dt1974, 4$ NkC 163,167. Ifi8 (1997) 10 Cl R. Part 2. Appen&s C, V O $ NRC disson in forego a Nauce of Violauon uten violaison is &aco ered as a resuh of corrective anma for previous enforcenent acuna. DD-974,45 NRC 171 (1997) 10 CI'R. Psi 20 reporting requirenwnts for ca&nium413 accident, LBP 97.7, 43 NRC 283 (}997) 10 C F R 20103 esposure rate la escess for unrestricted mea, antice of violanon for. DD-9713,43 NRC 466 (1997) 10 C F R. 20 203fcc (sime to led b4h tasauon area. LDP 97 7. 43 NRC 288 (1997) 10 C.F R. 20 303 dupusal knuts for d scharges of raaoactive matenals into sewers; DD 971), di NRC 464 (1997) 10 Cf R 20 30ha) ducinge of insoluble raaunctive rivurrials into sewer hnes; DD 97 4). 43 NRC 46142. 465 (1997) 10 C F R. 20 401(sxh duposal records to cobah 60 dis:fwges into sewer hues; DD.9713. 41 NRC 46142,468 (1997) 10 CT R 20130ltaxi) anendrnent of bypro41uct maienals hcense to apow increased done lo visitors of ra&ation therapy panems. LDP 97 5,43 NRC 128 (1997) 10 C F R 201301 002 stan&ng to intervene u.wre there is comphance utth regulatory requirenwnis for prevenung raJiological caposse; thP 97 9, di NRC 423 (1997) 10 C F R. 20.2003 dncharge of insoluble ra&oacuve materials into sewer hnes; DD 9713,45 NRC 462,469 (1997) trahns of groundwater to ensure conyhance with. DD 9713,43 NRC 467 (1997) 10 CJ R Part 24 des ce deficiencies in spent fuel pool decay heat removal systems and comaannwm systems; DD 97-8. 43 NRC 318 (1997) 10 CF A Part 30 amendnum of byproduct matertals beense to allow increased done to visitors of ta&suon therary panents; LDP 97 5, di NRC 128 (1997) 10 C F R. Part 35 qualac %e and training of henhh physics technictans; DD 97.7. 43 NRC 261 (1997) 1 10

F

15. gal, CITATIONS INDl3 Rt Gtt47 tDNS 10 C1 R Pvt 40 '

anendarm of materials Ikenne le stiend corriplein A s f adon barrier fw uranium tault tastings. LDP-97 9,43 NRC 418 (1997) 16ceene requirerienis for pyrochlore praessing. DD 9010, 4$ NkC D9 OW7) 10 C f R do llap brensitig requirenere for passesi6on of ts&sective slag; OD-9712,49 NkC 456 (1997) 10 CLR 404

          &nanr6al nieurance sufhc6e:W to detomnussion a site for unrestricted reicaw; DIL97.10,45 NRC 342 (1997) hcensat4e quarmues an radmactive slag DD 97 !2,45 NRC 452 (1997) 10 C I k, 40 l)<a)
        ' bcensable guaruit6es la radioactive slag, DD,9712, 4$ NkC 452 (1997) source maienal in leghouse dust' Dfi9710,4$ NRC 340, )41 (1997) 10 C F R 40310K3KO brief4senpeiun sequirenrra for t.fline fire dcranmeN training and quahAcahuris; Ct1971,45 NkC S                                                        ,

(1997) 10 CI R. 4036 financial assurance of decommissineung and deconiansnanon in hght of na4emnal radmeetne nunertal being siored im mais, adrwuncy of DD 9710, 43 NkC M9, 342 (19'n) 10 C l R 40 )Ma), (cul), idt, (cK3) contem of decomnasimmng fusahng plan, t.1 P 97 3,45 NRC 1010997) 10 C F R 40Acx2) cert 4Acahon required to irret Anancial assurnme requuenents, DD-9710,43 NRC 34) 44 0997) 10 C F R. 40Ae) cons .4 of deeomnvisionmg funang plan; DD.9710,49 NRC 340 n3 0997) 10 CI: R 40 42 aite deconutunnioeng requirenenet olen buenice is no langer perfornung pnncipal acovines for which h.cnie was tinued. DD-9712, 43 NRC 453, 434 (1907) 10 r'l R. 40 4ha) matenals hcense status pending Comnusuon deos,sn on hcene erneunt. DD-9710. 45 NRC 340 09??) 10 C F R Part 40, Appenas A matenali hcense amedanent to permit receipt and processing of sheniauve feed maienal,1.11P 9710, 49 NRC 430 (1997) 10 C F R Part fa, Appen&s A. II, Cntena 1. 4. $,61

sethnical specihcatwn ctiange involving heavy load handhng owr spent fuel pool. 43 NRC 27 n 11 0997) 10 Cf R. Pan 40, Appetubs A. Cruenon 6A(O vahery of reasons for estemion of compleuon date for radon battet for uranium mill taihngs; LDP 97-9, 45 NRC 42) 0997) 10 C l R. 50 $ failure to comply with sign-out procedures for ine tunns and iesi equipnent, DD 97-4,45 NRC $7 0997) 10 C F R 50.7 nght of heennee engloyees to provide safety information directly to NRC, LBP.97 7,43 NRC 279 (t997) 10 C1 k. $0 D, 50.34 inclusion of budget .vev6ew acuvipes an 6nal safety analysis report; DD.97 6,45 NRC 242 0997) 10 C.I R. $0 $4(O apphcation and status of genene teners; LBP 97.l 43 NRC 26 a 10 0997) requiremos that bcenwe inform NRC, pnor to resiert, of acuans taken to ensure that it would operaie plani secording to hcertw terms and cotuhuons; DS97 II,43 NRC 3%$2 (1997) 1 11 l

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II.G AI, CITATIONS INDIA > Rt.Gt'lATIONS ; d to Cl' R 50 $4m menerruvgency deviauon frorn te6hnical specifkations requinng NRC nonficatma, DD 974, 4$ NkC !)7 , 0997) 10 Cl R. 50 $7 3 austurity to issue rerwent of operstmg bcense. LDP 971,43 NkC 31) (1997) 10 C F R. 30 $9 tormaiency of planted core ofAnad evolutions, incidrig spent fuel decay heat removal, with bcensing baats; DS97 8. 43 NRC 321,324 (1997) eteginewing and safety evaluaison of ra&oactive waste trueronitranon syssern, adequacy of. DD 974,43 NRC 173 (1997) evaluaunn of anduassendily staird basket coohns skid DD-97.*,4$ NRC 4142 (1997)- NRC pohey on safety shaljois of spem fuel canister design; DD 97-),43 NkC $1 a 16 (1997) 10 C F R $067 pesfwmance of spent fini pmd desay heat remcval and coolant invemory control and reactivity control

             $is/' analysis of, DD 97 8,43 NRC 321 (1997) 10 Cl R. $0 72 tmtihealion of dntaranon of emagency evem; DD 974. 43 NRC IS7 (1997)

Red pluwe mouncatma, dennitann of, D4974,43 NRC 170 a24 (1997) lbCFR $073 evems tw which aritten repnets to NRC are required *Hhin 30 days Db974,43 NRC l$7,166 a 23, 196 (1997) 10 C F R $07hakt) Licenste Fves Repon. allegatwn of matenal false statertra in DD 974,43 NkC 192 (1997) 10 CJ R 501Abull, (3) coniets of IJcert se F4eni Reports; DD 974. 45 NRC 192 (1997) 10 Cl R 30 80 character and integnty required of NRC licesees; DD-974,45 NRC 229 (1997) 10 C f .R. SO 52 NRC puhcy on deconimissmning: Dh0713,45 NRC 465 (1997) e la C F R. 50 90 connaiency of planned core cinoad evoluunna, including tefuehog practices, with hcensing t' asis. DD 97-5,45 NRC 324 (1997) revisme of tecimital speci6catmos; LBP 97 l,4$ NRC 26 a ll (1997) 10 C it R 30 91 transfer of spent fuel from met to dry storage, license anwndmera acecesary for; DD 9714,43 NRC , 473 (1997) ' 10 C F R $0 9192 lasuance of bevase amendtreal upon Andmg of nn sigiuAcant unsards consideration LDP.971,43 NRC 18 a 2 (1997) 10 CI' R. 5010*aW3) analysis for safety enhancenem bukets. DD 97 $,43 NRC 321 (1997) 10 Cf R Part 50, Appen&s Bl managenem orgarusanonal sinwture for research reactws, standards for, LBP 97 7,4$ NkC 30102 (1997) t 10 CJ R Part 30. Appenas B, Cnteria V and VI e denctencies la dry. cask union &ng procedure as violauon of, DD-97 l,43 NRC 38. 40,43 0997) 10 C F R. Part Si adequacy of Staff environnwatal review; LinP 97 8, 45 NRC 374 (1997) envuonn.orwal impact statenwns for sue decomnussioning and disposal of slag piles; D49712, 45 NRC 413 (1997) environnwreal impact statenwnt requirements for decomnussioning funang plans, DD 9710,4$ NRC .. 342 (1997) 1 12

                                                                                                                                         'l /

LI: GAL CITATIONS INDI:X RI'Ott4 FION5 10 C F R $1102 i sult errientauos eif final eavuontiersial artiluu1 staterrievit by dectoios and ikbudicatory record, LDP.974, 43 NRC 12) (1997) 10 Cf A $34 drhnehon to tentor trai1or ogerator. Lhr 97 2,49 NRC $2 (1997) 10 CI k $$ alft,xlH14) scope of ortnen enanunation quesuona for scruar reutw opraior hcene. ISP 97 2,45 NRC $2 (1997) 10 C5 R SS 4) responubihiy for deschytig and adtrumstering teat 1ar iterniw heense enariunahuns; LBP.97 2. 45 NkC

     $2 (1997) 10 C F k $$ eb) uoM of atteten etanunanos questions la reactor operator hcenics; LDP 97 2. 45 NkC $2 (1997) 10 CI R SA 4RbWlH7) koM of wrtnen esattunation queshone fw semw reactw opetahir hcenses, thP.97 2,4$ NRC $2 (1997) 10 CFR SSdi responsibehty for deveheng and adriunintering reactor tverstw beenie etarisinatites, LBP.97 2, ar, NRC 52 (1997) senpe of opetenng test tw semw reactur operalw bcenses; thP 97 2. 43 NRC $2 (1997) 10 C f R. Part 60 clasubcanon of depleted uraniurn tails tw dispoul purpom. LDP 97-), 45 NRC 109 (1997) 10 C f k. Part 61 deep disposal sne as tnosi hkely fo.      < sum tails disposal. LDP 97 $, 4$ NRt 07, 108 (1997) 10 C F k 61 ShW2 Wit) avallmNhty of deep bunal for urmuum tails dinrosal. ISP 97 3,45 NRC 108 (1997; 10 Cl R 61 Shax))

slasoAcation of depleted uranium tels for disposal purposes. LDP 97 3,43 NRC 109 (1V97; 10 CI R 61 S$(aW6) clanu6catma of depleted uranium tels for disposal purposes. ISP.974. 43 NRC 109 (1997) 10 C F R 70 22HXh6) brief desenetton regurenent for offute Are departmem traarung and quahncauona, CL197 2. 43 NRC $ (1997) 10 C f R 70 25(a), te) coment of detonmisionmg funding plan, thP 97 3. 49 NkC 101 (1997) 10 C F R Pan 72 deu8n review of venulaiad storage casks, DD 9715,43 NkC 479,483 (1997) suspnunn of general heense fw dry cask unloading procedure dehciencies, DD 971,45 NRC 43, 46 (1997) 10 Cf R 72 48 chanses to design of dry storage cash for spetic furt. DD-97 3. 41 NRC 73 $3 (199h 10 C F R. 72122thk (h considerauons in developmetu of dry smik unloading procedures; DD 971,41 NRC 39 (1997) 10 C F R 7112hh reservahon of 64ed numher of ucant spaces in spent fuel poni to perndl retneval from, DD 97 9. 43 NRC !)0. 3)l42 (1997) 10 C F R. Part 72, subpart O qual.ty assurance for andependent spem fuel shngs installauonn. DD 911, 45 NRC 3B n 4 (1997) 10 C FA 72150 deAneneum in dry cask unhMing procedure as violanon of. Db 971,45 NRC 38 o 4 (1997) docunwmauon requirenents for quahty.related activities: DL197 3,45 NRC 80 (1997) 10 Cf R 72152 deAcwnaes la dry cask unloading proceJure as violation of, DD 971. 43 NRC 38 a 4 (1997) 11)

LEGAL CITATIONS INDI:X klGl'lA710NS 10 CI R Part 72, Subrwt K suthietty to store spew fuel in dry <a4 storage optern on site; DD 97-1, 43 NkC 34 (1997), Di>97.$, el NRC 116 (lW7) 10 C F k. 72.240, 72 212 auttwnsaims tw onow siwage of spes emclew fuel, DD-97 3,45 NRC 72 (1997) 10 Cf R. ?! 212f aW2) uw of certihed cmks fw onsus storage of spere nucles fuel, DIA97 3,43 NRC 60 m 15 l1997) 10 Cl- R 72 212(b) h alt cabihty of Ceruncate of Cwnphance terms and amations to geheral hcensee; DD-97 ),43 NRC 83 (1997) 10 C F IL 72 212(bx2) dehsiencies in dry cak unioner.g procedive as violetkin of; DD 971,49 NRC 37 (1V97) 10 C F k 72 212(bx9) heenwe respuneNI6ty to prepwe, rence, approve. and test wnsten procedures tw dry can beang and unloaang. DD 97 3,43 NRC 83 (1977) 10 Cf R 72 214 apleoval procedwe for spes fuel stwage casks; DD-97-3, 45 NRC 80 m l$ (1997) 10 Cf R. 72 230 Safety Analysas Repwt requirenwm itw tend <es seeking NkC approsal of spent fuel storage casks, DD 974, 43 NkC 7) a 4 (1997) 10 C P R. 72.232 NkC inspection of vetulurs' fedlines ehere dry stware casks se fabr6caied DD 974,45 NRC 73 (1997) 10 C F R 72 236(b) content of SAR tw wnJors seeking NRC approva' of speni fuel siwage caks D(197 3,4$ NRC 77 a t, 73 a 11 (1997) 10 CJ R, 72 236(h) r:onsiderstmas la development of dry. cask unloading procedwes; DD-971,45 NRC 39 (1997) 10 CI R Part 73 secunty plans fw research reactors; DD-9716. 45 NRC 491 (1997) 10 C F R 73 71 lied Phone atencation, dcAnit.on 90 DD 97 6,4$ NRC 470 n24 (1997) 10 C F R. 74 thaxil fallute to subnut material status reporss; LilP.97 7,45 NRC 292 (1997) 10 Cf R Pan 100 offsite dow coasequences fw heavy kud handhng over spent fuel pool. LDP-971,45 NRC 16, 21,28. I 29 a 16 (1997) 29 CfIL Part 24 disonnunainoa against emplirees frw togaging in protected methtuca, DD 97 6,45 NRC 223 (1997) 40 CJ lt 1508 8(b) delatoon of human health and environnental " effects"; LDP 97 8,45 NRC '76 a 3 (1997) 40 C F R 150s i4 dettuhon of human health and environnwatal

effects"; LBP-97 8,45 NRC )76 m ) (1997) 40 Cf R Part 192, Subpans D & E ennrotmwaial and ecomortue considerations in uwetials hcensing decismns, LBP 9710, 45 NRC 430 (1997) 49 C F R. Part 172 documentauon deAciencies in shipnum of radioacuve trwenals; 1.BP.97 7,43 NRC 289 (1997) 1 14

_ =_ i v 3

e J l IIG AL CITATIONS INDEX

                                                                                $1ATUll3 31 U S C, il 1341,1330 rein.chona on NRC empenetutes. C1197 6. 45 NRC 362 (1997)

H U $ C. $1401413 faeshty-telated impacio inganns une of navigable maters as injury in fact for purpose of stanang to 4 intervene LDP-97 9,43 NRC 421. 427 a 5 (1997) l Monuc Energy Act 119, 42 U $ C 5 2014@ NRC authority to approve poment of a plainuff's legal cosis in conneruns with a seulenwin CL197 6, 43 NRC )M n4 (1997) Alonus Lturgy Act, lik. 42 U S C 4 20le,ki ' '- 4 dentunon of rubbs habihty; C1197-6, 45 NRC 363 a 3 (1997) i Atanus incigy Act lie. 42 U S C.12014fm) / de6tutmn of Anancial proiccunn, CLI 97 6, 43 NRC 363 n 1 (1997) Aionue Energy Act,170h. 42 U $ C.12210th) ' , NRC penant of legal espemes incurred in connectmn with seulenruis, CLl 97 6. 4$ NRC 361, 362 j (1997) l pnar nonce and reasonableness of indemnity claims, CLI-97 6, 43 NRC 364, 363 (199') l Atomic Inergy Act,170k. 42 U S C 12210(U j standard for indenuuhcatmn sur anorneys' fees and caremes. CU97 6, 43 NRC 361 (1997) - i Aiemic Energy Act,132, 42 U S C 6 2232 i ., character aNl integnty required of NRC licenwes, Dt197 6, 4$ NRC 229 (1997) ' Atonus Inergy Act,182a - t requurment the '4censee inform NRC, poor to restart, of actions taken to emure that it would operate plant accor&ng su hcenu terms and conehens: DD 97.ll, 45 NRC .130 51 (1997) [ Atorrue inergy Act 157,42 U $C i2D7 revmon of techn cal speancanons LDP 971, 43 NPC 26 n II (1997) Alorme Energy Act, is%(1x At 42 U S C 2239 tax 1)tA) mtnumon entens for parties to enaienals beense amendment proceeangs, LDP-97 9, 4$ NRC 422 (1997) Atanus F.nergy Act. Itht!WAK (2WAt 42 U $ C 5 2D94lMA), (2Wa) issuante of hcense anwndment upon fin &ng of nu signincant barards consideration; LBP-971,43 NRC II a.2 (1997) Coruutution. Appropnanons Claus , art. l. 6 9. cl 7) resmcuens on NRC espemhtures, CLI 97 6, 43 NRC 362 (1997) I Energy Reorgaruranon Act. 2101211),42 US C 6 5854 Asennunatwa aga nas engloyees for engaging in proiected actmues; DD-97-6, 43 NRC 2D (1997) discnnunauon in niattet of quahricauon and trwnmg of health ph)sses techmesan; DD 97 7. 45 NRC . 260 (19971 + right of hansee emplottes to prmide safety Information directly to NRC, LBP.974, 43 NRC 275 (1997) Tsecunve Order l2R98 Federal Acuans to Altress Ir tronnrntal Jushee m Minonty Populanons and Low.lncome Pnpi..ahons. subacuon 1 101 taani esennunanon in siung of nustear facihty; LBP 97 8. 45 NRC 374. 376 (1997) 1 fl 1 '

i l l

LE: GAL CITATIONS INDI3 SThit'1Es Lae6utive Ordre 12891 federal Actiors to Address revironnicutal Justice in Minonty heputations and Ice incorre helatintis. section 2.7 federal actiores to address redat discrtnthauna la stie selection; LilP V7 8. 41 NRC $14 0997) Lascuhve Order 12898 lederal Actions to Adhess En*ironmermal Justee in Minority Populauarts and low inante hplaitons, sulmestion &fhe comphance of snevidual stenews with, l.ItP 97 8, 45 NkC 374 09V7) 1.necutive Order 12898 lederal Actions to Address Im6nemental Just6ce in Minority Populattota ahd low lacorne helations, subsectwo &609 purpine of nrder and rigle to ju&clal review; LBP 97 t, 43 NkC 374-78 0997) the level Ra&tective Wie Poiny Act. 42 U,5 C. 4 2021b er seg pinus %ty of appbcwW's strategy for esposal of syleied uranium talls. LDP 97 3, 45 NRC 110 a ? 0997) National linvironrnental Pulicy Act of 1969. 42 U.SC. 4 4124 et seg econorruc and socWogkal impacts of facihey stied in numtity votur:wnley; LDP 97.B. 45 NRC 371 0997) Hauonal Envirtmmental Pohc) Act of 1%9,102(2MA), (C). mul (L) anicquacy of $taff ativironmental review; LDP 97 8. 4$ NRC #74. 376 0997) 010C Prhaurauon Act, Pub. L No 104 04,100 titat 132109%). 42 U 5 C.12297h-ll disposal strategy for depleted uranium tails, LDP.97 3,45 NRC 109 (1997) USIC Pn*mbrauon Act, 42 U S C. 42297b ll(axikBl. (aK3) DC;8 responuhihty for esposal of depleted uranium tails; LBP-97 3,45 NRC 110 a.7 099h U$tC Pihahronon Act. 42 U 5 C 12297h ll(s), (c) plausibihty of apphcant's *irasegy fiv 4sposal et depleted uranium tails, LDP.97 3. 45 NRC ll0 n1 0994 U$lC Pnventauon Act 42 US C.12297h-ll(b) opuons for depleted uranium tails esposal. LBP 97 3, 45 NkC l10 0997) U$tC Pnvooration Act. 42 U.5 C. 6 2297h-ll(c) state habihey for maste minbutabk to private uranium enrichment facihty; LDP 97 3,43 NRC 123 (1997) 1 16 I i j . .: e - 7 ,- .- . , - - . , , - - , ., .

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I 1 l J l i l

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i i

l l I i 1 l 1 1.I'G Al. CITA'IIONS INDI X , Ollli R5 l 1 '

                                )l A ClS fudem e 1846. at 315 22 tvunnen of pennf on gmeninemal etnines. LitP 97.1, 43 Nkc 271 (199h q                                 17A Am Jut 2d Contruiu 5.11i8. si 41916 (1941)                                                                               ,

I resoluunn of lanzunge cotntrustom laines retaine hi interpretauun of te,,inual speuhtaunni. l.itP 971. 41 NRC 19 (lWh ! Itamage Claims t!nder the Atonne I ntngy Act.1 U $ Op OLC 137,19 A ti) flV7h l uw of gmeinnwnt in.lenunty nenry to pn> anoinrW fus and eyicnin. Cl.197-6 49 NkC .%2 l I (1997) ! led k Civ P 11 / pnnr intur and reamnableneis of indenauiy claims. 01.197 6. 49 NitC 369 (IV9h L led R Cn P $Ncl O uandard for seding sununa'y dnpoutmn litP 971. 41 NkC 13 (19sh b i H k ker No 2% ti h Cong t . las Seis 21 (193h f l , ww of governmrni indenauty nwnry to pay anoenrys' frei and egensei. Cll 97 6. 45 NkC .42 n 2 / , l tlV9h r a lmerpn4tauon of the Analef oon Acl. l-de 16197741 19h0 WL lt.940. at '4 (C G ) H *

 ;                                  t ar oli indemmfhanon for legal eyentes. Cl.197 6. 45 NRC 363 (IV-J71                                  ,(     $

I Charics Il Lwh. If, Adminun rne w la und PractN e 5 6 44 (19!!$1 y ( burden of proof on applicarpi. l.itP 97 3. 43 NHC IN (199h

l kicimwandum fx the lleads of All fir;anmems and Agenues. 30 Weekly Comp hes Ikic 279 tirb 14 -

l 19'*41 ~ NRC comnutnwn! lo implenant emirontr ental jutuce dunuve.1.14P 97.A. 43 Nf'C P4. P9 (199h j , l\rburr's Thoril New Internatumal Du rwaan 1736 (19719 .J dehmnon of "plauuble" and "strairgy" relaine in uranium tails dariu.al. LitP 97 3. di NkC 103 (199h a 1 17 1 4 a

    - , . ~ . , . - , - - - - ,            ---- - - - -

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                                                                                $UlijrCT INDI:X i

I ACCIDLN15 j todouum-llS. reporung regerenetas fot. Ll6P 97 7,4$ NRC 26$ (1997) indrogen gas ignisma daring welding of venulaied ohnge cants, DD 97 l$,43 NRC 47) (1997) ADMlulON Of PARTil.5 la informal trarmgs, requirentras for; l. IIP 97 9, 43 NkC 414 (1997) ! l i Af klCAN AMI.RICAN COMMUNiilL5 6 l sitmg of huslew fanhites an. LbP 97 8. 4?. ARC 367 (1997) l l AGkl.LMI.NT 5 tall turnace bribery of state othdal. DD-97 2. 43 NRC 63 (1997) l AMI.NDMLNT [ 5ee Hyproduit Malenals IAenne Anendnwnt. Operating Lkenne Anendnents l AMICUS CUklAL . t I bneis supporting or opposing peuuons for review, CLI 97 7, 43 NRC 437 (1997) sute of participanon, ClJ 97 4, 45 NRC 93 (1997)

                                                                                                                                                                     . .                                   l APPIICAh f 5                                                                                                                    /

l>urden of proof on. I flP-97-), 4$ NRC 99 (19,7) A70MIC LNERGY ACT hearing rights on enftecenwm actiorts DD 97 2. 45 NRC 63 (1997) [ anierpreishon of sechon 170h, CL1-97-6, 45 NRC 358 (1997) l henne anwndirents. LilP 971, 45 NRC 7 (IW7) luenung standards. DL197 6, 43 NRC 144 (1997) < t standing so inte.vene 6n fruiserials hceme anendnent protecang; LhP-97 9,43 NRC 414 (1997) ATTORNLY5' TLI5 AND LXPLN5L5 incund in detenne of tort suits, NRC paynwnt of. Cl.197-6, 43 NRC J33 (19973 # Drill 5 . adwdule and page-linut adlustntats for respome and reply to anueus cunae, CL197-4 di NRC 93 (1997) BRifTS. APPLllA10 challenging hcensing board apprmal of settlemrnt agreenent, CtJ 971, 45 NRC l (1997) scheduhng of, CL197J, 45 NRC 49 0997) slecinetty reqund in. CLI 97 2, 45 NRC 3 0997) DURDEN OF PROOF on appheants. LBP 97 3, 43 NRC 99 (1997) on governnwN enuhel, LDP 97 7. 43 NRC 263 0997) . i BYPRODUCT MATLRIALS LICLN50 twanng rights on enforcenwnt acuans. D(%97 2. 45 NRC 63 (lW71 BYPRODUCT MATIRIALS IJCENSL AMLNDMLNT to show irereased done to visitors of radiauon ther.gy paoents. LBP 97 3,43 NRC 128 0997; CADMIUM ll$ seculent, reporting requirernents for. LDP-97 7, 45 NRC 263 0997) \ CIRTilICATE OF COMPLIANCE appbcabahty of irrms and condiuans to geswral hcensees, DD-97 3, 43 NRC 71 (1997) f r s e l l'19 d i i i

        ,. - - , _ - . _ - - - , - _                                               , - , ,      , _ , , - ,. . . - - - .    , . , _ . . . , . , - _ . , ,-,--.__e-             __._,,.,-_,,__,.,,.,_,_-__)

Sl'lijECT INDIN P COD AL T-60 contanonsuos of seeet hnes wuh. Dth9713. 49 NRC 460 (1997) COMf'LN1A10RY DAM AGIS to privaie individuals. 09mnussion authority to require a hcensee kr psy; D(L9113, 4$ NRC 460 (1997) CONCRL1E YhC.24. t6erinal performance of, DD 97 9. 43 NRC 328 (1997) CON $1RUCilON Of 11RM5

                                                                         *encepl* la technical spechtauuns.1.BP-971, 49 NRC 1 (lW7)                                                                                                  i plain nwaning of ttm language; 1.tP 971,43 NRC 7 (1997) subsequerd revisions, weists given to; LDP 971,49 NRC 7 (1997)

CONTAINMLNT ISOLATION VAtVL5 surve6llame testing of, DtL974. 43 NRC 144 (1997) CRACKINO of reactw 6nternal compmwins. DIE 97-5, 49 NRC All (19971 tivough-wall. of snultiple safety. class cotuponeres, ')D 97 8. 43 NRC 31$ (1997) CRrflCAllTY of siers fue! &n dry stwage casks dunng onloading, DIL971,4$ NRC 33 (1997) DLCAY HLAT RI'MOYAL SY$TLMS . design dehewncies la, DD.97 8. 43 NRC }l$ (1997) DLCOMMisslONING twanns rights on: DD 97.ll,43 NRC 4h0 fl9971 poneuson.only h6eme hw purpine of. DD9110. 43 NkC 429 (1997) Di COMMISSIONINO IUNDING disposal of deplewd uranium tails, renonable assurante of.1.11P 97 3,43 NRC 99 (1997) DLCOMMl%510NING IUNDING PLAN eunte:W of, l.BP 97-). 43 NRC 99 (1997) bcene conannte segmeng pmof of popmed slag disposinon enethal. DD.9710. 43 NRC ))8 (1997) DI CONTAMIN ATION pussessit+only bcense for purpose of, DD 9710. 43 NRC ))B (1997) Dili.N10 IN Dif161 POLICY lechnical spectAcanon changes and, LDP.971,43 NRC 7 0997) DLI1NillONS Ananaal potecuon. C1197-6,43 NRC 338 0997) pubhc habibly CLl-97,6. 43 NRC 3$$ (1997) DLPAR1 MINT OP LNEROY responsibshey for disposal of depleted uranium tails thp.97 3. 4f NRC 99 (1997) DLPARTMINT Ol~ LABOR Juris&cuon over emplefee poiection. DD-97.7, 4$ NRC 2$8 (1997) DESIGN dehciennes is spent fuel pool decay heal renwval systems and containnwat systems; DD 97 3. 45 NRC 3t$ (1997) of NUHOMS dry-shwlded camstets for spent fuel storage, DD 97 3. 43 NRC 11 (1997) DlL1LL OENI RA10R$ repurung and reliabiht) issues; DD.974,43 NRC 144 (1997! DILUTION VALVES open when seguired to be ckmed. DtL974, 4$ NRC 144 (1997) DOSE See RShanon Dme DRY.CA5K STORAGE preuurt anon hauts Dt>971,49 NRC 33 0997) unkahng of rnuluassernbly badet of V$C.24 cada, DD 97 3,49 NRC 13$ (1997) unkwhns pocedwes DD 971,43 NRC }) 0997) 1 20 i t T

                   ,                                                                               -. ,.                                                    _ m.    .-        ..---.                                , ._ .. _ -.

SMlJI:CT INDEX LLTINOMIC lMPACTS of proposed sue on Afttran American cosnmunines; LBP 97 8,4$ NRC 367 (1997) IMDkttTLLMLNT of tracite internal cortgarms. DD 97 8. 4$ NRC 31$ (1997) LMPLOYl.L DISCRIMINATION for t* gaging la potected actJvines. D!>974,43 NRC 144 0997) LNf 0RCLMI.NT ACllON ersteria fut refusal la authortre a renend boeme; LBP.97 7,4$ NRC 263 (1997) er alation of, Di>97.ll. 43 NAC 347 0997) hearing rigins on DD 97 2,43 NRC 6) 0997) LNIORCLMI.NT l'OLICY apphcable to pocedure conglistne, work control, and tagging control violations; DD 97.ll,45 NRC h 7 0 997) severny of violasmas; DD 97 4,4$ NRC 86 (1997) LNYlRONMI.NTAL IMPACT $1 AllMLNT for site deconunissiomng and disposal of sing pales, DD-97.ll 4$ NRC 449 0997) LNVikONMf.NTAL JU$11CL racial discrirninnhon in saw wiectum pecessi LBP 97.ll,49 NRC 367 0997) LYACUAllON dunns terrenst anatk on research reactor, concerns about DD 9716, 43 NRC 487 (1997) FYlDLNCE tesuneny of governnwns officials. LBP 97 7,4$ NRC 265 0997) LXAMINA7 ION seutut operakt beense, score rounarigi LBP 97 2,45 NRC $10997), LBP.97 6,43 NRC iM 0997) sentar reactor operator, conectness of answers; CLl 97.$ 43 Nk". )$$ 0997). LBr.97.ll,43 NRC 441 0997) semur reactor operator, tourding of sectes; CLI.97-$, el NRC )$$ (1997) LXPORT APPLICATION m pnmi of proposed slag dnponnion nwihod, license condiuon tequiring, DD-9710,41 NRC 338 0 997) LXTI.N510N OF 11ME for congletmn of redon twrrier for tiranium mill tailmgs, LBP 97 9,45 NRC di4 0997) FINAL r.NYlRONMENTAL IMPACT STATEMLNT standard for judgint adrquacy of $taff treatners of various impacts in: LDP-97 8,4$ NRC 367 0997) supplernenlanon in brensing board decision and andalytag a4udicahey record. LDP-97 3. 43 NRC 99 0 997) FINANCIAL PROTICTION deAmtma of, CLf.974,43 NRC )$8 0997) OENLRAL Licimsts nuihnruariun for onsite strage of sperd nuclear fuel DD 97 3,43 NRC 71 (1997) OLN!R ATOR5 See thenel Genermors Of.NLRIC COMMUNICATION 5 applecanon and regulatory status of; LBP.971,45 NRC 7 0997) OOVERNMLNT PARTIES standard of proof, LBP.97 7. 45 NRC 263 (1997) HFALTH PHYSICS TECHNIC;AN$ 9ual:Acanon and traimng; DD 971,43 NRC 258 0997) HIARING REQUlkEMINTS on materials hcenses; 1 BP.97 9, 4$ NRC 414 0997) HLARINO RIGHTS on decommisskwng: D!>97 8),4$ NRC 460 0997) on enfo cenwns accons, DD 9714$ NRC 6) 0997) 1 21 i

1 SUBJECT INDEX , I l INFORMAL Hl.ARINO$ seas of soutere specahed in support of twanos recarst. LSP-97 9. 43 NRC 414 (1997) formal. inal type pocedures in; LSP.97 9, 43 NRC 414 (1997) party edrtussen requerenevas. LBP.97 9. 4$ NRC die (1997) standing to truervene an. LBP 9710,4$ NRC 429 (1997) INJURY IN I ACT in enaienals beense anendnwen proceedings; LBP 97 9, 4$ NRC die (IW7) IN5PICllON See NRC Inspecime INTLRYLNTION PLTITIONS prtneeuve, few peservatwn of nynority owner's Amerest; LDP 97 4. 45 NRC 12$ (1997) treawd as request fur tranng ce transfer of ownership; LBP.97 4. 43 NRC 123 (1997) JURISDIC710N Comnveston authority to require a bcensee to pay compensalory damages to rivate individuals, DD 9713,45 NRC 460 (1997). employee protection; DD-97 7,43 NRC 238 (1997) where tnotion for reconsideratam has been 6ted LDP 974,4$ NRC 130 (1997) LIAltiLTTY pubhc, fie legal cosis; CLI-974. 4$ NRC 334 (1997) LICE.N50 CDNDITION proof of propised slag disposman meihed as, DD 9710, 45 NRC 338 (1997) L.lCLN51.E CHARACTLR inaragenent attitudes and credMillyi DD.974. 43 NRC 144 (1997) stanJards for; !)D 914. 43 NRC 144 (1997) LICl.N112 [VI.NT RLPORTS

      ta!.ang*l DD-V7 6, 43 NRC 144 (1997)

LICIW1LI.5 appinabihty af tenna aml torkhhona of Cemncate of Complaarre fur dry storage cad to. DD 915 di NRC 71 (1997) LICLN5LS construcuan of terms, LitP-971,45 NRC 7 (1997) See also It>poduct Maunals utense; Rectur Operwar Ucense LICf.NSING ttOARDS junediction mlere numon for reconsiderallon has tven Med, LBP.074. 43 NRC 130 (1997) r-vwn, scope of, LBP.97.7. 45 NRC 265 (1997) weight given to teshnmay of espert witnesws; LBP.97 7,45 NkC 26$ (1997) MAINTLNANCE signout proce&ses to nrasunng and test equipnent violahotu of, DD-97-4, 45 NRC 86 (1997) MANAULMLNT organisational structure. acceptability of, LBP 97 7. 45 NRC 263 (1997) MANAGLMLNT COMPETLNCE research remetts, concerns about; DD 9716. 45 NRC 487 (1997) MATI.RLAL FAL5E STATLMINT deAninen of. DD 374,45 NRC 144 (1997) MATLRIAL STATUS REPOR15 violation for unumely 6has of. DD 9716. 4$ NRC 487 (1997) MAllRIAL$ LICLNSE AMLNDMINT hcensee uutlated. LBP 97 9, 4$ NRC 414 (1997) to pernut receipt and pacessing of shornanve feed matenal. LBP 9710. 45 NRC 429 (1997) MAILRIAL$ LICLNSE AMENDMINT PROCILDIN95 stan&ng to imervene in. LDP 9710, 4$ NRC 429 (199T) MATLRIALS LICLN5LS beanns requirenwnts on; LBP.97-9,43 NRC 414 (1997) 1 22 r-- -. -

                                                                         ,,-~%          -.               -w--     - .-, --

SUltJ1:CT INDI:X tegerenrut tw ponnesuoa of suboscove slag DD 97411, 43 NRC 449 (1997) MODL CHANOLS wuh segmred equipnent innperable, DD 97 6, 45 NRC 144 (1997) MUL11AsstMBLY $LAlLD BA5 ALT cophrig stad, DD 971. 43 N*,C }) (1997) weld defecu in; DD-971,43 NkC 33 (1997) NATIONAL INVIRONMUffAL POljCY ACT envirurmemal Juince, LBP 97 8, 43 NRC 367 (1997) NOTICL DT VIOLATION tw esceouve esposure rates in investricted area, DIk971),45 NRC 460 (1997) NRC d.scenen in issuing, D!k974, 49 NRC 144 (1997) NRC INSPI CTION of fabncaunn faahues fut NUHOMS dry storage cankt DD 97 3,43 NRC 71 (1997) NRC $1Alf RI.VlfW of Augn of VSC 24 casks. Dft97 il 43 NRC 475 (1997) NUCLLAR ktXJULA70RY COMMisslON audumty to require a heenice to pay comperantory damages to prnve tidsvnduals, DD 97,1),49 NRC 460 (1997) Indennuty clasms, consideranon of, C11-97 6. 4$ NRC 358 (1997) Jurudsetton over entl ope prtecuon, DLkv7.1,43 NRC 238 (1997, OPLRA7tNO LICEN10 status pembng bcensing baard Atuon on renewal arthcanon, LDP 97+7,43 NRC 263 (1997) OPE RA71NO IJCINSE AMLNDMLNT Conutussion gnocedures to 14 folkwed on alth canon for, DD-9714,43 NRC 472 (1997) technnal spechauen changes, LDP 97,1, 43 NRC 7 (19971 fm transfer of spem fuel imm wet to dry siwage, DD 97,14, 45 NRC 472 (1997) OPLRATING LJCENSL AMLNDMLNT PROCELDINGS lieues fw conuderanon in; lliP.971, 43 NRC 7 (1997) OriRATINO 1JCIN!,E RLNEWAL cruerial tw refusal to gram, LDP 97 7, 43 NRC 263 (1997) grant of, LHP 97 7, 49 NRC 26$ (1997) PO5$f.55lON ONLY UCLNSE for decomnusuorung and demnianunatloa pwposes, DD 9710, 43 NRC 338 (1997) POWER. ONSITE for spem fuel pool coches DLL97 8, 43 NRC 315 (1997) PRICL ANDLRSON ACT NRC payment of anwrwys' fees and espenws; CLI-97 6, 43 NRC 358 (1997) PkOCEDURL COMPLIANCE violauon of, DD 97 ll, 45 NRC 347 (1997) PROOF See Burden of Proof RACIAL DISCRIMINATION in ane seleeuon, NRC Start invesinganon of, LDP.97 8, 45 NRC 367 0997) RADIATION DOSE to Hutors of radianon derapy panes densal of byproduct maienal brenne artwhdnunt to inenase, LBP 97,5,45 NRC 128 (1997) RADIATION THERAPY dones to uutors of panenia; LBP 97 $,45 NRC 128 (1997) RADIOACTIVE CONTAMINATION of newer knas muh cobals-60, DD 9713,4$ NRC 460 (1997) RADIOACTIVE WA5TE 5)$TEMS alleged operanoa and inunudation of plant review board members la connechon wnh, DD 97-6, 4$ NRC 144 (1997) 143 l 1

SUllJECT INDEX RADON BAkk![R$ fw uranium nell smhrige. euensare of unw for correnrunn of, LIIP 97 9,43 NkC 414 0997) RLACTOR INTLRNAL COMPONINil endetalenern and cracking; DD-974,45 NRC 31$ (1997) klACTOR OPIRATOR t.lCl]41: esamination sewe i hP 97 6, 4$ NRC 130 (1997) RIACTOR OPTRATOkS eterunntion nws, itP47 2,4$ NkC $1 (1997) kl DUTI AllLL l'RLAUMlilON d attaded to wak of govevaners officials, LDP 97 7. 45 NRC 263 0997) R1 CON $lDI R AllON of Comnussion decisma to declaw review of an lasue, CLl 97 2, di NRC 3 (1997) Rt.CONMDI R ATION, MOllON IOR inthsing bowd Junedieuan. LBP P74. 43 NRC 130 (1997) new argunwnis or et. den e in, LDP-974, 4$ NRC I)0 (1997) Rf 0ULA10RY GUIDL5 apphsaima and regulatwy status of, l.BP 971,4$ NkC 7 (1997) inierpretathm of. L BP 974. di NRC 130 0997) RIQUI$T IOR ACTION on tatues penang betwe a presiding offd.e. durosuion of, DD 9716, 43 NkC 437 (1997) kl51 DUAL HLAT RIMOVAL PUMP failure to declar9 inoperabihty and etuer LOO. DD 974,4$ NRC 144 0997) Rt.VII:W bcensing liomd. scite of, thP.97 7,4$ NRC 26$ 0997) of hcensing bowd approval of sentenera agreenwnt. standant for; CtJ.97 l,45 NRC l 0997) of partal inshal decisaan on enn6hness facinny bcenung, CLI-97-),4$ NRC 49 0997) reconsiderauon of Cornnussion decision to deshne, CLl 97 2, 45 NRC 3 0997) RFVILW. PL1tTIONS IOR ammus curtas bnefs suitorung or opposing; CL197 7. 41 NRC 4310997) RULE Of kEA$0N startard fw judpng adequacy of $taff treatmets of vertous impacis in the Fils, LDr.918. 43 NRC 367 (1997) RULLS OF PRACTICL amkun cunne bnefs suppurung or opposing pensions tw revice; CLJ-97 7. 41 NRC 477 0997) anucus eunw. uppe of perucipation; CLl 94 41 NRC 95 (1997) tsurden of proof on apphcants; LDP 97 3,45 NRC 99 0997) hearing requirenwnt on anaterials hcense LDP 97-9. 4$ NRC 414 0997) infwnst branags, pany adnvasion requitements; LhP 97 9,43 NRC 414 0997) infwmal learings, specthcanon of areas of concern; LDP 97 9,45 NRC did 0997) infwmat hearings weing other pmcedures; LDP 97 9. 43 NRC 414 0997) interventmn penuun treated as request im heanng on transfer of owtesship, LBP 97 4, 43 NRC 113 0 997) reconsklerstma notions; Ctj 97 2. 43 NRC 3 0997) requitenwats of deetsions; LBP 97 7. 4$ NRC 263 0997) shmauw pacevang. purpow et DD.97 2,45 NRC 610997) showing necearvy for tamns tw* issues on appeal; LBP-97 II,43 NRC del 0997) standard for 6ns.ituttoo of show<ause procwomps; DD97 4,4$ NRC 66 0997) stanang to invervene 4e enmettals hcease amendnwnt proceedmg. critena for; L DP 97 9,45 NRC 414 0 997) SAILOUARDS alleged concentnwns of potlems; DD 974. 43 NRC 144 (1997) 1-24 I i

k SUBJECT INDEX

                                                                        $AftTY ANALY$ls kLpORt seguireness fw venders seeking NRC approval of spem fuel stmge ranks; Di>97 3,43 NRC 71 (1997) 1CHl.DUlj.

brie 6ng. for review of parual tronal decision on enthhnwne fadhty heenutipi C1.1-97-),43 NRC 49 0 997) brie 6ag, so necount for amicus runae parudpation. CLi 974 4$ NkC )$ (1997)

                                                                         $lCURITY 11AN at researdi semitre, etwwerns about lainess and emuanon during terttent attatk; DD-9716,45 NRC 487 (1997)
                                                                          $LN10R ktACluk OptRATOR de6tupon of, LBP-97 2. 43 NRC $10997) esaminanon quesunni. currecitess of Clj 974 43 NRC M$ H997); IJip 97 li, 43 NRC 441 (1997)
                                                                          $1RVICL 01: DOCUMLt(!$

far Convivision tetwo of pernal Initial dretsion on ennchttwns facshty hcendog; Ct.197 3 Al NRC 49 0997) SL1*flJ MlyT AGR1LMLNTS challenges to licensirig board as1weval of ClJ 971,41 NRC I (1997)

                                                                          &LWLR LINL$

ts&owave conianunauen with cobah 60, DD-9713,45 NRC 460 0997)

                                                                           &HOW CAU$li pM(K1LDIN05 erpropnate focus of, DD 97,2, 4$ NRC 65 0997) purpune of, DD V7 2,43 NRC M H997) standard for ineutuuon of, Dt197 4,45 NRC M (1997)
                                                                           $HUIDOWN dunng transfer of spens fuel from wet to dry storspe; DD-9714,49 NRC 47) (1997) tidugin. nuncalculauon of, IC97 6, 49 NPC 144 0997)
                                                                           $1Tli kl MLDIAllON enheenied raduectM sirs, DD 9712,45 NRC 449 (1997) i                                                                            &IlL $1LICTION sacial disennunauon in LDP 97 8. 4$ NRC 367 0997)
                                                                            $1AG, RADIOACTIVL financial assurance of plan for dispcastion DD 9710, 49 NRC 338 0997) site temridisuon and deconutunnioning r<meertas; DD9712, 4$ NRC 449 (1991) 80VI.RLIGN IMMUNITY DrtCTRINE Mar en paynent of anwtrys' fees and etpenatures in hght of, CLi 97 6. 43 NRC )$$ 0997)
                       -                                                    $pf.NT IUIL claahng. 4twemal periarrnarwe of, DD 97 9, 41 NRC 328 0977) dry.cun stmge on site at nusicar power pianu; DD-913,49 NRC I)$ '1997) insegnty during conhns, IC97,1,41 NRC 3) 0997) transfet frinn wel to dry sneage, shuidown dunng; DD 9714,43 NRC 472 0997) uphuuhng procedures for dry storage casks, violaunns of requirernents for; DD 971,43 NkC )) 0997)
                                                                            $p0f(T l'OLL p00L

'- buihng. uneae. boil calculauuns. DIL97 8. 45 NRC 315 0997) coohns, analysis and mangauon of areas of anacomphance Dikt? 8, el NRC 31$ 0997) decay heat renunal systems, design deAciencies in. DD 97 8,43 NRC 315 0997) heavy load handhns owr, LDp 971,43 NRC 7 0997) reservanon of 6:ed numter of vacans spaces to permn retneval fiom V$C 24 cask; DD 919,43 NRC 328 0 997)

                                                                             $p0NT l'ULL $T0RAGL design dehewnews in NUHOhl3 dry stuelded cantsiers; DD 97.),4$ NRC 710997)
                                                                             $TANDING TO INTERVENE cosutruction of peuuan la making e driernunanon on; LBP 97 9 43 NRC 414 0997) 1 28

SL'Itjlfr INill:X t i craieria fw estabinlong. L11P 97 9,49 NRC 414 (1997) ' factual repesentaupris,1BP 97 9. 45 NkC 414 (1997) la infartnal proceedingt LDP 9710, el NRC 429 (19973 irijury in fact to tunimaals hceme anrruiners procee&ngi, thP 919,43 NRC die (lW7) intme tediological espt enres as trQury la fact, LDP 97 9, el NRC 414 (1997) nesus to ra&ological imparts; P 97 9,43 Nk0 414 (199h cfhne radmkegnal impsL1s as jury in fact. LBP-97 9,4$ Nhc die (1997) supl4 tem.tal Ahtige to folhli tequirenants for; LDP 9710, 4$ NRC 429 (IW7) .

                          $URVIJILANCE.                                                                                                                         t testeg of tentaitmeta ionistina valves; DD-97 6. 43 NRC 144 (1997) 8YNI.koisiIC f!ILCT&

of #wough wall crmking of multiple saft:M ass l componenu DD-97 4. 43 NRC 313 (1997) TA00lNO CONIROL v6olatkin of DD 97-11, el NRC 347 (1997) TLCHNICAL $PLCillCATIONS changes regeding heen ked handhng over spent fuel pool LDP 971,43 NRC 7 (199h consuvetion of de tenn "escept'i LBP-91 l, di NRC 7 (1997) 1ERRORl5M ansk on research reactur. evacuation coewerns, DD 9716,43 NRC 487 (1997) TISIIMONY of gnvemnene otheials LDP 97 7,43 NRC 263 (199h TI.511NG swveillatus, of coniamnent isolanon valves. DD 974, 49 NRC 144 (1997) - THLRMAL PIRIORMANCE of fuel sta&hns and Y$C 24 enacrete, DIF91-9,49 NRC 328 (1997) THI RM Al HYDR AULIC MODIIING coolms pacens for dry casks; DD 97 8,45 NRC 33 0997) TRAN$lIR OF LICLN51 illegal. DD 974. 45 NkC 144 0997) TRAN511R OF OWNIR$ HIP disminal of potec9,e inserventmn petiuna and ternunation of proceedmg. LDP 97 4, 45 NRC 123 (1997) URANIUM Mill TAILINGS disposal, ressmaibihiy for; t hP.974 43 NRC 99 (1997) entension of completion d,ite fue redon barner, LDP 97 9. 43 NRC 414 0997) U$1C PRIVAtlIAll0N Ali depleted uratuum tails disposal, LDP 974 4$ NRC 99 099h VALYL 3 See Containnen: 1solanon Valves, Dilut6an Yalves VLNDORS NRC inspection of facihties. DD 971. 43 NRC 71 (199h VLN1tLATLD STORAGE CA$K$ hydrogen gas accident dunns welang of slucid hd DD 91 l$,43 NkC 473 0997) kahng of spens fuel in: DD 97 IS. 45 NRC 475 0997) teservauon of hsed number of vacant speece in spent fuel pool to perndt retneval from; DD-97 9. 43 NRC 328 0997) VIOLATIONS noncited. DD-97 4. 43 NRC 86 099h of procedure cornphance, work control, and tagging conert4 !)D 97.ll,43 NRC 347 099h of signout procedures to nrasuring and test equipment, DD 97 d. 4$ NRC 86 0997) repetiuve, deAniuon of, DD 97-II, 45 NRC 347 0997) See also Notice el V6clatum I 26

                                                                    -.. .- - _ _ = _   . .. .. -

SUllJECT IND13 W11bs delats in nailtimenMy waled ticket; ($971, el NRC }) (1997) WIINEA$L5. LXi'tRT licensing ked rehance on testinsey ef, lllP 97 7. 43 NRC 261 (1997) WORK 00N1kOL Yk>lation of, DD 9711,43 NkC M7 (1997) r k i 1 Y i 11

l l ) 4 l l I l I i

l i 1 l'ACil, LIT INDI:X l h ARKAN5An NUC11AR ONL, Usuta l and 2. Ihket Nos $4315, $448,7213 I ktQUI ST IOR ACilON, Mwth 4,1997, DIRIC10R'$ bl.C1510N UNDI k 10 C F R 6 2 206, f i I DI197 5, 43 NRC I)$ (1997) ' i RIQULST FOR ALTION, Apnl 17, 1997 DIRIGOR'S DLCislON UNDLR 10 C F R 6 2 206, ! l DD 97 9, 45 NRC 325 (!W7) k!QULST IOR ACTION, Jure it.1997 DIRIGOR'S DiCISION UNDLR 10 C f R.12 206, { ( DD 9713. 45 NRC 475 0997) I l CLAlbORN3 l_Nk!C)! MINT ClN!!R. [wket No 70 3070 ML CON 51kUGION PLRMfi-OPERAllNG 1.lCI NSL l'ROCi f DINO, Much 7,1997, l' ART!AL l INITIAL DICislON (kenolving Conunisons B and J 31. LDIN97 3,45 NRC 99 UW7) ' CON 51RLCllON Pl RMIT-OPE RATING LICLNSL PROCLIJ) LNG. May 1. lW1. l'INAL INillAL DiCISION (A,$ dressing Contention J 9) t ilP 97 8, 43 NRC 367 (1997) f CONSTRUCTION Pl.RMTT OrtRATING l.lCLN5L PkOCLIDING, Jurw 30,1997 ORDl R, ' Cil 97 7, 49 NkC 417 0997) M A11 RI A13 LICIN5L. January 29, 1997 ORDLR. CtJ.97 2, 45 NRC 3 0997) / ' M ATI filALS LICEN%E,, Telvuary 11.199h ORDfk. C1.1913. 45 NRC 49 09V7) i M All kl A1.5 LICEN5L, Mar h 21,1997 ORDIR CLt 97 4. 43 NRC 93 0997) {

l CllN'lON IV%I k $1 AllON, Unit 14 thket No $4461 OLA L-t i OPLR ATING LICl.N5L AMLNDMIN1, March 11.1997. MIMORANDUM AND ORDTR l (1emonaung Procereng), LitP-97 4. 45 NRC 12$ 0997)

DAVIS llL5%L INDLPLNL) TNT SPLNT TULL STORAGE INST ALLAllON, Iwket Nos 30.346, 12 1 % f. i 6 l(l QULSI IOR AGION. february S 1997, DIRIGOR'S DLCI5 ION UNDIR 10 C F R 6 2 206, DD 97,3. 43 NRC 71099?) GIOROIA TLCH kl5 LARCH RI ACTOR. Atlanta. Georgia. [bekst No $4164 ken OPL RATING LKTN50 kl.NLWAl.; Arnt 3.1997, IN!!!AL DLCISION, LBP 97 7, 45 NkC 263 l 1 0997) RLQUEST TOR ACilON. June 27,199h !!NAL DIREC10R'$ DLCISION UNDE R 10 C F R } I 12 2Dh, DD 9716. 45 NRC 487 0997)

l HATCll NUCtLAR PLANT, Units I and 2, Dmket Nos $4424 54425 i

l REQUI5T IOR AL7 TON, Mare 18,199h DIRf CTOR'$ DICISION UNDLR 10 C F R 6 2 206 [ Dt>97 6. 45 NRC 144 0997) i MILLSTONE NUCLLAR POWl.R STATION, Urut L [hket No 50-245 ! RIQUIST FOR ACTION, lehruary 11, 1997. D!kECTOR'S DL C1510N UNDik 10 C F R 12 206, j Dft97 4, 45 NRC $6 09971 i Mll.LS10NL NUCt.LAR POWER STATION. Units 1,2. and ), twket Non 54243, $0 3%. 50 423 l l i RIQUL5T LOR AtilON, A niP 29. 1997, DIRfCTOR $ Dt. CISION UNDER 10 Cl R.12.206. ' l DL197 II, 45 NRC 347 0997) I ! MOAIL UT AH FACIt.fiY tuket No 40 3453 Mt.A 1 MATiklALS LICEN50 AMLNDMI.ta, May 16. 1997, MLMORANDUM AND ORDf.R ([knying l Hranng Request). LBP-97 9. 4$ NRC 414 0997) i l l l l i , 1 29 i 1 l 1 i ! i j, I l 1

l'ACll.lTY INDl3 OY$1FR CRIIK NUCl1AR OLNERATING $1AllON, [hkel No $4219 Ort RATING IJCLN1f AMLNDMIN!; January 31. 1997 MLMORANDUM AND ORDt.R (Rulmg to $vnenary Disponsilon M<*oni, LitP 97.I. 45 NRC 7 (19971 klQUI ti IOR ACTION, April 2.1997; l'INAL DlklCIOR'S Dl.Cl510N UNDIR 10 CJ R 4 2 2% Dfk97-8,43 NRC 31$ (1997) RLQUIST IOR ACTION; June 16, 1997; DIRLCIOR'8 DI. CISION UNDER 10 C1 R- $ 2 206, Di>9714, 43 NRC 472 (1997) PAISADit NUCLLAR l'LANT; thkel Non $4234,72 7 kt-QU18T IOR ACTION, Janumy 23, 1997; DIRLCIOR'S Di.Cl$10N UNDIR 10 C f R. 4 2.206, Di>971, 45 FRC 3) (1997) RIQUL5T IOR ACTON, March 4.1997, DIRI.CTOR'S DLCt%10N UNtiLR 10 Cl' R. 4 2 206, bl197 3, 45 NRC 135 (1997) kl4Ul5T l'OR ACTION, /*ril 17,1997; DIRlL70R'S DLC1510N UNDt.R 10 C F k. 6 2 206, DD 97 9. 43 NRC 328 (1997) RIQUl:5T IOR AtilON, June ll,1997; !)lRLCTOR'S DLCISION UNDiR 10 C F R I2 206,

       !)D 971$. di NRC 475 0991)

POLNT BlACH NUCljAR PLANT, Vans 1 and 2 Dorket Nos $42fA $4301,72 5 kt:QUl8T l'OR Af'NIN, Much 4.1997; DIRf CIOR'$ DECISION UNDLR 10 C l R 4 2 206, DD.97 5, 45 NL, >$ (1997) kl4UF ST LOR ACTION, April 17,1997 DIRLCIOR'S DLCl$lON UNDLR 10 C F R. 4 2 206, Dtk97 9,4$ NRC 328 0997) kLQULST LOR AcilON, June 18,1997; DlkitTOR'$ DIC1510N UNDLR 10 CIR 12.206, DD 9715, 45 NRC 473 0997) VOOTLF LLICTRIC OLNIRATINO PLANT, Untia I and 2, lhket Nos $4)21, $4366 Rt.QULST LOR ACTION, March 18.1997, DIRLCTOR'$ DLC1510N UNDE.R 10 C F R 4 2 206. DL197 6. 43 NRC 644 0997) WHITL Mt.5A URAN!UM Milla ikket No 40 86M-MLA MAf t kl Ala 1.lCI;N51; AMLNDMINT, May 27, 1997, MLMORANDUM AND ORDIR (Addismnal filinge Required >, LitP 9710. di NRC 429 (1997) l 30

i I

                                                                                       -&- - - w - - - - - ,. c-y-9,,,7,,, m ,

        ----a   n      -c--         --      6         1 a- - n~ = - - .- a              ,ans     - - - - - - , - - - -~--- .-- ---- -..--. -----:-..------+ -nu n.       --. =          a NRC FORM SC                                                                                                                                                                                    {

(7 94) ! NRCMD 3.57 h COVER SHEET FOR CORRESPONDENCE USE THIS COVER SHEET TO PROTECT ORIGINALS OF '; i MULTl PAGE CORRESPONDENCE 4 4 6

              +   .--- , . --,, ,      s                          - _ .-, , , .,. . -. , , . , ,                                           -- .,.                      . - -       .. . -,,

                     = - > - - -           ---             - - - , .      -     .
                                                                                  .,_e +--                 . - - , , - . - + , - ----n-u     .a- e-a..-,-n                           .a .._ -.   - s.e.   -  m   .a,n .g e

NRC FORM SC (7 94)

            . NRCMD 3.67 l

COVER SHEET FOR CORRESPONDENCE USE THIS COVER SHEET TO PROTECT ORIGINALS OF MULTI PAGE CORRESPONDENCE i 1 4 l

  - - - , - ,                     ,----r               , - . , -            , s
                                               . , , ,               ---v                  . . , , . , , ,                               n                   . --,---- - - ~ . - --,           -     -  -   , --}}

ML20202G017

Text

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SUMMARY

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