ML20207H481

Nuclear Regulatory Commission Issuances for April 1999.Pages 311-409

ML20207H481
Person / Time
Issue date:	06/30/1999
From:	NRC
To:
References
NUREG-0750, NUREG-0750-V49-N04, NUREG-750, NUREG-750-V49-N4, NUDOCS 9906170078
Download: ML20207H481 (105)

Text

.

NUREG-0750 Vol. 49, No. 4 Pages 311-409

^'

, ;jV E

N'UCLEAR REGULATORY 1

T COMMISSION ISSUANCESz 1.

April.1999 p >" "'*ug s

9 o

a n

r

}fi

.t 4

o

+++++g u

'U RLNUCLEAR REGUt ATORY gOMMISSION 61 990630

~

0750 R PDR

Available from Superintendent of Documents U.S. Government Printing Office P.O. Box 37082 Washington, DC 20402-9328 A year's subscription consists of 12 softbound issues, 4 indexes, and 2-4 hardbound editions for this publication.

Single copies of this publication -

are available from National Technical information Service Springfield, VA 22161 i

f l

1 Errors in this publication may be reported to the Office of the Chief Information Officer U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 -

(301-415-8944) 1 l

\\+

'.5 j

l i

NUREG-0750 Vol. 49, No. 4 Pages 311-409 NUCLEAR REGULATORY COMMISSION ISSUANCES April 1999 This report includes the issuances received during the specified period from the Commission (CU), the Atomic Safety and Ucensing Boards (LBP), the Administrative Law Judges (ALJ), the Directors' Decisions (DD), and the Decisions on Petitions for Rulemaking (DPRM)

The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or have any independent legal significance.

U.S. NUCLEAR REGULATORY COMMISSION Prepared by the Office of the Chief Information Officer U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301-415-6844)

r-u

-i

{

j COMMISSIONERS Shirley A. Jackson, Chairman Greta J. Dieus Nils J. Diaz Edward McGaffigan, Jr.

Jeffrey S. Merrifield G. Paul Bollwerklit, Acting Chief Administrative Judge Atomic Safety & Ucensing Board Panel 9

.\\

7 I-CONTENTS 1

Issuances of the Nuclear Regulatory Commission AHARON BEN HAIM, Ph.D.

Docket IA 97-068.

MEMORANDUM AND ORDER, CLI-99-14, April 26,1999....... 361 HOSTON EDISON COMPANY and ENTERGY NUCLEAR GENERATION COMPANY (Pilgrim Nuclear Power Station)

Docket 50-293-LT MEMORANDUM AND ORDER, CLI-9917, April 26,1999......

372 DUKE ENERGY CORPORATION (Oconee Nuclear Station, Units 1,2, and 3)

I Dockets 50-269-LR,50-270-LR,50-287-LR MEMORANDUM AND ORDER, CLI-99-11. April 15,1999....... 328 IIYDRO RESOURCES, INC.

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

Docket 40-8968-ML MEMORA NDUM AND ORDER, CLI 99-8, April 6,1999......... 311 INTERNATIONAL URANIUM (USA) CORPORATION (Receipt of Material from Tonawanda, New York)

Docket 40-8681-MLA-4 ORDER, CLI-99-13, April 26,1999.

359 NORTH ATLANTIC ENERGY SERVICE CORPORATION, et al.

(Scabrook Station, Unit 1)

Docket 50-443-LT MEMORANDUM AND ORDER, CLI-99-16, April 26,1999....... 370 PRIVATE FUEL STORAGE, L.L.C.

(Independent Spent Fuel Storage Installation)

Docket 72-22-ISFSI MEMORANDUM AND ORDER, CLI-99-10, April 15,1999....... 318 lii i

i I

i i

]

F7 SHIEL.DALLOY METALLURGICAL CORIORATION (Cambridge, Ohio Facility)

~

Docket 40-8948-MLA MEMORANDUM AND ORDER, CLI-99-12, April 26,1999....... 347 TRANSNUCLEAR, INC.

(Export of 93.3% Enriched Uranium)

Docket 11005070 (License No. XSNM-03060)

ORDER, CLI-99-9, April 8,1999............................ 314 TRANSNUCLEAR, INC.

(Export of 93.3% Enriched Uranium)

. Docket 11005070 (License No. XSNM-03060)

MEMORANDUM AND ORDER, CLI-99-15, April 26,1999...... 366 Issuance of the Atomic Safety and Licensing Board YANKEE ATOMIC ELECTRIC COMPANY (Yankee Nuclear Power Station)

Docket 50-029-LA R (ASLDP No. 99-754-01 LA-R)

-(License Termination Plan)

~ MEMORANDUM AND ORDER, LBP-99-17, /wril 22,1999....... 375 1

Issuance of Director's Decision ENTERGY GULF STATES, INC., and ENTERGY OPERATIONS, INC (River Bend Station, Unit 1)

Docket 50-458 (License No. NPF-47)

DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206, DD 99-8, April 18, 1999................................... 3 81 FIRSTENERGY NUCLEAR OPERATING COMPANY (Perry Nuclear Power Plant, Unit 1)

Docket 50-440 (License No. NPF-58)

DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206, DD-99-8, April 18,1999....

381 l

Iv

t

)

Commission j

lSSuanCOS Z.

O 55 CD lllE O

O r

Cite as 49 NRC 311 (1999)

CLl-99-8 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

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

Jeffrey S. Merrifield in the Matter of Docket No. 40-8968-ML HYDRO RESOURCES,INC.

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

April 6,1999 The Commission denies Intervenors' petition for interlocutory review of the Presiding Officer's Memorandum and Order (Questions Concerning Radioactive Air Emissions)(LBP-99-15,49 NRC 261), issued on March 18,1999.

RULES OF PRACTICE: INTERLOCUTORY REVIEW In determining whether to grant a petition for interlocutory review, the Commission considers whether the Presiding Officer's action either (1) threatens the party adversely affected with immediate and serious irreparable harm that l

could not be remedied by a later appeal or (2) affects the basic structure of the proceeding in a pervasive or unusual manner. See 10 C.F.R. 5 2.786(g)(1) and (2).

PRESIDING OFFICER: AUTHORITY TO QUESTION PARTIES

'Ihe Commission's rules grant the Presiding Officer discretion to seek addi-tional information. See 10 C.F.R. 6 2.1233(a).

311

MEMORANDUM AND ORDER On March 26,1999, Intervernors Eastern Navajo Dind Against Uranium Min-ing ("ENDAUM") and Southwest Research and Information Center ("SRIC")

filed a petition with the Commission for interlocutory review of the Presid-ing Officer's Memorandum and Order (Questions Concerning Radioactive Air Emissions) (LBP-99-15, 49 NRC 261), issued on March 18, 1999, and reaf-firmed on March 23 in response to a motion for reconsideration. In particular, the Presiding Officer's order posed a series of questions to the parties related to the radioactive air emissions from the project. The Intervenors seek reversal of the March 18 order because, in their view, the Presiding Officer has inappropri-ately provided Hydro Resources, Inc. (HRI), and the NRC Staff with a second opportunity to address issues that these parties had failed to address earlier, in-tervenors argue that the Presiding Officer is not conducting this case impartially but has shown bias toward the NRC Staff and HRI.

In determining whether to grant a petition for interlocutory review, the Commission considers whether the Presiding Officer's action either (1) threatens the party adversely affected with immediate and serious intparable harm that.

could not be remedied by a later appeal or (2) affects the basic structure of the proceeding in a pervasive or unusual manner 10 C.F.R. 5 2.786(g)(1) and (2); see Georgia Power Co. (Vogtle Electric Generating Plant, Units I and 2),

CL1-94-l5,40 NRC 319 (l994); Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-94-2,39 NRC 91,93 (1994). Intervenors seek review and reversal pursuant to the second standant. The Commission, however, does not agree with Intervenors that the Presiding Officer's order has altered the basic structuru of the proceeding in a pervasive or unusual manner..

We recently denied a similar petition for interlocutory review in this proceeding, see CLI-99-7,49 NRC 230 (1999), and do so again here.

As we stated in CLI 99-7, the propriety of the Presiding Officer's inquiry turns on fact-specific questions. We see no reason to interfere in the proceeding at this time, especially where such interference is likely to cause delay while we

,j obtain appellate briefs and undertake the detailed inquiry necessary to resolve d

Intervenors' bias complaint. However, our denial of interlocutory review does not reflect any position on the substance of the bias question. Intervenors may raise their bias concerns on appeal if, in the end, they do not prevail before the Presiding Officer on the merits of a particular issue and can show prejudice

{

I fmm information that entered the record improperly or unfairly as a result of the Presiding Officer's questions.

Contrary to Intervenors' view, our refusal at this time to review the propriety of the Presiding Officer's supplemental inquiries does not undercut our com-i mitment to resolve this licensing proceeding as expeditiously as possible. 'Ihe

)

312 l

j

Presiding Officer appears on course to decide all issues before him promptly.

Our rules give him discretion to seck additional information. See 10 C.F.R. 5 2.1233(a). For the Commission now to decide on a question-by-question basis

'whether the Presiding Officer properly exercised that discretion would delay rather than expedite the proceeding.

Intervenors also sought a stay of the Presiding Officer's March 18 and March 23 orders pending disposition of the petition for review. In view of our denial

of the petition, the stay request is moot.-

Er the foregoing reasons, the petition is demed.

I IT IS SGORDERED.

Er the Commissiont ANNETTE L. VIETTI-COOK j

Secretary of the Commission

' Dated at Rockville, Maryland, this 6th day of April 1999.

{

l

' 'Comnussioner thcus was not avuitable for the aftumation or this order. Had she been present, she would have afstmed de onier..

313 1

f

Cite as 49 NRC 314 (1999)

CLl-99-9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

l Shirley Ann Jackson, Chalfman Greta J. Dicus Nils J. Diaz Edward McGaffigan, Jr.

Jeffrey S. Merrifield in the Matter of Docket No.11005070 1

(License No. XSNM-03060)

TRANSNUCLEAR,INC.

(Export of 93.3% Enriched Uranium)

April 8,1999 I

ORDER i

The Nuclear Control Institute (NCI) has requested leave to intervene and a hearing on an application of Transnuclear, Inc. (Transnuclear), filed on October j

29, 1998, for a license to export highly enriched uranium (HEU) to Canada.

After reviewing the pleadings submitted by both parties and the Executive t

Ilranch views on the merits of the application, we have determined that more information is required to fidly address the merits of this case.

We request that the panicipants, inchiding the Executive Branch, address the questions set out as an Appendix to this Order. The NRC must receive responses by April 22,1999. Submissions should be served on other participants in accordance wifh 10 C.F.R. I 110.89.

Ion february 22.1999, Transnuclear hied a mouon for leave to fue a briefin response to NCI's february 12, 1999 reply brief. Section i10 83 of 10 C.F R. provides for an applicant in an esport heensing proceeding to tile an answer to a hearing request or intervenuon peuuon. and for a reply to that at.swer, but nulu s no provision for further pleadings. Elecuuse NCI does not oppose Transnuclear's addiuonal bnef, and in the interest of fully informing the Comnussion on this matter, Transnuclear's monon is gramed. NCI filed a motion for leave to Gle a tejninder ta Transnucleur's supptwental reply, dated March 1,1999. Because Transnuclear raised no objection, and in the imerest of informing the Commission, NCI's motion is likewise granted.

i 314 I

i l

i.

It is so ORDERED.

Er the Commission ANNE'ITE L. VIETTI-COOK Secretary of the Commission Dated at Rockville, Maryland, this 8th day of April 1999.

APPENDIX I.

The MAPLE reactors 1.

What is the status of DOE's funding of the U.S. (Argonne National Laboratory) (ANL) program to develop alternative LEU targets for Canada?

2.

Please describe additional steps taken since the November 5,1998 meeting between AN and MDS Nordion to further the objectives of the Reduced Enrichment for Research and Test Reactors (RERTR) program. Transnuclear's March 1,1999 pleading, and the March 5,1999 Executive Branch views reference a January 12, 1999 meeting between DOE representatives and MDS Nordion. What further agreements, if any, were reached, as a result of that, or any subsequent, meeting?

3.

When willahe first LEU targets be ready and scheduled for testing at the MAPLE reactors? Is it possible that existing HEU target designs can be modified for use with LEU? Is it possible the LEU targets being developed for use in Indonesia could be used in Canada?

When will the Indonesian targets be available for commercial use, in the Indonesian reactor, and in other reactors?

4.

Where will the first irradiated Indonesian and Canadian LEU test targets be processed? How many irradiation and processing test campaigns may be required for economic and FDA licensing feasi-bility determinations?

315

11. Conversion of the MAPLE Reactors to LEU Targets if Startup

,0ccurs with HEU Targets 1.

When will sufficient infonnation be available to enable MDS Nor-dion to assess the economic feasibility of using LEU targets?

2.

Under what circumstances would it make "busir.ess sense" for MDS Nordion to convert to LEU targets? If HEU targets are available from the United States, Russia, or other sources now or in the future, is there any incentive to assume the extra costs involved in converting to LEU targets?

3.

Please discuss the feasibility of converting the MAPLE reactors to LEU targets if initial startup is implemented with HEU targets.

Include the duration of possible shutdowns and the effect on the supply of medical isotopes to the U.S. In addition, discuss whether existing waste processing and storage facilities will be adequate if LEU targets are used. if not, how will the issue of additional waste processing and/or storage facilities be addressed?

III. NRU Reactor 1.

What is the projected shutdown date for the NRU reactor?

2.

Will the NRU reactor be shut down immediately following (or shortly thereafter) the date on which the MAPLE reactors become operational, or will it continue to operate until its projected shutdown

- date?

IV.

U.S. Production Capability for Mo 99 1.

When will the facilities at Sandia/Los Alamos National Laboratory be ready to produce medical isotopes? Please discuss how this project has progressed since publication of the Record of Decision (see 60 Fed. Reg. 48,921 (Sept.17,1996)).

2.

What percentage of the U.S. medicalisotope supply will this facility supply when it is fully operational? In an emergency (e.g., nonavail-ability of medical radioisotopes from Canada) can the Sandia/LANL production be expanded? If so, what percentage of the U.S. supply could it provide, and for how long?

3. Why will this facility use HEU targets?

316

4.

Is there a schedule in place for conversion to LEU targets at this facility? If not, why not?

-V.

General Questions 1.

What is the status of the use of LEU targets (or plans for conversion to LEU targets) at other producers of medical isotopes for the world market?

2.

Approximately how large is the economic advantage of using HEU as opposed to LEU targets, as a general matter?

- t, i

i i

1 317 I

i.,

W

g Cite as 49 NRC 318 (1999)

CLI-99-10 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

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

Jeffrey S. Merrifield in the Matter of Docket No. 72-22-ISFSI PRIVATE FUEL STORAGE, LL.C.

(Independent Spent Fuel Storage Installation)

April 15,1999 The Commission affirms the Board's decision, LDP-99-3,49 NRC 40 (1999),

to grant the late-filed intervention petition of the Southern Utah Wilderness Alliance (SUWA). In doing so, the Commission upholds the Board's findings that SUWA has established its representational standing to intervene and has proffered at least one litigable contention.

RULES OF PRACTICE: STANDING TO INTERVENE Under section 189a of the Atomic Energy Act, the Commission must grant a hearing upon,the request of any person "whose interest may be affected by the proceeding." 42 U.S.C. 9 2239(a). Accordingly, NRC regulations require a petition for intervention to " set forth with particularity the interest of the petitioner in the proceeding, how that interest may be affected by the results of the proceeding,..

and the specific aspect or aspects of the subject matter of the proceeding as to which [ thel petitioner wishes to intervene." 10 C.F.R. 5 2.714(a)(2). In evaluating whether a petitioner's asserted interest provides an appropriate basis for intervention, the Commission has long looked for guidance to judicial concepts of standing.

318

5 RULES OF PRACTICE: STANDING (REPRESENTATIONAL)

Where an organization asserts a right to represent the interests ofits members,

" judicial concepts of standing" require a showing that: (1) its members would otherwise have standing to sue in their own right; (2) the interests that the organization seeks to protect are germane to its purpose; and (3) neither the claim asserted nor the relief requested requires an individual member to participate in the organization's lawsuit. Longstanding NRC practice also requires an organization to demonstrate that at least one of its members has authorized it to represent the member's interests.

RULES OF PRACTICE: STANDING (REPRESENTATIONAL)

To determine whether an organization's individual members have standing, a petitioner must allege (1) a particularized injury (2) that is fairly traceable to the challenged action and (3) is likely to be redressed by a favorable decision.

RULES OF PRACTICE: STANDING TO INTERVENE; APPELLATE REVIEW (DEFERENCE TO PRESIDING OFFICER)

The Commission has historically accorded " substantial deference" to Board determinations for or against standing, except where the Board has clearly 4

rnisapplied the facts or law.

RULES OF PRACTICE: STANDING TO INTERVENE (INJURY IN FACT)

Intervenors who fail to provide specific information regarding either the geographic proximity or timing of their visits will only complicate matters for themselves, In many instznces, a lack of specificity will be sufficient to reject claims of standing.

RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)

NRC regulations require that an admissible contention consist of: (1) a specific statement of the issue to be raised or controverted; (2) a brief explanation of the bases for the contention; (3) a concise statement of the alleged facts or expert opinion supporting the contention on which the petitioner intends to rely in proving the contention at any hearing; and (4) sufficient information to show that a genuine dispute exists on a material issue of law or fact. See 10 C.F.R.

j 6 2.714(b)(2). A failure to comply with any of these requirements is grounds for dismissing the contention.

319

p 1

y l

i l

MEMORANDUM AND ORDER L INTRODUCTION I

l This proceeding arises from the application of Private Fuel Storage, L.L.C.

)

' (" Applicant" or "PFS") for a license to store spent nuclear fuel at an Independent Spent Fuel Storage Installation (ISFSI) on the Skull Valley Goshute Indian Reservation in Skull Valley, Utah. In this decision, we review an Atomic Safety and Licensing Board Memorandum and Order, LBP-99-3,49 NRC 40 (1999), that granted the late-filed intervention petition of the Southern Utah Wilderness Alliance (SUWA). The Board found that (1) a balancing of the late-filing criteria in 10 C.F.R. 9 2.714(a)(1) supports entertaining the petition and the accompanying contentions; (2) SUWA has established its representational standing to intervene; and (3) SUWA has proffered one litigable contention.

Pursuant to 10 C.F.R. 5 2.714a the Applicant, PFS, has appealed the Board's ruling on the grounds that SUWA has neither submitted an admissible contention

{

nor established standing to intervene in this proceeding. We affirm the Board's decision IL BACKGROUND i

On July 31, 1997, the agency published in the Federal Register a notice of opportunity for hearing on PFS's license application. Sec 62 lbd. Reg.

41,099. On April 22,1998, the Board resolved several petitions for intervention stemming from this notice and set the case for hearing. LBP-98-7,47 NRC 142 (1998). We considered appellate challenges to some aspects of the Board's rulings on standing to intervene, but we ultimately approved the Board's rulings.

CLI-98-13,48 NRC 26 (1998).

On August 28,1998, PFS submitted a license amendment application making several changes in the transportation scheme set out in the original license i

application. In particular, the license amendment application outlines a revised proposal to construct a rail spur (i.e., the " Low Junction" rail spur) off the existing Union Pacific rail mainline that would be used to transport flatbed rail cars holding spent fuel shipping casks to the PFS facility approximately 30 miles to the south. The Board denied late-filed contentions related to this license amendment submitted by Intervenors State of Utah, the Confederate Tribes of -

the Goshute Reservation, and Ohngo Gaudadeh Devia. - LBP-98-29,48 NRC 286 (1998),

In a November 18, 1998 hearing request, SUWA sought to intervene in the proceeding, either as of right or as a discretionary intervenor, to challenge the August license amendment. In its petition, SUWA describes itself as a nonprofit 320 i

organization dedicated to identifying and protecting the " wilderness character" of roadless areas under the jurisdiction of the United States Department of the Interior's Bureau of Land Management (BLM) until such time as Congress has an opportunity to designate those areas as wilderness under the Wilderness Act of 1964,16 U.S.C. Il 1131-1136, and the Federal Land Policy and Management Act of 1976 (FLPMA),43 U.S.C. il 1701-1784. In separate replies, Applicant PFS and the NRC Staff asserted that the SUWA petition should be denied. They argued that (1) the SUWA hearing request did not merit admission under the section 2.714(a)(1) late-filing standards; (2) SUWA had failed to establish its standing as of right; (3) SUWA had not made a case for permitting discretionary intervention; and (4) SUWA had failed to provide an admissible contention. On December 8,1998, SUWA filed a reply to the PFS and Staff responses. On December i1,1998, the Board convened a videoconference to hear arguments from SUWA, the State PFS, the Skull Valley Band, and the Staff concerning the SUWA petition and its contentions. See Private Fuel Storage, L.L.C. Prehearing Conference (hereinafter "Prehearing Conference Tr.") (Dec. I1,1998).

In its February 3,1999 Memorandum and Order, the Board concluded that SUWA had met the five criteria of 10 C.F.R. I 2.714(a)(1) for admitting of late-filed intervention petitions and contentions. LBP-99-3,49 NRC at 46-49. In addition, the Board found that SUWA had successfully established its standing to intervene. Of the various hurdles that must be met for an organization to establish standing,' the only issue before the Board was whether one or more of SUWA's members would otherwise have standing to sue in his or her own right.

With regard to the standing of the individual SUWA member in question (Dr.

Jim Catlin), only the issues of injury in fact and redressability were in dispute.

Id. at 50.

The Board found that the injury claimed by Dr. Catlin "would constitute a sufficiently direct and concrete injury to an intervenor's legitimate interests under NEPA to provide standing to contest that action." Id. at $1. The Staff and PFS emphasized that Dr. Catlin had not specified the number of times he had visited the area in the past.md the number of times he planned to visit in the future but merely indicated that he had visited " frequently" in the past and planned to dc so frequently in the future. According to PFS and the NRC Staff, Dr. Caitlin's contacts with the land proposed for the rail spur were insufficiently particularized and, as such, fail to establish personal injury. See Prehearing Conference Tr. at 1066-67, 1078-79. In ruling against PFS and the Staff on this issue, the Board concluded that Dr. Catlin's " adoption of the term ' frequently' in this context demonstrates that his bond with the area is sufficiently concrete to establish his standing and, consequently, that of his representative SUWA." LBP-99-3, 3 Sea CLI-9813. 48 NRC at 531.

I 321 l

l

l l

l i

49 NRC at 52. The Board also found that SUWA had met the redressability l

requirement, concluding that if, as a result of NEPA consideration urged by SUWA, the "PFS proposal is implemented in a way that is not inconsistent with SUWA's asserted interest in the land, then SUWA has won all it can expect l

from this proceeding and its potential injury has been redressed." Id.

' The Board also reviewed the two contentions that SUWA had raised in its 1

November 18,1998 petition. First, SUWA claimed that the license application amendment failed to adequately consider the impacts of the rail spur on the wilderness character of the area in question. Second, SUWA asserted that the amendment failed to develop and analyze a meaningful range of alternatives to the rail spur. The Board rejected the first contention. However, the Board found the second contention and its supporting basis " sufficient to establish a genuine dispute adequate to warrant further inquiry." /d. at 53.

On February 16, 1999, PFS appealed the Board's decision and urged the Commission to reverse the Board's Order and deny SUWA's petition to intervene in its entirety for failure to proffer an admissible contention and for lack of standing. SUWA has filed a brief opposing PFS's appeal and the NRC Staff has filed a brief supporting it.

Ill. ANALYSIS 1

On appeal, PFS first urges the Commission to find that SUWA has no standing in this proceeding because its member, Dr. Catlin, failed to demonstrate sufficient past and future contacts with the area in question. See Applicant's Appeal Brief at 12-15 (Ith.16,1999). PFS also argues that SUWA's contention on alternatives to the proposed rail spur is inadmissible because the contention did not, as initially filed, suggest an alternative of its own and because the alternatives raised by SUWA in a reply before the Board came too late to meet the five-part test for late-filed contentions. Id. at 510.

A.

Standing Under section 189a of the Atomic Energy Act, the Commission must grant a hearing upon the request of any person "whose interest may be affected by the proceeding." 42 U.S.C. 0 2239(a). Accordingly, NRC regulations require a petition for intervention to " set forth with particularity the interest of the petitioner in the proceeding, how that interest may be affected by the results of the proceeding.

and the specific aspect or aspects of the subject matter of the proceeding as to which [the] petitioner wishes to intervene." 10 C.F.R. 5 2.714(a)(2). In evaluating whether a petitioner's asserted interest provides an appropriate basis for intervention. the Commission has long looked for guidance

-322 i

to judicial concepts of standing. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units I and 2), CLI-76-27,4 NRC 610,613-14 (1976). Accord Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CL1-98-21, 48 NRC 185,195 (1998); Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia), CLI-95-12,42 NRC i11,115 (1995).

Where an organization asserts a right to represent the interests of its membert

" judicial concepts of standing" require a showing that: (1) its members would otherwise have standing to sue in their own right; (2) the interests that the organization seeks to protect are germane to its purpose; and (3) neither the claim asserted nor the relief requested requires an individual member to participate in the organization's lawsuit. See Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1977). Longstanding NRC practice also requires an organization to demonstrate that at least one of its members has authorized it to represent the member's interests. See Georgia Tech Research Reactor, 42 NRC at 115. Of the four requirements that an organization must meet to establish standing, the only one at issue here is whether any of SUWA's members would otherwise have standing to sue in their own right, an issue similar to the tribal standing question we addressed earlier in this proceeding.

See Private fuel Storage, LLC. (Independent Spent Fuel Storage Installation),

CLI-98-13,48 NRC 26,30-31 (1998).

To determine whether an organization's individual membeis have standing, a petitioner must a" 3e (1) a particularized injury, (2) that is fairly traceable to the challenged action, and (3) is likely to be redressed by a favorable decision.

Guivira Mining Co. (Ambrosia Lake Facility, Grants, New Mexico), CLI-98-11, 48 NRC 1, 5-6 (1998); see also Steel Co. v. Citizens for a Better Environment, i18 S. Ct.1003,1016-17 (1998). On appeal, the only issue before j

the Commission is whether Dr. Catlin has demonstrated a particularized injury here.

As discussed above, SUWA relied on the declarations of Dr. Catlin, to support i

the orgariization's argument for standing. In his second declaration filed before the Board, Dr. Catlin specifically indicates that:

I have visited these areas,incluaa.g the exact tract of land within the North Cedar Mountains arcs that will be traversed by the proposed rail spur, and have developed an ongoing and j

deep bond with the land and its wilderness character which I will continue to cultivate in the future. I frequently enjoyed and will,in the future with some frequency, enjoy hiking, camping, bird.uching. study, crwemplation, solitude, photography, and other activities in and around the North Cedar Mountains roadless area, including the exact tract of land -

the bench of the North Cedar Mountains - over which the proposed rail spur will traverse.

SUWA Reply, Second Declaration of Jim Catlin for Petitioner [SUWAJ at 4-5 (Dec. 8,1998). In its appeal brief, the Applicant argues that SUWA lacks standing becaire Dr. Catlin has failed to demonstrate, as a matter of law, 323

c h

y f

. sufficient contact with the area that' would be affected by the PFS proposal.

' Specifically, the Applicant believes that Dr. Catlin's use of the word " frequently" does not provide specific information regarding "the time or duration of his contact with this area." Applicant's Appeal Brief at 12. In its decision, the Board indicated that Dr. Catlin's imprecision in describing the number of antacts was

' not a substantial concern because of his " actual physical contact" x ith the area in question. LBP-99-3,49 NRC at 52 n.7.

~

We historically. have accorded " substantial deference" to Board determina-tions for or against standing, except where the Board has clearly misapplied the facts or law. See international Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-98-6,47 NRC 116,118 (1998); Yankee Atomic Electric Co. (Yankee

' Nuclear Power Station), CLI-96-7,43 NRC 235,248 (1996); Georgia Tech Re-search Reactor,42 NRC at 116; Gulf States Utilities Co. (River Bend Station, Unit 1), CLI-9410,40 NRC 43,47-48 (1994). PFS's arguments do not per-

']

suade us that we need to override the Board's judgments on SUWA's standing.

We agree with the Board that, in this case, Dr. Catlin has demonstrated that he

]

maintains contacts with the site that are sufficient to establish standing. While mere intexst in an area alone does not establish standing for an individual.2 we note that Dr Catlin is no casual bystander or generalist interested in environ- -

' mental issues. He appears to have a significant and genuine personal :atachment to the affected area, as demonstrated by his work in developing a reinventory of BLM lands in the area for the Utah Wilderness Coalition. SUWA Petition to Intervene, Declaration of Jim Catlin for Petitioner [SUWA] at 1-4 (Nov.18, 1998).2 Most importantly, however, he has demonstrated actual contact with the area based on his " frequent" physical presence on the very parcel of land that would be altered by the proposed action. While his declaration does not specify the exact number of times he has visited in the past or plans to visit in the future, it was reasonable for the Board to conclude that his visits to the site are numerous enough to demonstrate that his " bond with the area is sufficiently concrete to establish his standing." LBP-99-3,49 NRC at 52. As we held in our prior.

standing decision in this proceeding (CLI-98-13), " standing does not depend on the precise number of.. visits," but turns on "the likelihood of an ongoing connection and presence." 48 NRC at 32. Dr. Catlin appears to meet this test.

.i 2See, e!g., Cleveland Electric tituminaruis Co. (Ferry Nuclear Ibwer Phun. Unit (). C1193-21,38 NRC 87i 95

. n.10 (1993).

i 3

l We are not awayed by the decision. cited by the Applicant. See ihmsron tJahrmg sad Power Co. (South Texas.

]

Project. Units I and 2), LBP-7910. 9 NRC 439,456 57 (1979). While the facts in that case may hold some r

passins similarities to the controversy at hand, it provides httle in the way of useful guidance for this case. In

' that case, the comacts in queation involved finlung activities "about once a nenth within 40 or 50 miles of the plant * /d at 457. In the caw at hand. Dr. Catlin's visits involve uw of the very site where the railline would be constructed.

l 324 l

i l

1 l

l

!~

I b

l

)

We hr. ' n to add, however, that a speculative contact will not pass muster.

See, e.g.,

ujan v. Defenders of Wildhfe, 504 U.S. 555, 563-64 (1992). In particular, as the Supreme Court indicated in Lujan, mere intention to visit "some day" are not sufficient to establish standing. Id. at 564. However, in this case, Dr. Catlin's declaration taken as a whole demonstrates that he has more than just "some day" intentions to visit the area that would be affected by the j

rail spur. He lives in the State of Utah, is director of the Wild Utah Project, and works with the Utah Wilderness Coalition putting to use his expertise in geographical information systems (GIS) to conduct land studies of the North Cedar Mountain area. See Dr. Catlin's First Declaration, supra, at 1-5. Given Dr. Catlin's overall involvement with issues related to the area and given his i

sworn declaration indicating he has used the site in the past and will do so in the future, we see no reason to doubt his intent to revisit this area and, as such, see no need to look behind the meaning of the word " frequently" as used in his declaration.'

This is not to say, as the NRC Staff suggests, that future intervenors will be able to use the word " frequently" as a talisman to ward off all challenges to their claims of standing. To the contrary, as this very case demonstrates, intervenors who fail to provide specific information regarding either the geographic proximity or timing of their visits will only complicate matters for themselves. In many instances, a lack of specificity will be sufficient to reject claims of standing. However, given the facts in this particular case, we cannot say that the Board erred in finding that Dr. Catlin had offered er.ough specific information to demonstrate the necessary injury in fact.

B.

Admissibility of SUWA Contention II (Alternatives)

NRC regulations require that an admissible contention consist of; (1)a specific statement of the issue to be raised or controverted; (2) a brief explanation of the bases for the contention; (3) a concise statement of the alleged facts or expert opinion supporting the contention on which the petitioner intends to rely in proving the contention at any hearing; and (4) sufficient information to show that a genuine dispute exists on a material issue of law or fact. See 10 C.F.R. 12.714(b)(2). Yankee Atomic Electric Co. (Yankee Nuclear Power Station),

CLI-96-7, 43 NRC 235, 248-49 (1996); Georgia Tech Research Reactor, 42 NRC at 117-18. A failure to comply with any of these requirements is grounds for dismissing the contention. Ari:or;a Public Service Co. (Palo Verde Nuclear Generating Station, Units 1,2, and 3), CL1-91-12,34 NRC 149,155-56 (1991).

'Sec e s., Sierra Club v. SunAins industries. Inc 847 F.2d 1109.1112 n.3 (4th Cir.1988)(an afhdavit from the member of the Sierra Club which indicated that the member " regularly" hiked ah>ng the river was sufficiently specibe to confer standingt carr, denied. 491 U.s. 904 (1989).

325

i He contention in question involves the range of alternatives to the Low 1

Corridor rail spur and reads as follows:

The License Application Amendment fails to develop and analyze a meaningful range of alternatives to the Low Corridor Rail Spur and the associated fire buffer zone that will preserve the wilderness character and the patential wilderness designation of a tract of i

roadless Bureau of Land Management (BLM) land - the North Cedar Mountains - which it crosses, l

SUWA Contentions at 5 (Nov.18,1998). PFS believes that this contention is inadmissible because (1) it does not show a material dispute in that it ignores material submitted in the application, and (2) it fails to propose at least a

" colorable alternative" to those put forth by the Applicant. See Applicant's Appeal Brief at 6.

PFS is correct in pointing out that the application did consider a range of alternatives. Id. at 10 n.15. However, those alternatives addressed only general transportation options (e.g., trucking vs. railroad) and did not reflect consideration of alternative configurations to the proposed Low Corridor rail spur alignment. In the light of the fact that the rail spur has now become PFS's preferred option, we agree with the Board that a failure to consider alternative configurations to the specific alignment in question is at least worthy of further consideration on the merits.

In opposing the contention, PFS suggests that an intervenor must offer alternatives of its own in order to raise an admissible contention related to the adequacy of an applicant's alternatives. See id. at 7, citing Duke Power Co.

(Catawba Nuclear Station, Units 1 and 2), ALAB-355,4 NRC 397,412 (1976).

We frankly are puzzled by PFS's heavy reliance on the Catawba decision.

Catawba merely states that "further examination may be called for [when] an intervenor suggests a ' colorable alternative.'" Catawba, 4 NRC at 412. The case established no rigid rule requiring intervenors to propose their own alternatives as a prerequisite to a NEPA claim resting on a failure to consider alternatives.

He facts in Catawba were starkly different from ours. There, the Appeal Board considered, and understandably rejected, an " eleventh hour suggestion,"

advanced during the "last week of a reopened hearing," that the NRC had failed to consider the possibility of power purchases as an alternative to building the Catawba nuclear power plant. Here, by contrast, SUWA offers its " alternatives" contention prior to a hearing and at its earliest opportunity.

We recognize that in NEPA cases where no additional conceivable alter-natives are apparent, the Commission sensibly could insist that a prospective intervenor offer its own alternatives in order to show that a genuine dispute over alternatives exists. But as a general matter NEPA places responsibility to con-sider alternatives on the applicant and ultimately on the NRC itself. SUWA's grievance here is not that PFS's environmental analysis fails to examine general 326

7 E

transportation alternatives (e.g., trucks rather than railroads), but that it leaves unaddressed ready alternatives to the actual proposal at hand, the construction of a rail spur over a specific tract of land. We agree with the Board that SUWA i

can litigate the question 'whether, in the circumstances of this case, NEPA re-i

-' quires PFS and the NRC to consider alternative rail routes that might prove more

,. environmentally benign than PFS's chosen route.

SUWA's reply before the Boarci did propose a specific alternative alignment i

for the Low Junction rail line. See SUWA Reply Brief at 15 (Dec. 8,1998);

)

- Second Declaration of Jim Catlin at 3 (Dec. 8,1998) (attached to SUWA Reply Brief). ' While PFS labels this additional information as "a late-filed

'- supplement without justification" (Applicant's Appeal Brief at 8), we view it l

as an elaboration of an already-admissible contention. 'Ihe reply's suggested alternative simply reinforced SUWA's basic thesis that PFS had not considered alignments for the spur other than the one proposed in PFS's license amendment.

PFS and the NRC Staff view SUWA's proposed rail route as unworkable because l

_it would traverse land owned by Utah, and Utah strongly opposes the PFS project. See Staff's Appeal Brief at 19-21; Applicant's' Appeal Brief at 9-

10. But that argument merely raises questions about the practical feasibility of the SUWA proposal.s it does not abrogate the Applicant's, and the NRC's, -

NEPA obligation to perform an analysis of alternatives. We see no basis for second-guessing the Board's decision to permit further consideration of SUWA's

" alternatives" contention.

III. CONCLUSION AND ORDER Far the reasons stated in this Decision, the Commission hereby affirms LBP-99-3.

It is so ORDERED.

For the Commission ANNETTE L. V!ETTI-COOK Secretary of the Commission Dated at Rockville, Maryland, this 15th day of April 1999.

3 Our decision to allow further c' ansnation of this issue is reinforced by a Mach 19,1999 letter to the of6ce of n

the secretary from PFs's counwel which indicales that a corridor of approximately 500 feet may exist between the Stase-owned land and SUWA's proposed wilderness area. We commend PFS's counsel for bringmg this maner to the Commission's attention as it identi6es an addmonal possibility thin may warrant considerauon by the parties and the Board, l

327-i I

a-.

1 i

Cite as 49 NRC 328 (1999)

CLl-99-11 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

)

COMMISSIONERS:

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

Jeffrey S. Merrifield in the Matter of Docket Nos. 50-269-Ls 50-2704A 50 287-LH DUKE ENERGY CORPORATION (Oconee Nuclear Station, Units 1,2, and 3)

April 15,1999 The Commission reviews and affirms an Atomic Safety and Licensing Board i

Memorandum and Order, LBP-98-33,48 NRC 381 (1998), that denied a petition for leave to intervene and request for hearing. The Commission agrees that the Petitioners failed to submit an admissible contention.

l RULES OF PRACTICE: CONTENTIONS 1

I f

To gain admission as a party, a petitioner for mtervention must proffer at least one admissible contention for litigation. 10 C.F.R. 6 2.714(b). A contention must specify the particular issue of law or fact the petitioner is raising, and contain: (1) a brief explanation of the bases of the contention; and (2) a concise statement of the alleged facts or expert opinion that support the contention and upon which the petitioner will rely in proving the contention at the hearing. The contention should refer to those specific documents or other sources of which the petitioner is aware and upon which he intends to rely in establishing the validity of the contention.

l l

328 l

l l

L

RULES OF PRACTICE: CONTENTIONS A contention must show that a genuine dispute exists with the applicant on a material issue of law or fact. The dispute at issue is material if its resolution would make a difference in the outcome of the licensing proceeding.

RU~LES OF PRACTICE: CONTPRTIONS

'Ihe 1989 revisions to the content on rule insist upon some factual basis for an admitted contention. The interve or must be able to identify some facts at c

the time it proposes a contentior, to in dicate that a dispute exists between it and the applicant on a material Lsue. Th se requirements are intended to preclude a contention from being admitted whi re an intervenor has no facts to support its position and instead contemplates using discovery or cross-examination as a fishing expedition that might produce relevant supporting facts.

RULES OF PRACTICE: CONTENTIONS To satisfy the Commission's contention rule, petitioners must do more than rest on the mere existence of RAls as a basis for their contention. RAls generally indicate nothing more than that the Staff requested further information and analysis from the licensee. The NRC's issuance of RAls does not alone establish deficiencies in the application, or that the NRC Staff will go to find any of the applicant's clarifications, justifications, or other responses to be unsatisfactory.

RULES OF PRACTICE: CONTENTIONS The extent to which an RA1 might help support a contention must be

+

considered on a case-by-case basis, but the Commission expects that in almost all instances a petitioner must go beyond merely quoting an RAI to justify admission of a contention into the proceeding.

RULES OF PRACTICE: CONTENTIONS To show a genuine dispute with the applicant, petitioners must use the RAI to make the issue of concern their own. This means they must develop a fact-based argument that actually and specifically challenges the application. if an RAI does nothing more than request further information, it is not unreasonable to expect a petitioner to provide additional information corroborating the existence of an actual safety problem.

329

1 i

RULES OF PRACTICE: GENERIC ISSUES (10 C.F.R. 6 51.53(c)(3)(1))

An applicant's environmental report na:1 not contain an analysis of issues identified as Category 1 issues in Appendix 3 to Part $1, Subpart A, because the Commission already has addressed those issues in a generic fashion. Category 1 issues include the radiological impacts of spent fuel and high-level waste j

dir.posal, low-level waste storage and disposal, mixed waste storage and disposal, and onsite spent fuel. He Commission's generic determinations governing

)

. onsite waste disposal preclude the petitioners from attempting to introduce such waste issues into an adjudication.

RULES OF PRACTICE: GENERIC ISSUES (10 C.F.R. 5 51.23(a))

he Commission has chosen to address high-level waste disposal generically rather than unnecessarily revisit the same waste disposal questions, license-by-license, when reviewing individual applications. High-level waste storage and

{

disposal is a national problem of essentially the same degree of complexity and i

uncertainty for every renewal application and it would not be useful to have a repetitive reconsideration of the matter.

RULES OF PRACTICE: GENERIC ISSUES (PENDING RULEMAKING) i It has long been agency policy that licensing boards should not accept in i

individual license proceedings contentions that are (or are about to become) the subject of general rulemaking by the Commission.

MEMORANDUM AND ORDER

)

L INTRODUCTION In this Decision we review an Atomic Safety and Licensing Board Memo-I randum and Order, LBP-98-33,48 NRC 381 (1998), that denied a petition for i

leave to intervene and request for hearing filed by the Chattooga River Water-

]

shed Coalition and Messrs. Norman " Buzz" Williams, William " Butch" Clay, and William Steven "W.S." Lesan (collectively referred to as the " Petitioners").

The Petitioners seek to challenge an application by Duke Energy Corporation

(" Duke Energy") to renew for an additional 20-year period the operating li-censes for its three Oconee Nuclear Station units. The Licensing Board found that the Petitioners have standing to challenge the proposed license renewal, but 330

)

1 i

that they had not submitted an admissible contention. The Board accordingly denied their request for hearing.

1 Pursuant to 10 C.F.R. 5 2.714a, the Petitioners have appealed the Board's ruling. Duke Energy and the NRC Staff support the Board's decision. We affirm the decision, for the reasons given by the Board itself and for the reasons we give below.

l II. BACKGROUND On July 6,1998, Duke Energy filed a license renewal application for the Oconee Nuclear Station, Units 1,2, and 3. On August i1,1998, the NRC Staff published a notice in the Federal Register stitting that the application had been found complete and acceptable for docketing and giving notice of an opportunity for a hearing on the application. Sec 63 Rd. Reg. 42,885 (1998). In a short letter dated Septeinber 8,1998, the Petitioners requested leave to intervene. He Commission soon thereafter referred the intervention petition to the Licensing Board and called on the Board to follow a schedule that would accommodate a fmal "Ccmmission decision on the pending application in about 2V2 years from the date that the application was received." CLI-98-17,48 NRC 123,126 (1998).

The Commission suggested various milestones for Board action, including a Board decision on intervention petitions within 90 days of the Commission's referral order (issued on September 15). Id. at 127.'

Upon receipt of the case, the Board gave the Petitioners the opportunity to amend their petition to " address any shortcomings in their initial pleading" and to supplement it with their proffered contentions. See Unpublished Board Memorandum and Order, dated Sept. 18, 1998. The order set as deadlines September 30, for the Petitioners to amend their original pleading, and October 19, for filing all contentions. Id. The Petitioners responded on September 27, requesting an additional 30 days in which to file an amended petition. On September 30, they filed a letter stating that they had "neither adequate notice nor funds available to retain counsel," and that they objected to the " expedited nature of these proceedings," which they said left them only a " slim window of opportunity to gain expertise on.

certain issues" before petitions to intervene were due to be filed. The Board denied their request for a full 30-day exten-sion but, noting that the Petitioners were acting pro se, allowed them until I Previously, in anticipation of an imminent seeses of hcense renewal and beense transfer procecangs tim Comnussion had issued a Statement of Policy on Conduct of Adjuditasory Proceedings. CLJ 98-l2. 48 NRC l8 (1998). which suggested a numler of mechanisms. inclu&ng the milestones device, to assure a fair, timely, and ef6cies hearing process. See utro Baltunpre Gas & Electric Co. (Calvert Cbffs Nuclear Power Plant, l' nits I and 2). CLJ-98 2s. 48 NRC 325. 339-40 (1998)(esplaining tle need to deal with license renewal in a fair and ef6cient way")(petiuon for juacial review penang).

331 l

L

l October 30 to amend their intervention petition and to submit their contentions.

See Unpublished Board Order, dated Oct.1,1998. He Board further provided the Petitioners guidance on the need to establish standing to intervene, and also i

advised them to " strictly adhere" to "the requirements of 10 C.F.R. 6 2.714(b)(2) in framing their contentions." Id.

The Petitioners timely filed an amended petition with four proposed con-tentions on October 30. See Petitioners' First Supplemental Filing (Oct. 30, 1998) (" Amended Fetition"). In it, they set forth the purposes of the Chatooga 4

River Watershed Coalition (" Coalition") and the arguments in support of their standing to intervene, both as individual Petitioners and as members of the z

Coalition. Messrs. Williams, Clay, and Lesan stated that they reside and work within 20 miles of the Oconee Nuclear Station, and that they are members of the Coalition, which seeks to protect and restore the Chattooga River Water-shed ecosystem. Mr. Williams stated that he is the Executive Director of the

{

Coalition and serves as its official representative.

He Petitioners' four contentions alleged that Duke Energy's license renewal application for Oconee: (1) is incomplete, and thus should be withdrawn or summarily dismissed; (2) does not meet the " aging management and other safety-related requirements mandated by law and NRC regulations, and therefore should be withdrawn and/or summarily dismissed"; (3) does not meet NEPA requirements; and (4) fails to address (a) the status and capacity of the spent fuel storage facility, (b) the transportation of radioactive waste to other locations if and when storage capacity is exceeded, and (c) the availability of other High Level Waste storage sites in the event that the proposed Yucca Mountain, Nevada site does not prove to be a viable repository.

He Petitioners also requested a stay of the license renewal proceeding, to allow them time to review all Requests for Additional Information (RAls) that the NRC Staff might submit to Duke Energy and to review the Applicant's responses to these potential RAls. Specifically, the Petitioners requested that j

they be permitted to file additional contentions until "at least 90 days" after Duke Energy has responded to all Staff RAls. See Amended Petition at 5.

Neither tne NRC Staff nor Duke Energy contested the Petitioners' standing.

Rey argued, however, that none of the Petitioners' contentions met the agency's requirements for an admissible contention. The Licensing Board agreed. In LBP-98-33, the Board found that the Petitioners had standing to intervene (48 NRC at 384-86), but denied their interventior, petition for failure to state an admissible contention (id. at 386-92).

The Board rejected the Petitioners' claim that mere pendency of NRC Staff inquiries to Duke Energy, or "RAls," establishes admissible contentions.

" Petitioners.. have not shown," stated the Board, "how the presence of these RAls evidence credible safety significance, how the Oconee application is materially incomplete because of the RAI matters, or how the application 332 l

7:

l-i l'

. fails to provide sufficient information to frame contentions." Id. at 387-88.

1 The Board also rejected the Ittitioners' spent fuel and waste claims, on the ground that these issues were the subject of prior or ongoing generic rulemakings l

. and therefore were not appropriate subjects 3r an adjudication. Id. at 391-92.

' Finally, the Board refused to stay proceeding pending disposition of the NRC Staff RAls. Id.~ at 393-94. He Board reasoned that " speculation that the RAls may reveal later potential problems" does not amount to " irreparable injury,"

does not_ suggest a " valid contention," and does not override the public interest in the " timely completion" of license renewal proceedings. Id. at 393.

On appeal before the Commission, the Petitioners argue that their Contentions Nos.1,2, and 4 should have been admitted. They do not appeal the Board's rejection of their Contention 3, which involved NEPA claims. The NRC Staff and Duke Power support the Board's decision.' We affirm.

. Ill ANALYSIS' For the second time in recent months, we are called upon to consider the admissibility of contentions in the license renewal setting. See Calvert Cligs, 48 NRC at 348-50. Before addressing the Petitioners' particular arguments on appeal, we again review our requirements and standards for admitting contentions into our proceedings.

i To gain admission as a party, a petitioner for intervention must proffer at least

)

one admissible contention for litigation.210 C.F.R. 6 2.714(b). A contention i

must specify the particular issue of law or fact the petitioner is raising, and j

contain: (1) a brief explanation of the bases otThe contention; and (2) a concise j

statement of the alleged facts or expert opinion that support the contention and upon which the petitioner will rely in proving the contention at the hearing. The contention should refer to those specific documents or other sources of which

.the petitioner is aware and upon which he " intends to rely in establishing the validity of [the] contention." See 10 C.F.R. 5 2.714(b)(2); Final Rule, Rules of Practice for Domestic Lico was Proceedirgs - Procedural Changes in the

' Hearing Process, 54 Itd. Rtt.,. 33,168, 33,)N (Aug.11,1989) ("Firal Rule, Contentions"). A contention also must show tha't a " genuine dispute" exists with the Applicant on a " material" issue of law or fact.10 C.F.R. 6 2.714(b)(2)(iii).

The dispute at issue is " material" if its resolution would "make a difference in

'2 A prospective imervenor also must estabt;sh a sut'6cient " interest"in the licensing procec&ng, or in 06er words, I

• % tan &ng" to imervene. See 10 C.FA I 2.714(aK2). No party here contests Ntitioners' standing. Ahhough noting -

that it was "not necessary for a deternurmtion in this case," the tjeensing Board's discussion on star &ng in&cated that a "50-mile presumption"- a presumptwn of stan&ng for those residing within 50 nules of ihe cactor that I

sometimes has been applied in NRC reactor licensing cases - applies in the bcense venewal consent. See 48 NRC '

" at W a.l. Because the Petitioners' stan&ng is not an issue on this appeal. the Commission 6nds it unnecessary to consider the validity of the Board's view on the 50. mile presumption question.

333 I

rcj p

L.-

the outcome of the licensing proceeding." Final Rule, Contentions,54 Fed. Reg.

at 33,172.

= Our strict contention rule serves multiple interests. First, it focuses 'the -

hearing process on real disputes susceptible of resolution in an adjudication. For 1-L.

example, a petitioner may not demand an adjudicatory hearing to attack generic NRC requirements or regulations, or to express generalized grievances about NRC policies. See North Atlantic Energy Services Corp. (Seabrook Station,

' Unit 1), CL1-99-6, 49 NRC-201, 217 n.8 (1999); Philadelphia Electric Co.

(Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216,8 AEC 13,.

20-21 (1974). Second, the rule's requirement of detailed pleadings puts' other.

. parties in the proceeding on notice of the Petitioners specific grievances and thus gives them a good idea of the claims they will be either supporting 'or L

opposing.. Finally, the rule helps to ensure that full adjudicatory hearings are

. triggered only by those able to proffer at least some minimal fnctual and legal foundation in support of their contentions.

. In 1989 the Commission toughened its contention mle in a conscious effort to raise the threshold bar for an admissible contention and ensure that only in-E tervenors with genuine and particularized concerns participate in NRC hearings.

See Final Rule, Contentions,54 Fed. Reg. at 33,168. By raising the admission standards for contentions, the Commission intended to obviate serious hearing delays caused in the past by poorly defined or supported contentions. At the l-time, hearings often were " delayed by months and even years of prehearing con-ferences, negotiations, and rulings on motions for summary disposition." Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-7,43 NRC 235, 248 n.7 (1996) (citing Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant), LBP-85-5,21 NRC 410 (1985), where 500 contentions were sub-

, mitted,60 were admitted, and only 10 were actually litigated after a period of

' 2 6 years of negotiations).

Prior to the contention rule revisions, licensing boards had admitted and litigated numerous contentions that appeared to be based on little more than

_ speculation. Indeed, in practice, intervenors could meet the rule's requirements merely Mby copying contentions from another proceeding involving another

reactor,"' Proposed Rule, Contentions. 51 Fed. Reg. 24,365, 24,366 (July 3, 1986). Admitted intervenors often had negligible knowledge of nuclear power issues and, in fact, no direct case to present, but instead attempted to unearth -

a case through cross-examination. See Cotter, Nuclear Licensing: Innovation Through Evolution in Administrative Hearig s,34 Admin. L. Rev. 497,505,508

- (1982). Congress therefore called upon the Commission to make " fundamental changes" in its public hearing process to ensure that " hearings serve the purpose for which they ~are intended:. to adjudicate genuine,' substantive safety and environmental issues placed in contention by qualified intervenors." H.R. Rep.

No.97-177, at 151 (1981).

1 334 l

l

1 l

Re 1989 revisions to the contention rule thus insist upon "some factual basis" for an admitted contention. 54 Fed. Reg. at 33,171. The intervenor must "be able to identify some facts at the time it proposes a contention to indicate that a dispute exists between it and the applicant on a material issue." Id. These l

. requirements are intended to " preclude a contention from being admitted where j

an intervenor has no facts to support its position and [instead] contemplates using discovery or cross examination as a fishing expedition which might produce relevant supporting facts." Id. Although in quasi-formal adjudications like i

l-license renewal an intervenor may still use the discovery process to develop his f

case and help prove an admitted contention, contentions shall not be admitted l

if at the outset they are not described with reasonable specificity or are not supported by "some alleged fact or facts" demonstrating a genuine material dispute. Id. at 33,170.-

This is not to say that our contention rule should be turned into a " fortress to deny intervention." Peach Bottom, 8 AEC at 21. The Commission and its boards regularly continue to admit for litigation and hearing contentions that are material and supported by reasonably specific factual and legal allegations. See, i

c.g., Seabrook, 49 NRC at 219-21; Private fuel Storage, LLC. (Independent i

Spent Rei Storage Installation), LBP-98-7,47 NRC 142, ag'd, CLI-98-13,48 NRC 26 (1998).

l We turn now to the Petitioners' arguments that their Contentions I,2, and 4 l

are admissible in this case.

A.

Contention 1 Contention 1 alleFas that "[als a matter of law and fact," Duke Energy's license renewal application for the Oconee Nuclear Station, Units 1, 2, and 3 "is incomplete, and should be withdrawn and/or summarily dismissed." See Petitioners' Appeal Brief at 2 (hm.14,1999). In support of their contention, the Petitioners submitted two bases before the Licensing Board. As their first basis, the Petitioners explained that the license application incorporates by reference several generic Babcock and Wilcox Owners Group topical reports applicable to the Oconee reactor coolant system, and also incorporates by reference a 1996 Duke Energy report to the NRC on the reactor building (containment). The Petitioners go on to conclude that because the NRC Staff has not completed i

its review of thete generic reports, the license application must be deemed incomplete. The Licensing Board correctly rejected this basis as a ground for the contention, noting that all the Petitioners "ha[d] done is search the record for instances of uncompleted Staff review of the Oconee application." 48 NRC at 386. The mere fact that the Staff review is ongoing says nothing about whether the application is d:ficient or will be found to satisfy all applicable requirements. Apparently, the Petitioners have accepted the Licensing Board's 335 l

l l

l l~

L

rejection of this basis because they do not reiterate it in their appeal brief's discussion of Contention 1.

On appeal, the Petitioners rely solely on the NRC Staff's issuance of Requests for Additional Information (RAls) to the Applicant. He Petitioners' contention is said to include "each of the [RAIs] filed orforthcoming" by the NRC Staff to the Applicant. See Amended Petition at 3 (emphasis added). They argue on l

appeal:

1

[TJhe numerous Requests for Additional Information (RAls) submitted by Nuclear Regu-latory Commission staff (NRC) to Duke Irgarding the subject application are prima facie evidence.,. that the application is incomplete. The simple and clear logic supporting this contention is that if the application were complete, then the NRC staff would not need to solicit follow-up information.

Appeal Brief at 2. We cannot agree.

As the Commission recently made clear, "RAls are a standard and ongoing part of NRC licensing reviews." Calvert Cligs, 48 NRC at 349. They are a routine means for our Staff to request clarification or further discussion of particular items in the application. What would be unusual in a license renewal case is if by now no RAIs had been issued, not that some have been. Even the Federal Register notice for this proceeding indicated that the " docketing of the renewal application does not preclude requesting additional information as the review proceeds, nor does it predict whether the Commission will grant or deny the application." 63 Fed. Reg. 42,885,42,886 (Aug. I1,1998). The NRC does not " violate [] any clear legal duty by proceeding first to docket [an application]

and thereafter to request additional information." Concerned Citizens of Rhode l

Island v. NRC, 430 F. Supp. 627, 634 (D. R.I.1977). See also 10 C.F.R. 52.102(a) (Staff during its review may request applicant to supply additional information). In short, "the NRC Staff's mere posing of questions does not 4

suggest that the application [is) incomplete." Calvert Chys,48 NRC at 349.

To satisfy the Commission's contention rule, then, Petitioners must do more than " rest on [the] rnere existence" of RAls as a basis for their contention. Id.

at 350. RAls generally " indicate [] nothing more than that the Staff requested further information and analysis from the Licensee." Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-93-3,37 NRC 135,' 147 (1993). The NRC's issuance of RAls does not alone establish deficiencies in the application, or that the NRC Staff will go on to find any of the Applicant's clarifications, justifications, or other responses to be unsatisfactory.

Here, to support Contention I, the Amended Petition simply referred to all RAIs " filed or forthcoming"; the contention is bereft of supporting detail. See Amended Petition at 3. This is a far cry from the reasonable specificity our contention rule demands. A contention alleging that an application is deficient must identify "each failure and the supporting reasons for the petitioner's belief."

336

l 1

1 10 C.F.R. 6 2.714(b)(2)(iii). 'The Commission expects parties to bear their burden and to clearly identify the matters on which they intend to rely with reference to a specific point." Public Service Co. of New Hampshire (Seabrook Station', Units 1 and 2), CLI-89-3,29 NRC 234,241 (1989). All the Petitioners did here was attach to their Amended Petition an NRC memo discussing the status of particular RAls the Staff had issued. The Petitioners point to no specific safety deficiency identified in the NRC memo. The memo simply reflects areas where the NRC Staff has made inquiries and Duke Energy's agreement "to i

- consider... additional clarification."

he Petitioners themselves provided no analysis, discussion, or information of their own on any of the issues raised in the RAls - which, we note, cover a wide variety of disparate subject matters, such as door locking mechanisms and the Oconee coatings program. At bottom, the RAls show only an ongoing Staff dialogue with Duke Energy, not any ultimate Staff determinations. Apart from a broad reference to these follow-up questions posed by the Staff, the Petitioners did not posit any reason or support of their own - no alleged facts and no expert opinions - to indicate that the application is materially deficient.

Petitioners seeking to litigate contentions must do more than attach a list of RAls and declare an application " incomplete." It is their job to review the application and to identify what deficiencies exist and to explain why the deficiencies raise material safety concerns.

We find, therefore, that Contention I does not meet the requirements for an admissible contention, it lacks specificity, presents no underlying support other than a general reference to assorted RAls issued by the Staff, and cannot be viewed as showing a genuine dispute with the Applicant on a material issue.

Indeed, the Petitioners effectively concede as much in their appeal brief. Their overarching complaint throughout this proceeding has been the time limits our regulations impose upon those seeking a hearing. The Petitioners want the Commission to grant them "until at least 90 days" after Duke has responded to the last RAI in which to file contentions. This time extension would, the Petitioners explain, enable them to review all the RAls and responses "and then, if warranted, set forth contentions." Appeal Brief at 3 (emphasis added). They do not believe that the renewal application provided adequate material for them "to determine grounds to frame contentions, if warranted." Id. at 2-3 (emphasis added).

He Petitioners, it appears, are still in the process of determining whether contentions even are " warranted." This is not so much a case, then, of Petitioners who, after reviewing all relevant licensing documents, have isolated specific issues they dispute and wish to litigate. It is more a case of Petitioners who simply desire more time and more NRC Staff information to determine whether they even have a genuine material dispute for litigation.

337 t

De Petitioners' demand that initiation of the NRC hearing process await completion of NRC Staff reviews would turn our adjudicatory process on its head. Under our practice, a petitioner has "an ironclad obligation" to examine the application, and other publicly available documents, with' sufficient care to uncover any information that could serve as the foundation for a contention. See Rancho Seco, 37 NRC at 147; Final Rule, Contentions,54 Fed. Reg. at 33,170.

Petitioners mus* articulate at the outset the specific issues they wish to litigate as a prerequisite to gaining formal admission as parties. See, e.g., Business and Professional People for the Public htterest v. AEC, 502 F.2d 424,428 (D.C.

Cir.1974). "[Ilt is the license application, not the NRC Staff review, that is at issue in our adjudications." Calvert Cliffs,48 NRC at 350. It is reasonable to expect a person or organization seeking to participate in a proceeding to study the portions of the application addressing the issues of concern and identify exactly what these concerns are.

The Petitioners have not done so, and instead have come forward only with what amounts to generalized suspicions, hoping to substantiate them later as the NRC Staff conducts its own safety review. But the 1989 revisions to our contention rule effectively work to bar ill-defined " anticipatory" contentions like the Petitioners'. See Uniors of Concerned Scientists v. NRC, 920 F.2d 50, $3 (D.C. Cir.1990); Final Rule, Contentions,54 Fed. Reg. at 33,171. Our revised rules do not permit " vague, unparticularized contentions," or " notice pleading, with details to be filled in later." See Seabrook, 49 NRC at 219. Petitioners do not have the right to wait and "have the [NRC] Staff studies as a sort of pre-complaint discovery tool." Union of Concerned Scientists,920 F.2d at 56.

Moreover, "much of what those [NRC] reports will bring to light will.. not be new issues but new evidence on issues that [already) were apparent at the time of application," had the application been carefully reviewed. See id. at 55.

On the other hand, if genuinely new and material safety or environmental issues later emerge from RAls or other NRC Staff documents, our contention rule does not prevent their litigation. See 10 C.F.R. Il2.714(a), (b)(2)(iii). In fact, the Commission today affirmed a Licensing Board decision granting late intervention under our rules. See Private fuel Storage, LLC. (Independent Spent Fuel Storage Installation), CLI-99-10,49 NRC 318 (1999). We believe that our procedural rules thus strike a fair bale. ace between ensuring that interested persons can raise significant environmental and safety issues and providing for expeditious hearings.

The Commission acknowledges that our rules require individuals concerned about a licensing action to work within a limited time frame to review the license application and any available related licensing documents and to submit their intervention petition and contentions. Admittedly, this can pose a significant burden, especially for pro se petitioners who are likely to have less available time and resources. But it has long been a " basic principle that a person who 338

invokes the right to participate in an NRC proceeding also voluntarily accepts l

the obligations attendant upon such participation." Duke Power Co. (Catawba l

Nuclear Station, Units I and 2), CLI-83-19,17 NRC INI, IN8 (1983). "A second fundamental principle applicable here is that there is a substantial public l

interest in efficient and expeditious administrative proceedings. Although this interest is undoubtedly subordinate to the public's interests in health, safety, and

{

the environment, it is an interest which the Commission incorporates" irito the

)

NRC's procedural rules. Id. (citations omitted). "The NRC Staff," of courte, "will consider and resolve all safety questions regardless of whether any hearing takes place." Calvert Cliffs,48 NRC at 350.

In sum, we agree with the Licensing Board that Contention 1 is inado nissible, and we deny the Petitioners

• request to " reschedule" this proceeding until all "the RAls have been resolved." See Appeal Brief at 2. As the Coramission j

quite recently stated, if we " allow [ed] Petitioners to await completion of the 1

RAI process before framing specific contentions, the hearing process '.tequently l

would take months or years even to begin, and expedited proceedings, such as the Commission contemplated for license renewal, would prove irapossible."

Calvert Cliffs,48 NRC at 350.

B.

Contention 2 1

Contention 2 alleges that "[a]s a matter of law and fact," Duke Energy's license renewal application "does not meet the aging managrment and other safety-related requirements mandated by law and NRC regulations, and therefore should be withdrawn and/or summarily dismissed." As with Contention 1, however, on appeal the Petitioners' only basis for this conteation is NRC Staff

)

RAls. For the reasons given above, Staff RAls generally de not suffice to show that Petitioners themselves have sufficient knowledge and r oncern to trigger our adjudicatory apparatus.

We first note that the Petitioners have dropped most of the bases originally relied upon in their Amended Petition for Contention 2. Tbr instance, one of the arguments featured in their Amended Petition suggested that the Applicant failed to include a program for the " sample inspechon of small bore Reactor Coolant System piping." See Amended Petition n 4. As the Board pointed out, however, the Petitioners apparently had mistr.ad the application, which in fact had,sovided a discussion of this program. See 48 NRC at 388-89; NRC Response to Petitioners' First Sepplemental Filmg, at 12-13 (Nov.16,1998).

Instead of directly challenging the adequacy of the Applicant's program, the Petitioners merely - and incorrectly - ass'imed that the application had not addressed the issue. The Petitioners originally also relied on the claim that the Staff had yet to complete their revie.v of all the generic topical reports incorporated by reference in the applicat'.on. See Amended Petition at 4. But, 339

r?

' i l

i

' again, as we stated in regard to Contention I, the Staff's ongomg review of the application does not provide a basis for a contention. The Petitioners could l

> have reviewed the particular topical reports themselves to see if there were any l-information or finding in them that they wished to controvert or that called Duke Energy's application into question.

Having dropped the above arguments, on appeal the Petitioners turn solely to l

t the NRC Staff RAls. On this point, their Amended Petition contained only the simple declaration that an "[a]dditional basis for this Contention shall also be set forth in.each of the RAls that will be filed by the NRC staff." See Amended Petition at 4 (emphasis added). As we already have held (see discussion above),

j such vague, open-ended, and prospective references to RAls cannot support j

a litigable contention, which requires a reasonably specific explanation of an j

actual safety-related deficiency. -

- 1 Several weeks after filing their original intervention petition, the Petitioners l

l,

' made an effort to introduce specificity into their contention by submitting to the Board additional information on particular RAls. They entitled their new

- pleading (filed on December 9,1998), "New Information for the' ASLB to Consider." At the time, the Board had given all the parties an opportunity _

to comment on an issue involving Contention 4, which addresses high-level waste. The Petitioners not only commented on the waste issue, but also took the occasion to cite and quote several RAls which they claimed "directly name the matters of law and fact that are discussed in the Petitioners' Contentions."

i See New Information Supplement at 2. These RAls, the Petitioners explained, had not been available when they filed the'ir Amended Petition.

'Ihe NRC Staff argues in its appeal brief that if these RAls "are considered []

- new information," the Petitioners should have addressed the agency standards

for late-filed contentions, and their failure to do so " amounts to an untimely, unauthorized supplement to their contentions that should not be considered." See Staff Appeal Brief at 16 n.2. We fully agree. In virtually identical circumstances in Calvert Cliffs, where the petitioners attempted to introduce new,- RAl-driven j

claims well after the deadline for contentions, we refused to permit the claims in the absence of a showing of good cause for lateness. See 48 NRC at 347-48.

{

Here, too, the record is barren of any effort by the Petitioners to justify the lateness of their submission.

Moreover, even ~were we to overlook the fatal lateness of the Petitioners' December 9 filing, th filing adds no persuasive substantive support to the Petitioners' contention and therefore cannot serve as the basis for a hearing.

The Petitioners

• basic premise is that follow-up inquiries by the Staff during its review of the application represents '" prima facie" evidence that the application is materially in error or deficient. The Petitioners believe, therefore, that "each of the RAIs" filed by the NRC Staff supplies a basis for a contention. See Amended Petition at 4. Although the Petitioners did not attach a copy of the 340 l

m

f RAls they referenced, they quoted selected language from them, arguing that these RAls demonstrate a " fundamental void" in the application. See Appeal Brief at 3.

Read in context and in their entirety, the particular RAIs noted by the Petitioners do not by themselves present any genuine material dispute or litigable issue. Hey represent nothing more than what RAls by definition are -requests for further information. Far from showing a definitive Staff conclusion that a program proposed in the application is deficient or flawed, many of the cited RAls suggest that the Staff may be inclined to accept a particular program or schedule as proposed in the application, as long as Duke Energy better explains its underlying reasons and procedures. See, e.g., RAI 4.3.9-2. Other cited RAIs simply request that Duke Energy further describe or explain specific j

technical issues, such as the engineering analysis, to aid the Staff in completing its evaluation and assessmer. of the particular item under review. See, e.g.,

RAI 3.5.3-2. In all instances, though, the RAls show issues that are still under review and as yet inconclusive; in every case, whatever the issue, the Staff has accorded Duke Energy the opportunity to expand upon or otherwise justify the approach taken in the application.

He Petitioners' extensive reliance on RAls, and a similar approach taken in another recent license renewal case, Calvert Cliffs, causes us to elaborate, briefly, our understanding of the use of RAls in adjudications. We said in Calvert Cl#s that RAls are not always " irrelevant to the adjudicatory process." 48 NRC at 350 (citation omitted). They can, for instance, provide a jumping-off point for the petitioners to focus upon particular parts of the application and thereby develop potential issues of concern. The extent to which an RAI might help support a contention must be considered on a case-by-case basis, but the Commission i

expects that in almost all instances a petitioner must go beyond merely quoting an RAI to justify admission of a contention into the proceeding.

To show a genuine dispute with the Applicant, Petitioners must use the RAI to make the issue of concern their own. This means they must develop a fact-based argument that actually and specifically challenges the application.

Where, for example, as in this case, the NRC Staff issues an RAI that questions a particular inspection schedule - directing the Applicant to further describe and support it - a genuine and material dispute for litigation does not arise from a petitioner's mere mention of the RAI. The petitioner's contention must indicate why the petitioner believes the particular inspection schedule makes the license renewal application unacceptable, not just that the NRC Staff has 341

7 1;

requested a better explanation or description of it.5 A the Licensing Board has t

aptly stated, a contention "that fails directly to controvert the license application

... is subject to dismissal." Private Fuel Storage, LLC. (Independent Spent Ibel Storage Installation), LDP-98-7, 47. NRC 142,181 (1998). Moreover, if the RAI in question does nothing more than request further information, it is not unreasonable to expect a petitioner to provide additional information cerroborating the existence of an actual safety problem. Documents, expert opinion, or at least a fact-based argument are necessary The Petitioners here

' have provided none of this.

It is surely legitimate for the. Commission to screen out contentions of doubtful worth and to avoid starting down the path toward a hearing at the behest of Petitioners who themselves have no particular expertise - or expert assistance -- and no particularized grievance, but are hoping something will turn up later as a result of NRC Staff work. Our contention rule would soon be '

rendered insignificant if any petitioner with standing had only to cite an RAI to gain entitlement to an adjudicatory hearing.

l

'Ihe Petitioners in this case effectively concede they have no independent knowledge or expertise to bring to the adjudicatory process, but intend to rely solely upon the " Staff's technical and scientific assessment of the application" which they understand is ongoing and as yet inconclusive. See Appeal Brief at -

2-3, Because they were unable before filing their petition to see how the NRC Staff RAIs will be ultimately resolved, they are unsure if contentions are even

" warranted." Distilled, the Petitioners' pleadings reveal only one clearly defined dispute - not with the contents of the application, but with the very structure of i

l the Commission's adjudicatory process - which requires Petitioners to come i

forward now, rather than later, with contentions. But generic changes in our adjudicatory rules can be accomplished only through the rulemaking process, not through individual adjudications. The Board was correct in refusing to allow the Petitioners to litigate generalized grievances.

3 Several of the speci6e RAls the 1%duoners have cited here involve one-dme inspection programs for different plant systems. These RAls question why the Apphcant proposes to complete these inspeedons only by the end of de inidal hcense terrn. For example, one RAI states the following: " Provide a justi6cadon for not compleung the inspection activides at the bme of applicanon. Along with your jtisu6 canon, desenbe de methodology, identify any applicable acceptance criteria, idenufy planned correcove actions, and provide a schedule for implementauon" (RA143.9-2). Apurt from merely quotmg this language from the RAI, the Petiooners present no health er safety argument for why the inspection already should have been completed, which presumably is their concern. Although they claim that their carher Amended Petinon was " totally misinterpreted" by the Bourd, the plain reading of their Anunded Petition suggests that they onginally beheved these types of one dme inspections should be conducted laser, not sooner. In their Amended Ituuon, the Peuuoners argued that if Ele one-time inspection were conducted

"well in advance of the exptracon date for the oconce Nuclear stauon's current operaung license,,, den l

at the beginning of the nuclear stauon's extended term there could be ten years of ' wear and tear'.... that l

' would he unaccounted for." Anended Petinon at 4. Now on appeal. they simply declare, without more, that it is

" unacceptable to delay dwse inspections.". Appeal Brief at 4. Regardless, though, of whether the Itutioners have changed deir position on these one-tme inspections, dry present no argument or rationale for why the schedule should be one wuy or the other.

342

L L

C.

Contention 4

- Contention 4 is phrased as follows: 'The Petitioners submit that the specific issue of the storage <.f spent fuel and the other radioactive substances on the site of the Oconce Nucl v Station must be addressed in these proceedings. In addition, the status and ca.pacity of the current spent fuel storage facility must be disclosed and addressed. He real and potential availa',ility and viability of other liigh Level Waste storage sites must be disclosed and addressed." See Appeal Brief at 4. The basis for the contention is the failure of Duke Energy's environmental report to address the onsite storage, transportation, and ultimate j

disposal of the Oconee facility's spent fuel.

' We begin by noting generally that agencies are free either to determine issues on a case-by-case basis through adjudications or, when appropriate, to resolve matters generically through the rulemaking process. Otherwise, the agency would be required " continually to relitigate issues that may be established fairly and efficiently in a single rulemaking proceeding." See Heckler v. Campbell, 461 U.S. 458, 467 (1983). Accord Kelley v. Selin, 42 F.3d 1501,1511 (6th Cir.), cert. denied, 515 U.S.1159 (1995). In the area of waste storage, the Commission largely has chosen to proceed generically. See generally id. at 1512 14, 1519-20; Yankee Atomic Electric Co. (Yankee Nuclear Power Station),

CLI-98-21,48 NRC 185,204-05,211-13 (1998). Thus, where the Commission I

can determine that particular analyses or findings are applicable to all nuclear power plants with common plant characteristics, the Commission frequently has chosen to codify these findings in environmental protection regulations.

IIere, the Petitioners

• concerns in Contention 4 are, with one exception, already addressed generically by Commission regulation, and Duke Energy therefore did not have to provide a plant-specific discussion of these items in its environmental report. Ihr instance,10 C.F.R. 651.53(c)(3)(i) explicitly states that an applicant's site-specific environmental report for operating license renewals need not contain an analysis of any issues identified as " Category 1" issues in Appendix B to Part 51, Subpart A, because the Commission already has addressed those issues in a generic fashion. Category 1 issues include the radiological impacts of spent fuel and high-level waste disposal, low-level waste storage and disposal, mixed waste storage and disposal, and onsite spent fuel.

See Table B-1, Part 51, Subpart A. Appendix B. The Commission's generic determinations governing onsite waste storage preclude the Petitioners from attempting to introduce such waste issues into this adjudication.

He Commission expressly has decided to address the environmental and radiological effects of onsite spent fuel storage generically in the context of license renewal. See, e.g., " Environmental Review for Renewal of Nuclear Power Plant Operating Licenses," 61 Fed. Reg. 66,537,66,538 (Dec.18,1996).

Our rules state:

I 343 l

f

F l

[ljf necessary, spent fuel generated in any reactor can be stored safely and without significant environmental impacts for at least 30 years beyond the licensed life for operation (which may include the term of a revised or renewed license) of that reactor at its spent fuel storage baain or at either onsite or offsite independent spent fuel storage installations.

I 10 C.F.R. 5 51.23(a). Our rules also state that "[t]he expected increase in the volume of spent fuel from an additional 20 years of operation can be safely accommodated on site with small environmental effects through dry or pool storage at all plants if a permanent repository is not available." See Table B-1, Part $1, Subpart A, Appendix B. An applicant's environmental report therefore "need not discuss any aspect of the storage of spent fuel for the facility within the scope of [these] generic determinations.' 10 C.F.R. 5 51.53(c)(2). See also NUREG-1437, " Generic Environmental Impact Statement for License Renewal of Nuclear Plants."

We turn next to the Petitioners' claim that the environmental report should have addressed the "real and potential availability and viability of other High Level Waste storage sites." Again, the Commission has chosen to address this matter generically by rule. See 10 C.F.R. Ol51.53(c)(2); 51.23(a) ("the Commission believes.

that at least one mined geologic repository will be available within the first quarter of the twenty-first century, and sufficient repository capacity will be available within 30 years beyond the licensed life for operation of any reactor"). On appeal, the Petitioners attack this finding, stating that it " appears suspect" because the candidate site of Yucca Mountain has yet to be licensed; the Department of Energy's target date for the repository has been missed; the capacity of the repository may be insufficient; and there have been safety-related incidents involving dry cask spent fuel storage. See Appeal Brief at 5.

Petitioners' effort to attack the Commission's " waste confidence" determi-nation is unpersuasive. First, Petitioners raise their waste confidence claim for the first time on appeal. That alone defeats the argument at a procedural level.

l See, e.g., Sequoyah fuels Corp. (Gore, Oklahoma Site), CLI-97-13,46 NRC 195, 221 (1997). Substantively, the Petitioners' claims, even read in the most generous light, do not come close to showing why this proceeding presents such special or different circumstances that it warrants disregarding or waiving the i

application of our generic spent fuel storage and high-level waste disposal rules.

See 10 C.F.R. 6 2.758. At bottom, the Petitioners voice concerns only about un-certainties in high-level waste disposal, uncertainties that the Commission has 4 on a related point. the Commission handles as a separate licensing mater any apphcations for an onsite ISFSI.

ISFSI heenses are granted under 10 C F.R. Part 72. The Comnussion. for example, m 1990 granted Duke Energy a 20-year license to store spent fuel in un isFSI a the oconee facihty. 55 fid. Reg. 40M Okb. 6.1990). The Comnussion provided an opportumty for a heanng on this bcenne. 53 Ind. Reg 26.122 Ouly 11.1988). A request for an expansion of the spent fuel pool also would entail an opportumty for hearing. See 10 C F.R. I 21107.

344 I

j l

l 1

j

always acknowledged, but has decided will be overcome in the next several decades.

He Commission sensibly has chosen to address high-level waste disposal i

generically rather than unnecessarily to revisit the same waste disposal questions, f

license-by-license, when reviewing individual applications. liigh-level waste I

storage and disposal, we have said, "is a national problem of essentially the same degree of complexity and uncertainty for every renewal application and it would

{

not be useful to have a repetitive reconsideration of the matter." 61 Fed. Reg.

66,537,66,538 (Dec. II,1996). The Petitioners have presented no reason for the Commission to depart from its generic waste storage determinations in this proceeding and instead litigate the question in an individual case. If Petitioners are dissatisfied with our generic approach to the problem, their remedy lies in the rulemaking process, not in this adsdication.

. Lastly, pointing to 10 C.F.R. 5 51.53(c)(3)(ii)(M), the Petitioners claim that Duke Energy's environmental report should have addressed the impacts of transporting high-level waste to a high-level waste repository site. This is a matter not governed by a current Commission rule. But the Licensing Board correctly found that the transportation of spent fuel rods to an offsite repository is not an appropriate subject for a contention because it is the subject of a i

pending rulemaking. It has long been agency policy that Licensing Boards

)

"should not accept in individual license proceedings contentions which are (or are about to become) the subject of general rulemaking by the Commission."

See Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units I and 2), ALAB-218,8 AEC 79,85 (1974); Duke Power Co. (Catawba j

Nuclear Station, Units I and 2), ALAB-813,22 NRC 59, 86 (1985); Primte fuel Storage, LLC. (Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142,179 (1998).

In a Staff Requirements Memorandum (SRM), dated January 13,1998, the Commission directed the NRC Staff to proceed with a rulemaking to amend 10 C.F.R. 5 51.53(c)(3)(ii)(M) to categorize the impacts of transporting high-level waste as a generically addressed Category 1 issue. The Commission explicitly stated that current license renewal applicants 5.iould not address these transportation issues unless waiting for the rulemaking to be final would delay the license renewal proceeding. As the Licensing Board in this case indicated, a final rule on this question is expected no later than September 1999, and therefore this rulemaking is not expected to delay the anticipated December 2000 completion of the license renewal proceeding. See 48 NRC at 392.

On appeal, the Petitioners merely argue that there is "no guarantee that the proposal to change the llLW rule will proceed unimpeded." Appeal Brief at 5-6. We note, however, that there have been no delays to date in the process and formal notice of the proposed rule already has been published. See 64 Fed.

Reg. 9884 (Feb. 26,1999). The Petitioners may, of course, raise any concerns 345 t

about the proposed rule by participating in this rulemaking. In any event, Duke Energy's license renewal application will not be granted without the resolution of this matter. Given current information, we agree with the Licensing Board tha*

it would be " counterproductive" (and contrary to longstanding agency policy)

. to initiate litigation on an issue that by all accounts very soon will be resolved generically.

IV. CONCLUSION AND ORDER For the reasons stated in this Decision, the Commission hereby afirms LBP-

' 98-33 in its entirety.

IT IS SO ORDERED.

Ibr the Commission ANNETTE L. VIETTI-COOK Secretary of the Commission Dated at Rockville, Maryland, this 15th day of April 1999.

I i

l 1

i 346 l-l L

Cite as 49 NRC 347 (1999)

CLl-99-12 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

l Shirley Ann Jackson, Chairman

.I Greta Joy Dicus j

Nils J. Diaz Edward McGaffigan, Jr.

Jeffrey S. Merrifleid in the Matter of Docket No. 40-8948-MLA SHIELDALLOY METALLURGICAL CORPORATION (Cambridge, Ohio Facility)

April 26,1999 The Commission affirms a Licensing Board order, LDP-99-12, 49 NRC 155 (1999), denying an intervention petition and heanng request for failure to demonstrate standmg.

1 RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY);

ADMISSIBILITY OF CONTENTIONS; CONTENTIONS (APPEALABILITY OF DISMISSAL); CONTENTIONS (SPECIFICITY AND BASIS); CONTENTIONS (REQUIREMENTS FOR INTERVENTION); INTERVENTION (STANDING); STANDING TO INTERVENE EVIDENCE: DUTY TO PROVIDE The Commission differs from Article III courts in that we do not permit

" notice pleadings." North Atlantic Energy Service Corp. (Scabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 219 (1999). Rather, we insist on detailed descriptions of the petitioner's positions on issues going to both standing and the merits. 10 C.F.R. 5 2.1205(e) (petitioner "must describe in detail" these positions). Cf.10 C.F.R. il2.1211(b) (requiring governmental participants in Subpart L proceedings to state their areas of concern "with reasonable 347

specificity"),2.714(a)(2) (requiring petitioners in Subpart G proceedings to set forth their positions "with particularity").

RULES OF PRACTICE: INTERVENTION PETITIONS (AFFIDAVIT);

AFFIDAVITS; RESPONSIBILITIES OF COUNSEL; INTERVENTION (STANDING); STANDING TO INTERVENE; STANDARDS OF PRACTICE EVIDENCE: DUTY TO PROVIDE

)

"In order to establish the factual predicates for these various elements [of standing), when legal representation is present, it generally is necessary for the l

individual to set forth any factual claims in a sworn affidavit." LBP-99-12,49

)

NRC at 158 (emphasis added), citing Atlas Corp. (Moab, Utah Facility), LBP j 9,45 NRC 414,427 n.4, a.[f'd, CLI 97-8,46 NRC 21 (1997). The Commission's

)

Subpart L procedures governing this proceeding do not now contain, nor have they ever contained, such a requirement. Although our Subpart G procedural rules once contained such a requirement (see 10 C.F.R. 5 2.714(a) (197 7)), we rescinded that provision more than 20 years ago. See 43 Ibd. Reg.17,798, 17,799 (Apr. 26,1978). See also Washington Public Power Supply System (WPPSS Nuclear Project No.1), LBP-83-59,18 NRC 667,669 (1983).

RULES OF PRACTICE: INTERVENTION PETITIONS i

(AFFIDAVITS); AFFIDAVITS EVIDENCE: DUTY TO PROVIDE i

'Ihe Commission does not interpret the Presiding Officer's order as stating that an affidavit was absolutely required, for indeed it is not.

RULES OF PRACTICE: RESPONSIBILITIES OF COUNSEL; REPRESENTATION (BY ATTORNEY); STANDARDS OF PRACTICE Petitioners represented by counsel are generally held to a higher standard than pro se litigants. See, e.g., Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, i1 NRC 542,54611980), and cited cases.

4 348

RULES OF PRACTICE: INTERVENTION (STANDING); STANDING TO INTERVENE EVIDENCE: DUTY TO PROVIDE Section 2.1205(e) of our procedural regulations requires petitioners seeking a hearing to provide a detailed description as to why they have standing.

Petitioners' dual assertions that two of their number own land within a mile of the SMC facility and that their property contains radioactive slag from the SMC facility may well be true, but the assertions are cursory at best, do not constitute the requisite detailed description, and are unsupported by evidence

- affidavit or otherwise - that would help to provide the requisite detail. Nor

. do petitioners even allege that they are required to do anything at all with the slag and soil, or state how much greater their costs would be compared with the expense of returning the slag and soil to the Cambridge facility grounds. These omissions render their economic injury argument woefully deficient.

RULES OF PRACTICE: SCOPE AND TYPE OF PROCEEDING Because Petitioners' dual economic assertions do not go to the question whether the proffered amendment should be granted, they fall outside the scope of this proceeding.

RULES OF PRACTICE: INTERVENTION (STANDING); STANDING TO INTERVENE (INJURY IN FACT)

EVIDENCE: DUTY TO PROVIDE Petitioners to intervene are required under our rules of practice to provide some form of substantiating evidence for their factual assertions regarding stand.

ing. Petitioners' failure to offer such support for its claims of non-economic injury (despite their having been served with a copy of the relevant Environmen-tal Report) rendered those claims deficient and absolved the Presiding Officer of any need to discuss them in detail.

RULES OF PRACTICE: INTERVENTION (STANDING); STANDING TO INTERVENE (INJURY IN FACT)

- Because Petitioners never assert that they actually use the geographical areas that they claim to be associated with their purported aesthetic, recreational, and environmental / conservation interests, they fail to show that they would be

" personally and individually" injured, as required under the Supreme Court's decision in Lujan v. Defenders of Wilditfe, 504 U.S. 555,560 n.1,561-62 (1992).

349

1 1

See also United States v. AVX Corp., 962 F.2d 108,118 (1st Cir.1992) ("a plaintiff, to secure standing, must show that he or she uses the specific property in question" (citation and internal quotation marks omitted)). Compare Private l

Fuel Storage, LLC. (Independent Spent Fuel Storage Installation), CLI-98-13, 48 NRC 26,31-32 (1998) (sworn affidavits showing regular and frequent visits to a home near the facility are sufficient to establish standing).

RULES OF PRACTICE: STANDING TO INTERVENE (INJURY IN FACT); INTERVENTION (STANDING); SCOPE AND TYPE OF PROCEEDING Because Petitioners' claim of economic injury falls outside the scope of this proceeding and thus cannot be redressed herein, any evidence they would present on redressability of economic injury is irrelevant.

RULES OF PRACTICE: INFORMAL PROCEEDINGS; DISCOVERY Subpart L proceedings offer no right to discovery. See 10 C.F.R. I 2.1231(d).

RULES OF PRACTICE: INTERVENTION (STANDING); STANDING TO INTERVENE (REDRESSABILITY)

It is well established in both federal and Commission case law that redress-

- ability is an essential element of standing. See, e.g., Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-98-21,48 NRC 185 (1998); Geor-

gia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia),

CLI-95-12,42 NRC 111,115 (1995); Bennett v. Spear, 520 U.S.154,162,167 (1997).

RULES OF PRACTICE: NOTICE OF APPEARANCE; INTERVENTION (STANDING); STANDING TO INTERVENE (INJURY IN FACT)

It is the Commission's general rule that, to establish individual standing, persons seeking to intervene must identify themselves. See generally Houston Lighting and Power Co.'(Allens Creek Nuclear Generating Station, Unit 1),

. ALAB-535,9 NRC 377,389-400 (1979). The general need for such identifica-tion should be obvious. If the Commission does not know who the petitioners are, it is usually difficult or impossible for the licensee to effectively question, and for us to ultimately determine, whether petitioners as individual, have "per-sonally" suffered or will suffer a " distinct and palpable" harm that constitutes 350

injury in fact - a determination required for a finding of standing. Dellums v.

NRC, 863 F.2d 968,971 (D.C. Cir.1988). See generally Atomic Energy Act, i 189a,42 U.S.C. I 2239(a): 10 C.F.R. 5 2.1205(e)(1), (2).

RULES OF PRACTICE: CONFIDENTIAL INFORMATION (PROTECTION FROM DISCLOSURE)

Although this agency has never gone so far as to admit an anonymous party into a proceeding, we have repeatedly shown in other contexts our willingness to make the necessay accommodations to protect the privacy of individuals who show us that such protection is appropriate - something Citizens have not done. See International Uranium (USA) Corp. (White Mesa Uranium Mill),

LBP-97-14,46 NRC 55,57 n.3 (1997) (noting that fear for the safety cf the people whom an organization purports to represent could justify the omission of those people's names from a petition opposing the licensing action at issue in an NRC proceeding), ag'd, CL1-98-6,47 NRC 116 (1998): louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-812,22 NRC 5,17 n.8 (1985) (using protective orders and expurgated copies of affidavits to protect affiants' anonymity); Pacific Gas and Electric Co. (Diablo Canycn Nuclear Power Plant, Units I and 2), ALAB-775,19 NRC 1361,1367 n.18

' (1984) ("in camera filings and requests for protective orders are available in appropriate circumstances to protect the legitimate interests of a party or other person"), ag'd sub nom. Deukmejian v. NRC, 751 F.2d 1287 (D.C. Cir.1984),

reh *g granted and opin. vacated, 760 F.2d 1320 (D.C. Cir.1985), Commission

\\

decision reaff'd on reh'g sub nom. San Luis Obispo Mothersfor Peace v. NRC, 789 F.2d 26 (D.C. Cir.) (en banc), cert. denied, 479 U.S. 923 (1986).

MEMORANDUM AND ORDER I

Ihur citizens of Guernsey County, Ohio (" Citizens"), have sought intervention and a hearing to contest a request by Shieldalloy Metallurgical Corporation

("SMC") to amend the 10 C.F.R. Part 40 source materials license for its Cambridge, Ohio facility On libruary 23, 1999, the Nuclear Regulatory Commission's Presiding Officer issued a Memorandum and Order, LBP-99-12, 49 NRC 155, denying Citizens' intervention petition and hearing request for failure to demonstrate standing. On March 5, Citizens appealed LBP-99-12 to the Commission pursuant to 10 C.F.R. 5 2.1205(o). Both SMC and the NRC Staff oppose Citizens' appeal. We deny the appeal, affirm LBP-99-12, and terminate the proceeding.

1 351

I IIACKGROUND i

This proceeding stems from SMC's application to amend its Source Material License No. SMB-1507 which cu.rently authd,.es SMC to possess radioactive slag (currently totaling about 7 million cubic feet) that resulted from alloy prod iction processes previously conducted at SMC's Cambridge facility. If approved, the license amendment would allow SMC to take possession of an additioiial 81,000 cubic feet of slag and associated soil that was gathered from offsite residential properties in 1997' and is currently owned and held by another company in roll-off boxes (containers) at a temporary staging area which that company rents from SMC within the Cambridge facility grounds.

The amendment would also permit SMC to move this offsite slag / soil from the containers to a nearby slag pile that is also within the SMC facility.2 Citizens ask this agency to deny the application on the grounds that it would (1) violate various state statutory and regulatory provisions, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980,42 U.S.C.

il 9601-9657, and NRC requirements in 10 C.F.R. Part 61; (2) increase the costs of proper disposal of offsite radioactive slag from the Cambridge facility that was j

not accounted for in the amendment; (3) increase the public health and safety risk from needless handling of radioactive material; and (4) adversely affect Citizens' aesthetic, recreational, environmental / conservational, and economic interests, including visual blight and contaminated runoff into nearby streams.

Regarding their fourth ground, Citizens argue that (a) their aesthetic values j

will be adversely affected by looking from state or township roads upon additional slag / soil commingled with the solid wastes in the slag pilr (b) their recreational interests will be adversely affected by this commingling adjacent to open fields, wetlands, and Chapman's Run that drain into nearby Will's Creek; (c) their environmental / conservational interests will be adversely affected by the commingling being in violation of federal and Ohio laws enacted to protect the public health, safety, welfare and environmental resources; and (d) their economic interests (also addressed in the second ground) are adversely affected by the amendment's failure to permit two of the four Petitioners to place the slag now on their proper *y onto the SMC slag pile, thereby requiring them to dispose of their slag elsewhere at a substantially greater cost.

'Ihe Presiding Officer concluded that the only specific factual assertion Citizens made in support of their various claims of injury was that two of the Petitioners own real property (within a mile of the SMC facility) known I Ar,mrently. sone of the slag from the plant was sold or given away for offste une as fill rnaienal, pnmanly in de 1980s. Envmmmental Report. July 24.1998. at 1. utruched to NRC staff's Respome. dated Jan 11.1999.

2 On rehruary 16. the NRC Staff gramed the bcense unwndment upphcation. The claff also cat.cluded that the existing beense already authont.ed movenwnt of the matenal from its onute contamers to the slag pile. tztter of John W. N. Hickey to Janes Valemi. dat-d Ivb 16.1999. at 1.

352

to contain radioactive slag from the SMC facility - a fact relevant only to

'wo Petitioners' claim of economic injury. The Presiding Officer concluded that this claim of economic injury was unsupported by the requisite sworn statement affirming the factual assertions upon which the claim rests, lacked the requisite concreteness to establish an injury in fact, and was unlikely to yield a favorable decision that would redress the alleged injurious effects to the interest in question. Regarding the redressability of the injuries, the Presiding Officer further ruled that, because his authority extended only to determining whether to permit the material now on site to be moved from the containers to i

the slag pile, he lacked the authority to grant Citizens the relief they sought -

removal of slag and soil from their property - to redress their alleged economic i

injury.3 Finally, regarding the remaining allegations of aesthetic, recreational, j

and environmental / conservational injury, the Presiding Officer ruled that the i

petition contained no verified claim to these injuries from any individual who f

had indicated an intent to become a party to this proceeding. Based on these d

rulings, the Presiding Officer dismissed the intervention petition and terminated the proceeding.

On appeal, Citizens proffer five grounds for reversing the Board's order denying them standing, all of which are opposed by the Staff and SMC. As we have recently reiterated, any individual seeking standing to participate in a

)

Commission adjudication must establish that (1) he or she will suffer a distinct i

and palpable " injury in fact" within the zone of interests arguably protected by the statutes governing the proceeding, (2) the injury is fairly traceable to the challenged action, and (3) the injmy is likely to be redressed by a decision in the petitioning individual's favor. See Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-98-21,48 NRC 185,195 (1998).

ANALYSIS 1.

Adequate Level of Specificity Citizens argue that the Presiding Officer erred in concluding that they must establish the factual predicates for the various elements of a request for hearing.

According to Citizens, their request for hearing need only allege that they will suffer a distinct and palpable injury, fairly traceable to the pfoposed action that is likely to be redressed by a favorable decision.

Citizens' argument reflects a basic misunderstanding of the Commission's rules of practice. We differ from Article 111 courts in that we do not permit I

3 The Preni&ng Ofheer raised. but &d not rule on. tbc quesuons whether stus purported economic interest falla wittun applicable zone of interests arguably protected by the statutes governing the procee&ng and whether any of the areas of concern specihed in the peuuon are germane to tte subject rnatter of this proceed ng 353 t

I I

l i

l l

I i-1 i

m:

the kind of " notice pleadings" to which Citizens allude. North Atlantic Energy Service Corp. (Seabrook Station, Unit 1), CLI-99-6,49 NRC 201,219 (1999).

Rather, we insist on detailed descriptions of the Petitioner's positions on issues going to both standing and the merits.10 C.F.R. 6 2.1205(e) (Petitioner "must describe in detail" these positions). Cf 10 C.F.R. Il2.1211(b) (requiring governmental participants in Subpart L proceedings to state their areas of concern "with reasonable specificity"),2.714(a)(2) (requiring petitioners in Su! mart G proceedings to set forth their positions "with particularity").

2.

Higher Standard; Economic injury Citizens assert that the Presiding Officer improperly held them to a higher standard merely because they were represented by counsel. Specifically, they challenge the Presiding Officer's ruling that petitioners who are represented by counsel must generally set forth any factual claims in a sworn affidavit. Citizens do not deny that their request for hearing was unverified by affidavit. Rather, they allege that an affidavit verifying the factual basis of their request for hearing is not a necessary element of the request.

This line of argument is flawed in several respects. Citizens misconstrue the overall thrust of the Presiding Officer's ruling. Although the Presiding Officer does refer to "the requisite sworn statement" (LBP-99-12, 49 NRC at 159),

this reference follows a correct statement on the immediately preceding page that, "in order to establish the factual predicates for these various elements [of standing), when legal representation is present, it generally is necessary for the individual to set forth any factual claims in a sworn affidavit."4 We construe the Presiding Officer's perhaps-inartful later reference to "the requisite sworn statement" as merely a shorthand reference to his earlier accurate description of the law. Consequently, we do not interpret his order as stating that an affidavit 1

was absolutely required, for indeed it is not.

We also agree with the Presiding Officer that petitioners represented by counsel are generally held to a higher standard than pro Se litigants. See, e.g.,

Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, II NRC 542,546 (1980), and cited cases.

More to the point, however, section 2.1205(e) of our procedural regulations requires petitioners seeking a hearing to provide a detailed description as to why they have standing. We agree with the Presiding Officer that Citizens have made

.BP 99-12. 49 NRC at 158 Omphaus added) smar Artus Corp (Moab 'Jtah Facituy), LDP 97 9,45 NRC l

414. 477 n 4. sE'd. C1197-8. 46 NRC 21 (1997). The Commission's Subpart L procedures govermng this I

proceedmg do not now connun, nor have they ever conuuned. such a requirement. Although our subpart G pmcedural rules once yontmned such a requirement (sce 10 C F R. I 2.714(a)(1977)), we resemded that provision mtwe than 20 years ago. Ser 43 lid Reg. 17,798.17.799 (Apr. 26.1978). See alm Washingrun Public Power Supply Systra (WPPss Nuclear Prtyect No.1), LDP-83-59.18 NRC 667. 669 (1983).

354

I 1

no such showing. Citizens' dual assertions that two Petitioners own land within a mile of the SMC facility and that their property contains radioactive slag from

)

the SMC facility may well be true, but they are cursory at best, do not constitute j

the requisite detailed description, and are unsupported by evidence - affidavit or otherwise - that would help to provide the requisite detail. Nor do Citizens even allege that they are required to do anything at all with the slag and soil, or state how much greater their costs would be compared with the expense of i

returning the slag and soil to the Cambridge facility grounds. These omissions render Citizens' economic injury argument woefully deficient.

l Finally, because Citizens' dual economic assertions do not go to the question whether the proffered amendment should be granted, they fall outside the scope of this proceeding. As the Presiding Officer correctly indicated, the scope of this case extends only to the issue whether the Commission should permit both i

the transfer of responsibility for material now on site and the movement of l

that material from the onsite containers to the onsite slag pile. See " Notice of Consideration of Amendment Request for Shieldalloy Metallurgical Corp.," 63 Fed. Reg 64,976(Nov. 24,1998). By their own admission, Citizens' radioactive i

slag is located off site and is " unaccounted for in the license amendment request."

Citizens' licaring Request, dated Dec. 21,1998, at 1. Consequently, Citizens' claims of economic injury fall outside the scope of this proceeding, their specific claims of both causation of economic harm and redressability of economic injury j

fail, and their overarching claim to economic standing must be rejected.8 3.

Non Economic injuries Citizens assert that the Presiding Officer erred in addressing only the specific factual asseftions (regarding economic injury to the two owners of real estate l

near the SMC facility) and ignoring the remaining claims of injury (i.e., those non. economic injuries to Citizens' health-and-safety, aesthetic, recreational, and environmental / conservation interests). The Presiding Officer did not ignore the 1

8 1n any event, the grant or deni.nl of the instant unendnent in no way precludes Ciuzens from rendung an i

j agreement with SMC for the latter to take their slag and sod. It currently appears that Ciuzens have no contractual I

gmunds ist insisting that sMC take their slag and soit See SMC's Reply Bnef, dated Itb. 22.1999, at 5.

However, there is nothmg in r,MC's beene or tne instant license unendment that would preclude Citizens and SMC from entering into such a contract. Indeed, the Staff's Safety Evaluation Report specnically states that This action li e the grant of the beense anendmenil does mn preclude return of additional material to de site at some futur'r ume. In fact. we have increased the amount authorized for transfer to Shieldalkiy from upprominutely 1%... to 3% (or 10JX10 cubic yardnt.. Shieldalloy could request that even greater arrounts of matenal be permitted to return to the sisc. but would have to submit another amendnent request to do so.

I safety Evaluauon Report at 3, cristlwd m the NRC Staff's leb. 16.1999 letter granung the anendnent, supra l

note 2, Given that the cunent natenal knals ordy 3000 cubic meters, plenty of volune appears still to be available.

I within the parameters of the instant licenu unwndnent. to accommodate Citizens' own slag and soil, assummg 1

Citizens were to reach an agreement wnh sMC. Id. at 4-l 355 I

l l

l l

r l..

I

r l

remaining claims of injury. He expressly noted that they lacked evidentiary support (LDP-99-12,49 NRC at 159 n.2)- a conclusion with which Citizens have not taken issue and with which we agree. As discussed above, petitioners to intervene are required under our rules of practice to provide some form of substantiating evidence for their factual assertions regarding standing. Citizens' failure to offer such support for its claims of non-economic injury (despite their having been served with a copy of the relevant Environmental Report, supra note 1) rendered those claims deficient and absolved the Presiding Officer of any need to discuss them in detail.

In addition to failing to offer any supporting evidence, Citizens never assert l

that they actually use the geographical areas which they claim to be associated with their purported aesthetic, recreational, and environmenad/ conservation interests. See Citizens' Reply Brief, dated lib. 5,1999, at 13. In this respect, Citizens fail to show that they would be " personally and individually" injured, as required under the Supreme Court's decision in Lujan v. Defenders of Wildhfe, 504 U.S. 555,560 n.1,561-62 (1992). See also United States v. AVX Corp., 962 F.2d 108,118 (1st Cir.1992) ("a plaintiff, to secure standing, must show that he or she uses the specific property in question"(citation and internal quotation marks omitted)). Compare Primte FuelStorage, LLC, (Independent Spent Fuel Storage Installation), CLI.98-13, 48 NRC 26, 31-32 (1998) (sworn affidavits showing regular and frequent visits to a home near the facility are sufficient to establish standing).

4.

Redressability ofIrqjuries Citizens argue that the Presiding Officer erred in concluding that denial of the license amendment application would not redress the alleged economic injury.

They claim that the Presiding Officer is reaching a conclusion on the merits of l

their request for hearing without giving them an opportunity to present evidence or to discover how denial of the application might redress all of their alleged injuries (not just the economic injury).

We disagree with both prongs of this argument. First, as explained above, the scope of this proceeding encompasses only radioactive material currently on j

site, not material located on the two Petitioners' own property. Consequently, 4

as a matter of law, Citizens' claim of economic injury falls outside the scope of this proceeding and thus cannot be redressed herein. This conclusion of law renders irrelevant any evidence Citizens would present on redressability of economic injury.* Second, Citizens' complaint regarding a denial of opportunity a lthough Gtizens may be correct that its claims of non-ccononuc injury could theoretically be redrewed A

through the denial of sMC's hcenne anu:udment upphcanon, those claims are nevertheless fiswed for the reasons set forth elsewhere in this Order.

356 l

l u

n.

l:

l i

l I-

' for' discovery ignores the fact that Subpart L proceedings such as 'this one offer no right to discovery. See 10 C.F.R( { 2.1231(d). Citizens' argument again reflects their failure to recognize that they had, but failed to take advantage of, their opportunity to present a minimal level of evidence supporting their claims -

l

'of injury. Moreover, their claim that a decision on redressability constitutes a merits decision is legally unsupportable. It is well established in both federal I

and Commission case law that redressability is an essential element of standing.

See, e.g., Yankee Nuclear, supra; Georgia institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia), CLI 95-12, 42 NRC 111,115 (1995);

. Bennett v. Spear, 520 U.S.154,' 162,167 (1997).

5.

Need to identyy Clients Citizens object to the Presiding Officer's instruction' that their counsel, in l

. any appeal he might file,' must enter an appearance that includes a statement

..the only phrase used by counsel to identify his clients while the proceeding identifying his clients in terms much more specific than " unnamed citizens,"

l was pending before the Presiding Officer. Citizens apparently consider the -

instruction to be one of the grounds on which the Presiding Officer based his adverse ruling regarding Citizens' standing.

This argument is flawed in several respects. Initially, counsel's March 5

. submittal of the required notice of appearance - which identified his clients by L

name - tenders much of this argument moot. As to the remaining portion, we disagree with Citizens' apparent conclusion that the Presiding Officer in any way based his rejection of Citizens' standing on their counsel's prior failure to enter an appearance identifying his clients. The Presiding Officer's discussion of the entry of appearance and identification of clients is found not in the " Analysis" section of LBP-99-12 but rather in a footnote attached to the " Conclusion" section.' Thus, it does not form a basis for the Presiding Officer's ruling on standing.'

However, we would be remiss if we did not note that the Presiding Officer correctly enunciated the Commission's general rule that, to establish individual standing, the indi',iduals seeking to intervene must identify themselves.7 The l

'7 5ee generally Hauntem Ushima and Power Co. (Allens Creek Nuclear Genetaung Station. Umt 1). ALAB 535, 9 NRC 377. 3l19 400 (1979)(a petitsoning organization Inust disclose the name and address of at least one member with standing to inservene so us to afford the other htigants the means to verify that standmg exists). Ahhough this agency has never gone so far as to adnut an anonymous party into a proceeding, we have repeatedly shown in other consents our willingnen to make the necennary accommodations to protect the pnvacy of Individuals

. who show us that such protection is appropriate - somettung Citizens have not done. See Internathmal Uranism

- (USA) Corp. (White Mesa Uranium Mill). L.BP 9714,46 NRC 55. 57 a.3 (1997)(noung that fear for the safety of the people whom an orgamzanon purports to represent could jusufy the omission of those people's names j,,

from a petition opposing the licensmg action at issue in an NRC proceeding). af'd. CL1-98 6,47 NRC 116 L

(Continued) 357 l'

s.

i-

' 1) -

. /

L_

i l

general aced for such identification should be obvious. If the Commission does not know who the Petitioners are, it is usually difficult or impossible for the l

Licensee to effectively question, and for us to ultimately determine, whether l

Petitioners as individuals have " personally" suffered or will stiffer a " distinct and palpable" harm that constitutes injury in fact'- a determination required for a finding of standing.

CONCLUSION Ibr the reasons set forth above, Citizens' appeal is denied, LBP-99-12 is affirmed, and this proceeding is terminated.

IT IS SO ORDERED.

For the Commission 1

ANNETTE L. VIETTI-COOK Secretary of the Commission Dated at Rockville, Maryland, this 26th day of April 1999.

)

(1998h Luisiana Power and Lighs Co (waterford Steam Electnc Station Umt 3), ALAB-812,22 NRC 5,17 n.8 (1985)(using protecove orders and expurgated copies of affidavits to protect affiants' anonymity); Pac (fic Gas and Electric Co. (Diablo Canyon Nuclear Power Plant. Units i and 2), ALAB-775,19 NRC 1361,1367 n.18 (1984)("in canera filings and requests for protective orders are available in appropnate circumstances to protect the legiunwe interests of a party or other person"), aff'd sub nom. Drukmejian v. NRC,751 F.2d 1287 (D C. Cir.

1984), reh's grunted and opin, wented. 'Ibo F.2d 1320 (D C. Cir.1985). Commisskm dectskm reaf'd on rek's sub non San Luis Obispo Mothers for Peace v. NRC, 789 F.2d 26 (D C. Cir.) (en banc), cerr. denied. 479 U.S.

923 (1986).

sDellams v. NRC, 863 F.2d 968,971 (D C. Cir.1988). Sec generally Atomic Energy Act, i 189a, 42 U.S C.

12239(a) (requiring that a person's "imerest.

be affected by the proceedmg).10 C.F.R. 6 2.1205(e)(1),

(2)(requiring a detailed showing of the petitioner *u interest and how it would he affected by the result or the proceeding).

358 l

1 t

L

Cito as 49 NRC 359 (1999)

CLI-99-13 UNITED STATES OF AMdRICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

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

Jeffrey S. Merrifield j

in the Matter of Docket No. 40-8681-MLA-4 INTERNATIONAL URANIUM (USA)

)

CORPORATION (Receipt of Material from Tonawanda, New York)

April 26,1999 In this materials license amendment proceeding, the Commission grants the State of Utah's petition for review of a decision by the Presiding Officer, LUP-99-5,49 NRC 107 (1999), upholding a license amendment granted to the International Uranium (USA) Corporation.

ORDER In this Subpart L proceeding, the State of Utah has petitioned the Commission for review of a decision by the presiding officer, LBP-99-5, 49 NRC 107 (1999), upholding a license amendment granted to the International Uranium (USA) Corporation. Utah maintains that the license amendment improperly permits IUSA to operate a waste disposal facility. The NRC Staff opposes Commission review, but IUSA does not. IUSA states that Commission review would "climinate uncertainty" and "end the waste of resources involved in repeated litigation." We agree. Thus, in accordance with the considerations set forth in 10 C.F.R. 5 2.786(b)(4), the Commission has decided to grant the petition and will review LBP-99-5 in its entirety. See 10 C.F.R. 5 2.1253, 359

r L

I (1

The Commission sets the following briefing schedule:

(1) The State of Utah shall file its brief within 21 days of the date of this Order. The brief shall be no longer than 25 pages.

(2). He NRC Staff and IUSA shall file their responsive briefs within 21

- days after receipt of the State of Utah's brief. Deir briefs shall be no logr than 25 pages.

(3) De State of Utah may file a reply brief within 14 days of receiving the briefs of the NRC Staff and IUSA. The reply brief shall be no longer than 15 pages.

All briefs shall be filed and served in a manner that ensures their receipt on their due date. Electronie or facsimile submissions are acceptable, but shall be followed by hard copies within a reasonable time. 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. Page -

)-

limitations on briefs are exclusive of pages containing a table of contents, and

~ f any addendum containing statutes, rules, regulations, etc.

o IT IS SO ORDERED.

Ibr th Commission ANNE'ITE L. VIETTI-COOK.

Secretary of the Commission I

Dated at Rockville, Maryland, this 26th day of April 1999.

i N

i

~

4 m

Cite as 49 NRC 361 (1999)

CLI-9914 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

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

Jeffrey S. Merrifleid in the Matter of Docket No. lA 97-068 AHARON BEN-HAIM, Ph.D.

April 26,1999 1

The Commission denies petitions for review filed by both the Staff and Dr.

Ben-Haim.

RULES OF PRACTICE: PETITIONS FOR REVIEW LICENSING BOARDS: SCOPE OF REVIEW To obtain Commission review, a petitioner must show the existence of a substantial question regarding one or more of the following five considerations, as set forth in 10 C.F.R. Q 2.786(b)(4):

(i) A finding of nuterial fact is clearly erroneous or in conflict with a finding as to the same fact in a different proceeding; (ii) A necessary legal conclusion is without governing precedent or is a departure from or contrary to established law; fiii) A substantial and important question of law, policy, or discretion has been raised, (iv) The conduct of the proceeding involved prejudicial procedural error; or (v) Any other consideration w hich the Commission may deem to be in the public interest.

361 s

l 2

l

)

7 1

1 l

RULES OF PRACTICE: PETITIONS FOR REVIEW l-LICENSING BOARDS: SCOPE OF REVIEW l

l De Commission denies the Staff's petition for review on the ground that the Staff has not persuaded us that the issues it raises are sufficiently " substantial" to justify our granting a discretionary review of the Licensing Board's order.10 C.F.R. I 2.786(b)(4). See generally Emerick S. McDaniel(Denial of Application for Reactor Operator License), CLI-96-il,44 NRC 229,230 (1996) (denying reactor operator candidate's petition for review for failure to present substantial issues); Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-9, 44 NRC 112,113 (1996) (denying intervenors' petition for review for failure to present substantial issues).

RULES OF PRACTICE: PETITIONS FOR REVIEW (DEFERENCE)

ADJUDICATORY PROCEEDINGS: APPELLATE REVIEW ADJUDICATORY llEARINGS: EVIDENCE EVIDENCE: CREDIBILITY (DEMEANOR OF WITNESS)

Given that the Board's ruling regarding the length of the suspension period was based in part on Dr. Ben-Haim's demeanor at the hearing, the ruling is subject to deference on appeal. See Metropolitan Edison Co. (Three Mile Island Nuclear Station Unit 1), ALAB-772,19 NRC 1193,1218 (1984) (where the credibility of evidence turns on the demeanor of a witness, an appellate board '

will give the judgment of the trial board, which saw and heard the testimony, particularly great deference), rev'd in part on other grounds, CLI-85-2,21 NRC 282 (1985), and cited authority.

RULES OF PRACTICE: PRECEDENTIAL EFFECT OF BOARD DECISIONS-Board orders have no precedential effect. See Sequoyah fuels Corp., CLI-95-2,41 NRC 179,190 (1995).

MEMORANDUM ANL) ORDER Ris proceeding stems from an August 27, 1997 enforcement order of the NRC Staff against Aharon Ben-Haim, Ph.D. In that order, the Staff found that Dr. Ben-Haim had deliberately caused the Newark Medical Associates ("NMA,"

362

i i

a company for which Dr. Ben-Haim was consulting) to be in violation of several Commission requirements The Staff therefore found Dr. Den-Haim in violation of 10 C.F.R. 0 30.10 (the " deliberate misconduct" rule) and prohibited him from participating in any NRC-licensed activities for a 5-year period beginning July 31, 1997. 62 Fed. Reg. 47,224 (Sept. 8,1997).

On Rbruary 8,1999, the Atomic Safety and Licensing Board issued an Initial Decision (LDP-99-4,4') NRC 55) affirming the NRC Staff's fmdings of violation but reducing from 5 to 3 years the prohibition period. The Board based this reduction on its conclusion that the Staff had not considered, either adequately or at all, five factors: Dr. Ben-Haim's age (65 at the onset of the suspension), his admission of error and his apology as set forth in a post-hearing pleading, the absence of safety consequences from the violations, the violations' duration, and the fact that Dr. Ben-Ilaim's violation was influenced by Dr. Elamir (NMA's owner). The Board also considered the fact that the Staff's settlement with Dr. Elamir (involving the same set of facts) had imposed on him only a 3-year prohibition period.

On Rbruary 24th, the Staff filed a timely petition for Commission review of LDP-99-4, challenging the Board's reduction of the prohibition period. Dr.

Ben-Haim did not contest the Staff's petition. However, he did submit his own untimely Petition for Review on March 14th, justifying his tardiness on the grounds that he had belatedly received the Board's order and that he had been incapacitated with the flu. Staff has objected to Dr. Ber-Haim's petition. We deny both petitions.

Discussion I.

TIIE STAFF'S PETITION FOR REVIEW l

The Staff recognizes that, to obtain Commission review, it must show the existence of a substantial question regarding one or more of the following five considerations:

(i) A finding of material fact is clearly erroneous or in conflict with a finding as to the same fact in a different proceeding; (ii) A necessary legal conclusion is without governing precedent or is a departure from or contrary to established law; (iii) A substantial and important question of law, policy. or discretion has been raised; (iv) The conduct of the proceeding involved prejudicial procedural error, or (v) Any other consideration which the Commission may deem to be in the public interest.

363

'M

10 C.F.R. 6 2.786(b)(4). Applying the standards of section 2.786(b)(4)(iii), (iv),

and (v), the Staff argues that the Board erred in considering the six factors set forth supra.

'Although the Staff presents colorable arguments-(especially its assertion regarding the inappropriateness of the Board comparing a suspension period resulting from a settlement with one resulting from a hearing), the Staff has not persuaded us that the issues themselves are sufficiently " substantial" to justify our granting a discretionary review of LBP-99-4.8 The Board's conclusion regarding a 3-year suspension does.not, on its face, appear unreasonable and, given that it was based in part on Dr. Ben-Haim's demeanor at the hearing (see 49_ NRC at 100), it is subject to deference on appeal.2 In any event, because the Board's order has no precedential effect, any_ arguably incorrect rulings by this Board will have no adverse effect on the Staff in future enforcement proceedings. See Sequoyah fuels Corp., CLI-95-2,41 NRC 179,190 (1995) (" Licensing Board decisions... have no precedential effect beyond the immediate proceeding in which they were issued"). Under these circumstances, we do not consider it an appropriate use of the Commission's resources to set this case for briefing and to engage in a full review of the

" penalty" portion of LBP-99-4.

IL DR. BEN HAIM'S PETITION FOR REVIEW Dr. Ben-Haim in his petition objects principally to the Board's finding that he i.ad " deliberately" caused the Licensee NMA to be in violation of several of the Commission's requirements. He insists that his errors stemmed from an inadequate understanding of the regulations rather than from a conscious attempt to circumvent them. The remainder of his petition consists of either challenges to specific findings of fact or reiterations of his good intentions.

Dr. Ben-Haim does not attempt to satisfy the requirements of section 2.786(b)(4), supra, and our review of his pleading reveals no arguments that rise to the level of substantiality necessary for us to grant discretionary review.

The Board's finding appears to be supported by the record, including Dr. Ben-i Haim's own admissions, leaving us doubtful that any purpose would be served by pler6ary briefing and decision on the issues Dr. Ben-Haim raises.

I 10 C.F.R. 6 2.786(b)(4). See generanj w.;ck 5. McDaniel(Denial of Applicauon for Reactor operator License). CLI 96 il. 44 NRC 229, 230 (1996) (denying reactor operator candidate's peution for review for failure to present substantial issues)', rankta Atomic Elecerse Co. (Yankee Nuclear Power station), CLI-96-9,44 NRC 112.113 (1996)(denying intervenorg* peunon for review for failure to present substantial issues).

2 See Metropolitan Edison Co. (Three Mile kland Nuclear Station, Unit 1) ALAB-7/2,19 NRC 1193,1218 (1984)(where the credibility of evidence turns on the demeanor of a witness, an appellate board will give the judgrnent of the trial hourd, which saw and heard the testirnnny, parucularly great deference). rev'd in part on other grounds, CLI 85 2. 21 NRC 282 (1985),and cited authority.

364 i

I l

l l

l l

Conclusion The Commission denies the Staff's and Dr. Ben-Haim's petitions for review.

D IS SO ORDERED.

Ihr the Commission 1

ANNETTE L VIETU-COOK Secretary of the Commission Dated at Rockville, Maryland, this 26th day of April 1999, i

365 l

l 1

i I

l

l l

Cite as 49 NRC 366 (1999)

CLI-99-15 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

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

Jeffrey S. Merrifield In the Matter of Docket No.11005070 (License No. XSNM-03060)

TRANSNUCLEAR, INC,

-(Export of 93.3% Enriched Uranium)

April 26,1999 EXPORT LICENSING PROCEEDING: STANDING TO INTERVENE The Commission has applied judicial standing tests to its export licensing proceedings.

EXPORT LICENSING PROCEEDING: STANDING TO INTERVENE An organization's institutional interest in providing information to the public and the generalized interest of its membership in minimizing danger from proliferation are insufficient to confer standing as a matter of right under section 189a of the Atornic Energy Act of 1954, as amended.

EXPORT LICENSING PROCEEDING: HEARING REQUEST A discretionary hearing is not warranted where such a hearing would impose unnecessary burdens on participants and would not provide the Commission with additional information needed to make its statutory determinations under the AEA.

366 l

l l

l

7 EXPORT LICENSING PROCEEDING: HEARING REQUEST l

De Commission may, in its discretion, direct further public proceedings if l,

it determines that these proceedings, such as a public meeting, would be in the l

public interest even though petitioner has not established a right to intervene under section 189a of the AEA.

\\

l

. MEMORANDUM AND ORDER On October 29,1998, Transnuclear, Inc., filed an application with the Com-mission seeking authorization to export over a 5-year period 130.65 kilograms of high-enriched ursium in the form of fabricated UO, targets. These targets will be used for the production by MDS Nordion of medical isotopes in the Maple 1 and 2 reactors currently under construction by Atomic Energy of Canada Lim-ited's Chalk River Nuclear Laboratories. On December 30,1998, the Nuclear Control Institute (NCI) filed a petition for leave to intervene and a request for hearing on the application. NCI is a nonprofit, educational corporation which disseminates information to the public concerning the proliferation, safety, and -

environmental risks associated with the use of weapons-useable nuclear materi-als, equipment, and technology.

On March 5,1999, the Department of State provided the Commission with Executive Branch views on the merits of the application. The Executive Branch concluded that the application satisfied the applicable export licensing criteria and requested that the Commission issue the license. After receiving these views and evaluating the pleadings filed in this proceeding, and without ruling on the intervention petition and hearing request, we posed written questions to the participants. CLI-99-9,49 NRC 314 (1999).

In this Order we address the intervention-petition and hearing request.

We have concluded that Petitioner NCI lacks standing to intervene in this proceeding as a matter of right. The Commission has previously held that NCI does not meet the judicial standing tests that we apply in export licensing

. proceedings. Transnuclear, Inc. (Export of 93.3% Enriched Uranium), CLI-98-10,- 47 NRC 333, 336 (1998), citing Transnuclear, Inc. (Export of 93.15%

Enriched Uranium), CLI-94-1,39 NRC 1,4-6 (1994). In those decisions, the Commission held that NCI's institutional interest in providing information to the public and the generalized interest of its membership in minimizing danger from proliferation are insufficient to confer standing under section 189a'of the Atomic Energy Act. NCI itself has conceded that it is unable to meet the 367 l

1

Commission's criteria for intervention as of right.8 nerefore, we deny NCI's L petition for intervention and request for a hearing under section 189a.

De Commissior. hes further considered whether to order a discretionary Lhearing in this +

ng. 'In view of the numerous pleadings filed by the e

. parties, and L'

< submissions' filed in response to CLI-99-9, we find that a hearing. 1:

procedures set forth in 10 C.F.R. Part 110, Subparts

. H and I, is rn

/ to provide the Commission with the information it needs to make i.

ry findings. Furthermore, a discretionary hearing would

= impose unnecessary.,ardens on the participants. Consequently, we hold that a discretionary hearing is not warranted in this case.. The Commission has concluded, however, that a public meeting, which would provide an opportunity for the Applicant and other interested participants to summarize their positions and respond to any follow-up questions the Commission might have on responses

~ to CLI 99-9, would assist the Commission in reaching a decision in this matter.

To that end, we invite the Applicant,'lYansnuclear, Inc., NCI,' and the Executive =

Branch to attend a Commission meeting on Wednesday, June 16,1999, from 9:00 a.m. to 11:30 a.m. in the Commissioners' Meeting Room at NRC Headquarters, One White Flint North,11555 Rockville Pike, Rockville, Maryland.

l%e Commission requests presentations from Transnuclear, Inc.,' NCI, and

'the Executive Branch expressing their respective views on the application and

. whether the statutory requirements for issuance of this export license have been met. In addition, the Commission requests that a knowledgeable official from the Argonne National Laboratory be present at the meeting, as a part of the Executive Branch contingent, to answer any questions the Commission may pose. Presentations will be made in the order listed, and each participant shall be allotted 30 minutes. No other presentations will be permitted; however, the Commission will accept, prior to June 16,1999, written submissions from any individual or group not listed above. Only the Commission may pose questions to the presenters during the meeting. The Secretary of the Commission will notify the participants'if the Commission desires that particular issues be addresud in the presentations.

3 See Reply of ftudoner Nslear Control Insutute to the opposidon of Transnuclear. Inc. and Atonne Energy of Canada, t.ed. to the Ptddon for leave to Intervene and Request for a Heanng, reb. 11.1999, at 3.

7

'k i

}

l We request that each participant provide the name(s) of its presenter (s) to the

-Secretary of the Commission by riiday, June 11,1999.

It is so ORDERED.

For the Commission l

l l

ANNETTE L. VIETf!-COOK t.

Secretary of the Commission l

Dated at Rockville, Maryland, this 26th day of April 1999, I

l 1

t 4

t 369' i

t i.

2

i Cite as 49 NRC 370 (1999)

CLI-9916 1

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l

COMMISSIONERS:

Shirley Ann Jackson, Chairman

)

Grota Joy Dicus Nils J. Diaz Edward McGaffigan, Jr.

Jeffrey S. Merrifield In the Matter of Docket No. 50-443-LT NORTH ATLANTIC ENERGY SERVICE CORPORPATION, et al.

(Seabrook Station, Unit 1)

April 26,1999 Because the sole intervenor has ' ' drawn its petition for in:ervention, the Commission terminates this procer RULES OF PRACTICE: DISMt SAL OF PROCEEDING; WITHDRAWAL OF INTERVENOR ADJUDICATORY PROCEEDINGS: DISMISSAL Under Commission case law, the withdrawal of all intervenors brings a licensing proceeding to a close. Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-91-13, 34 NRC 185,188 n.1 (1991); Public Service Co. of Colorado (Fort St. Vrain Independent Spent Fuel i

Storage Installation), attached to Turkey Point, supra, 34 NRC 190 (1990).

MEMORANDUM AND ORDER The Montaup Electric Company ("Montaup") seeks to transfer its ownership interest in Seabrook Station, Unit 1 to the Little Bay Power Corporation ("Little i

i l

370 L

l L

T, L

i

+

1.

< Bay"). On Montaup's behalf, the North Atlantic Energy Service Corporation-(Seabrook's operator), submitted the transfer application to the Commission i

for approval. Such approval is required pursuant to section 184 of the Atomic

[:

Energy Act,42 U.S.C. I 2234. Two co-owners -New England Power Company L

.. ("NEP") and United Illuminating Company (" United") - filed intervention i

petitions opposing the transfer application. In CLI-99-6,49 NRC 201 (1999),

we granted NEP's petition and denied United's petition.

' The Applicants and NEP have settled their differences and, on April 15th, NEP filed a notice of withdrawal.~ Under Commission case law, the withdrawal of all intervenors brings a licensing proceeding to a close. Florida Power and l

Light Co. (1brkey Point Nuclear Generating Plant, Units 3 and 4), CLI-91-13, 34 NRC 185,188 n.1 (1991); Public Service Co. of Colorado (Ibrt St. Vrain

' Independent Spent Fuel Storage Installation), attached to 7krkey Point, supra, j

34 NRC 190 (1990). As the sole Intervenor has withdrawn, this proceeding is

)

. terminated.

j IT IS SO ORDERED.

For the Commission ANNtilTE L. VIE'ITI-COOK Secretary of the Commission.

Dated at Rockville, Maryland, this 26th day of April 1999.

l 371 j

i i

6 i

1 u

I

i 1

l l

i Cite as 49 NRC 372 (1999)

CLI-9917

~

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l

COMMISSIONERS:

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

Jeffrey S. Merrifield in the Matter of Docket No. 50-293-LT BOSTON EDISON COMPANY and ENTERGY NUCLEAR GENERATION COMPANY (Pilgrim Nuclear Power Station)

April 26,1999 Because all intervenors have withdrawn their petitions for intervention, the Commission terminates this proceeding.

i RULES OF PRACTICE: DISMISSAL OF PROCEEDING; i

WITHDRAWAL OF INTERVENOR ADJUDICATORY PROCEEDINGS: DISMISSAL Under Commission case law, the withdrawal of all intervenors brings a proceeding to a close. North Atlantic Energy Service Corp. (Seabrook Station, Unit 1), CLI-99-16,49 NRC 370 (1999) and cited cases.

MEMORANDUM AND ORDER On December 21,1998, pursuant to section 184 of the Atomic Energy Act,42 U.S.C. 5 2234, Boston Edison Company ("BECo," the sole owner and operator of the Pilgrim Nuclear Power Station) and Entergy Nuclear Generation Company 372 1

i I

("Entergy Nuclear") filed an application jointly seeking the Commission's authorization, pursuant to 10 C.F.R. Q $0.80, to transfer from BECo to Entergy Nuclear both the Facility Operating and the Materials Licenses for Pilgrim.

Under the Applicants' proposal, Entergy Nuclear would assume BECo's ongoing obligations for capital investment and operating expenses and also for any escalations in decommissioning obligations above the amount prefunded by BECo. The Applicants also seek conforming amendments to the tsa licenses, pursuant to 10 C.F.R. 5 50.90.

On January 26,1999, the Commission pcblished a notice of this request in the Federal Register, announcing that affected persons could file intervention petitions and hearing requests. On February 16th, the Attorney General for the Commonwealth of Massachusetts ("the AG") and Locals 369 and 387 of the AILCIO's Utility Workers Union of America (collectively "the Unions")

i filed timely hearing requests and intervention petitions in opposition to BECo's license transfer request. However, the Applicants and Petitioners subsequently settled their differences and, on April 7th and 16th, respectively, the Unions and the AO filed notices of withdrawal. Under Commission case law, the withdrawal j

of all intervenors brings a proceeding to a close. North Atlantic Elergy Service Corp. (Seabrook Station, Unit 1). CLI-99-16, 49 NRC 370 (1999) and cited cases.

As all Petitioners to intervene have withdrawn their petitions, this proceeding is terminated.

IT IS SO ORDERED.

For the Commission ANNETTE L. VIE'ITI-COOK Secretary of the Commission Dated at Rockville, Maryland, this 26th day of April 1999.

373

Atomic Safety and Licensing Boards ~lssuances ATOMIC SAFETY AND UCENSING BOARD PANEL G. Paul Bollwerk \\\\\\,* Acting Chief Administrative Judge Vacant,* Deputy Chief Administrative Judge (Executive)

Frederick J. Shon,* Deputy Chief Administratite Judge (Technical)

Members Dr. George C. Anderson Dr. Harry Foreman Dr. Linda W. Little Charles Bechhoefer*

Dr. David L. Hetrick Thomas S. Moore

• j Peter B. Bloch*

Dr. Frank F. Hooper Thomas D. Murphy

• Dr. Robin Brett Dr. Charles N. Kelber*

Dr. Harry Rein Dr. James H. Carpenter Di. Jerry R. Kline Lester S. Rubenstein Dr. Richard F. Cole

• Dr. Peter S. Lam

• Dr. David R. Schink

]

Dr. Thomas S. Elleman Dr. James C. Lamb lli Dr. George F. Tidey

• Permanent panelrnembers

I s

Cite as 49 NRC 375 (1999)

LBP-99-17 UNITED STATES OF AMERICA l

NUCLEAR REGULATORY COMMISSION j

ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Charles Bechhoefer, Chairman i

Dr. Thomas S. Elleman Thomas D. Murphy in the Matter of Docket No. 50-029-LA-R 4

(ASLBP No. 99-754-01 LA-R)

(License Termination Plan)

YANKEE ATOMIC ELECTRIC COMPANY (Yankee Nuclear Power Station)

April 22,1999

)

In a proceeding concerning the adequacy of the License Termination Plan (LTP) for the Yankee-Rowe Reactor, the Atomic Safety and Licensing Board denies a motion by the Licensee for reconsideration of the admission of one of four contentions admitted by the Board in its Prehearing Conference Order of March 17.1999 (LDP-99-14,49 NRC 238). The Board clarifies the scope of that contention.

REGULATIONS: PRESCRIBED DOSES i

1 Where an LTP includes specified doses, and where those doses are advanced to meet a specific regulatory criterion, the doses cannot be regarded as a voluntary commitment and the method of calculation of those doses in the LTP is subject to challenge.

375

m F

MEMORANDUM AND ORDER

- (Denying Motion for Reconsideration of Contention 4)

^ Dis proceeding concerns the License Termination' Plan (LTP)'for the' Yan-kee Nuclear Power Station (YNPS), in Rowe, Massachusetts, for which Yankee

~ Atomic Electric Co. (YAEC or Licensce) is seeking approval. In our Prehearing

)

< Conference Order dated March 17,1999, LBP-99-14,49 NRC 238, we con-sidered numerous proposed contentions proffered (in many cases, jointly) by 7

.the Ne(v England Coalition on Nuclear Pollution (NECNP) and the Citizens -

Awareness Network (CAN), and we accepted four of them (designated Con-tentions 1-4). _

Pending before us is a motion filed by YAEC on March 29,1999, seeking reconsideration of our allowance of Contention 4, which was a consolidation of contentions that had been submitted jointly by NECNP and CAN.' Timely response _s opposing the Reconsideration Motion have been filed by NECNP, CAN, and the Franklin Regional Coencil of Governments (FRCOG, participating

. as an interested governmental entity pursuant to 10 C.F.R. 5 2.715(c)).2 A i

response in support of the motion (agreeing in toto with everything put forth by YAEC) was filed by the NRC Staff.8 YAEC seeks to file a reply to the

" responses of NECNP and CAN,4 and NECNP seeks to reply to YAEC's reply.5 (Inasmuch as YAEC's reply includes references to criteria adopted in the decommissioning plan that is not otherwise before us, we accept both YAEC's

. reply and NECNP's reply to the reply)6 For reasons set forth, we are denying YAEC's motion, although ' clarifying to some degree the basis for our earlier Prehearing Conference Order ruling on this contention.

i no contention under review reads as follows:

Contention C. Contrary to the requirements of 10 CE.R.150.82, the methodology YAEC employs in the LTP for the selection of applicable scenarios for the calculation of its

'i

!" Objection to and Motion of Yankee Atomic Electric Company for Reconsideration of a Portion of Prehearing Conference order," dated March 29,1999 (hereinafter, "Reconsideracon Motion").

I 2"[NECNP's] Opposition to [YAEC'al Motion to [Reconsiderl Part of Prehearing Conference order," deed Apn19,1999; [CAN'sl Reply to [YAEC's] Objection to and Motion for Reconsideration of a Poetion of Prehearing Conference Order," dated April 9.1999, [FRCOG) Opposition to Objection to and Motion for Reconsideration 1 of Portion of Prehearing Conference Order Filed by [YAECl," d,ated April 8,1999.

' I"NRC Staff Response to [YAEC'al Objection to and Motion for Reconsideration of a Portion of Prehearing Conference order," dated April 9,1999, "YAEC's " Motion for Leave to Reply (Reconsideration of a Portion of Preheanng Conference Order), dated April 12,1999.

8 NECNP's " Motion for tenve to Reply to [YAEC's) Motion for Isave to Reply (Reconsideration of a Portion of Prehearing Order) and YAEC's Reply,"dased April 12,1999.

• la addition, YAEC on April 13,1999, Fubmitted an item that was intended to have been attached to its Apnl 12 Reply motion but was inadvenently omined, and on April.14,1999, subndtted an " Erratum (Reconsideration of a Portion of Prehearing Conference order)" We accept both tihngs.

376 t

l.,

L

~

fist selease. doses 'is not adequate to demonstrate that the LTP will assure the protection of i

the public health and safety.

YAEC in its' Reconsideration Motion takes issue with this contention on essentially four grounds (although some of them tend to overlap each other).

L We deal with them seriatim.1 l

' First, and most important, it claims that, by imposing criteria for Total L

. Effective Dose. Equivalent ('lEDE) release values set forth in the LTP (here, 15 mrem /yr; see, e.g., LTP at 1-1, 1-2, 4-1), the contention, by exploring one L

. aspect of the means by which the 15 mrem /yr is to be calculated, could subject

]

YAEC to criteria that are not applicable to the site in question.

I YAEC goes on to explain that, at least in its view, there are no TEDE dose requirements applicable to the site at all, inasmuch as the LTP is not subject to the requirements of 10 C.F.R. 9 20.1402 (source of a TEDE requirement) l but rather to the Site Decommissioning Management Plan (SDMP) Action Plan l

requirements (set forth at 57 lid. Reg.13,389 (Apr.16,1992)) applicable prior to the adoption by the Commission of the TEDE requirements. YAEC describes the SDMP site release criteria as, dependent "primarily" on surface activity readings and an exposure rate pass value of 5 microroentgen/hr and as i

not requiring the determination of a TEDE to the average member of the critical group, or even that a critical group be defined (Reconsideration Motion at 2).

YAEC adds that it " voluntarily" subjected itself to a TEDE requirement that it could drop from its LTP without violating any governing regulatory requirement.

= The Intervenors counter this argument of YAEC on a number of grounds.

Some are matters of policy that we are not able to resolve - such as -whether -

i the site should be subject to the SDMP criteria or, if so, whether the LTP must be finally approved by the Commission by August 20, 1999,- for the SDMP.-

criteria to be applicable. We only hold that the site is currently subject to the

=

.SDMP criteria, given the apparent previous submission and prior Commission l'

' approval of a decommissioning plan compatible with SDMP criteria (see 10 l

L C.F.R. 620.1401(b)(2)) and that we will judge the validity of Contention 4 in 1

l light both of the SDMP criteria and YAEC's utilization of tne 15-millirem /yr -

i l-dosage in the LTP. Nor need we consider NECNP's claim that the SDMP criteria are not entitled to regulatory force. Although the' SDMP criteria clearly were not

' nitially adopted as formal regulations, they (and their applicability to particular i

- sites, such as the YNPS site) are referenced by current regulations and may thus

be accorded weight on that score.

L The Intervenors' next point is more telling. They claim that YAEC is relying on the TEDE figure in its LTP and, accordingly, to be a meaningful commitment, YAEC must calculate it correctly. That YAEC might amend its LTP to withdraw the TEDE commitment is irrelevant to the Intervenors, who claim that a modified LTP would still be subject to Commission approval.

377 le

_m

\\^ls,

L l.

3 m

As we perceive the argument, the Intervenors claim that the Licensee is bound l

by its TEDE dose commitment, even if voluntary, and in that circumstance the dose must be calculated properly. Otherwise, it is no more than a facade or j

an advertising gimmick, not wrth the paper on which it may be printed. nat j

the " voluntary" commitment may later be withdrawn or watered down is of no consequence, except to engender another Commission review of the LTP.

After consideration of the various arguments, we conclude the TEDE com-mitment in the LTP is something more than " voluntary." The Licensee has itself

]

l-acknowledged that the 15-mrem /yr TEDE requirement has been included in the l

approved YNPS Decommissioning Plan, which was inserted into the FSAR and then carried forward to the LTP.? Whether or not it was voluntarily initiated, it becomes binding when included as an FSAR condition.

Moreover, both the SDMP and the TEDE requirement in 10 C.F.R. 5 20.1402 l

are subject to ALARA' requirements. The LTP utilizes the 15-mrem /yr require-ment to fulfill its SDMP ALARA requirements. Rus, for example, the LTP l

states (at 4-1):

• Ihe purpose of this section [Section 41 is to identify the reinediation methods that may i

I be used, describe the areas on site that may be subject to remediation, and denwarstrate that the site release criterion of 13 mrem / year is adequate to ensure that residual levels of radioactivity at YNPS will be As 1.ow As is Reastmably Achiemble (AIARA). (Emphasis j

supplied.]

He LTP goes on to explain (at 4-4) that "[t]his [ALARA] analysis will show that, in areas with dose levels already lower than 15 mrem / year for an average member of the criticalpopulation group, the benefits of further remediation are not proportionate to the total costs" (emphasis supplied).

Thus, in summary, the LTP itself reflects that the TEDE value contained therein is not a purely " voluntary" commitment but rather has been submitted to reflect what already is included in the approved Decommissioning Plan and to fulfill the SDMP ALARA requirement.' Beyond that, this section of the LTP demonstrates the significance of the average population group and, perforce, its l

l 7" Erratum (Reconsiderauon of a Portion of Preheunng Conference order)," subnutted by YAEC on April 14, 1999, at 1.

s 1. ARA (acronym for as low as is reasonably achievable")is dehned as A

making every reasonable effort to maintain exposures to radiation as far below the dose hmits in this part as la pracucal consistent with the purpose for which the hcensed acovity is undertaken, taking into account the st.ite of technology, the economics of improvements in relauon to state of technology, the econonucs of improvenents in relation to benents to the public health and safety, and other societal and socioeconomic considerutwns, und in relanon to utilizauon of nuclear energy and licensed materials in the public interest.

10 C.F.R. 6 20.1003.

' 'In addition to the At. ARA requirement, the SDMP criteria refer to "an overall done objective of 10 nullirem per year." $7 rird. Reg. at 13.390.

378 l

t

method of calculation (which, we reiterate, is what this contention challenges).

Accordingly, this aspect of YAEC's challenge to Contention 4 is rejected.

YAEC's second ground for challenging Contention 4 is that, even assuming that the YNPS were not an SDMP plant but was subject to the criteria of 10 C.F.R. 6 20.1402, the contention, if proved, would subject YAEC to proving the sufficiency of a dose criterion lower (15 mrem /yr) than the 25-mrem /yr limit specified in 10 C.F.R. 5 20.1402. What YAEC neglects to mention, however, is that the 25-mrem /yr maximum dose specified in 10 C.F.R. 5 20.1402 is itself subjert to ALARA considerations, and that the 15 mrem /yr in the LTP was

- submitted as an ALARA figure. As noted above, the ALARA dose must be calculated correctly for it te be meaningful. In that connection, the Licensee is required to adopt a relevant exposure scenario and make site measurements of distributed exposure to an average individual in the refereace scenario, irrespective of the specific annual dose to be met. Accordingly, this aspect of YAEC's challenge to Contention 4 is r.lso rejected.

He third aspect of YAEC's challenge to Contention 4 is that it would substitute a particular defined individual (a gardener) for an ' average member of a particular group. YAEC characterizes a " gardener" as a " member of the critical group who is atypica!!y exposed." (Reconsideration Motion at 7.) Whether or not LBP-99-14 may be read that way, the Board did not intend to require any particular defined group, gardener or otherwise. Rather, the Board read the various presentations of the Intervenors as demonstrating that the critical group adopted by the Licensee did not necessarily reflect the likely average member of the critical group that would occupy the site.

De answer to the contention may well be that the average member of the critical group is not the resident utilized by YAEC but an individual engaged in a higher percentage of onsite activities, including gardening. As NECNP observes, "[t]he scenario YAEC uses in the LTP may be reasonable for window-box gardeners and joggers in the city. It does not apply to potential site occupants who will, like so many New Englanders, try to get all of their vegetables from the ' patch' they began cultivating in April." (NECNP Response at 8.) The bases relied on in LBP-99-14 tended to support such a scenario. But the answer may also be that the group presented by the LTP accurately reflects potential site usage. The contention merely opens the door to evidence of what the most appropriate critical group will be. Accordagly, this portion of YAEC's objection to the contention is based on a misunderstanding of the intent of the contention and is accordingly rejected.

YAEC's final challenge is that the contention is hopelessly vague, giving no guidelines as to what YAEC would have to prove. CAN's April 9,1999 filing with respect to the Reconsideration Motion (at 10-12) demonstrates that all the contention seeks to establish is a "reasonab'e and typical scenario for the region" in order to determine TEDE values. CAN would have us accept an 379 i

average farmer, or gardener, and has provided information supporting that result.

As explained above, the Intervenors have established only that an appropriate controversy is to be adjudicated by the Board. YAEC will be required to show that the LTP uses the appropriate scenario to calculate the final release doses for the decommissioning of the YNPS.

Ibr all of the above reasons, YAEC'a motion for reconsideration of the portion of LBP-99-14 that admitted NECNP/CAN Contention 4 is nereby denied.

IT IS SO ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD Charles Bechhoefer, Chairman ADMINISTRATIVE JUDGE Dr. Thorr.as S. Elleman (by CB)

ADMINISTRATIVE JUDGE

. Thomas D. Murphy ADMINISTRATIVE JUDGE

. Rockville, Maryland April 22,1999 i

i I

i 1

l 1

380 m-

Directors' Decisions Under 10 CFR 2.206 cn Z

O_

O W

Q E-O i-O W

T' Q

l v

1 e

Cite as 49 NRC 381 (1999)

DD-99-8 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Samuel J Collins, Director in the Matter of ENTERGY GULF STATES, INC., and Docket No. 50-458 ENTERGY OPERATIONS, INC.

(License No. NPF-47)

(River Bond Station, Unit 1)

FIRSTENERGY NUCLEAR OPERATING Docket No. 50-440 COMPANY (License No. NPF-58)

(Perry Nuclear Power Plant, Unit 1)

April 18,1999 By letters dated September 25, 1998, and November 9,1998, David A.

Lochbaum, acting on behalf of the Union of Concerned Scientists (UCS),

submitted two petitions pursuant to section 2.206 of Title 10 of the Code of Federal Regulations (l0 C.F.R. t 2.2%).

In the petition of September 25,1998, UCS requested that the U.S. Nuclear Regulatory Commission (NRC) order the River Bend Station (River Bend),

operated by Entergy Operations, Inc. (the Licensee), to be immediately shut down and its operating license suspended or modified until the facility's design and licensing bases were properly updated to permit operation with failed fuel i

assemblies or until all failed fuel assemblies were removed from the reactor core.

In the Petition of November 9,1998, UCS filed a similar request that the NRC order the Perry Nuclear Power Plant, Unit 1 (Perry), operated by FirstEnergy Nuclear Operating Company (the Perry Licensee), to also be immediately shut down for the same reasons stated for River Bend. Attached to the two petitions was a copy of a UCS report entitled," Potential Nuclear Safety Hazard - Reactor Operation with Failed Fuel Cladding," dated April 2,1998. UCS also requested a hearing in the Washington, D.C. area to present new plant-specific information 381

regarding the operation of River Bend and Perry, as well as to discuss the April 1998 UCS report.

The Director of the Office of Nuclear Reactor Regulation issued a Director's

' Decision on April'18,1999, denying the specific actions requested in the September 25,1998, and November 9,1998 pe6tions. The Staff did not agree with the UCS's contention that preexisting fuel cladding defects and resultant fuel leakage necessarily violate a plant's licensing basis. The Director's Decision cited a numbe of references where the plants' licensing basis considered the effects of, or did not preclude, preexisting fuel cladding failures.

DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206 L INTRODUCTION By petitions submitted purmaant to 10 C.F.R. 6 2.206 on September 25,1998, and November 9,1998, respectively, Mr. David A. Lochbaum, on behalf of the Union of Concerned Scientists (UCS or Petitioner), requested that the U.S.

Nuclear Regulatory Commission (NRC) take immediate action with regard to the River Bend Station (River Bend) and the Perry Nuclear Power Plant (Perry).

In the petitions, the Petitioner requested that the NRC take immediate en-forcement action by suspending the operating license for River Bend and Perry until all leaking fuel rods were removed from the reactor core or until the facil-

)

ities' design and licensing bases were updated to permit operation with leaking fuel assemblies. Accompanying the petitions was the UCS report " Potential Nuclear Safety Hazard - Reactor Operation with Failed Fuel Cladding," dated April 2,1998. Entergy Operations, Inc. (the River Bend Licensee), provided the NRC with its response to its petition in a letter dated Furuary 11,1999.

FirstEnergy Nuclear Operating Company (the Perry License.I provided a re-sponse to its petition in a letter also dated February 11,1999. On February 22, 1999, the NRC held an informal public hearing at which the Petitioner presented information related to the safety concerns in the petitions. The NRC Staff hec determined that the information presented in the petitions and at the informal public hearing did not support the action requested by the Petitioner. 'Ihe basis for my Decision in this matter follows, IL BACKGROUND In support of the requests presented in the petition dated September 25, 1998, the Petitioner raised concerns stemming from NRC Daily Event Report No. 34815, filed on September 21, 1998, in which Entergy Operations, Inc.,

382 l

4

r 1

I i

i l

reported a possible fuel cladding defect at River Bend. The Petitioner repeated the concerns raised in the UCS report of April 2,1998, regarding nuclear plant operation with fuel cladding leakage. nc UCS considers such operation to be l

potentially unsafe and to be in violation of federal regulations. In addition, the Petitioner cites instances in the licensing basis for River Bend that it believes prohibit operation of the facility with leaking fuel.

In the November 9,1998 Petition, the Petitioner raised similar concerns originating from the NRC Weekly Information Report for the week ending October 30,1998, in which fuel leaks detected at Perry on September 2,1998, and on October 28, 1998, were discussed. The Petitioner also repeated the f

concerns raised in the UCS report of April 2,1998. He matters raised in l

support of the Petitioner's requests are disc'ussed herein.

III. DISCUSSION He September 25, 1998 Petition presents safety concerns for River Bend along with the associated generic concerns addressed in the UCS report of April 2,1998. The plant-specific concerns are based on portions of the River Bend Updated Safety Analysis Report (USAR) cited in the peution. The November 9,1998 Petition presents safety concerns for Perry arising essentially from the Associated generic concerns addressed in the UCS report of April 2,1998. The Perry petition does not reference plant-specific licensing basis documentation.

Since the generic concerns presented in the UCS report bear upon the plant-specific concerns cited in the two petitions, the Staff's evaluation first considers the UCS report and follows with a discussion of the plant-specific concerns.

)

A.

Generic Safety Concerns in the UCS report of April 2,1998, UCS expresses the opinion that existing design and licensing requirements for nuclear power plants preclude their operation with known fuel cladding leakage. The UCS position is based on the assessment of updated final safety analysis reports (UFSARs) of four plants, vendor documentation, standard technical specifications, and pertinent NRC correspondence. The report states that the following regulatory and safety j

concerns exist for plants operating with leaking fuel:

Section 50.59 of 10 C.F.R.," Changes, tests and experiments," is violated because operation with fuel cladding leakage constitutes an unapproved change to the licensing basis for a plant. The report states that such operation is an unresolved safety question because the criteria of 10 C.F.R. 5 50.59(a)(2) are satisfied (e.g., probability and consequences of an accident may be increased by operating with leaking fuel).

383 I

I

o Section 50.71 of 10 C.F.R.," Maintenance of records, making of reports,"

is violated because the licensing basis as documented in the technical specifications and the analyses contained in the UFSAR for the facility do not accommodate operation with leaking fuel.

Safety analyses for postulated accidents assume intact fuel cladding before the event; therefore, plants with known fuel leakage could have accidents with more severe consequences than predicted as a result of fuel damage. The report further states that no information was available showing that operation with leaking fuel has been previously evaluated.

Section 50.34a of 10 C.F.R., " Design objectives for equipment to control releases of radioactive material in effluents - nuclear power reactors,"

and other regulations related to the as low as is reasonably achievable (ALARA) principle for radioactive materials release are violated since plant workers are exposed to a greater risk than necessary because of higher coolant activity levels attributable to leaking fuel.

In addition to requesting that the NRC take steps to prohibit nuclear power plants from operating with fuel cladding damage, the report specifically requests that plants be shut down upon detection of fuel leakage, and that safety evaluations be included in plant licensing bases that consider the effects of operating with leaking fuel to justify operation under such circumstances.

Before addressing the regulatory concerns raised in the April 1998 UCS report, the following discuss 5n provides background and bases for current NRC guidance and practices with regard to fuel defects.

1.

Defense-in Depth and ALARA Considerations In order to protect public health and safety from the consequences of potential uncontrolled releases of radioactive fission products resulting from the operation of nuclear power plants, plants are designed with multiple barriers to fission-product release. This traditional " defense-in-depth" philosophy is key to ensuring that radiological doses from normal operation and postulated accidents will be acceptably low, as outlined in 10 C.F.R. Part 100, " Reactor Site Criteria."

' Fuel cladding is integral to the defense in-depth approach to plant safety, serving as the first barrier to fission-product release.

The premise of the defense-in-depth philosophy with regard to the potential for fission-product release is that plant safety does not rely on a single barrier for protection. In this way, a limited amount of leakage from each of the barriers

- the fuel cladding, the reactor coolant system pressure boundary, and the containment -is a design consideration and some leakage from each barrier, within prescribed limits, is acceptable during operation. These limits, defined within the technical specifications, are established as a key component of a plant's design and licensing basis. The leakage associated with fuel cladding 384

defects is accounted for in plant safety analyses, as discussed later in this evaluation under " Safety Analysis Assumptions."

Therefore, to meet its defense-in-depth objectives, fuel is nat required to be leak-free. A limited amount of fuel cladding leakage is acceptable during operation since (1) in the event of an stecident, other fission-product barriers besides the fuel cladding (i.e., the reactor coolant system pressure boundary and the containment) help prevent uncontrolled releases, (2) limits for reactor coolant system activity, as prescribed in the technical specifications, limit the level of fuel leakage that is permitted so that the release guidelines of 10 C.F.R. Part 100, " Reactor Site Criteria," will not be exceeded during accidents, and (3) plant design features and operating procedures anticipate leaking fuel and provide means to deal with the effects.

Sources of activity in reactor coolant are fission products released from fuel, corrosion products activated in the reactor during operation, and fission products released from impurities in fuel cladding, tritium produced from the irradiation of water, lithium, and boron. Although reactor operators should strive to maintain low levels of coolant activity from all of these sources, the Staff has long recognized that reactor coolant activity cannot be entirely eliminated and that some fission products from leaking fuel could be present (see Standard Review Plan (SRP), NUREG-0800,14.2, " Fuel System Design"). Thus, plant design considerations, such as reactor coolant cleanup systems, shielding, and radwaste controls, have been devised to minimize risk to plant workers from exposure to radiation from reactor coolant. Plants also implement procedures to respond to leaking fuel when leakage is discovered, as was demonstrated by the example of the follow-up actions taken by the River Bend and Perry operators to limit the production of fission products in the vicinity of the leaking fuel rods.

By containing fuel and fission products, cladding also helps maintain radioac-tive releases to as low a level as is reasonably achievable. As previously stated, l

the technical specifications contain limits for the maximum level of coolant ac-tivity so that the dose guidelines in 10 C.F.R. Part 100 are not exceeded during accidents. Rese are the maximum levels of activity assumed to exist in the reactor coolant from normal operating activities. He limits on reactor coolant system specific activity are also used for establishing standardization in radia-tion shielding and procedures for protecting plant personnel from radiation (see section B3.4.16 of NUREG-1431, " Standard Technical Specifications, West-inghouse Plants"). Thus, they are consistent with NRC regulations requiring licensees to follow an ALARA arproach to radiation protection.

The connection between technica1 specification limits for coolant activity and ALARA requirements is key to demonstrating that limited fuel leakage during operation is consistent with safe plant operation. De ALARA requirement is given in 10 C.F.R. Il50.34a and 50.36a. He Statement of Considerations for these NRC regulations (35 Fed. Reg.18,385 (Dec. 3,1970)) contains a l

385 t

I I

i l

1 i

I i

discussion of the " reasonableness" aspect of the ALARA approach. When the Statement of Considerations was written, the Commission believed that releases of radioactivity in plant effluents were generally within the range of"as low as practicable." The Commission also stated, therein, that "as a result of advances in reactor technology, further reduction of those releases can be achieved."

Advances in fuel integrity, design of waste treatment systems, and appropriate procedures were cited as areas in which the plants had taken steps to meet the reasonableness standard. It is important to note that the Commission did not require leak-free fuel as a means to satisfy ALARA requirements. In addition to the physical barriers to the release cited above, other factors, such as radwaste cleanup and plant procedures, provide confidence that fission-product release

]

from the fuel can be controlled so as to prevent und"e risks.

Later in the same Statement of Considerations, the Commission acknowl-edged the need to allow flexibility of plant operation. " Operating flexibility is necessary to take into account some variation in the small quantities of radioac-tivity, as a result of expected operational occurrences, which may temporarily i

result in levels of radioactive effluents in excess of the low levels normally released" but still within regulatory limits. The Commission recognized that a balance should be maintained between limiting exposure to the public and plant operational requirements. Therefore, the NRC regulations allow the possibility cf increased reactor coolant activity levels'that might result from limited fuel cladding leaks, but require the use of plant equipment to maintain control over radioactive materials in gaseous and liquid effluents produced during normal re-actor operations, including expected operational occurrences. The Commission went as far as to define "as low as practicable" (the phrase later replaced with "as low as is reasonably achievable" in 40 Fed. Reg.19,440 (May 5,1975))

in terms of the state of technology, the economics of improvements in rela-tion to benefits to public health and safety that could be derived by improved technology and methods of controlling radioactive materials, and "in relation to the utilization of atomic energy in the public interest." This definition appears C

in section 50.34a itself, mandating that the Commission maintain the balance between safety and plant operational requirements.

By publishing 10 C.F.R. Part 50, Appendix I," Numerical Guides fw Design Objectives and Limiting Conditions for Operation to Meet the Criterion 'As Low As Is Reasonably Achievable

• for Radioactive Material in Light-Water-Cooled Nuclear Power Reactor Effluents," the Commission took steps to provide more definitive guidance for licensees to meet the "as low as practicable" requirement.

Appendix 1 was published as guidance that presented an acceptable method of establishing compliance with the "as low as practicable" requirement of 10 C.F.R. Il50.34a and 50.36a. In the Statement of Considerations for Appen-dix I (40 Fed. Reg.19,439 (May 5,1975)), the Commission characterized the guidance as the " quantitative expression of the meaning of the requirement that 386

m radioactive material in effluen'.s released to unrestricted areas from light-water nuclear power reactors be kept 'as low as prxticable.'" The technical basis for Appendix I contained assumptions for a smal fraction of leaking fuel rods. as is stated in the Atomic Energy Commission's report of July 1973, WASH-1258,

" Final Environmental Statement Concerning Proposed Rule Making Action:

Numerical Guides for Design Objectives and Limiting Conditions for Operation to Meet the Criterion *As Low as Practicable' for Radioactive Material in Light-Water-Cooled Nuclear Power Reactor Effluents."

2.

Associated Regulations and Guidance

)

Rel integrity is explicitly addressed in NRC regulations in several instances,

)

and plant licensing bases specifically discuss fuel performance limits. To im-plement NRC regulations, the Staff developed a number of guidance documents j

for licensees to use in developing their licensing basis. This section outlines the regulatory framework on fuel integrity during normal plant operation and discusses instances in which the Staff has considered the safety implications of fuel integrity.

a.

Regulatory Requirements The General Design Criteria (GDC) of 10 C.F.R. Part 50, Appendix A,

" General Design Criteria for Nuclear Power Plants," contain references to fuel design criteria. When fuel performance is used as a criterion for a safety function, system, or component, the phrase "specified acceptable fuel design limits"(SAFDLs) appears in the following GDC:

GDC 10 " Reactor Design";

GDC 12, " Suppression of Reactor Power Oscillations";

GDC 17, " Electric Power Systems";

GDC 20, " Protection System Rnctions";

GDC 25, " Protection System Requiremeras for Reactivity Control Mai-functions";

GDC 26, " Reactivity Control System Redundancy and Capability";

GDC 33," Reactor Coolant Makeup";

GDC 34," Residual Heat Removal."

GDC 10,17, 20, and 26 use this wording in conjunction with anticipated operational occurrences and conditions of normal operation. Rr example, GDC 10 requires " appropriate margin to assure that specified acceptable fuel design limits are not exceeded during any condition of normal operation, including the effects of anticipated operational occurrences." As discussed later in this section, SAFDLs for a plant are described in plant documentation, typically the e

387

\\

i

r l

i L

UFSAR or the FSAR, and are met by operating wi hin technical specifications l

t limits.

NRC regulations also specify that certain conditions beyond steady state operation be included in evaluations of the normal operat;ng regime for a plant.

Dese are called anticipated operational occurrences (AOOs) and are sometimes referred to_ as " anticipated operating transients." In Appendix A to 10 C.F.R. Part 50, the Staff defines AOOs as "those conditions of normal operation which are expected to occur one or more times during the life of the nuclear power unit." GDC 29, " Protection Against Anticipated Operational Occurrences,"

f gives a general requirement for protectica system and reactivity control system

. performance during AOOs, but does not mention fuel integrity. Examples of AOOs are the loss of all reactor coolant pumps, turbine trip events, and loss of control power. Such occurrences are distinct from events termed " accidents,"

such as a loss-of-coolant accident (LOCA) or a main steamline break. The references to fuel integrity requirements related to accidents and those regarding l

emergency core cooling system (ECCS) performance are beyond co.sditions of normal operation, ne UCS report relates other regulations beyond the GDC to fuel integrity during normal operation as follows:

{

10 C.F.R. 5 50.34a, " Design objectives for equipment to control releases i

of radioactive material in effluents - nuclear power reactors";

10 C.F.R.150.36, " Technical specifications";

10 C.F.Ril50.59, " Changes, tests and experiments";

10 C.F.R. 6 50.71," Maintenance of records, making of reports";

Appendix I to 10 C.F.R. Part 50, " Numerical Guides for Design Objec-tives and Limiting Conditions for Operation To Meet the Criterion 'As 1

Low As Is Reasonably Achievable' for Radioactive Material in Light-Water-Cooled Nuclear Power Reactor Effluents."

Although 10 C.F.R.150.36a, " Technical specifications on effluents from nuclear power reactors," was not directly referenced in the report, by citing 10 C.F.R. 5 50.36, the StaU inferred that section 50.36a is linked to fuel integrity when considering the discussion on the UCS report.

b.

NRC Staff Guidance Documents To implement NRC regulations, several NRC Staff guidance documents are used, including the following:

Regulatory Guide 1.3,"Asr,umptions Used for Evaluating the Potential Radiological Consequences of a Loss of Coolant Accident for Boiling.

Water Reactors";

388 l

1 i

. - Regulatory Guide 1.4,~ " Assumptions Used for Evaluating the Potential

~

Radiological Consequences of a Loss of Coolant Accident for Pressur.

j ized Water Reactors";.

j Regulatory Guide 1.77, !' Assumptions Used for Evaluating a Control-Rod Ejection Accident for Pressurized Water Reactors";-

1 Regulatory Guide 1.112. " Calculation of Releases of Radioactive Mate- -

i

' rials in Gaseous and Liquid Effluents from Light-Water-Cooled Power i

Reactors";

. SRP i 4.2, " Fuel System Design";

.. ' SRP 9 4.4,

• Thermal and Hydraulic Design."

' Along with the regulations, licensees use the guidance documents listed above to form the licensing basis for fuel integrity at their plant. The licensing basis for a nuclear, power plant,~ as defined in 10 C.F.R. Part 54, " Requirements for Renewal of Operating Licenses for Nuclear Power Reactors," is "the set of NRC requirements applicable to a specific ~ plant and a licensee's. written -

commitments for ensuring compliance.with and operation within applicable NRC requirements and the plant-specific design basis... that are docketed -

j and in effect." The defmition continues by listing elements of the licensing basis, such as technical specifications, the FSAR, and licensee commitments documented in NRC safety evaluations. Several cornponents form the plant's licensing basis for fuel performance: (1) NRC regulations that specifically refer

. to fuel integrity; (2) technical specification limits on coolant activity; (3) fuel rod performance specifications and analysis assumptions defined in the plant's FSAR and referenced topical reports; and (4) commitments to NRC regulatory

]

guidance and to generic communications addressing fuel performance.

Acceptance criteria in the SRP sections, which may be adopted by licensees '

j to implement the regulations, are based on meeting the requirements of GDC - - 10 with appropriate margin to ensure that SAFDLs are not exceeded during normal operation, including AOOs. Specifically, SRP 04.2 has as an objective of the safety review w provide assurance that the fuel system is not damaged i

as a result'of normal operation and anticipated operational occurrences." 'Ihe reviewer should ensure that fuel does not leak as a result of specific causes

'during normal operation and AOOs, and that leaking fuel is accounted for in

.. the dose analyses for postulated design. basis accidents. Further, fuel rod failure --

is defined in SRP 8 4.2 as "the loss of fuel rod hermiticity," meaning fuel rod 1

leakage. However, in SRP $ 4.2, the Staff also states that "it is not possible to avoid all fuel rod failures and that cleanup systems are installed to handle a small -

number of leaking rods." Such leaks typically occur as a result of manufacturing -

flaws or loose parts wear. Therefore, on the basis of this review guidance, the Staff accepts the possibility that fuel may leak during normal operation.'

in the case of the Calvert Cliffs Nuclear Plant, a plant cited as an example 1

in the UCS report, the plant's licensing basis contains a commitment to adhere 389

)

4 1

y l

to the guidance in the SRP. The following four objectives for fuel design given in SRP 14.2 may be used as fuel design objectives within a plant's licensing basis as is done in the Calvert Cliffs FSAR:

Fuel is not damaged as a result of normal operation and AOOs.

3 Fuel damage is never so severe as to prevent control rod insertion when required.

The number of fuel rod failures is not underestimated for postulated accidents.

Coolability is always maintained.

SRP 94.4 has as an objective that the thermal and hydraulic design of the core should provide acceptable margins of safety from conditions that would l

lead to fuel damage during normal reactor operation, including anticipated operational transients. It gives two examples of acceptable approaches to meet the acceptance criteria: one based on a 95% probability at a 95% confidence level that the hottest rod in the core does not exceed prescribed thermal limits during normal operation, including AOOs, and the other using a limiting value for thermal limits so that at least 99.9% of the fuel rods are not expected to exceed thermal limits during normal operation, including AOOs. These criteria are limits that strive to maintain a very low likelihood of fuel damage during operation; however, they do not preclude the possibility that some fuel defects could occur.

A plant's licensing basis contains fuel performance criteria that are specified for norma' operation, including AOOs, and analyses are conducted to ensure that these criteria will not be exceeded. The criteria are related to the SAFDLs i

mentioned in the GDC and are normally presented in terms of prescribed thermal l

limits, which can be calculated and are reliable predictors of the onset of fuel damage. For boiling-water reactors (BWRs), critical heat flux or the critical power ratio is used as the predictor of fuel damage onset, and for pressurized.

water reactors (PWRs), the criterion is the departure from nucleate boiling (DNB), or the DNB ratio (DNBR).

An example of fuel design limits given in plant documentation is found in the FSAR for Calvert Cliffs Units 1 and 2. Section 3.6 of the FSAR presents fuel design and analysis bases. Fuct rod cladding is designed to stress and strain limits, considering the operating temperature, the cladding material, the expected property changes as a result of irradiation, and the predicted life span of the fuel. Extensive fuel mechanical analyses are detailed, along with pertinent fuel test data, which help to confirm the analysis results. The calculstions are used to demonstrate that the criteria are satisfied for limiting cases under limiting assumptions. Chapter 14 of the Calvert Cliffs FSAR gives the fuel behavior acceptance criteria for each category of design-basis event analyzed. For AOOs, the minimum DNBR is chosen to provide at least a 95% probability with a 95% confidence level thn DNB will not be experienced along the fuel rod with 390

that DNBR (i.e., the SRP $4.4 criteria). This limit ensures that there is a low probability of fuct rod damage as a result of overheated cladding. The fuel temperature SAFDL is set so that no significant fuel melting will occur during ste'ady-state operation or during a transient. Compliance with the limit offers assurance that the fuel rod will not be damaged as a result of material property changes and increases in fuel pellet volume, which could be associated with fuel melting. Again, as with the limits discussed in SRP 54.4, these limits are set to prevent fuel damage, but the possibility of fuel leakage is recognized.

The key to plant licensing bases regarding fuel integrity is the technical specification limiting the concentration of activity allowed in reactor coolant during plant operation. These limits are based on maintaining a margin to the dose guidelines in 10 C.F.R. Part 100 for steam generator tube rupture (SGTR) accidents in PWRs and main steamline break (MSLB) accidents in BWRs. The specific activity limits of the reactor coolant system are stated in terms of dose equivalent iodine-131, which is attributable solely to fuel leaks. That is distinct -

from gross coolant activity, which is the aggregate activity from all sources, including fuel leaks and corrosion product activation. The technical basis for these limits can be traced to the guidance given in Appendix 1, which is, in turn, based on assumptions that fuel leaks would exist during operation. Technical specifications for reactor core safety limits, including the rewtor protection system setpoints, are set so that the SAFDLs are not exceeded during normal l

operation or AOOs. The technical specifications for protection system action are intended to prevent fuel damage, but the specifications for coolant activity levels recognize that some small amount of fuel leakage is allowable during operation.

He technical specifications concerning coolant activity are based on meeting the dose acceptance criteria in the SRP for the limiting design-basis accident (usually SGTR or MSLB for PWRs and MSLB for BWRs). Dese limits are ad as assumptions in design-basis accident dose analyses to show compliance with dose acceptance criteria for the control room operators and the public.

By,naintaining the levels of coolant activity within these limits during normal operation, the continued validity of the design-basis analyses is maintained.

The Staff has addossed fuel performance problems in several generic com-munications to licensees. Prominent among these were NRC Information Notice (IN) 93 82, "Recent Fuel and Core Performance Problems in Operating Reac-tors," and Generic Letter (GL) 90-02, " Alternative Requirements for Fuel As-semblies in Design Itatures Section of Technical Specifications." In IN 93-82, the Staff discussed fuel leaks occurring during normal operation from a specific cause - fretting wear in PWR fuel, which was partly attributed to mixed fuel core designs. The Staff alerted licensees to the introduction of modified fuel designs that require added attention to ensure that the core design basis is not violated. This information notice is an example of Staff action to use operating information gathered from fuel leaks at a few plants to avoid similar problems 391 I

I t

l l

l

. at other reactors, thus reducing the potential for more widespread fuel leakage.

In GL 90-02, the Staff provided licensees with added flexibility to take actions to reduce fission-product releases during operation by removing defective fuel i

rods during refueling outages.

ne Staff has previously considered the safety implications of operation with fuel leakage on a generic basis. Generic Safety issue (GSI) B-22, " LWR

[ Light Water Reactor] Fuel," which is related to fuel leakage, is discussed in NUREG-0933, "A Prioritization of Generic Safety Issues," Supplement 22, March 1998. In GSI B-22, the Staff considered the ability to accurately l predict fuel performance 'under normal and accident conditions. The GSI review was conducted to determine if predictions of fuel behavior under normal operating and accident conditions were sufficient to demonstrate that regulatory requirements were being met, in its evaluation of the issue, the Staff concluded that releases during normal operation would be increased because of fuel defects, but would not be increased beyond regulatory limits. He Staff also stated that, " additional requirements would not decrease the number of fuel defects significantly." Furthermore, the Staff concluded that the release from fuel damaged during design-basis accidents and severe accidents would be much larger than the release attributed to preexisting fuel defects, and the magnitude of the release would not be significantly affected by preexisting fuel defects. Rus, the consequence from leaking fuel was determined to be very small. De Staff

- concluded that because fuel manufacturers have taken an active role to improve fuel performance, fuel leaks are now rare, and the significance of the issue has diminished. Herefore, the issue was dropped from further consideration.

In the resolution of GSI B-22, the Staff concluded that the influence of additional restrictions to operation with fuel leaks on core damage frequency and public consequence would be insignificant. Rus, operation with a limited number of fuel defects and leaks under normal operating conditions is not associated with an excessive level of risk, provided that the plant continues to operate within technical specifications limits for reactor coolant activity.

3.

Emluation of Generic Concerns The Staff evaluated the generic concerns associated with fuel leakage identi-fled previously by the Petitioner, as follows:

e

a. '10 C.F.R. f 50.59,'" Changes, tests and experiments" A premise of the UCS report is that section 50.59 is violated because reactor operation with' limited fuel leakage constitutes an unapproved change to the

-licensing basis for a plant. The report states that " Federal regulations require 392 l

I o

R.

I y

I i

formal NRC approval prior to any nuclear plant operating with fuel cladding failures." The attachment to the report is hn assessment of operation with

)

fuel leaks as an unreviewed safety questicn on the basis of the criteria in

)

section 50.59. The report states drat such operation is an unreviewed safety

' question because operation with leaking fuel (1) increases the probability and consequences of an accident, (2) creates an accident different from any in the safety analysis tot the plant, and (3) reduces safety margins.

The Staff does not agree that operation with leaking fuel necessarily con-stitutes a change to or violation of the licensing basis for a plant. A small j

amount of fuel leakage during operation is pennitted by NRC Staff guidance l

implementing NRC regulations and is accounted for in plant licensing bases. A key component of the licensing basis regarding fuel performance is the tech-nical specification limiting reactor coolant system activity. He fission-product 1

release from the level of leaking fuel associated with the technical specification limit is included in the design-basis accident dose analyses described in the FSAR for a plant to show compliance with the dose acceptance criteria in the SRP.Therefore, operating with leaking fuel, within the coolant activity technical specification limits, does not constitute a change in the plant licensing basis, and 10 C.F.R. 9 50.59 does not apply.

b.

10 C.F.R. f 50.71, "Mauuenance of records, making of reports" The Petitioner states in the report that "any plant operating with fuel cladding failures is violating its design and licensing bases requirements, a condition not allowed by Federal safety regulations." The Petitioner further states that when plants operate with leaking fuel, section 50.71 is violated since the licensing basis for a plant, as documented in the technical specifications and in the analyses contained in the FSAR, does not accommodate such operation.

His concern is closely linked to the previous discussion reganling section 50.59, in that FSARs for plants operating with leaking fuel should, in the view of the UCS, include safety analyses accounting for the effects of fuel leaks.

As previously discussed, plant licensing bases do incorporate assumptions for limited levels of fuel leakage through techni:al specifications requirements and designs for plant reactor water cleanup systems. Plant FSARs, including the example discussed earlier in this evaluation, typically contain information on fuel leakage effects, and the safety analyses explicitly allow for coolant activity levels attributable to leaking fuel under normal operation. Thus, the Staff does not consider section 50.71 to be violated by operation with fuel leakage.

393 C

c.

Safety Analysis Assumptions ne UCS report states that " safety analyses assume that all three barriers

[to radioactive material release] are intact prior to any acciant." Therefore, according to the UCS, plants with known fuel leakage could have accidents with more severe consequences than predicted. The report also states the following: " Pre-existing fuel cladding failures have not been considered in the safety analyses for this accident (LOCA), or any other accident."

In the discussion that follows, the Staff explains that preexisting fuel cladding i

leaks are accounted for in plant licensing bases and that safety analyses do not assume that all the fission-product barriers are fully intact before an accident.

'The analyses of lirniting postulated design-basis releases do not assume that all the fission-product barriers are fully intact before an accident. Ibr the loss-of-coolant accident, which typically yields the most limiting postulated releases, all three barriers are assumed to allow the release of some fission products. The methodology used to analyze this accident is given in Regulatory Guides 1.3 and 1.4, and SRP 915.6.5, " Loss of-Coolant Accidents Resulting from Spectrum of Postulated Piping Breaks Within the Reactor Coolant Pressure Boundary."

For the containment and reactor coolant system (RCS) barriers, these assump-tions are explicitly given, The containment is assumed to leak at the leak rate incorporated in the plant technical specifications when the containment is at pos-itive pressure. The RCS inside the containment is assumed to completely fail as a fission product barrier at the beginning of the accident. Systems outside the containment that interface with the RCS are also assumed to experience failures.

He assumption of preexisting leakage for the fuel cladding barrier, although not explicitly given, is inherent in the assumption of a conservative nonmech-anistic release from the fuel. The entire iodine and noble gas inventory of the core is assumed to be released to the reactor coolant. A conservative fraction of this inventory is assumed to be released into the containment and subsequently released to the environment. Assuming that this release occurs instantaneously further enhances the conservatism of these analyses. This assumption disregards the fission-product containment function of the fuel cladding at the beginning of the accident.

Accidents, which may not be bounded by the radiological consequences of a LOCA, include the control rod drop accident for BWRs and MSLB outside of containment for PWRs. However, the conservatism of the source-term assumptions for these analyses parallels those for a LOCA. Some of the same assumptions used for radiological consequence evaluation of a LOCA are used for the analysis of MSLB outside of containment. Appendix A to SRP i 15.1.5,

" Radiological Consequences of Main Steam Line Failures Outside Containment of a PWR," contains an acceptance criterion that references Regulatory Guide L4. The radiological assumptions for the control rod drop analysis are similar 394

I l

to those for a LOCA, as stated in Appendix A to SRP Q 15.4.9," Radiological Consequences of Control Rod Drop Accident (BWR)," and Regulatory Guide i

1.77. For example, the guidelines assume that the nuclide inventory in the potentially breached fuel elements should be calculated and it should be assumed that all gaseous constituents in the fuel cladding gaps are released.

The radioactivity assumed for release from the LOCA is much greater than that associated with preexisting fuel leakage allowed by plant technical specifications. He Staff has compared releases from preexisting defects with the release resulting from fuel damage during an accident. In its consideration of GSI B-22, the Staff concluded that,"the magnitude of a release from failed i

fuel during an accident is much larger than the release from a preexisting fuel defect" and that "the resultant consequence from failed fuel was determined to be very small" (NUREG-0933).' These assumptions are made despite the provisions of 10 C.F.R. 650.46 requiring an ECCS that must be designed to prevent exceeding thermal limits that cause such gross fuel failure. In addition, i

for design-basis accidents in which fuel damage is not assumed, the preexisting fuel cladding defects are typically assumed to serve as release paths facilitating a spike in radioiodine concentration in the coolant.

Additional NRC fuel design requirements complement the conservative defense-in-depth assumptions as previously described to prevent an unanalyzed i

large release of fission products. To illustrate its concern about fuel leakage influences on accident progression, the UCS report describes a LOCA sequence and postulates that hydraulic loads on the fuel rods could lead to cladding fail-ures, which would result in a large release of fission products into the coolant and j

prevent control rod insertion. Fuel design requirements and guidance specifically address the ability to insert control rods, and Staff review guidance recognizes that preexisting fuel cladding defects could have an effect on fuel performance during accidents. In GDC 27," Combined Reactivity Control Systems Capabil-ity," the Staff requires that reactivity control systems, including the control rod system, have the capability to control reactivity changes under postulated acci-dent conditions in order to ensure core cooling. SRP i 4.2 includes the objective that " fuel system damage is never so severe as to prevent control rod insertion when it is required."

To ensure that the preceding objective is met, fuel designs consider external loads on fuel rods. This is discussed in the appendix to SRP $ 4.2," Evaluation of Ibel Assembly Structural Response to Externally Applied Forces." The basis for much of the appendix to SRP i 4.2 is contained in NUREG/CR-1018," Review of LWR Fuel System Mechanical Response with Recommendations for Component Acceptance Criteria," prepared by EG&G Idaho in September 1979. This report states that " Cyclic fatigue and material degradation may cause a failure (of a fuel system component) at any point in the transient [i.e., a LOCA]." Thus, material degradation that could lead to fuel leakage during operation is considered in 395

accident analyses. Furthermore, design considerations, such as control guide tubes in PWRs and fuel channel boxes in BWRs, help separate control rods from the fuel. The separation provided protects control rods from material degradation of fuel that might occur in accidents, thus helping to prevent control rod obstruction. Such safety analysis assumptions as these (which assume preexisting failures of the fission product barriers) provide confidence that the preexisting cladding defects allowed by technical specifications limits on coolant activity will not erode the safety margin assumed for accident analyses, d.

10 C.F.R. f 50.34a, " Design objectivesfor equipment to control releases of radioactive me rial in effluents - nuclear power reactors" In its report, the UCS claims that section 50.34a and other regulations related to the ALARA principle for radioactive materials release are violated since plant workers are exposed to a greater risk than nexasary because of higher coolant activity levels attributable to leaking fuel. The UCS report continues: " Federal regulations require nuclear plant owners to keep the release of radioactive materials as low as reasonably achievable. Therefore, it is both an illegal activity and a serious health hazard for nuclear plants to continue operating with fuel cladding damage." The UCS report cites Appendix I to 10 C.F.R. Part 50 when contending that fuel releases pose an undue risk to plant workers. Appendix I contains the numerical dose guidelines for power reactor operation to meet the ALARA criterion. These dose values are a small frxtion of the 10 C.F.R. Part 20 annual public dose limit of 100 millirem (i.e.,3 millirem from liquid effluents and 5 millirem from gaseous effluents).

he bases for the guidelines in Appendix 1 are given in WASH-1258, which acknowledges that radioactive material from a number of sources, including fission-product leakage to the coolant from defects in the fuel cladding, will be present in the primary coolant during normal operation. Further, in the

" Bases" section on RCS specific activity in NUREG-1431, " Standard Technical Specifications, Westinghouse Plants," April 1995, the limits on specific activity are linked to exposure control practices at plants. The section clearly states that the limits on RCS specific activity are used in the design of radiation shielding and plant personnel radiation protection practices.

In addition, occupational dose considerations were discussed in the resolution of GSI B-22. De Staff acknowledged that localized dose rates were expected to increase as a result of fuel defects, but effects are limited by requirements for plants to operate within their technical specifications for coolant activity and releases. In some cava, plants will often stay within allowable release limits and coolant activity levels by oprating at reduced power until the next refueling outage allows the problem to be corrected.

396

)

I i

On the basis of the preceding discussion, operation with a limited amount of leaking fuel is within a plant's F. censing basis and, in itself, does not violate ALARA-related regulations. Operation involving leaking fuel, however, will likely require plant operators to take additional measures in order to ensure that j

ALARA requirements are being met, but these would need to be considered on i

a case-by-case basis.

i 4.

UCS Report Recommendations In the report, the UCS recommends that the NRC take steps to prohibit

)

nuclear power plants from operating with fuel cladding damage until the safety concerns raised by the report are resolved. 'Ihe following steps are specifically I

recommended: (1) requiring plant shutdown upon detection of fuel leakage, and (2) requiring that safety evaluations that consider *.he effects of operating with leaking fuel be included in plant licensing bases to justify operation under such circumstances. Further, the UCS recommends that UFSARs be revised to establish safe operating limits to accommodate operation with leaking fuel.

On the basis of the Staff's consideration of the stated safety concerns in the j

report, there is no technical or regulatory basis to require that plants operating with leaking fuel be shut down, provided they are operating within their technical specifications limits and in accordance with their licensing basis. The UCS report, in raising its concerns, does not offer any new information to demonstrate that the overall risk of operating with fuel defects presents an undue hazard to plant workers or the public.

Further, since the Staff does not consider plants operating with leaking fuel to be violating section 50.59 or 50.71, there is no basis for reyciring plads to perform additional safety analyses to model the effects of fuel defeas on accident progressions to update plant safety analysis documentation.

B.

Plant-Specific Concerns - River Bend Station On the basis of the reported fuel leakage at River Bend, the Petitioner states that the generic concerns contained in its report apply to River Bend.

The September 25, 1998 Petition then presents a number of references to the River Bend USAR as instances in which, in the opinion of the Petitioner, plant licensing bases do not permit operation of the plant with known fuel leakage.

A reference to the USAR in the petition is the USAR definition of unac-ceptable consequences (USAR Table 15A.2-4), which lists as an unacceptable consequence " Failure of the fuel barrier as a result of exceeding mechanical or thermal limits." The Petitioner considers this criterion violated since a fuel failure exists in advanca of any design-basis accident that may now occur.

397 J.

l ne petition then discusses USAR Chapter 15 accident analysis descriptions, which state either (1) that fuel cladding integrity will be mai.ntained as designed or (2) radioactive material is not released from the fuel for the event. He following events cited in the petition have event descriptions in the River Bend USAR, which state that fuel cladding will function and maintain its integrity as designed:.

Loss of Feedwater licating ('USAR O 15.1.1.4),.

Feedwater Controller Failure - Maximum Demand (USAR i 15.1.2.4),-

Pressure Regulator Failure - Open (USAR 6 15.1.3.4),

.. Pressure Regulator Failure - Closed (USAR I 15.2.1.4).

He following two events cited in the petition have event descriptions in the River Bend USAR, which state that "no radioactive material is released from the fuel" during the event:

. Control Rod Withdrawal Error at Power (USAR 6 15.4.2.5),

Recirculation Flow Control Failure with Increasing Flow (USAR i15.4.5.5).

He Petitioner also states that the River Bend licensing basis for worker I

radiation protection is violated by operation with leaking fuel. Again, the petition cites the USAR (il12.1.1 and 12.1.2.1) as the pertinent reference to the licensing basis.

1.

Emluation of Plant-Specific Concerns As discussed in the consideration of generic safety concerns, the Staff does not agree that preexisting fuel cladding defects and resultant fuel leakage violate plant licensing bases. He Staff also considers that conclusion valid for River Bend. The basis for this conclusion is supported in the following discussion.

a.

USAR Appendix 15A ne Petitioner referenced two sections of USAR Appendix 15A, " Plant

' Nuclear Safety Operational Analysis (NSOA)"(as' stated):

UFSAR 15A.2.8, " General Nuclear Safety Operational Criteria," stated:

The plant shall be operated so as to avoid unacceptable consequences.

UFSAR Table 15A 24 " Unacceptable Consequences Criteria Plant I; vent Category: Design Basis Accidents," defined " unacceptable consequences" as follows:

4-1 Radioactive snarerial release exceeding the guideline values of 10 CFR 100.

4-2 Pailure of the fuel barrier as a result of exceeding rnechanical or thernal limits, i

l 398 1

I i'

i-

4-3 Nuclear system strest.es exceeding that allowed for accidents by applicable industry codes.

44 Containment stresses exceeding that allowed for accidents by applicable industry codes when containment is required.

4-5 Overexposure to radiation of plant main control room personnel.

The cunent operating condition at the River Bend Station apparently violates the spirit, if not the letter, of Criterion 4-2 since the fuel banier has already failed, albeit to a limited extent. This UFSAR text does not accept a low level of fuel bamer failure based on meeting the olisite and onsite radiation pmtection limits. Integrity of the fuel barrier is an explicit criterion in addition to the radiation requirements.

In the petition, the UCS highlights the table concerning the consequences for the design-basis accident. His plant condition is a highly improbable event, and safety analyses ensure that safety limits and regulatory requirements are not exceeded as a result of the accident occurring. This is why USAR Table 15A.2-4, Item 4-2 states, '%ilure of a fuel barrier as a result of exceeding mechanical or thermallimits" (emphasis added). He unacceptable consequences of this type of event are independent of preexisting fuel cladding defects. The unacceptable consequences of this event are additional fuel failures as a result of the accident occurhng.

Within the framework cf the USAR," unacceptable consequences" are speci-fled measures of safety and analytically determinable limits on the consequences of different classification: of plant events. They are used for performing a nuclear safety operations.l analysis. Unacceptable consequences are described for various plant conditions, including " Normal (Planned) Operation," "Antici.

pated (Expected) Opetational Transients," " Abnormal (Unexpected) Operational Transients," " Design Basis (Pc,stulated) Accidents," and "Special (Hypothetical)

Events." USAR Tables 15A.21 through 15A.2-5 identify the unacceptable con.

sequences for each of the five plant conditions, and are different for each of the cases.

De USAR text clearly documents the acceptability of a low level of fuel cladding failures based on meeting the offsite and onsite radiation protection limits. For example, USAR Table 15A.2-1 discusses the unacceptable conse-quences for normal operation. This USAR table defines unacceptable conse-quences for normal operation as follovm 4-l Release of radioactive material to the environs that exceeds the linuts of either 10 Cf.R. Part 20 or 10 Cf.R. Par. 51 4-2 Fuel failure to such an extenuhat were the freed fission products released to the environs via the normal diwhuge paths for radioactive material, the limits of 10 Cf.R. Part 20 would be exceeded.

399

4-3 Nuclear system stress in excess of that allowed for planned operation by applicable

{

industry codes.

4-4 Existence of a plant condition not considered by plant safety analyss.

Item 4-2 in Table 15A.2-1 implies that fuel cladding failures are not an

{

unanticipated condition during normal operations and is, therefore, consistent with other parts of the River Bend licensing basis. Fuel cladding defects are acceptable to the extent that they do not jeopardize radiation protection limits established in the plant tecimical specifications and other licensing-basis documents. USAR Table 15A.2 4 does not apply for normal operations; only j

USAR Table 15A.2-1 applies. Furthermore, the provisions found in USAR Table 15A.2-4 would continue to be met for postulated design-basis accidents.

1 USAR 915.0.3.1.1 provides further clarification in its list of unacceptable i

safety consequences for " moderate frequency" events, which lists: " Reactor operation induced fuel-cladding failure as a direct result of the transient analysis above the minimum critical power ratio (MCPR) uncertainty level (0.1 percent)."

Accordingly, preexisting cladding defects are considered during some postulated j

transients. In fact, the acceptance criteria for moderate-frequency event analyses, based on the GDC (10 C.F.R. Part 50, Appendix A) and the Standard Review Plan, and described in the Safety Evaluation Report (SER) for River Bend (NUREG-0989), state the following expectations for fuel cladding performance:

"An incident of moderate frequency.

should not result in a loss of function of any fission product barrier other than the fuel cladding. A limited number of fuel rod cladding perforations are acceptable."

USAR Chapter 11, " Radioactive Waste Management " Section 11.1, " Source Terms," details the expected reactor coolant and main steam activities to be used to form the basis for estimating the average quantity of radioactive material released to the environment during normal operations, including operational occurrences. This section further addresses that the offgas release rate of 304,000 pCi/s at a 30-minute delay time corresponds to design failed fuel conditions, that is, maximum acceptable cladding failure for normal operation, and is also conservatively based upon 105% of rated thermal power. This is consistent with limits prescribed in Technical Specification 3.7.4, " Main Condenser Offgas," which requires that the gross gamma activity rate of the noble gases shall be <290 mci /s (or <290,000 pCi/s) after a decay time of 30 minutes.

In addition, two other parts of the fuel system licensing basis for River Bend show that limited fuel leakage during plant operation is a design consideration:

'lhe fuel system design basis for River Bend is given in USAR 94.2.1 by reference to the generic topical report " General Electric Standard Application for Reactor Fuel," NEDE-24011 P-A. The generic topical report details fuel cladding operating limits to ensure that fuel performance is maintained within 400

fuel rod thermal and mechanical design and safety analysis criteria. The limits are given for normal operating conditions and AOOs in terms of specific me-chanical and thermal specifications. Evaluations of specific fuel failure mecha-nisms under normal operation and AOOs were discussed, such as stress / strain, hydraulic loads, fretting, and internal gas pressure to ensure that fuel failure did not result from these causes. The design basis did not preclude the possibility that fuel could fait for other reasons, such as preexisting cladding flaws leading to leakage.

He Technical Specifications (13.4.8) for River Bend contain a limit for reactor coolant system specific activity. The basis for this limit is the same as that discussed in the consideration of the generic safety concerns. Section B 3.4.8 of the River Bend Technical Specifications " Bases" acknowledges that "the reactor coolant acquires radioactive materials due to release of fission products from fuel leaks." Thus, fission products released during plant operation are clearly considered to be contributors to the source term used for safety analysis of the MSLB release consequences. The Technical Specifications state that the limit is set to ensure that any release as a consequence of an MSLB is less than a small fraction of the 10 C.F.R. Part 100 guidelines. These portions of the River Bend licensing basis are consistent with NRC regulations regarding fuel performance and the associated NRC guidance used by licensees to implement those NRC regulations that were covered earlier in the discuasion regarding generic concerns.

De River Bend licensing-basis iterns listed by the Petitioner are consistent with the parts of the fuel licensing basis discussed above with the exception of some minor inconsistencies in documentation (as discussed below). That is, fuel leakage during plant operation is not precluded by licensing-basis provisions requiring that fuel integrity be maintained as designed. The design basis itself allows the possibility of leakage while ensuring that cladding damage does not result from specific operationally related causes. Fuel is also designed to mamtain its structural integrity to ensure core coolability and to ensure that control rods can be inserted.

b.

Chapter 15 Accident Analysis The Petitioner also cited references taken from accident analyses described in River Bend USAR Chapter 15 (as stated):

UCS reviewed the UFSAR Chapter 15 description of accident analyses performed for the i

River Bend Station. UFSAR Section 15.1.1.4. " Barrier Performance," for the loss of i

feedwater heating event stated:

l 401

l The consequences of this event do not result in any temperature or pressure transient in excess of the criteria for which the fuel, pressum vessel, or containment are designed; therefore, these barriers maintain their integrity and function as designed.

UFSAR Sections 15.1.2.4 for the feedwater controller failure - maximum event.15.1.3.4 for the pressure regulator failure - open event, and 15.2.1.4 for the pressure regulator failure -

closed event all contain comparable statements that barrier performance was not performed because the fuel remained intact.

'!hese analyzed events appear to be valid only when the River Bend Station h operated with no failed fuel assemblics. Operation with pre-existing fuel failures (i.e., the current plant configuration) appear to be outside of the design and licensing bases for these design bases events.

UFSAR Section 15.4.2.5,

• Radiological Consequences," for the control rod withdrawal error at power event stated:

An evaluation of the radiological consequences was not made for this event since no radioactive material is released from the fuel.

UFSAR Section 15.4.5.5, " Radiological Consequences" for the recirculation flow control failure with increasing flow event stated:

An evaluation of the radiological consequences is not required for this event since no radioactive material is released from the fuel.

These analyzed events also appear valid only when the River Bend Station is operated with no failed fuel assemblies. Operation with pre. existing fuel failures (i.e., the current plant configuration) uppear to be outside of the design and licensing bases for these design bases events.

The effect from pre-existing fuel failures was considered, at least partially, for one design bases event. UFSAR Section 15.2.4.5.1," Fission Product Release from Fuel," for the main steam isolation valve closure event stated:

While no fuel rods are damaged as a consequence of this event, fission prod c ' activity associated with normal coolant activity levels as well as timt released from previously defective rods is released to the suppression pool as a consequence of SRV [ safety relief valve] actuation and vessel depressurization.

The aforementioned design bases events (e.g., control rod withdrawal error at power, loss

.cf feedwater heating, et al) are not bound by these results because the radioactive material is not " scrubbed" by the suppression pool water as it is in the MSIV [ main steam isolation valve] closure event.

As previously stated, the Petitioner cited four references to the USAR accident analysis section entitled " Barrier Performance." At issue are essentially

. equivalent statements made where the USAR stated, in pan, that the defense-in-depth " barriers maintain their integrity and function as designed." The UCS concluded that operation with preexisting fuel failures is, therefore, outside the River Bend design and licensing bases. In stating that barriers are " maintained,"

the USAR clearly implies that the events themselves do not result in additional 402 i

l l

i l

1

r J

fuel cladding failures. To further support this conclusion, the radiological consequences described for three of the four events (i15.1.2, "Feedwater l

' Controller Failure - Maximum Demand"; 915.1.3, " Pressure Regulator Failure

- Open"; and i 15.2.1, " Pressure Regulator Failure - Closed") are, indeed, bounded by an event that takes into consideration the effects of preexisting cladding failures. The three preceding events all result in actuation of the safety relief valves (SRVs) to the suppression pool. The USAR discussion (see USAR

' section titled " Radiological Consequences") notes that radioactivity is discharged to the suppression pool, and that the activity discharged is much less than those consequences identified in USAR I 15.2.4.5 (for the MSIV closure event).

De MSIV closure event, as described in the USAR, clearly considers the activity released from "previously defective rods" in determining dose consequences. The source term used in these calculations assumes the same iodine and noble gas activity as an initial condition as is used in the basis for determining RCS activity technical specifications limits. USAR I 15.2.4.5.1,

" Fission Product Release from Fuel," also explains, "Since each of those transients identified previously which cause SRV actuation results in various vessel depressurization and steam blowdown rates, the transient evaluated in this section [the MSIV closure event] is that one which maximizes the radiological consequences for all transients of this nature." Thus, the USAR explicitly describes how "the aforementioned design-basis events" are bounded by the results for the MSIV closure event, for those events resulting in an SRV actuation. Furthermore, USAR 5 15.1.1.5 describing the fourth event, the loss

)

of feedwater heating, also states that "this event does not result in any additional fuel failures," further reinforcing the Staff's position.

He quotation taken from the control rod withdrawal error from power and recirculation flow control error event descriptions

"[a]n evaluation of the radi-ological consequences was not made for this event since no radioactive material is released from the fuel"- appears to be taken out of context. Considering the many references ostensibly permitting operation with preexisting fuel cladding j

failures found within the USAR, technical specifications, NRC regulations, Staff l

implementing guidelines, and other licensing-basis documents, the intent of this statement is clearly that no additional radioactive material is released from the fuel as a consequence of the event.

Finally, in each of the accident analysis cases listed in the petition, the event is classified as a " moderate frequency" event (or an " anticipated operational transient"). Specific criteria for unacceptable consequences are delineated in USAR Table 15A.2 2.

For this type of anticipated transient, unacceptable performance of the fuel is described as, "[r]eactor operation induced fidel cladding failure as a direct result of the transient analysis above the MCPR l

[ Minimum Critical Power Ratio] uncertainty level (0.1%)" (emphasis added).

i 403 l

l l

I:

p Herefore, fuel cladding defects existing before the accident are not precluded from consideration.

c.

Fuel Cladding Defect Propagatwn He petition then raised concerns regarding the possibility that preexisting fuel cladding defects could propagate under design-basis transients (as stated):

As detailed in UCS's April 1998 report on reactor operation with failed fuel claddmg, it has not been demonstrated that the effects from design basis transients and accidents (i.e.,

hydrodynamic loads, fuel enthalpy changes, etc.) prevent pre-existing fuel failures from propagating. It is therefore possible that significantly more radioactive material will be released to the reactor coolant system during a transient or accident than that experienced l

during steady state operation. Thus, the existing design bases accident analyses for River Bend Station do not bound its current operation with known fuel cladding failures.

As previously stated in the evaluation of generic issues raised by the April 1998 UCS report, the Staff has previously considered the safety implications of operation with fuel leakage on a generic basis. In GSI B-22, the Staff considered the ability to accurately predict fuel performance under normal and accident conditions. In its evaluation of the issue, the Staff concluded that releases during normal operation would be increased because of fuel defects, but would not be increased beyond regulatory limits. The Staff also concluded that the release from fuel damage during design-basis accidents and severe accidents would be much larger than the release attributed to preexisting fuel defects, and the magnitude of the release would not be significantly affected by preexisting fuel defects. Therefore, the consequence from leaking fuel was determined to be very small.

De Petitioner has, however, noted some apparent inconsistencies in docu-mentation of the licensing basis as found in the USAR for River Bend that could be taken out of context. The statements cited for two events - the control rod withdrawal error from power and recirculation flow control error - are not consistent with the other parts of the River Bend licensing basis discussed in this evaluation The technical basis for coolant activity limits clearly pennits operation with a limited amount of fuel leakage and, as discussed, the design basis does not preclude the possibility of limited fuel leakage during operation.

Therefore, although these events should not cause fuel damage, preexisting leak-age could still be a consideration, and only the activity in the reactor system coolant up to the technical specification limit would be available for release. The i

MSLB is considered the limiting event with respect to release of coolant activity from leaking fuel. The Staff expects that the consequences of the MSLB would

- bound those that would be predicted for the control rod withdrawal error from power or the recirculation flow control error events. Thus, the minor discrep-404

i ancies uncovered by the Petitioner in the documentation of the plant licensing l

basis do not constitute a safety concern requiring NRC action.

ne Licensee has taken actic.a to limit the effects of the minor fuel rod l

defects at River Bend reported on September 21, 1998. The control rod j

pattern has been altered to achieve a depressed flux profile in the vicinity of the leaking rods, thereby suppressing the production of fission products as the plant continues operation at slightly less than full power. Following the initial detection of a leaking rod, the Licensee reduced the activity in the pretreatment offgas sample from 22.5 mci /s to 1.8 mci /s, which was very close to the prefuel-i leak level of 1 mci /s. The peak value was never more than e small fraction of the technical specification limit of 290 mci /s. The offgas treatment system has been effectively eliminating any detectable radioactivity in offgas effluent, and i

only small dose rate increases were observed in areas of the plant in which offgas system components are located. Since work is not normally performed in those areas, the Licensee did not institute any additional exposure controls. Ilowever, the Licensee is continuing to closely monitor the offgas system to ensure that the coolant activity concentration remains within technical specifications limits.

d.

ALARA Concerns The Petitioner further stated that Entergy Operations, Inc., was violating its licensing basis with regard to the ALARA worker protection program (as stated):

In addition to operating with non-bounding design bases accident analyses, it appears that the River Bend Licensee is also violating its hcensing basis for worker radiation protection.

UFSAR Section 12.1.1," Policy Consideration," stated:

The purpose of the ALARA [as low as reasonably achievable) program is to maintain the radiation exposure of plant personnel as far below the regulatory limits as is reasonably achievable.

l l

UFSAR Section 12.t.2.1, " General Design Considerations fot ALARA Exposures," stated I

that River Bend's efforts to maintain in-plant radiation exposure as low as is reasonably achievable included:

Minimizing radiation levels in routinely occupied plant areas and in vicinity of plant equipment expected to require the attention of plant personnel.

According to the NRC Information Notice No. 87 39, " Control of Hot Particle Contamination at Nuclear Plants:"

A plant operating with 0.125 percent pin-hole fuel cladding defects showed a five-fold increase in whole-body radiation exposure rates in some areas of the plant when compared to a sister plant with high-integrity fuel (<0.01 percent lenkers). Around certain plant systems the degraded fuel may elevate radiation exposure even more.

Industry experience demonstrated that reactor operation with failed fuel cladding increased radiation exposures for plant workers. The River Bend licensee has a licensing basis l

405 l

1 i

I

~

\\

requirement to maintain radiation exposures for plant workers as low as is reasorunbly achievable. The River Bend hcensee informed the NRC about potential fuel cladding failures.

It could shut down the facihty and remove the failed fuel assembhes from the reactor core.

Instead, it continues to operate the facihty with higher radiation levels.

l 1

In its letter to the NRC dated February 11, 1999, the River Bend Licensee stated that if the plant were to shut down solely to remove leaking fuel bundles, worker exposure would be increased since additional exposure would later be incurred for aormal shutdown and maintenance activities. Also, during the February 22, 1999 informal public hearing on the petition, the River Bend Licensm stated that dose rates in the general plant areas are essentially 1

unchanged and that the average daily dose to plant workers has remained at l

the historical level of approximately 0.14 person-rem per day during normal j

operations, River llend has seen some increased levels in dose rates in isolated areas, such as in rooms containing offgas system equipment; however, these areas are not routinely occupied and access to the rooms is controlled by the health physics department. The Licensee stated that if a 14-day outage were conducted to remove defective fuel bundles, the outage would incur a worker do:;e on the order of 9 person-rem fu reactor disassembly, reassembly, and refueling activities. This exposure would be in additimi to that incurred from activities planned for the scheduled refueling outage. The Licensee contends that shutting down in this situation to replace leaking fuel would be an action contrary to ALARA. The Staff agrees that conducting piant shutdown only to address the current situation at River Bend would be contrary to the ALARA principle for plant workers, provided exposure levels remain at their current values.

River Bend has two independent radiation-detection systems capable of sens-ing fission-product release from leaking Lei rods - rr.ain steamline radiation monitors and offgas system radiatim monitors. The main steamline radiation tronitors are used to detect hi '. radiation levels from gross fuel failure. The F

offgas sy;t m radiation monitors can detect low-level emissions of noble gases, which are indicative of minor fuel damage. He offgas system monitor indica-tion signaled the recent fuel damage found at River Bend.

De actions taken by the Licensee to limit further fuel damage, as well as the continued attention to reactor coolant activity and offgas radiatior levels, provide confidence that River Bend can continue safe operation, wie.in its licensing basis, with the limited fuel leakage recently detected.

C.

Plant-Specific Concerns - Perry Nuclear Power Plant On the basis of the reported fuel leakage at Perry, the P".oner states that the generic concerns contained in the UCS report apply to the Perry plant. In 406

E the opinion of the Petitioner, plar.t licensing bases do not permit operation of the olant with known fuel leakage.

As discussed in the consideration of generic safety concerns, the Staff does not agree that preexisting fuel cladding defects and resultant fuel leakage violate plant licensing bases. The Staff also considers that conclusion valid for Perry.

Fuel leakage during plant operation is not precluded by licensing basis provisions requiring that fuel integrity be maintained as designed. The Perry design basis itself allows the possibility of lerlage while ensuring that cladding damage does not result because of specific operejonally related causes. Fuel is also designed to maintain its structural integrity to ensure core coolabihty and to ensure that control rods can be inserted.

He Updated Safety Analysis report (USAR) for Perry contains unacceptable consequences criteria for different event categories (USAR Tables 15A.2-1 through 15A.2-4). The unacceptable consequences for normal operation do not preclude fuel leakage. The second criterion lisMd precludes fuel failure to the extent that the limits of 10 C.F.R. Part 20 would be exceeded. The unacceptable consequences for anticipated operational transients prohibit fuel failure predicted as a direct result of transient analysis. For abnormal transients and design-basis accidents, widespread fuel cladding perforations and fuel cladding fragmentation tre prohibited.

Two parts of the fuel system licensing basis for Perry show that limited fuel leakage during plant operation is a design consideration. The fuel system design basis for Perry is given in the USAR 0 ISB by reference to the generic topical report " General Electric Standard Application for Reactor Fuel," NEDE-24011 P A. The generic topical report details fuel cladding operating limits to ensure that fuel performance is maintained within fuel rod thermal and mechanical design and safety analysis criteria. The lirnits are given for normal operating conditions and AOOs in terms of specific mechanical and thermal specifications.

Evaluations of specific fuel failure mechanisms under normal operation and AOOs were discussed, such as stress and strain, hydraulic loads, fretting, and internal gas pressure, to ensure that fuel failure did not result from these causes.

The design bases did not preclude the possibility that fuel failure could occur far other reasons, such as preexisting cladding flaws leading to leakage.

He Technical Specifications for Perry (6 3.4.8) contain a limit for RCS specific activity. The basis for this limit is the same as that discussed in the consideetion of the generic safety concerns. Section B3.4.8 of the Perry Technical Specifica' ion " Bases" acknowledges that "the reactor co aant acquires radioactive materials due to release of fission products from fuel leaks." Thus, fission products released during plant operation are clearly considered to be cehutors to the source term used for safety analysis of the main steamline breu release consequences. The technical specifications state that the limit is set to ensure that any release as a consequence of a main steamline break is 407

(

less than a small fraction of the 10 C.F.R. Part 100 guidelines. Rese portions

of the Perry licensing basis are consistent with NRC regulations regarding fuel

performance and the associated NRC guidance used by licensees to implement

those NRC regulations that were covered earlier in the discussion regarding generic concerns..

De Licensee has taken actions to limit the effects of the existing minor fuel

. leaks at Perry. De control rod pattem has been altered to achieve a depressed flux profile in the vicinity of the leaking rods, thereby suppressing th production of fission products as the plant continues operation. De offgas treatment system

-]

. has been effectively eliminating radioactivity in offgas effluent, and there has i

been no change in general radiation area dose rates. However, the Licensee is continuing 10 closely monitor the offgas system pretreatment radiation levels and is ensuring that the coolant activity concentration remains within technical

. specifications limits.

Perry has two independent radiation detection systems capable of sensing

~

fission product release from leaking fuel rods: nain steamline radiation monitors and offgas system radiation monitors. He rrain steamline radiation monitors are used to detect high radiation levels frora gross fuel failure. De offgas-system radiation monitors can detect low-level emissions of noble gases, which are indicative of minor fuel damage.

In its letter to the NRC, ' ated February 11,1999, the Perry Licensee stated d

that if the plant were to shut down solely to remove fuel bundes exhibiting leakage, plant wo.Aer exposure would be increased since additional exposure would la:er to incurred for normal shutdown and maintenance activities. He Licensee contends that shutting down in this situation to replace leaking fuel woeld be an action contrary to ALARA. The Staff agrees that conducting plant shutdown only to address the current situation at Perry would be contrary to the

' ALARA principle for plant workers, provided exposure levels remain at their current values.

ne actions taken by the Licensee to hmit further fuel damage, as well as the continued attention to reactor coolant activity and offgas radiation levels, provide confidence that Perry can continue safe operation, within its licensing basis, with the limited fuel leakage detected.

IV. CONCLUSION he Petitioner's requests are denied for the reasons specified in the preceding sections that discuss the Peationer's information supporting the request. He Petitioner did not submit any significant new information about safety issues.

Neither the information presented in the petition nor any other subsequent ~

i J

i l

408 1

I i

l l

i

w infonnation of which the NRC is aware warrants the actions requested by the Petitioner.

A copy of this Director's Decision will be filed with the Secretary of the

' Commission for review in accordance with 10 C.F.R. 5 2.206(c). This Decision will become the final action of the Commission 25 days after its issuance unless j

. the Commission, on its own motion, institutes a review of the Decision within'

.)

that time.

1 i

FOR THE NUCLEAR REGULATORY COMMISSION Samuel J. Collins, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 18th day of April 1999.

\\

I 409 l-s.

,x l'

_ :.