ML20237E290
| ML20237E290 | |
| Person / Time | |
|---|---|
| Issue date: | 07/31/1998 |
| From: | NRC |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V47-N06, NUREG-750, NUREG-750-V47-N6, NUDOCS 9808310098 | |
| Download: ML20237E290 (108) | |
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1 NUREG-0750 l
Vol. 47, No. 6 Pages 307-408
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NOCLEAR! REGULATORY N J
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'COMMISSIONLISSUANCES" I d
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U S. NUCLEAR REGULATORY COMMISSION 9808310098 980731 PDR NUREG 0750 R PDR
Available from Superintendent of Documents U.S. Government Printing Office RO. 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.
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Single copies of this publication j
are available from j
National Technical Information Service j
Springfield, VA 22161 l
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I Errors in this publication may be reported to the Office of the Chief Information Officer U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301-415-6844) l
NUREG-0750 Vol. 47, No. 6 Pages 307-408 NUCLEAR REGULATORY COMMISSION ISSUANCES June 1998 This report includes the issuances received during the specified period from the Commission (CLI), 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 independentlegal significance.
I U.S. NUQLEAR REGULATORY COMMISSION Prepared by the Office of the Chief Information Officer U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301-415-6844)
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. COMMISSIONERS
. Shirley A. Jackson, Chairman Greta J. Dicus Nils J. Diaz Edward McGaffigan, Jr.
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' B. Paul Cotter, Jr., Chief Adrninistrative Judge,~ Atomic Safety & Licensing Board Panel f
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Commission issuances l
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CONTENTS Issuances of the Nuclear Regulatory Commission HYDRO RESOURCES, INC.-
(2929 Coors Road, Suite 101, Albuquerque, NM 87120)
Docket 40-8968-ML
- MEMORANDUM AND ORDER, CLI-98-8, June 5,1998.......... 314 HYDRO RESOURCES, INC.
(2929 Coors Road, Suite 101,' Albuquerque, NM 87120)
- Docket 40-8968-ML MEMORANDUM AND ORDER, CLI-98-9, June 5, 'I'998........ 326 PRIVATE FUEL STORAGE, L.L.C.
(Independent Spent Fuel Storage Installation)
Dockets 72-22-ISFSI,72-22-ISFSI-PFS MEMORANDUM AND ORDER, CLI-98-7, June 5,1998........ 307 TRANSNUCLEAR, INC.
(Export of 93.3% Enriched Uranium)
Dockets 11004997,i1004998-MEMORANDUM AND ORDER, CLI-98-10, June 5,1998......... 333
' Issuances of the Atomic Safety and Licensing Boards
- HYDRO RESOURCES, INC.
(2929 Coors Road, Suite 101, Albuquerque NM 87120) 3 Docket 40-8968-ML (ASLBP No. 95-706-01-ML).
(Re: Leach Mining and Milling License)
- MEMORANDUM AND ORDER, LBP-98-14, June 30,1998...... 376 ~
1 PRIVATE FUEL S'IDRAGE, L.L.C.
(Independent Spent Fuel Storage Installation)
Docket 72-22-ISFSI (ASLBP No. 97 732-02-ISFSI)
MEMORANDUM AND ORDER, LBP-98-13, June 29,1998....... 360 YANKEE ATOMIC ELECTRIC COMPANY (Yankee Nuclear Power Station)
Docket 50-029-LA (ASLBP No. 98-736-01-LA)
MEMORANDUM AND ORDER, LBP-98-12, June 12,1998...... 343 lii -
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NORTHEAST UTILITIES
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i-(Millstone Nuclear Power Station. Units 1,2, and 3)
Dockets 50-245,50-336,50-423 (License Nos. DPR-21, DPR-65, NPF-49)
DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206,
- DD-98-4, June 1, 1998................................... 381 l
' SOUTHERN' CALIFORNIA EDISON COMPANY, et al.
-(San Onofre Nuclear Generating Station. Units 2 and 3) 1 Dockets 50-361, 50-362 -
DIRECTOR'S DECISION UNDER 10 C.F.R. 9 2.206, DD-98-5, June 5, 1998................................
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- SOUTHERN CALIFORNIA EDISON COMPANY, et al.
(San Onofre Nuclear Generating Station. Units 2 and 3) '
Dockets 50-361,50-362 DIRECTOR'S DECISION UNDER 10 C.F.R. 9 2.206
^ DD-98-6, June 1 1, 1998................................. 396 I
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Cite as 47 NRC 307 (1998)
CLl-98-7 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
l Shirley Ann Jackson, Chairman
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Greta J. Dicus i
Nils J. Diaz J
Edward McGaffigan, Jr.
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in the Matter of Doeket Nos. 72-22-ISFSI
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72-22-ISFSI-PFS
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PRIVATE FUEL STORAGE, LLC.
(Independent Spent Fuel Storage Facility)
June 5,1998 The' Commission grants the petition filed by the applicant, Private Fuel Storage, L.L.C., for interlocutory review and reversal of the Chief Judge's ruling to create a separate board to consider all issues concerning its Physical Security Plan. While the Commission agrees with the Chief Judge that he has sufficient authority to establish multiple boards to adjudicate a single license application, and also agrees that assigning discrete issues to multiple boards may sometimes prove a useful tool for resolving proceedings expeditiously, it concludes that a second board was not called for here, given the procedural posture of the ' ase.
c Once the initial Board rules on the admissibility of all pending contentions, including the security contentions, the Chief Judge may reconsider whether a l
second board would be desirable.
RULES OF PRACTICE: PETITIONS FOR INTERLOCUTORY REVIEW
'The Commission does not readily review interlocutory licensing board rul-ings, but will do so if a particular ruling (1) "[t]hreatens the party adversely affected by it with immediate and serious irreparable impact" or (2) "[alffects i
the basic structure of the proceeding in a penusive or unusual manner." 10 l
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C.F.R. 5 2,786(g)(1) and (2); see Oncology Services Corp., CLI-93-13, 37 NRC 419 (1993).
LICENSING BOARDS: ASSIGNMENT OF RESPONSIBILITY
."[T]he Chief Administrative Judge of the Licensing Board Panel is empow-ered both (1) to establish two or more licensing boards to hear and decide
' discrete portions of a licensing proceeding; and (2) to determine which portions will be considered by one board as distinguished from another." Public Service Co. ofNew Hampshire (Seabrook Station, Units 1 and 2), ALAB-916,29 NRC
. 434, 438 (1989) (footnote omitted).
~ LICENSING BOARDS: ASSIGNMENT OF RESPONSIBILITY The Commission expects the Chief Judge to exercise his authority to establish j
multiple boards only when: (1) the proceeding involves discrete and separable issues; (2) the issues can be more expeditiously handled by multiple boards than by a single board; and (3) the multiple boards can conduct the proceeding in a manner that will not burden the parties unduly.
MEMORA.NDUM AND ORDER This proceeding concerns an application 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. The Petitioner, Private' Fuel Storage, L.L.C. (PFS), seeks interlocutory Commission review 1
of a determination by the Chief Judge of the Atomic Safety and Licensing f
. Board Panel to divide the proceeding and establish a second licensing board to I
consider and rule on all matters concerning the (Applicant's] physical security k
plan.".63 Fed. Reg.,15,900 (Apr.1,1998). PFS argues for reversal of the Chief Judge's ruling on the grounds that the Chief Judge lacked jurisdiction to.
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divide the proceeding and that dividing it may lead to conflicting decisions and
- consume additional resources with little likelihood of expediting the ultimate
. merits decision. The NRC Staff agrees with PFS that establishing a second board was inappropriate. No other party has taken a position on the matter.
For the reasons stated below, we grant interlocutory review and reverse.
the Chief Judge's ruling..While we agree with the Chief Judge that he has sufficient authority to establish multiple boards to adjudicate a single license
. application, and we also agree that assigning discrete issues to multiple boards
- may sometimes prove a useful tool for resolving proceedings expeditiously, we 308 l
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conclude that a second board was not called for here, given the procedural posture of the case. Once the initial Board rules on the admissibility of all pending contentions, including the security contentions, the Chief Judge may reconsider whether a second board would be desirable.
L BACKGROUND The initial three-member Board designated to preside over this proceeding l
was established on September 15, 1997, with Judge G. Paul Bo'twerk, III, as its chairman. See 62 Ibd. Reg. 49,263 (Sept. 19, 1997). It received numerous petitions for intervention, including a petition from the State of Utah, seeking admission of a total of approximately ninety contentions. Of the ninety contentions, Utah filed nine that concerned the Applicant's physical security plan; they were designated " Security-A through Security-l." In January, Judge Bollwerk's Board held a site visit in Utah and also convened a prehearing conference where it heard the parties' oral arguments on standing and on the admissibility of the ninety contentions. The Board permitted only a limited presentation on the nine security contentions "to avoid any discussion of nonpublic safeguards or proprietary information." LBP-98-7,47 NRC 142,164 (1998). The Board subsequently permitted the State, PFS, and the NRC Staff to file postargument pleadings on the admissibility of the security contentions. Id.
Two months later, on March 26, before Judge Bollwerk's Board had ruled either on standing or on the admissibility of any contentions, the Chief Judge.
established a second board, chaired by Judge Thomas S. Moore, to rule on all matters concerning Utah's nine security plan contentions. Sec 63 Isd. Reg.
15,900 (Apr.1,1998). PFS promptly sought reconsideration of the decision to establish a second board. The NRC Staff supported PFS's petition for reconsideration.
In the meantime, while the petition for reconsideration of the Chief Judge's ruling was still pending, Judge Bollwerk's Board issued a lengthy Memorandum and Order on standing and on the admissibility of the approximately eighty remaining contentions. LBP-98-7, supra. The Bollwerk Board did not rule on the nine security contentions that the Chief Judge had reassigned to the Moore Board. LBP-98-7,47 NRC at 166. Twenty-five contentions were admitted, and several parties, including the State of Utah, were accorded standing. Several parties subsequently filed motions for reconsideration.
The next day, on April 23, the Chief Judge denied PFS's request for reconsideration of his determination to establish a second board to handle the security contentions. Rejecting PFS's claim that he lacked jurisdiction to establish a second board, the Chief Judge pointed to prior precedent where the Chief Judge had established two or more boards to decide separate issues in 309 1
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i one proceeding. The Chief Judge further reasoned that inherent in the authority J
to establish multiple boards is the authority to terminate the jurisdiction of the first board with respect.to the issues that are given to the second. As for the circumstances here, the Chief Judge stated that "the Panel's docket can be most effective.ly managed and that this proceeding can be more efficiently and expeditiously resolved by establishing a second licensing board." LBP-98-8,47 NRC 259 (1998).
. On May 6. Judge Moore's Board issued a scheduling order that set June 17 as the date for a prehearing conference on the security plan issues. That Board indicated that it deemed the State of Utah's physical security plan contentions and all parties' pleadings relating to those contentions, previously filed with.
Judge Bollwerk's Board, to be part of the record before the new Board '
IL INTERLOCUTORY REVIEW The Commission does not readily review interlocutory licensing board rul-ings, but will do so if a particular ruling (1) "[t]hreatens the party adversely affected by it with immediate and serious irreparable impact" or (2) "[alffects the basic structure of the proceeding in a pervasive or unusual manner." 10 C.F.R. 5 2.786(g)(1) and (2); see Oncology Services Corp., CLI-93-13, 37 NRC -
419 (1993). PFS invokes the second prong of our standard.
j The decision to create a second board is not unheard of in our practice, but it is certainly an unusual event, particularly where, as here, the Chief Judge reassigns to a second board threshold admissibility questions that already are ripe for decision by the initial Board. We agree with PFS and the NRC Staff that a ruling of this sort "affects the basic structure of the proceeding," by
. arguably mandating duplicative or unnecessary litigating steps, and therefore is reviewable now. Cf RockwellInternational Corp. (Rocketdyne Division),
ALAB-925,30 NRC 709,712-13 n.1 (1989).
IIL AUTHORITY OF THE CHIEF JUDGE TO CREATE A SECOND BOARD PFS (but not the NRC Staff, which takes no position on the matter) insists that the Chief Judge lost all authority to establish a second board once he initially assigned the entire proceeding to Judge Bollwerk's Board. We disagree.
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!Ou May 18. Judy Bollwerk's Board ruled on the parties' nuions for recormidencon ofira decision on the admissibility of cena:ndona. See LBP-98-10,47 NRC 288 (1998).
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As a general matter, dividing discrete issues between two boards has the potential to expedite proceedings. It would therefore make little policy sense for the Commission to bar this practice. As a matter of law, nothing in our rules withholds from the Chief Judge the authority to manage the Panel's docket efficiently by dividing work between two boards. Such authority follows from the Chief Judge's broad authority to establish boards in the first place. See 10 C.F.R. 69 2.704, 2.721. Largely for these reasons, the former Atomic Safety and Licensing Appeal Board found that there is no room for serious doubt that.. the Chief Administranve Judge of the Licensing Board Panel is empowered both (t) to establish two or more licensing boards to hear and decide disc ete portions of a licensing proceedmg; and (2) to determine which portions will be considered by one board as distinguished from another.
Public Service Co. of New Hampshire (Seabrook Station, Units I and 2), ALAB-916,29 NRC 434,438 (1989)(footnote omitted).
We agree with the Appeal Board. It is true, as PFS points out, that 10 C.F.R.
12.717 specifically states that a board's jurisdiction ceases at the end of the proceeding or upon the disqualification of an individual judge. Ilowever, the rule does not state or imply that these are the only circumstances under which a board's jurisdiction may be terminated. In our view, section 2.717 does not abrogate the Chief Judge's inherent authority to manage the Panel's caseload efficiently through reassignments of pending adjudications in whole or in part.
Although establishing multiple boards can be an effective tool for expediting proceedings, the Commission recognizes that it also creates a risk of conflicting decisions and duplicative work for the boards and parties. The Commission therefore expects the Chief Judge to exercise his authority to establish multiple boards only when: (1) the proceeding involves discrete and separable issues; (2) the issues can be more expeditiously handled by multiple boards than by a single board; and (3) the multiple boards can conduct the proceeding in a manner that will not burden the parties unduly. We do not believe that this test was met in the present case.
IV. TIMING OF ESTABLISilMENT OF A SECOND BOARD In our judgment, under the current posture of this proceeding, it is ineffi-(
cient to have a second board presiding over the issues related to the security l
contentions. Those contentions may or may not be admissible; it may be ap-propriate to combine some or all of them, or to litigate one or more of them together with a previously admitted contention. We believe that Judge Boll-l werk's Board, having acted on all other standing and admissibility questions
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in this proceeding, including motions to reconsider, and having already held a 1
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site visit and prehearing conference on the security contentions, is better po-sitioned than the newly established board to act quickly on these admissibility issues. flad the Chief Judge not stepped in, we have every reason to believe i
that by now Judge Bollwerk's Board, which resulved the admissibility of the other eighty contentions with admirable dispatch, would also have determined l
the admissibility of the security contentions.
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The newly established second Board, by contrast, intends to conduct its l
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admissibility of the contentions. It also is not in a position to combine any of the security contentions with the twenty-five previously admitted contentions,
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because it has jurisdiction over only the former. Given these circumstances, we q
think it would invite delay to establish a second board at this time. We therefore
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l decide the admissibility of the security contentions.
We do not mean to suggest that establishing a second board for the security contentions, or for any other discrete set of contentions, might not at some l
later date be a prudent means to expedite this adjudication. But the Chief Judge should not address that question until the first Board decides the pending l
admissibility issues l
PFS and the NRC Staff argue that the separate board contemplated here is inherently unworkable because the security contentions are so intertwined with other contentions that duplicative or conflicting rulings, arguments, and pleadings are inevitable. We agree that, as a general principle, a separate i
board should not be established if it would likely result in duplicative work or j
conflicting rulings, but we do not here rule on whether the security contentions are so intertwined with other contentions that such duplication or conflict would be inevitable. Instead, as part of its ruling on admissibility, we expect Judge Bollwerk's Board to decide, as it did with respect to numerous other issues raised in this proceeding, whether the security plan contentions overlap with any others in such a way that they should be combined or litigated with other contentions. See, e.g., LBP-98-7,47 NRC at 206. Then, keeping in mind the
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three principles we set forth in Section 111 of this Decision, the Chief Judge l
could reconsider whether to establish a second board to handle the security (or j
any other) contentions,in the interest of expedition and efficiency.
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CONCLUSION For the foregoing reasons, we reverse the Chief Judge's decision to establish a second board to handle the security contentions. Instead, those contentions will remain under the jurisdiction of the initial Board until that Board rules on their admissibility and on any motions for reconsideration of that determination.
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.. c Subsequent 'to those rulings, the Cfdef Judge may consider, consistent with the
' ? discussion ~ contained in.this opinios, whether to establish a second Board to further adjudicate'any of the admitted contentions.
For the Commission '
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JOHN C. HOYLE
- Secretary of the Commission Dated at Rockville, Maryland,
- this 5th. day of June 1998.
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2 1 Comciissioner Dieus was not available for the afGrn aden of this Order. Had she been preses, she woukt.
! have afHrmed the Onler.'
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i-Cite as 47 NRC 314 (1998) '
CLI-98-8 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l
COMMISSIONERS:
l Shirley Ann Jackson, Chairman Greta J. Dicus Nils J. Diaz Edward McGaffigan, Jr.
In the Matter of Docket No. 40-8968-ML j
HYDRO RESOURCES,INC.
(2929 Coors Road, Suite 101, Albuquerque, NM 87120)
June 5,1998 The Commission denies a petition for review of a Presiding Officer's order denying a stay request that Petitioners filed with the Presiding Officer, dismisses as moot a stay request that Petitioners filed directly with the Commission, and lifts a temporary stay that the Commission had isued in CLI-98-4,47 NRC 111 (1998).
l RULES OF PRACTICE: INTERLOCUTORY REVIEW; INFORMAL HEARINGS; DISCRETIONARY INTERLOCUTORY REVIEW; i
STANDARD OF REVIEW The Commission is willing to entertain petitions for review of interlocutory rulings in Subpart L cases in the rare situations where such rulings (1) threaten
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a party with serious, immediate, and irreparable harm or (2) affect the basic structure of the proceeding in a pervasive or unusual manner.
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' RULES OF PRACTICE: INTERLOCUTORY REVIEW; g
DISCRETIONARY INTERLOCUTORY REVIEW ADJUDICATORY HEARINGS: SCOPE OF REVIEW The Commission has the authority to consider a matter even if the party seeking interlocutory review has not satisfied the criteria for such review.
RULES OF PRACTICE: INTERLOCUTORY REVIEW; DISCRETIONARY INTERLOCUTORY REVIEW; STANDARD OF REVIEW He mere issuance of important rulings does not, without more, merit interlocutory review. See Sequoyah fuels Corp. (Gore, Oklahoma Site), CLI-9411, 40 NRC 55, 63 (1994). Even legal error does not necessarily justify
. interlocutory review. Instead, Petitioners need to demonstrate that they are 7
threatened with "immediate and serious irreparable impact which, as a practical matter, could not be alleviated through a petition for review of the presiding officer's final decision." 10 C.F.R. 6 2.786(g)(1).
RULES OF PRACTICE: STAY PENDING APPEAL; INFORMAL HEARINGS Section 2.1263 of the Commission's Informal Hearing Regulations provides that any request for a stay of Staff licensing action pending completion of an adjudication under Subpart L must be filed at the time a request for a hearing or petition to intervene is filed or within 10 days of the Staff's action, whichever is later. The Commission does not, however, construe section 2.1263 to preclude
, participants from later renewing their stay request, which was timely filed under this section, if they are subsequently threatened with serious, immediate, and
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. irreparable harm.
- RULES OF PRACTICE
- INTERLOCUTORY REVIEW; STANDARD OF REVIEW; DISCRETIONARY INTERLOCUTORY REVIEW I
For purposes of interlocutory review, irreparable harm does not qualify as j
"immediate" merely because it is likely to occur before completion of the
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hearing. Such a reading of the word "immediate" would stretch the ' definition of that word quite beyond recognition.
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l RULES OF PRACTICE: INTERLOCUTORY REVIEW; STANDARD OF REVIEW; DISCRETIONARY INTERLOCUTORY REVIEW The Commission (and, earlier, the Appeal Board) have granted interlocutory
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review in situations where the question or order must be reviewed "now or not at all."
RULES OF PRACTICE: INTERLOCUTORY REVIEW; STANDARD OF REVIEW; DISCRETIONARY INTERLOCUTORY REVIEW
. NATIONAL HISTORIC PRESERVATION ACT: REQUIREMENTS An alleged failure by the NRC Staff to comply with section 106 of the National Historic Preservation Act does not " imply" the " irreparable" injury l
necessary for interlocutory review. To obtain such review, Petitioners are
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. required to show the threat of irreparable harm, not merely to " imply" it.
NATIONAL HISTORIC PRESERVATION ACT: REQUIREMENTS l
RULES OF PRACTICE: STAY REQUESTS Absent a clear congressional statement, adjudicatory tribunals should not infer that Congress intended to alter equity practices such as the standards for reviewing stay requests. The National Historic Preservation Act contains no such clear congressional statement.
RULES OF PRACTICE: STAY REQUESTS A plaintiff seeking injunctive relief must prove irreparable harm; a mere violation of NEPA or other environmental statutes is insufficient to merit an injunction.
l NATIONAL IIISTORIC PRESERVATION ACT: REQUIREMENTS The National Historic Preservation Act contains no prohibition against taking a " phased review" of a property. Section 470(f) of that statute provides, in relevant part, only that a federal agency shall, " prior to the issuance of any license.. take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register." Nor does federal case law suggest any such prohibition.
The regulations implementing section 470(f) are ambiguous on the matter.
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RULES OF PRACTICE: STAY REQUESTS; STANDARD OF
. REVIEW; APPELLATE REVIEW LICENSING BOARD: DISCRETION IN MANAGING
, PROCEEDINGS
. In such a fact-specific area of disagreement as the necessity for a stay, and at such an early stage of the proceeding, the appellate forum's deference to the trier of fact is quite high.
RULES OF PRACTICE: INTERLOCUTORY REVIEW; STANDARD OF REVIEW; DISCRETIONARY INTERLOCUTORY REVIEW; MOTIONS (REPLIES TO RESPONSES); APPELLATE REVIEW Just as procedural rulings involving discovery and admissibility of evidence or the scheduling of hearings rarely meet the standard for interlocutory review, likewise the Presiding Officer's denial of Petitioners' motion for leave to file a reply brief does not rise to the level meriting the Commission's interlocutory review. On such interlocutory matters, the Commission generally defers to the Presiding Officer.
MEMORANDUM AND ORDER
'Ihis proceeding under 10 C.F.R. Part 2, Subpart L concerns a materials license application that Hydro Resources, Inc. ("liRI") filed under Part 40 of our regulations,' seeking authority to conduct an in situ leach uranium mining and milling operation in Church Rock and Crownpomt, New Mexico.' The NRC Staff. issued the requested license (SUA-1508) on January 5,1998. Ten days later, the Southwest Research & Information Center and the Eastern Navajo Dind -
Against Uranium Mining (collectively " Petitioners") requested the Presiding Officer to stay the effectiveness of HRI's license pending both a health-and-safety hearing on the application pursuant to section 189 cf the Atomic Energy Act ("AEA"),42 U.S.C.12239 et seq., and an historic property review pursuant to section 106 of the National Historic Preservation Act ("NHPA"),16 U.S.C.
i 470(f). This latter statutory section and its implementing regulations (36 C.F.R.
Part 800) provide that, prior to issuing a license, an agency must take into account the effects of the license issuance on historic properties.
I According to HRI, the la sism leach process begins with the injection of groundwater fornfted with oxidia.og agents (lixiviant)into a tody of uraniurn ore, causing the uramum to dissolve. The resulting solution is then pumped from the are body to the surixe, where it is processed imo a dried form of uranium.
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On January 23, 1998, the Presiding Officer temporarily stayed the license's effectiveness (LBP-98-3,47 NRC 7), but subsequently lifted the temporary stay and denied Petitioners' motion for a full stay. LBP-98-5,47 NRC 119 (1998).
In addition to rejecting Petitioners' stay argument that the license should not go into effect prior to the completion of a hearing, the Presiding Officer in LBP 5 also denied Petitioners' motions to strike the Staff's response to Petitioners' stay motion, and denied Petitioners' motion for leave to reply to both the Staff's above-mentioned response and HRI's response to Petitioners
- stay motion.
Petitioners filed with the Commission a petition for review of LBP-98-5 and also a request for both a temporary stay of that order and a longer stay until the Commission has ruled upon their petition for review of LBP-98-5. On April 16, 1998, we granted a temporary stay of LBP-98-5, thereby effectively reinstating the Presiding Officer's temporary stay of the license. CLI-98-4,47 NRC 111.
j We now turn to the petition for review and the request for a longer stay. For i
the reasons set forth below, we deny the former, dismiss the latter.2 and lift the I
temporary stay imposed in CLI-98-4.
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L BACKGROUND In 1988, HRI applied for a materials license to conduct in situ leach uranium I
mining and processing in Church Rock, New Mexico, and later amended the l
application to include similar activities in two other locations - Crownpoint, l
New Mexico, and Unit 1 (near Crownpoint). HRI plans to locate some of the mines and processing facilities near residential areas and existing drinking water wells. HRI's activities also have the potential for disturbing historic and j
architectural sites.
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'Ihe development and operation of HRI's facilities are scheduled to occur over a 20-year period. In January 1997, the NRC Staff proposed to limit its initial review under the NHPA to the first 5 years of this period, thereby taking a " phased review" approach under the NHPA. The Staff considered this approach appropriate because HRI intends to develop this project incrementally, the project's potential area of disturbance is vast, and the resource methodologies 1
and interpretations could change during the proposed 20-year license term. Five l
months later, the Staff announced its inten' to defer the NHPA section 106 review of Unit I and Crownpoint, because the Crownpoint site would allegedly not be developed during the first 5-year period and because access to the Unit I site was difficult.
2 On April 22.1998. the Navajo Nation filed a modon for leave to rtle a brief am
- cur curias regar&ng Petitioners' petition for review of LDP-98-5 if we grant the petition for review Decause we r e denying the petition for review, we dismiss the Navajo Nation's nvation as rnoot.
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On January 5,1998, the Staff issued the requested license to HRI for a 5-year term, subject to renewal. The licensed operations are expected to begin in Section 8 at Church Rock. 'Ihe license prohibits HR1 from injecting lixiviant at either Unit 1 or Crownpoint prior to successfully demonstrating groundwater restoration at Section 8 of Church Rock. However, the license does permit HRI to commence preinjection activities associated with the construction and operation of a processing facility at either Crownpoint or Unit 1. It also permits ground-disturbing activities at all three sites (e.g., ground clearing, construction of access roads, and the digging of trenches for installation of well field process fluid trunk lines and gathering lines).
II, PETITIONERS' ARGUMENTS TO THE COMMISSION l
Petitioners' NHPA arguments assert that HRI's premining activities will irreparably harm archaeological sites and traditional cultural properties that have great meaning to the history and day.to day lives of the Navajo and Pueblo peoples. Petitioners also criticize as inadequate HRI's documentation of traditional cultural properties. Petitioners further object to the Staff's " phased review" approach and assert instead that HRI must defer all its activities until after the NRC has completed the NHPA review for th entire geographical area covered under HRI's license application. According to Petitioners, " irreparable damage may be implied from the Staff's issuing the license without completing the NHPA i106 process and without adequately conditioning the license to prevent harm to historic properties before the process is coinpleted." Petition for Review, dated April 11,1998, at 7. Petitioners also essert that the irreparable
"[h} arm must be considered 'immediate' if it is likely to occur before completion of the hearing." Id. at 8.
Petitioners' AEA argurnents assert that the grant of the license will, before the end of the hearing, cause irreparable harm to their health, safety, and property in I
general and to their drinking water from the mining at Unit 1 in particular. More specifically, they claim that contaminants released by the mining of Unit I will escape detection by HRI's allegedly inadequate monitoring system, will quickly migrate into Crownpoint's drinking water wells, and will cause the wells' water to exceed sa% concentrations of uranium and other contaminants. Id. at 7-8; Motion fc' stay, dated April 11,1998, at 5-6 & n.9.
Finally, i%titioners challenge certain procedural rulings by the Presiding Officer and seek a stay pending the Commission's consideration of their petition for review.
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IIL DISCUSSION A.
Criteria for Reviewing a Petition for Interlocutory Review
~ Our Subpart L regulations g werning informal hearings in materials licensing proceedings do not explicitly provide for a petition for review of an interlocutory order (See 10 C.F.R. 52.1U3, providing for petitions for review only of initial decisions), nor do (N.y contain provisions establishing criteria for judging such petitions. But, as we do under our more formal Subpart G process, we are willing
- to entertain petitiorts for review of interlocutory rulings in Subpart L cases in the rare situations where such rulings (1) threaten a party with serious, immediate, i
- and irreparable harm or (2) affect the basic structure of the proceeding in a
-)
pervasive or unusual manner.2 Petitioners seek interlocutory review of LBP-98-5 under the first of these two
.j criteria. See Petition for Review at I n.2. Petitioners complain that the Presiding i
Officer departed from established NHPA law, made erroneous findings of fact, improperly denied Petitioners' request for a relicensing hearing, and committed prejudicial procedural error in denying Petitioners' motion for leave to reply to the Staff's response to Petitioners' motion for stay. Id. at 1.
'Ihe Presiding Officer's rulings in LBP-98-5 were undoubtedly significant.
However, the mere issuance of important rulings does not, without more, merit interlocutory review. See Sequoyah fuels, CLI-94-11,40 NRC at 63. Even legal error does not necessarily justify interlocutory review.4 Instead, Petitioners need to demonstrate that they are threatened with "immediate and serious irreparable impact which, as a practical matter, could not be alleviated through a petition for review of the presiding officer's final decision." 10 C.F.R. 9 2.786(g)(1).
As we rule in sections B, C, and D, infra, Petitioners have not shown that their alleged harm under the AEA and NHPA is either irreparable or im. mediate. We therefore deny their request for interlocutory review of the Presiding Officer's denial of a stay. If circumstances change in such a way that the harm becomes
)
irreparable and immediate as well as serious, Petitioners are free to renew their l
I i
3 10 C.F.R. I 2.786(g1 See Sequoyah fuel.: Corp. (Gore, oklahoma site), CLI41-il. 40 NRC 55. 59 (1994%
. Oncology Services Corp., CLf-93-13. 37 NRC 419. 42421 (1993K long Isidad ligAring Co. (shoreham Nuclear Power station. Unit IL CI1913. 33 NRC 76. 8n (1991). The Commission of course has the authority to consider
. a matter even if the party seeking inscriocutory review has not satisfied the criteria for such review. Indeed, its now-defunct Appeal Board occasionally did so in the ceru6edquestion context where the ruling at issue involved a question of law, had generic implications, and hat not been addressed previously on appeal. See Admaced
. Medical Systent, lac. (one Factory Row. Geneva oH 44041k ALAB-929, 31 NRC 271,279 (1990h and cited authority. Howeser, we see no reason to exercise our plenary review authority in this instance.
" Sea. a r., Georgio Power Co. (Vogtle Electric Generating Plant. Units I and 2), CLI 94-15,40 NRC 319 321 (1994)(dechmng interlocutory redew even though a licensing board ruling may be " incorrect" and even j
though " aspects or the Licensing Board's decision.. appear highly questionable"X Public Service Co. o/New l
Nampraire (Seabrook Station. Umta 1 and 2), ALAB-734.18 NRC 11,15 (1983)("the fact that legal error may
. bnve oceaned does not of itself justify interlocutory appellate review in the teeth of the longstanding articulated Cornmission policy generally disfavoring such review").
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I motion for a stay before the Presiding Officer $ Such a motion must be filed l
promptly, and the words "immediate" and " irreparable" are to be construed in L
a way that is consistent with our discussion of them below.
B.
Immediacy of Ilarm - NIIPA and AEA We do not agree with Petitioners' general statement that irreparable "[h] arm must be considered 'inoaediate',. if it is likely to occur before completion of the hearing." Petition for Review at 8. Such a reading of the word "im-mediate" stretches the definition of that word quite beyond recognition.' Given the early stage of this case, it would not be unus,tal if the " completion of the
.., hearing" to which Petitioners refer occurs months from now. By cofarast, the Commission (and, earlier, the Appeal Board) have granted interlocutory re-view in situations where the question or order must be reviewed "now or not l
at all,"7 The Commission faces no "now or never" situation here. Petition-I ers make no compelling case under the AEA that HRI's preliminary activities will result in immediate health and safety harms. And both the presence of protective conditions in the license 8 and HRI's own oft-repeated commitment to 8 As Feudoners correctly point out. secdon 2.1263 of our Informal Hearing Regubtions provides that "any request for a stay of staff licensing action pending compicuan of an aljudicaden under this subpart must be 6 led at she time a request for a hearing or petidon to meervene is 6ted or widun 10 days of the starrs acdon, wtuchever is later," Stay Request at 6, cinas 10 C.F.R. I 2.1261 We do not, however, construe section 2.1263 to preclude participants such as these rttitioners from later renewing their stay request if they are subsequendy threatened with senous, immediate, and irreparable harm.
'The Random flouse Dictionary of ras Engirsh language at 712 (Unabridged ed,1973) defines that word as
"(l) occurring or accomplished without delay; instant.
- (2) of or pertaimag to the premns tine or monant
,,, ;(3) following wuhout a lapse of time.
7 Georgia l'ower Ca (Vogtle Electric Generating Plant, Umts I and 2), CLI.94-5, 39 NRC 190,193 (1994)
("Because the adverse impact of {the] relene [or a report by the NRC's Office of Invesogadons) would occur now, the alleged harm is immediate.... Unlike numt dncovtry orders, the instant ceuer must be reviewed now or not at all" under section 2.786(g))(emphasis in original). Ilomston lighting & Power Ca (South Tesas Project. Umts I and 2), ALAB439,13 NRC 469,473 (1981)(tjeensing Board's order to disclose narnes of individuals who had been promised anonymity "rnust be exarmned now or not at all"); Kansas Gas and Electric Ca (Wolf Caek Generating Stadon, Unit 1), ALAB-327,3 NRC 408,413 (1976)(Licensing Board's order denying protective ordet "nnst be reviewed now or not at all"1 Cf Georgia Power Ca (Vogtle Electric Generating Plant, Units I and 2), CLI-95-15,42 NRC 181,184 (1995)("Ahhough, typically, discovery orders can be reviewed on appeal following a analjudgment, and a claim of pnvilege is not alone sufiicient so justif interlocutory review, here an f
erroneous disclosure of docurnents ruled later to be absolutely priviieged could prove irreparable").
8 5ee, e.g., Condnuon 912, which provides that-Before engaging in any construction activity not previously assessed by $e NRC, the licenace shall conduct a cuhur 1 resources inventory. All disturbances anociated with the proposed developnrot will be completed in compliance with the tNHPA).
In order to ensure that no unapproved disturbance of cuhural resources occurs, any work resulting in the dncovery of previously unknown cultural artifacts shall cease. The artifacts shall be inventoried and evaluated in accordance with tNHPA regulational, and no disturbance shall occur unal the licensee has received written authorization to proceed from the State and Navajo Nation Historic Preserution of6ces.
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" comply fully with the NHPA prsor to conducting any land disturbance"* make us skeptical of whether the alleged NHPA injury will occur at all, much less f
immediately.
i C.
Irreparability of liarm - NilPA We do not agree with Petitioners that the NRC Staff's alleged failure
{
to comply with section 106 of the NIIPA " implies" the " irreparable" injury j
necessary for interlocutory review.I8 To obtain such review, Petitioners are j
required to show the threat of irreparable harm, not merely to " imply" it.
{
The only case that Petitioners cite in support of their " implication" argument,
- Colorado River Tribes v. Marsh, 605 F. Supp.1425,1439-40 & n.11 (C.D.
Calif.1985) (where the court reached its conclusion by analogizing NHPA to the National Environmental Policy Act ("NEPA")), is insufficient to support their claim of irreparable injury. The plaintiffs in that case had established probable success on the merits and had submitted evidence that " unquestionably" i
indicated the importance of the historical and archaeological sites at issue in the case. Here, by contrast, the Presiding Officer found that Petitioners had failed to establish likelihood of success on the merits (LBP-98-5,47 NRC at 124-25). Moreover, the petition for review, stay motion, and accompanying documents have all been quite vague as to both the identity and importance of any historically and archaeologically significant sites at Unit I and Crownpoint."
More fundamentally, Colorado River's holding that a statutory violation equates to a showing of irreparable injury cannot be squared with the current state of the law as reflected in two Supreme Court environmental law decisions, Weinberger v. Romeo-Berkeley, 456 U.S. 305 (1982), and Amoco Production l
'HRI's Response to Pendoners' Application for Review of LBP 98-5, dated Apnl 23.1998, at 6 (emphasis in original). see also kr at 8 (HRI"is comnutted to full compliance with the letter and spint of the NHPA and
~ herefore wall not engage in any land disturbmics that daes not comply with the NHPA")(emphasis in original);
t HRrs Response to Petitioners' Application for stay, dated Apnl 23,1998, at 3 n.9 ("the NRC staff and HRI will complete section 106 review for each phase of the proposed project before iruuating any actual construction"),
4 ("HRI has no intention of conducting any land disturbance activit.es in any part of the tCrownpoint Uranium Projectj properties anal the NitPA process has been completed for that piece of property"),6 ("HRTs license would require the company to refrain from land disturbing acnvities unut the NHPA process is complete.,..
[N]o cultural resources wtD be disturbed in violacon of the NitPA"), and 7 ("HRrs license forbids any ground disturbing activities that would violate de NHPA.., HR1has no intention of performing any ground disturbing activities in viol.uion of the NHPA")(emphasis in original); HRrs Response to the Navajo Nanon's Motion for Leave to File a Drief Amicus Curiae, dated May 4,1998, at 3 & n.6 ('HRTs license prohibits the company from conducting any land disturbing activities that are not in full compliance with the.., NHPA";"the company's commitment to a policy of 'lotal avosdance' of archaeological resources ensures ilst there will be no dLarurbance that will harm any cultural or archaeological resources" (emphasis in original)).
10 Petition foe Review at 7. We do not reach on the rnerits the question whether the Staff has complied with section 106.
"Ittiuoners provide the Commission with only a few general claims that many traditional cultural properties may be affected and instead focus the bulk of their comments on the alleged shortcomings of HRrs and the Staff's efforts to comply with the NHPA. see, e.g., AfAdavit of William A. Dodge, dated Jan. 9,1998, passim, Af6 davit of Dr. Klara B. Kelley, dared Jan. 8,1998, pas. rim.
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Co. v. Village of Gambell, 480 U.S. 531 (1987). The more recent of these two decisions, AmoCo, expressly rejected a Ninth Circuit holding - essentially identical to Petitioners
- argument - that "[ irreparable damage is presumed when an agency fails to evaluate thoroughly the environmental impact of a proposed action" and "only in a rare circumstance may a court refuse to issue an injunction when it finds a NEPA violation."t2 Absent "a clear Congressional statement," adjudicatory tribunals "should not infer that Congress intended to alter equity practices" such as the standards for reviewing stay requests? ne NHPA contains no such " clear Congressional statement.""
Finally, as to the irreparability of NHPA harm, we are not convinced by Pe-titioners' argument that the NRC and HRI are prohibited from taking a " phased review" approach to complying with the NHPA - the legal position that forms the foundation of Petitioners
- NHPA arguments regarding severe, immediate, and irreparable injury. The statute itself contains no such prohibition,88 federal 12 pr9 s of Village rf GambcIl v. Hodel, 774 F.2d 1414.1423 (9th Cir.1985) (emphaus afded. internal t
quotaion marks onp'ted).
Nosurul Resources Defense Council v. Texaco Refining & Afarkermg, Inc., 906 F.2d 934, 939 n 6 (3d Gr.
1990)(regarding Federal Waer Polluuon Control Act Amendments of 1972), onag flynn v United States By and Through Eggers, 786 F.2d 586,591 (3d Cir.1986).
Nurrerous other cases hold that a plaint 2ff seeking injunctive relief must r we irreparable harm, and that mere violdion of NEPA or other environmental statures is insufhcient to merit an m; unction. See foress Cmuerwrion Council v. Unded States forest Service, 66 F.3d 1489,1496 (9th Cir.1995) (NEPA; Forest and Rangeland Renewable Resources Planning Act of 1974); fundfor Anunals v. Lujan, %2 F.2J 1391,1400 (9th Gr.1992)
(NEPAh Town of Huntmgros v. Afarsh, 884 F.2d 648. 65154 (2d Gr.1989), cert. denied, 494 U.S.1048 (1990)
(NEPA; where the Second Grcut held that, in the area of environmenul statutes, an injunction does not follow as a matter of course, upon a findang of statutory violation, but rather "a threat of irreparable injury murf be proved, not assumed and may not be postulated to ipso on the basis of procedural violations of NEPA" ); Town af Huntington v. Afarrh. 859 F.2d 1134.1143 (2d Cir,1988)(NEPAh Northern Cheyenna Tribe v. Hodel,851 F 2d 1152,1157 58 (9th Car.1988) (NEPA; Federal Coal Leasing Amendment Act of 1976); Nunonal Wildhfe federation v. Burford, 835 F.2d 305, 318, 323-24 (D C. Gr.1987) (federal 1.and Pohey and Management Act of 1972); Unued Sruses v. lambert 695 F.2J 536,540 (lith Cir.1983)(Fv&ral water Pollution Control Act Amendments of 1972; environmental lawsuits are not exempt from the four pronged test for injunctive relief).
Even the First Circuit, which has held repeatedly that a vioimion of NEPA does consuture irreparable injury, does not go so far as to conclude that this kind ofirreparable injury ascenardy requires an injunction. See Con.rstwrion law foundation v. Buary, 79 F.3d 1250,1272 (1st Cir.1996), Sierra Club v. Af.mh. 872 F.2d 497,504 (1st Cir.
1989), and Afassachusstrs v. Warr, 716 F.2d 946,952 (1st Cir. l983), in all three of which cases the First Grcuit stated that "{tJhis is not to say that a likely NEPA violation automaccally calls for an injunccon, the balance of harms may point the other way." (Emphasis in originals.)
H Compare NHPA,16 U.S C. I 470(f) wirA, e g 39 U.S C. ! 3007 ("the United States district court.. shall
, upon a showing of probuble cause to believe {rhat 39 U.S C.13005) is being i.olated, enter a ternporary restraimns order and preliminary injuncuon.
."). See Natural Resources Defense Couned,906 F.2d at 940.
'S Section 470(f) of the statute provides, in relevant part, only that a federal agency sh;di," prior to the issuance of any license.. take into account the effect of the un&rtaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Refister."
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case law' suggests none,!' and the supporting regulations are ambiguous on the
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matter, even when read in the light most favorable to Petitioners."
D.' ' Irrepa$bility of Harm - AEA
.We cannot conclude that Petitioners have shown a threat of irreparable arvi
'immediate harm to their well water. As the Presiding Officer held, Petitioners
' have not explained why the license's conditions (see License Conditions 10.12-l 10.32), together with the assurances presented in the Staff's and HRI's affidavits, L.
are inadequate to prevent contamination of the well water supply. See LBP l 5,47 NRC at 128-29. It was Petitioners' burden to show irreparable injuty sufficient for a stay. See Alabama Power Co. (Joseph M. Farley Nuclear Plant, L'
Units I and 2), CLI-81-27,14 NRC.795, 797. (1981). Petitioners here have presented their evidence and arguments favoring a stay, but the Presiding Officer
- was not convinced. In such a fact-specific area of disagreement, and at such an early stage of the proceeding, the appellate forum's deference to the trier of j-fact is quite high. We see nothing in the appeal documents that convinces us to second-guess the Presiding Officer on this matter, particularly given his greater l
familiarity with the record and the thoroughness of his decision.
E.
Other Arguments
[
Finally, we reject Petitioners' request that we intervene to reverse the Pre-siding Officer's denial of their motion for leave to reply to Staff's and HRI's response to Petitioners
- motion for stay. LBP-98-5,47 NRC at 139. Just as pro-cedural rulings involving discovery and admissibility of evidence or the schedul-ing of hearings rarely meet the standard for interlocutory review,58 likewise the Presiding Officer's denial of Petitioners' motion for leave to file a reply brief does not rise'to the level meriting the Commission's interlocutory review. On j
I'5ee City of Gencevine s Deparonent of Transponation. 17 F.3d 1$02. 8508-09 (D.C. Cir.1 cert. denied,
^
$13 U.S.1043 (1994)(rejecong clairru that completion of tle NHPA review process was required prior to agency i
of a project, where the agency's approval was conditioned on its subsequent completion of that process).
E Although section 800.3(c) of the Advisory Council on Historic Preservanon's ("ACHP") regulations states that "section 106 requires ta federal agency} to complete the secaon 106 proceu.., prior to issuance of any license or pernut." the next sentence in the same seccon provides that the ACHP "does not interpret this language
,. tas) prohibiting} phased compliance at different stages in planning? 36 C.F.R. H 800.3(c1 Marcover, f
the irnnediately preceding subsection (800(b)) states that the ACHP " regulations may be implemented... in a Aexible manner., as long as the purposes of section 106., and these regulations are art" 36 C.F.R.
I ana3(b).
isSee. e.g Texas Utilities Electric Co. (Comanche Peak Stearn Electric station Units i and 2), ALAB-870,26 NRC 71,74 (1987)(discoveryk Honsson Lightfag and Power Co. (Allens Creek Nuclear oenerating station, Unit 11 ALAB430,13 NRC 84 (1981)(admissibibtyk Undred 5:stes Department of Enerry (Clinch River Breeder -
. Reactor Planth AtAB 688,16 NRC 471,474 (1982)(scheduling 1 324 4
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such interlocutory matters, we generally defer to the Presiding Officer? More-over, the arguments proffered by Petitioners regarding leave to reply (i.e., that their response was necessary to correct misstatements of fact and law, and that Petitioners in their stay motion could not anticipate that the Staff and HRI would misrepresent facts and law, see Petition for Review at 9-10) could be expected to be raised in many, if not most, challenges to a Presiding Officer's denial of a motion for leave to reply.
F.
Motion for Stay Finally, Petitioners have sought to stay LBP-98-5 for only so long as the Commission needs to consider their petition for review of that order. Because we have denied the petition for review, Petitioners
- stay motion is moot.
IV, CONCLUSION For the reasons set forth above, we deny the petition for interlocutory appeal, dismiss as moot the motion for stay, and lift the temporary stay that we issued on April 16,1998.
It is so ORDERED.
For the Commission" JOHN C. HOYLE Secretary of the Commission Dated at Rockville, Maryland, this 5th day of June 1998.
"See sencrolly owlf States Utilities Ca (Riwr Bend stauon. Unit 1), C1194-10,40 NRC 43,47-48 (1994).
and Georgia institute of Technology (Georgia Tech Research Reactor), C1195-12,42 NRC i11, i16 (1995). both of which stated that. in the absence of a clear rnisapphcation or the facts or nusunderstanding of the law, the licensing Board's judgrnent at the pleading stage that a party has staruting is enutled to substanual deference.
20 Commissioner Dieus was not available for the affirmation of this Memorandurn and order. Had she been present, she would have affirmed the Menurandurn and order.
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Cite as 47 NRC 326 (1998)
CLI-98-9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
l Shirley Ann Jackson, Chairman I
Greta J. Dicus I
Nils J. Diaz Edward McGaffigan, Jr.
- In the Matter of Docket No. 40-8968-ML HYDRO RESOURCES, INC.
(2929 Coors Road, Suite 101, Albuquerque, NM 87120)
June 5,1998 He Commission affirms the Pr siding Officer's decision not to recuse himself l
from the proceeding.
COMMISSION PROCEEDING: APPELLATE REVIEW
- RULES OF PRACTICE:. INTERLOCUTORY REVIEW; APPELLATE REVIEW; DISCRETIONARY INTERLOCUTORY REVIEW; STANDARD OF REVIEW; INTERLOCUTORY APPEALS (REFERRAL OF RULING)
His agency has an established practice of refusing to use procedural techni-
-cafitics to avoid addressing disqualification motions.
ADJUDICATORY BOARDS: BIAS; DISQUALIFICATION -
(STANDARD)
DISQUALIFICATION: STANDARDS LICENSING BOARD: RECUSAL OF MEMBER RULES O PRACTICE: DISQUALIFICATION; MOTIONS FOR RECUSAL (OR DISQUALIFICATION)
Section 2.704(c) of the Commission's Subpart G regulations is meant to ensure both the integrity and the appearance of integrity of the Commission's 326 l
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formal hearing process. See long Island Lighting Co. (Shoreham Nuclear Power Station, Unit I), ALAB-907, 28 NRC 620, 623 (1988) (" parties in an adjudicatory proceeding have a right to an impartial adjudicator, both in reality and in appearance to a reasonable observer"), quoting Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit 1), CLI-85-5,21 NRC 566,568-69 (1985). Because this rationale applies with equal force to Subpart L informal proceedings, section 2.704(c) should be applied to those proceedings as well.
RULES OF PRACTICE: AFFIDAVITS; DISQUALIFICATION; MOTIONS FOR RECUSAL (OR DISQUALIFICATION)
LICENSING BOARD: RECUSAL OF MEMBER Where the Presiding Officer himself revealed all the facts on which Petitioners based their motion to disqualify him, and where the scope of Petitioners
- challenge calls into question neither his probity nor objectivity, the Commission l
does not believe that the failure to file an affidavit as required by 10 C.F.R.
9 2.704 is fatal to the motion. 'Ihis conclusion is also consistent with the Commission's practice of refusing to use procedural technicalities as a mearts to avoid reaching the merits of a disqualification motion.
ADJUDICATORY BOARDS: BIAS; DISQUALIFICATION (STANDARD)
DISQUALIFICATION: STANDARDS LICENSING BOARD: RECUSAL OF MEMBER RULES OF PRACTICE: DISQUALIFICATION; MOTIONS FOR RECUSAL (OR DISQUALIFICATION)
Where a Presiding Officer's job discussions with a law firm representing a party to this proceeding ended more than 6 months before he was designated to sit in this proceeding, and where the firm toward which he is supposedly biased rejected his job application, the Commission sees no reason to conclude that the Presiding Officer's impartiality might reasonably be questioned under 28 U.S.C.
~ 6455(a).
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ADJUDICATORY BOARDS: IIIAS; DISQUALIFICATION (STANDARD)
DISQUALIFICATION: STANDARDS LICENSING BOARD: RECUSAL OF AIEMBER RULES OF PRACTICE: DISQUALIFICATION; hlOTIONS FOR RECUSAL (OR DISQUALIFICATION) l
'Ihe Commission generally applies a very high threshold for disqualification when considering recusal motions. Joseph J. Macktal, CLI-89-14,30 NRC 85, 92 n.5 (1989).
ADJUDICATORY BOARDS: BIAS; DISQUALIFICATION (STANDARD)
DISQUALIFICATION: STANDARDS LICENSING BOARD: RECUSAL OF MEMBER RULES OF PRACTICE:. DISQUALIFICATION; MOTIONS FOR, RECUSAL (OR DISQUALIFICATION)
Where the Presiding Officer was not " seeking employment" with the law firm at or after the time he was designated as Presiding Officer in this proceeding, he did not violate 5 C.F.R. 9 2635.604 of. the Standards of Ethical Conduct promulgated by the Office of Government Ethics, which section applies only to executive branch employees seeking employment.
ADJUDICATORY BOARDS: BIAS; DISQUALIFICATION (STANDARD)
DISQUALIFICATION: STANDARDS
- LICENSING BOARD: RECUSAL OF MEMBER RULES OF PRACTICE: DISQUALIFICATION; MOTIONS FOR RECUSAL (OR DISQUALIFICATION)
Section 2635.606(b) of 5 C.F.R. of the Standards of Ethical Conduct provides that, even where an offer of employment is rejected or not made, an agency "may determine that an employee" who has sought but is no longa seeking em-ployment "shall nevertheless be subject to a period of disqualifi.ation upon the conclusion of employment negotiations." However, this regulation merely gives "the agency designee" (here, Chief Judge Cotter) the option of disqualifying an 328 L.
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employee of his office from working on a matter, even though the employee had not run afoul of any specific provision of the Office of Government Ethics' regulations.
i ADJUDICATORY BOARDS: BIAS; DISQUALIFICATION (STANDARD)
}
DISQUALIFICATION: ' STANDARDS LICENSING BOARD: RECUSAL OF MEMBER RULES OF PRACTICE: DISQUALIFICATION; MOTIONS FOR i
RECUSAL (OR DISQUALIFICATION)
NRC: SUPERVISORY AUTHORITY The Commission could exercise its inherent supervisory authority to disqual-ify the Presiding Officer. However, in the absence of any information that would present a concern as to the integrity of the process, the Commission declines to take such action.
MEMORANDUM AND ORDER I
On April 14,~ 1998, the newly appointed Presiding Officer in this proceeding
]
issued a Memorandum informing the parties that, prior to August or September i
1997, he had applied for a job with Shaw, Pittman, Potts & Trowbridge ("Shaw i
Pittman"), the law firm representing Hydro Resources, Inc. ("HRI") in this 1
proceeding. Based on this information, two Petitioners (the Eastern Navajo Din 6 Against Uranium Mining and the Southwest Research and Information Center)
.j filed on April 29,1998, a" Motion for Disqualification or, in the Alternative, Full j
Disclosure." Petitioners base their motion for disqualification on the " appearance of impropriety" associated with the Presiding Officer's employment discussions.
In Petitioners' alternative motion, they' seek full disclosure of the timing and nature of those discussions. Specifically, they seek to know the duration and
- seriousness of the discussions, the identity of the person who initiated and terminated them, the basis on which they were terminated, and the possibility of future employment.~
On May 26,1998, the Presiding Officer issued a Memorandum and Order, LBP-98-il, 47 NRC 302, declining to disqualify himself but providing the requested additional'information regarding his employment discussions. The
. Presiding Officer revealed that, prior to August or September of 1997, he had met with four Shaw Pittman attorneys (none of whom represents HR1 in this 329 I
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proceeding), that he had twice met with two of those attorneys for lunch (at which he paid for his own meals), and that he had spoken with them about six times on the phone. These discussions ended when Shaw Pittman informed the Presiding Officer that they did not wish to employ him. The Presiding Officer further indicated in his May 26th Memorandum and Order that he has no further interest in seeking employment from Shaw Pittman.
In his May 26 order, the Presiding Officer capsulized why he declines to recuse himself: "It is not clear why a person who has been denied employment by a law firm would be biased in favor of that firm in the future." 47 NRC at 305 n.4. Also on May 26th, the Presiding Officer referred the disqualification motion to the Commission " pursuant to 10 C.F.R. 5 2.7N(c)" which provides that "[i]f the presiding officer does not grant the motion or the board member does not disqualify himself, the motion shall be referred [by the Licensing Board] to the Commission which shall determine the sufficiency of the grounds alleged."
He Commission could avoid addressing the disqualification issue at all, on
- the grounds that Petitioners expressly posed their disqualification and disclosure motions "in the alternative," suggesting that they would be satisfied with a grant of either one,5 and that the Presiding Officer's May 26th order, by all appearances, fully addressed all issues on which Petitioners sought disclosure.2 However, given this agency's established practice of refusing to use procedural technicalities to avoid addressing disqualification motions, we will consider the recusal issue.
His is the first time the Commission has itself been faced with a disqualifica-tion motion in a Subpart L proceeding. The Subpart L procedural regulations do not address the issue of disqualification of presiding officers, and the regulatory history of the subpart is silent as to the reason for this omission. It is therefore unclear whether the Commission intended that the subject be covered instead by 10 C.F.R. 5 2.7N(c). That regulation is meant to ensure both the integrity and the appearance of integrity of the Commission's formal hearing process.3 Because this rationale applies with equal force to Subpart L informal proceed-ings, we conclude that section 2.704(c) should be applied to those proceedings as well.
3 This interpretation hnds support in Peutioners' assertion that "if the presiding ofhcer refuses to recuse himself.
he should snase full disclosure regarding lus employment contacts with shaw. Pmman." Motion at 8.
2 Speciscally. he addresses the duration of the employrnent dncussions (beginning as early as the sprms of 1997 and lasting until August or September of that same year). their seriousness (scrious enough to merit two lunches
' and sis phone cans), the identity or the penon who initiated and terminated those discussions (the Presiding ofhcer and the law hrm. respectively). the basis on which the discussions were terminated (shaw Pittman decided l
not to offer the Presadang Orbeer a job). and the possibility of future employment (the Presiding ofhcer precludes this possibility).
3 See Long Island I.ighrms Co. (shoreham Nuclear Power Stauca, Unit 1). ALAB-907,28 NRC 620,623 (1988)
(" parties in an adjudicanary proceeding have a nght to an impartial adjudicator. both in reality and in appearance to a reasonable observer"). quoting Mermpohtan Eduon Co. (Three Mile Island Nuclear Stauen, Unit 1) C1185-5, 21 NRC 566. 568-69 (1985).
330 I
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Before dealing with the merits of the motion, we must first address Peti-tieners' failure to support their motion with an affidavit as required by section 2.704(c). Under quite similar circumstances to those in this proceeding, the Commission's Appeal Board considered such an affidavit unnecessary:
(T]he absence of an affidavit here is not crucial. The Illinois rnouon is founded on a fact to which the Board itself had called attention in its March I,1978, order ruling upon various intervention petitions.
. Further,in light of the narrow scope of the State's challenge to Dr. Rernick's continued participation, an affidasit was not needed to reduce "the likelihood of an irresponsible attack upon the probity or objecuvity of the Board mernber.
in question,"*
Here too, the Presiding Officer himself revealed all the facts on which Petitioners based their motion, and the scope of Petitioners' challenge calls into question neither the probity nor objectivity of the Presiding Officer. Under these circumstances, we do not believe that the omission of an affidavit is fatal to the motion. This conclusion is also consistent with our practice of refusing to use procedural technicalities as a means to avoid reaching the merits of a disqualification motion.
We now turn to the merits of Petitioners' disqualification motion. Petitioners seek the Presiding Officer's recusal under three legal standards. The first is 28 U.S.C. 6 455(a), which requires recusal whenever a federal justice's, judge's, or magistme's " impartiality might reasonably be questioned." Licensing Board members are governed by the same disqualification standards (actual or per-ceived bias or prejudgment) that apply to federal judges. Hoarton Lighting and Power Co. (South Texas Project Units I and 2), CLI-82-9,15 NRC 1363,1365-67 (1982). We see no reason to conclude that the Presiding Officer's impartiality "might reasonably be questioned" in this proceeding. His job discussions ended more than 6 months before he was designated to sit in this proceeding, and the firm toward which he is supposedly biased rejected his job application. We do not believe that this situation comes even remotely close to the "very high threshold for disqualification" that the Commission applies generally to recusal motions. Joseph 1. Macktal, 30 NRC at 92 n.5 (referring to motions alleging actual bias).
The second legal standard on which Petitioners rely is found in the executive-wide Standards of Ethical Conduct 5 C.F.R. 6 2635.604, promulgated by the Office of Government Ethics. Subsection (a) of that regulation provides that 4 Nuctsar &gmeering Co. (Sheffield nhnois, Low-tevel Rahoachve Waste Dnposal site). ALAB-494. 8 NRC 299, 301 n.3 (1978). See also farep41. Afackrat, CtJ-8914. 30 NRC 85,91 (1989) (where the Comnussion addrened a nuion to disquahfy aH Comnussioners, despite Mr Macktars faulure 10 subnut supporting aftidavits),
NorrArm != liana 1%blic Service Co. (Bainy Generating station. Nuclear 1), t.BP.74-80, 8 AEC 770,772 n.1, af'd. AIAB-239,8 AEC 658 (1974)(because the facts on which tte disquahfication snouce was based were uncontested, the Board did not base its dental of the nuion upon the absence of an anidavit).
I 331 1
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1
an executive branch employee " seeking employment" shall not participate in a particular matter that, to his knowledge, has a direct and predictable effect on the financial interests of a prospective employer with whom he is seeking employment.
" His standard is inapplicable to the instant factual situation.
The Presiding Officer was not " seeking employment" with Shaw Pittman at or after the time he was designated as Presiding Officer in this proceeding.
Herefore, he did not violate section 2635.6GU Section 2635.606(b) of 5 C.F.R. sets forth the third legal sta.idard on which Petitioners rely, it provides that, even where an offer of emr!oyment is rejected or not made, an agency "may determine that an employee" who has sought but is no longer seeking employment "shall nevertheless be subject to a period of disqualification upon the conclusion of employment negotiations." (Emphasis added.) His regulation gives "the agency designee"(here, Chief Judge Cotter) the option of disqualifying an employee of his office from working on a matter, even though the employee had not run afoul of any specific provision of the Office of Government Ethics' regulations. He Commission could of course, exercise its inherent supervisory authority to disqualify the Presiding Officer.
Ilowever,in the absence of any information that would present a concern as to the integrity of the process, we decline to take such action here.
Ibr these reasons, we affirm the Presiding Officer's order of May 26,1998, LBP-98-11.
It is so ORDERED.
For the Commission' JOHN C. HOYLE Secretary of the Commission Dated at Rockville, Maryland, j
this 5th day of June 1998.
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3 See senerally $ C.F R.12635 fo4(c). Example 4-A scientist is employed by the National science Iburalation as a special Governnrnt employee to serve l
on a panel that reviews grant applicauons to fund resesch relating to detenoration of the ozone layer.
1 she is discussing posable employment as a arrnber of the faculty of a university that several years esher j
rsceived an NsF grant to study the effects of Ruorocarbons, bw has no grant applicaboo pending. As j
long as the university does not submit a new applicadon for the panel's review, the employee would not i
have to take any action to effect disquahtication.
]
'Comnussioner Dieus was not available for the aflirmanon of this order. Hal she been present. she would a
have affirmed the order.
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Cite as 47 NRC 333 (1998)
CLl-98-10 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1
COMMISSIONERS:
Shirley Ann Jackson, Chairman Greta J. Dicus Nils J. Diaz Edward McGaffigan, Jr.
In the Matter of Docket Nos.11004997 11004998 (License Nos. XSNM-3012 XSNM-3013)
- TRANSNUCLEAR., INC.
(Export of 93.3% Enriched Uranium)
June 5,1998 De Commission denies the Nuclear Control Institute's request for interven-tion and a hearing on two applications of Transnuclear, Inc., for licenses to export highly enriched uranium (HEU) to Canada. The Commission determines that the Petitioner is not entitled to intervene as a matter of right under the Atomic Energy Act, and that a hearing as a matter of discretion would not be in the public interest or assist the Commission in making the determinations required by the Atomic Energy Act of 1954, as amended, for issuance of the export licenses.
ATOMIC ENEEGY ACT: STANDING TO LNTERVENE Institutional interest in providing information to the public and the generalized interest of their memberships in minimizing danger from proliferation are insufficient for standing under section 189a.
ATOMIC ENERGY ACT: HEU EXPORT LICENSE ne third criterion under section 134a(3) requires that the United States government have in place an active program to develop a low-enriched uranium 333 l-l-
f-r
(LEU) fuel or target for use in the particular reactor to which the HEU exports are being made.
ATOMIC ENERGY ACT: EXPORT LICENSE ne requirement under section 134a(3) of an active program for the devel.
opment of an LEU fuel or target that can be used in the particular reactor to which the HEU exports are being made may be met where the Commission de-termines that the principals are acting in good faith toward concluding a formal agreement to complete the development of such a program.
ATOMIC ENERGY ACT: COMMON DEFENSE AND SECURITY
- Judgments of the Executive' Branch regarding the. common defense and
' security of the United States involve matters of foreign policy and national.
security, and the Commission can properly rely upon those,iudgments.
i MEMORANDUM AND ORDER L INTRODUCTION He Nuclear Control Institute (NCI) has requested leave to intervene and a hearing on two separate applications of Transnuclear, Inc. (Transnuclear), filed
- on October 27,1997, for licenses to export highly enriched uranium (HEU) to Canada) For the reasons discussed in this Memorandum and Order, we deny NCI's intervention and hearing request.
IL - BACKGROUND Transnuclear seeks a license from the Commission for authorization to export to Canada 3.005 kilograms of HEU for use as target material in the production of medical molybdenum (Mc>99) in the new MAPLE research reactors, to be
- operated by Atomic Energy of Canada, Limited (AECL). Transnuclear also seeks
- a license for authorization to export to Canada 26.738 kilograms of HEU for use as targets in the production of Mo-99 at the existing NRU reactor operated by AECL. By letter dated March 13.1998, the Executive Branch informed the -
I
. NCFs inidal intervention and headsg petition and subsequens pleadings in response to Transnuclear's i
opposition pleadings (ree bifra) were Bled Dec. 29.1997 (Petition). Feb. 12.1998 (Pet. Reply), arul Feb. 26 1998 (Pet, Rejoinder), respectively.
334-i
i Commission ofitsjudgment that all applicable criteria under the Atomic Energy j
Act of 1954 (AEA), as amended, had been met and that it supported issuance j
of the requested licenses, NCI asserts that it is a nonprofit, educational corporation based in the District of Columbia and, inter alia, is actively engaged in disseminating information to j
the public concerning the proliferation and other risks associated with the use l
of weapons-useable nuclear materials. Petition at 2-3. NCI seeks intervention l
to argue that: (1) the proposed export would be inconsistent with section 134 of the AEA (commonly known as the "Schumer Amendment")(Petition at 17-18), which sets forth three conditions that must be met before the Commission can authorize the export of HEU for use as target or fuel in a research or test 2
reactor ; and (2) the proposed export, if authorized, would be inimical to the common defense and security of the United States. Id. at 18-20. NCI requests that the Commission grant NCI's petition for leave to intervene and order a full and open public hearing at which interested parties may present oral and 1
written testimony and conduct discovery and cross-examination of witnesses.
Id. at 25-30.
Transnuclear, on behalf of AECL, opposes NCI's intervention and hearing request.) It asserts that NCI lacks standing to invoke any hearing right afforded to persons whose interest may be affected under section 189a of the AEA and that all applicable statutory criteria for the export have been satisfied.'
2 Section 134 of the AEA, which was added to the AEA by the Energy Iblicy Act of 1992. Pub. L No, 102-486 (Oct. 2A 1992), permits the issuance of a license for export of uranium enriched to 20% or more in the isotope-235 to be used as a fuel or target in a nuclear resesch or test reactor only if, in adshuon to other requirements of the AEA, the NRC deterrnines that "(l) there is no alternative nuclear reactor fuel or target ennched in the isotope-23s to a lesser percent than the proposed export, that can be used in that reactor (secuan 134a(1)l; (2) the proposed recipient of that uranium has provided aswrances that, whenever an alternauve nuclear reactor fuel or target can be used in that reactor, it will use that alternauve in heu of highly enriched uranium (section 1344(2)). and (3) the United States Government is actively developing an alternative nuclear reactor fuel or target that can be used in that reactor {secuan 134a(3)l." Pursuant to secuun 134b,"a fuel or target 'can be used' in a nuclear research or test reactor"if "the fuel or target has been quahfied by the Reduced Enrichment Research and Test Reactor (RERTRI Prograrn of the Department of Energy and use of the fuel or target will pernut the large majonty of ongoing and planned experiments and isotope producuon to be conducted in the reactor without a lage percemage increase in the total cost of operating the reactor." The RERrR program, a program to develop LEU fuel and I
targets for research and test reactors, is run by Argonne Naional Laboratory under contract with the Department of Energy.
2Transnuciear's plealings in opposition to NCrs intervention and hearing requests were 61ed Ptb. 2,1998 (ApL Opposition) and Rb. 23,1998 (Appl. Reply)
Transnuclear also argues that NCrs peution should be demed as untimely with respect to tjcense No. XSNM-3013. Opposiuon at 9-13. Under 10 CER. 6 Il0.82(cX2), intervenuon peutions and heanng requests are due within 15 days after nctice of receipt in the Pubhc Document RoorrL Transnuclear's apphcanon for License No.
XsNM-3013 was received in the Pubhc Document room on Nov. 12, 1997; NCI's Petition was Eled on Dec.
29,1997 (which was within 30 days of the federal Argister pubhcation of notice of the application for License No. XSNM-3012 and therefore timely 6ted as to that application). Since we are denying NCOs petition on other grounds, we need not reach the question of whether the peution should be demed on grounds of unameliness.
We note, however, that NCrs Peution was hied at an early stage in the proceeding, several months before the Commission had received the Executive Brark.h's views on the application. In fact, briebng on the issues raised (Continued) 335 L
111. THE PETITIONER'S STANDING A.
NCI Does Not Have Standing to Intervene as a Matter of Right in another export licensing proceeding, CLI-941, 39 NRC 1, 4-6 (1994),
NCI asserted a claim of interest for standing under section 189a of the AEA l
based on essentially the same institutional interests it asserts now with respect l
to the current license application. The Commission in CLI-941 denied NCI's l
request for hearing as a matter of right under section 189a, explaining that it 1
"has long held that institutional interest in providing information to the public and the generalized interest of their memberships in minimizing danger from j
proliferation are insuff.cient for standing under section 189a." 39 NRC at
' 5. In reply to Transnuclear's Opposition to NCI's intervention request, NCI
'i
" concedes" that the Commission has already determined that it "did not meet the judicial standing tests which the Commission has consistently applied in export licensings." Pet. Reply at 3. NCI also clarifies in its reply that it "does not intend... to argue that it has an ' interest' which the Commission has found it does not" and that it is seeking a hearing as a matter of Commission discretion under 10 C.F.R. I i10.84(a) (discussed infra). Pet. Reply at 3.
The rationale employed by the Commission in CLI-94-1 in denying NCI intervention and a hearing as a matter of right applies equally with respect to NCI's current intervention and hearing request. The Commission in that case amply reviewed the applicable legal principles and case law supporting its decision. -We see no reason to repeat that discussion here, particularly since NCI has acknowledged that it is unable to meet the Commission's longstanding criteria for intervention as of right under section 189a. See 39 NRC at 4 5.
- B.
A Discretionary Hearing Would Not Assist the Commission or Be in the Public Interest Even though NCI has not established a basis on which it is entitled to intervene as a matter of right under section 189a of the AEA, the Commission's regulations under 10 C.F.R. 55110.84(a)(3) and (2) provide for a discretionary hearing if the Commission finds that a hearing would assist it in making the statutory determinations required by the AEA and be in the public interest. NCI maintains that a hearing should be held on two issues: (1) whether the proposed exports would be in compliance with the Schumer Amendment; and (2) whether in NC1's Petition was completed before the Commission's receipt of the Execuuve Branch's views. Therefore, the lateness per se of NCI's intervention request. had it been granted would have resulted in minima af any.
disruption ce delay in the proceeding.
336 I-
the proposed exports would be inimical to the common defense and security of the U.S.
1.
Schumer Amendment a.
NCI's Contention Regarding compliance with the Schumer Amendment, NCI is primarily concerned with the third criterion, set forth in section 134a(3) of the AEA. NCI asserts that the United States Government is not currently " actively developing" an " alternative nuclear reactor.
t..iPet" - i.e., a low. enriched uranium (LEU) target as defined under section 134b(1) - that can be used for the production of medical isotopes in the MAPLE and NRU reactors. See, e.g.,
Petition at 15; Pet. Reply at 19; Pet. Rejoinder at 3.
The crux of NCI's position is that an active program to develop alternative LEU targets for the Canadian reactors could not currently be under way_ because, based on
-information it has gleaned from informal contacts with officials of Argonne National Laboratory, neither the Canadian government nor the commercial entities involved in producing Mo-99 in the Canadian reactors, AECL and MDL Nordion, have been providing Argonne with the requisite information and cooperation necessary for it to adapt the LEU targets developed under the RERTR program for specific use in the Canadian reactors. See, e.g., Petition
- at 17; Pet. Reply at 19. NCI also asserts that, given the lack of Canadian cooperation with Argonne in undertaking an active development of LEU targets for the Canadian reactors, the Commission cannot find that Canada has provided sufficient assurances that it will use an alternative target in lieu of highly enriched uranium as required under the second Schumer Amendment criterion in section 134a(2). Petition at 18.
In its final pleading, NCI makes clear that its opposition to the requested exports hinges on the alleged lack of Canadian cooperation with the United States in undertakmg an active LEU development program for the Canadian reactors. Pet. Rejoinder at 4. NCI concedes that,"[o]nce the needed cooperation for such a program is forthcoming, impediments to export will be removed." /d.
In its reply pleadings Transnuclear disputes NCI's contention that the Canadian government and/or AECL have refused to cooperate with Argonne. See, e.g.,
Appl. Opposition at 16; Appl. Reply at 7.
- b.. Discussion We acknowledge that, at the time NCI filed its pleadings with the Commis-sion, the nature and existence of an active program to develop LEU targets for use in the MAPLE and NRU reactors may not have been apparent. However, 337 i
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as explained below, any outstanding concerns have been sufficiently allayed by new information received from the Executive Branch subsequent to its initial letter of h1 arch 13,1998.
Upon review of the Executive Branch's March 13,1998 letter and the plead-ings of NCI and AECL, the Commission staff concluded that it should seek additional information from the Executive Branch before making a recommen-dation on the requested licenses. While the Commission staff was satisfied that the Schumer Amendment criteria under sections 134a(1) and (2) had been met,5 j
it had concerns regarding the criterion under section 134a(3), particularly in light
(
of the significant issue raised by NCI regarding the alleged lack of Canadian co-operation with Argonne. The third criterion under section 134a(3) requires that an active LEU development program be linked to the particular reactor to which the HEU exports are being made. The Executive Branch's March 13, 1998 letter, however, stated only that "Argonne National Laboratory has an active DOE-funded program underway for the development of low-enriched uranium targets for production of medical isotopes."
Inasmuch as the Executive Branch's letter was ambiguous on its face regard-ing the lirikage between the existing DOE-funded program and the Canadian 4
reactors, the Commission staff, by letter dated May 6.1998, sought clarifica-tion from the Executive Branch as to whether the " active DOE-funded program underway at Argonne National laboratory.
is aimed specifically at devel-oping [ LEU] targets that can be used for the production of [Mo-99] in both the MAPLE and NRU reactors." The Execudve Branch, by letter dated May 7, 1998, responded unequivocally that "there is currently an active DOE-funded program underway at Argonne National Laboratory aimed specifically at de.
veloping LEU targets for production of Mo-99 in both the MAPLE and NRU reactors." The Executive Branch also offered that,"[tlo further (the active LEU development] effort, a series of meetings has been initiated between Argonne and AEC11Nordion of Canada to establish a framework for the exchange of technical information and LEU target development cooperation on a commer-cial basis."' Finally, the Commission recently received a classified Department of State cable, dated April 24, 1998, which confirms that formal bilaterci con-sultations between official U.S. and Canadian representatives were initiated on April 9,1998, to further discussions as to the exchange of technical data and 5 The Executive Branch's March 13, 1998 letter conveyed the Departnwns of Energy's confirmauon that no LEU target for use in the MAPLE or NRU reactors had been quahtied by the REKrR program, which sansries secnon 134a(ik The Executive Branch also provided us wit!' copies of d plomacc notes exchanged between the Embassy of the United States in Canada and the Canadv Ministry of Foreign Affairs wluch consistent with section 134a(2), reflect Canada's assurance that it wiH :,11U targets once such targets become available and such use does otA result in a large percenLige increase in the total cost of operating a reactor.
'The Comnussion scafra May 6,1998 letter and the Executive Branch's May 7,1998 response were placed in the Commission's Pubhc Document Room and served upon the participants in this procecang.
338 t
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commercial nondisclosure issues pertinent to Argonne's development of LEU targets for the Canadian reactors.
Based upon our assessment of the new information that the Commission has received from the Executive Branch, we are satisfied that an active program is under way for the development of LEU targets for the MAPLE and NRU reactors, as required under section 134a(3). For several years, AECL had an Mo-99 production program, with a long-term goal to phase out use of fresh HEU and eventually use LEU targets; but in the early 1990s AECL determined that the program would not be commercially viable and discontinued it. AECL and MDS Nordion have no requirement that would lead them to undertake the development and use of an LEU target. They are nevertheless prepared to provide on a commercial basis, to the extent of their capabilities, information and services to Argonne in its LEU target research and development efforts.
While the dialogue and exchanges toward this effort may be in the early stages, we believe that the U.S. and Canadian principals are acting in good faith toward concluding a formal agreement to complete the LEU target development program linked to the Canadian reactors.
2.
Common Defense and Security NCI also seeks a discretionary hearing to assess the impact of the proposed HEU exports on the common defense and security of the United States. NCI essentially argues that a positive Commission licensing action on the proposed HEU exports would imply United States' approval of foreign and domestic use of HEU in research and test reactors and consequently discourage foreign reactor operators that still use HEU from participating in the RERTR program to convert to LEU as well as encourage other countries to export HEU. Petition at 18-19.
NCI also maintains that approval of the pending applications would increase the nuclear proliferation and terrorism risks associated with placing HEU in international commerce. Id.
'Ihe Commission believes that it already has ample information to make a determination regarding the common defense and security impact of the proposed HEU exports. As reflected in the March 13,1998 transmittal of views, the Executive Branch has determined that "the proposed exports in no way would be inimical to the common defense and security of the United States."
Judgments of the Executive Branch regarding the common defense and security of the United States involve matters of foreign policy and national security, and the Commission can properly rely upon those judgments. See Natural Resources Defense Council v. NRC, 647 F.2d 1345,1364 (D.C. Cir.1981). Moreover, contrary to NCI's position that permitting the proposed exports would signal to the international community a United States' sanction of the use of HEU, approval of the exports conditioned on Canadian assurances to use LEU targets 339 l
i
once they are developed and the existence of an active program to develop such LEU targets for the Canadian reactors furthers, rather than undermines, the objective reflected in the Schumer Amendment and various United States policy initiatives to reduce the world commerce in bomb-grade nuclear material.
In sum, although we are denying NCI's request for a discretionary hearing, NCI has, in effect, obtained the end result - Canadian cooperation permitting an active LEU target development program for the Canadian reactors - that it appears ultimately to be seeking. We wish also to point out that our review of these export applications was significantly aided by NCI's participation, albeit not in a formal hearing context. Indeed, our decision regarding the consistency of the proposed exports with the statutory criteria was rnade only after requesting additional information - prompted in large part by the concerns highlighted by NCI - from the Executive Branch.
IIL CONCLUSION For the reasons stated in this Decision, we find that NCI has not established a basis on which it is entitled to intervene as a matter of right under the AEA, and that a hearing as a matter of discretion is not necessary in light of the recent information provided to the Commission by the Executive Branch as to the existence of an active program and Canadian cooperation in developing LEU targets for the MAPLE and NRU reactors.
IV. ISSUANCE OF LICENSES
'Ihe Commission has determined that the export licensing criteria set forth in the AEA are satisfied and directs the Office of International Programs to issue licenses XSNM-3012 and XSNM-3013 to Transnuclear, Inc. Specifically the Commission finds that the export licensing criteria set forth in sections 127, 128, and 134 of the Atomic Energy Act bwc been met. Moreover, pursuant to sections 53 and 57 of the AEA, issuance of these licenses would not be inimical to the common defense and security or constitute an unreasonable risk to the health and safety of the public.
With respect to the issuance of XSNM-3013, the Commission notes that Transnuclear seeks this license as a contingency to allow production of Mo-99 at the NRU reactor in the period 2000-2002 if extended delays are experienced in starting up the MAPLE reactors and shifting MO-99 production to those reactors. To ensure that this material is exported only if needed, the license should be conditioned to require the Licensee to inform the NRC in writing 30 days prior to each export under the license, specifying the amount of material I
340 i
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to be shipped and a statement from AECL explaining its need for the material
- in the context of its then-current inventory and the projected rate and durations
{
of its HEU use to produce medical isotopes at the NRU reactor.
It is so ORDERED..
1 l
For the Commission 2 l
JOHN C. HOYLE '
Secretary of the Commission Dated at Rockville, Maryland,
~ his 5th day of June 1998.
t t
Concurring Opinion of Commissioner Nils J. Diaz:
~
- I concur in the Commission's decision to deny the hearing request and to l
' authorize the issuance of the two export licenses to Canada. The applicable -
'. licensing criteria have beer. satisfied and Canada's commitment to nonprolifera.
tion is exemplary. Nonetheless, I believe it is important that substantial progress
. be made' toward developing LEU targets for use in the MAPLE reactors before
' those reactors become fully operational. Therefore, I would have required, as l
a condition of our approval, that the Executive Branch, in consultation with
" Argonne National Laboratory, provide the Commission with a schedule for the
- development of LEU targets that could be used in the MAPLE reactors and
- with periodic status reports thereafter until the program has been successfully p
completed; i
i
'7Commissioner Dieus was not avalable for the afEroution of this Memorandum and order. Hat she been i present, she would have afErmed the Memorandum and order. The concming opinion of Comminioner Diaz is attached 341 L:,
l.
i N
~
Atomic Safety and Licensing Boards issuances ATOMIC SAFETY AND LICENSING BOARD PANEL B. Paul Cotter, Jr.,* Chief Administrative Judge James R Gleason,* Deputy Chief Administrative Judge (Executive)
Frederick J. Shon,* Deputy Chief Administrative Judge (Technical)
Members Dr. George C. Anderson Dr. Richard F. Foster Dr. Kenneth A. McCollom Charles Bechhoefer*
Dr. David L. Hetrick Marsha!! E. Miller Peter B. Bloch*
Ernest E. Hill Thomas S. Moore
- G. Paul Bollwerk lil*
Dr. Frank F. Hooper Dr. Peter A. Morr';
Dr. A. Dixon Callihan Dr. Charles N. Kelber*
Thomas D. Murphy
- Dr. James H. Carpenter Dr. Jeny R. Kline*
Dr. Richard R. Parizek Dr. Richard F. Cole
- Dr. Peter S. Lam
- Dr. Harry Rein Dr. Thomas S. Elleman Dr. James C. Lamb Ill Lester S. Rubenstein Dr. George A. Ferguson Dr. Unda W. Uttle Dr. David R. Schink Dr. Harry Foreman Dr.Emmeth A.Luebke Dr. George F.Tidey
- Permanent panelmembers
.i Cite as 47 NRC 343 (1998)
LBP-9812 i
UNITED STATES OF AMERICA 1
NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD -
i Before Administrative Judges:
)
'l James P. Gleason, Chairman Thomas D. Murphy Dr.Th6 mas S. Elleman l
' In the Matter of "
Docket No. 50-029-LA (ASLBP No. 98-736-01 LA)
YANKEE ATOMIC ELECTRIC COMPANY (Yankee Nuclear Power Station)
June 12,1998 In this Memorandum and Order concerning the application of Yankee Atomic Electric Company for approval of its license termination plan, the Licensing
' Board denies petitions for hearing and intervention on grounds of lack of standing.
~ RULES 'OF PRACTICE: ' STANDING
' Setting forth specific aspects of subject matter of the proceeding for which intervention is sought is not related to establishing standing requirements.
RULES OF PRACTICE: FILING OF DOCUMENTS Filings not autho.ized by rules of procedure or leave of the Board are not considered in decisions.
343 l
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p f.
I
' RULES OF PRACTICE: STANDING TO INTERVENE
' (PARTICIPATION OF GOVERNMENTAL AGENCY)
- Not all governmental or quasi. governmental entities are entitled to participate in NRC adjudicative proceedings.
MEMORANDUM AND ORDER (Decision on Standing)
~ The Board herein renders a decision on amended petitions for a hearing.
' and intervention on Yankee Atomic Electric Company's (Licensee) amendment application.which requests Nuclear Regulatory Commission approval of its
_ License Termination Plan (LTP). Petitioners are the New England Coalition on
, _ Nuclear Pollution, Inc. (NECNP), the Citizens Awareness Network (CAN), and the fianklin Regional Planning Board (FRPB).8 Based on the Board's review
- of the amended petitions and opposing responses from the Licensee and Staff,2.
we hold that none of the requestors meets the Agency's standards for admission
' and the petitions are consequently denied.
A termination plan from NRC's licensees is required to enable the' Agency.
to make decisions on: (a) the adequacy of funds available for final site
' release, (b) the radiation release criteria for license' termination, and (c) the adequacy of the final survey to verify that the release criteria have been met.
See 61 Fed. Reg. 39,278,. 39,288.(July 29 1996). The LTP is required to be fildd at least 2 years prior to terminating the license. It calls for the Licensee to produce: (A) a site characterization; (B) identification of remaining
~ dismantlement activities; (C) plans for site remediation; (D) detailed plans for :
~ he final radiation survey; (E) a description of the end use of the site, if restricted; t
~
.(F) an updated site-specific estimate of remaining decommissioning costs; and (G) a supplement to the environmental report describing any new information-or significant environmental change associated with the proposed termination
- activities.10 C.F.R. 5 50.82(a)(9)(ii). Subsequent to the filing of the Licensee's
!. application, the Commission, pursuant to 10 C.F.R. 5 50.92, made a proposed '
determination that the amendment involves no significant hazards consideration.
'. This determination means that the proposed ameralment would not (1) involve a
- significant increase in the probability or consequences of an accident previously ;
8 NECNP Anunded Pendon in Licensee Proceeding (April 6,1998y. CAN Annaded Petition to latervene in IJcenses Prcceeding (April 6,1998h FRPB nnwnded Pention of Request for Hearing (April 6,1998k Another Petiooner, the Nuclear Infonnation and Resource Service, has withdrawn from the proceeding. Noti 6 cation to All
. Parties Announcing Withdrawal (April 6,1998) 2 Licensee Response to Arnendments of Pentions (Apnl 13,1998h Staff Response to FRPS (April 14,1998h
~ staff Respoose to NECNP (April 17,1998h staff Response to CAN (April 20,1998).
- M p
b
evaluated; (2) create the possibility of a new or different kind of accident from any previously evaluated; or (3) involve a significant reduction in a margin of safety.
Inasmuch as there are similar allegations in the amended petitions of NECNP and CAN, their submissions are treated here together where appropriate. Both Petitioners attempt to demonstrate their eligibility for standing through represen-tation and authorization of a member of their organizations.) These individuals claim injuries that are supported by the declaration of CAN's technical expert, David Lochbaum, a nuclear safety engineer with the Union of Concerned Sci-entists. Mr. Lochbaum states that he has examined the LTP, the Final Safety Analysis Report (FSAR) for the facility, and relevant NRC regulations, bulletins, and information notices.' In addition to the members' and the Lochbaum dec-larations concerning injuries, NECNP and CAN set forth numerous aspects of the proceeding on which Petitioners seek to intervene. These are illuminated by descriptive allegations that appear to be similar in nature to contentions.
NECf./ and CAN register concerns regarding several matters that, being outside the jurisdiction of the Board, cannot be considered here. Public Service Co. ofIndiana (Marble Hill Nuclear Generating Station, Units I and 2), ALAB-316,3 NRC 167 (1976). These involve the proposed NRC determination that the amendment request involves no significant hazards consideration and that, allegedly, inadequate procedures were followed relating to a public meeting required to be held to review the LTP. See CAN Amended Petition at 2-6; NECNP Amended Petition at 3-7. See also FRPB Amended Petition Request at Il-12. Redress for these matters, if requested, can only be obtained from the Commission.
In an unpublished Order of March 25,1998, the Board authorized amended petitions that were submitted by each Petitioner. Responses to those petitions were filed by the Licensee and the Staff. Subsequent to that date, a large number of unauthorized pleadings were filed in this proceeding without leave I
of the Board.5 These filings, which were not characterized as amendments to 3 NECNP Arnended Peuuon. Exh. A; CAN Arnended Pection, Exh. A.
4 I
NECNP Arnended Pention. Exh. B; CAN Anrnded Petition, Exh. B.
1 S CAN's Reply to Staff's Answer to Arnended Peution to Intervene; CAN's Reply to YAEC's Answer to Arrended Pecoon to Intervene (April 22. 1998); Motion of YAEC to Sinke Unauthorized FRPB Pleading &
Condidonal Mouon for Leave to Reply Thereto (April 30,1998). FRPB's Reply so YAEC & Staff's Answers to FRPB's Arnendment (Apnl 28.1998); Reply of NECNP to YAEC & Staff's Answers to Arnended Peouans (April
- 28. 1998); Motion of YAEC to Stnke Unauthorized NECNP Pleadng & Con 4tional Mocon for leave to Reply Thereto (May 1,1998). FRPB's Con &tional Motion for Leave to Reply & Motion to Strike YAEC's Unauthonzed Mouon to Stnke (May 2.1998); CAN's Reply to Staff's Answer to Arnended Petition to Intervene (May 4.1998);
Motion of YAEC for leave to Reply to New FRPB Evidence (May 5.1998); Letter froen Frankhn Regional i
Council of Governrnents Support FRPB's Participation Before ASt.B (May 7.1998); NECNP's opposiuoc to YAEC Monons to Stnke & for Con 6tional teave to Reply & a Proposed order Relaung to the Motiras &
Related issues Before ASLB (M.sy 7,1998); FRPB's Conditional Reply & Support for NECNP's opper. con &
Proposed Order & Motion for leave to Reply to YAEC's New Evidence Fihng (May 11,1998); CAN. Support fContimed) 345 IL
)
)
1
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l petitions, are not provided for in the Commission's rules of procedure. See 10 C.F.R. $ 2.714(a)(3). Not having been authorized by leave of the Board, such additional filings have not been considered in this Decision. NRC adjudicative l
procedures do not permit an endless stream of pleadings to evolve. See id.; see
{
also 10 C.F.R. 9 2.730(c)(replies to petitions not permitted without leave of the 1
l presiding officer).
l In view of lengthy submissions on " aspects" provided in both Petitioners
- j submissions, we first set forth the Board's understanding of this procedural l
prerequisite of 10 C.F.R. 6 2.714 before addressing the Agency's standing I
requirements.
j Throughout NRC's history, and that of its predecessor agency, the Atomic l
l Energy Commission, adjudicative procedural rules have required requests for intervention to set forth the specific aspect of the subject matter of the proceeding on which petitioners desired to intervene. Prior to 1978, such aspects were required to be supported by affidavits and include facts pertaining to the interests submitted and the basis for contentions connected to each aspect. A direct nexus j
existed then between aspects and contention. In 1978, changes in the Agency's j
procedures opened the possibility of petitioners filing contentions with their bases separately in a supplement filed prior to a first prehearing conference, and in 1989, changes inter alla required that petitions establish a foundation for each contention. The objective of this requirement was to demonstrate that a material issue of law or fact existed between the applicant and intervenor. For some time then, there has been a separation between aspects and contentions, leaving the aspect requirement only necessary to demonstrate that the areas of the intervenor's interest are within the scope of the particular proceeding. It is not viewed as a foundation for standing requirements.
To participate as a party in Commission proceedings, standing requirements based on judicial concepts call for a demonstration that the proposed action will cause an injury in fact to the petitioner's interests and that the injury is within the zone of interests protected by statute. Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit 1), CLI.85-2,21 NRC 282,316 (1985).
An organization may establish " organizational" or " representative" stanc;ing by demonstrating an injury to its organizational interests or injury to one of its members who has individual standing and has authorized the organization to represent his or her interest. See Georgia Institute of Technology (Georgia Tech for NECNP's opposition so YAEC's Madons to Strike & for Condinonal teave to Reply & a Proposed order Relating to the Mouons & Rel.ned issues Before Asl.B (May 11.1998), Answer of YAEC to NECNP and CAN Motions (May 12,1998); staff's Response to YAEC Motions to Stnke Unauthorized Pleuhngs (May 12. 1998);
Staff's Response to CAN's Reply to Staff's Answer to Arnended Protion to Irwervene (May 19. 1998); Stafr's Notice That They Do Not Intend to File a Response to YAEC's Monon for teave to Reply to FRPB's Evidence (May 20.1998)-, Staff's Intention Not to File Responses to CAN's May 11 Support for NECNP's opposinoa to YAEC's Madons to Smke & FRPB's May 11 Conditional Reply & Support for NECNP's oppouuan and Proposed order & Modon for Leave to Reply to YAEC's New Evidence Fihng (May 21. 1998).
346
[
1 Research Reactor, Atlanta, Georgia), CLI-95-12, 42 NRC 111,115 (1995).
An organization seeking to intervene in its own right must demonstrate a palpable injury in fact to its organizational interests that is within the scope of interests of the Atomic Energy Act or the National Environmental Policy Act.
)
Florida Power and ught Co. (%rkey Point Nuclear Generating Plant, Units
(
3 and 4), ALAB 952, 33 NRC 521, 528-30 (1991).* Where an organization seeks to establish its right to participate in the Agency's proceedings through I
a member who authorizes its representation, the injuries complained of must be particularized and capable of being redressed by a favorable decision. See Georgia Power Co. (Vogtle Electric Generating Plant, Units I and 2), CLI 93-j 16,38 NRC 25,32 (1993). Redressability is a required element in standing for it must be demonstrated that there is a likelihood of an injury being redressed if f
petitioner is to obtain the relief requested. Westinghouse Electric Corp. (Nuclear 1
(.
Fuel Export License for Czech Republic-Temelin Nuclear Power Plants) CLI-l 94-7,39 NRC 322,331 (1994).
1 NEW ENGLAND COALITION ON NUCLEAR POLLUTION, INC. (NECNP)
He NECNP petition is supported by a declaration of an authorizing member, Jean-Claude Van Italie, who expresses a concern for his health and safety through "long term environmental effects of low-level radiation" and "the long term effects of an ineffectual cleanup,.
or an irradiated fuel accident" on l
his property value. Mr. Van Italie, who lives within 6 miles of the Licensee's facility, also expresses a somewhat diffuse concern that the " final site condition projected under the LTP,,. satisfy the NRC's criteria for general release."
i See Declaration of Jean-Claude Van Italie at 1-3. He Licensee and Staff assert l
that the above concerns are not relevant to the LTP and, not being redressable l
by the proceeding, are outside its scope. We agree.
The Van Italie declaration raises several matters related to fuel management j
and issues connected to it that are activities previously licensed and considered l
in the Licensee's decommissioning plan and approved therein. See Declara-l tion of Jean-Claude Van Italie at 3-4. As the Commission noted in adopt-l l
ing the Agency's final rule on decommissioning, "[tlhe existing rule, as well I
as the proposed rule, consider the storage and maintenance of spent fuel as j
an operational consideration and provide separate part 50 requirements for this
' 'Tbc Franklia Regional Planning Bourd seeks intervention twed on organizational' standing even though it admits that it is a governmental enney. We disregard the imphcations of its governmental identiry (a the purposes or our analysis of its organizational standing.
347 l
purpose." 61 lid. Reg. 39,278, 39,292 (July 29,1996). Infra at pp. 350-51.
i The same is true for the claimed concern that the final site conditions " satisfy I
, NRC's criteria for general release" of the property. The Licensce's LTP advises that the site release criteria comply with NRC's Site Decommissioning Management Action Plan of April 16, 1992 (57 fid. Reg.13,389) and with 10 f
C.F.R.120.1401(b). See LTP, Revision 1. A-7 (December 1997). Accordingly, there is nothing that can be redressed here on the Petitioner's concern.
l Re NECNP petition alleges that Mr. Van Italie would suffer adverse con-sequences from the release of radiation due to the kinds of accidents descrited by its consultmt expert. David A. Lochbaum. Our review of the Lochbaum declaration reaches a similar conclusion as the opinion expressed above con-cerning spent fuel matters. Elis declaration is concerned exclusively with spent fuel management matters which, as indicated, is a subject beyond the scope of a proceeding considering a license termination plan. Accordingly, reliance on this declaration provides no relief for Petitioners on standing requirements.
We provide here some discursive comments on the lengthy outline and descriptive " aspects" included in NECNP's petition. As indicated, supra, i
aspects are not evaluated in the consideration of alleged injuries to substantiate j
standing rights. However, in the absence of case authority and in light of some i
possible confusion that may exist related to the procedural changes over the years and their impact on the aspects requirement, we measure here whether NECNP's petition in this regard receives any substance on standing from the
{
assertions in the aspects. In doing so, we again reach a judgment that the aspect i
allegations provide no substantiation to verify claims that the LTP threatens injury to Petitioner's interests.
i In the outline aspects of a possible hearing on the LTP, both Petitioners,
{
NECNP and CAN, submit a number of nonconclusory generalized statements j
on the validity or adequacy of the elements of the LTP that are not particularized l
to any claimed injury.' Accordingly, they contribute nothing to substantiate the Petitioner's claim for standing and need not be addressed further. However, the descriptive aspects submitted by Petitioner NECNP provide allegations regarJing deficiencies in the LTP and have been judged by the Board as follows:
1.
General deficiencies - Here is no claim for injury founded here on broad statements that the LTP contains " vague and conditional language" and is " impervious to technical or practical assessment." See NECNP Amended Petition at 23.
2.
Inadequacies in dealing with High Level Waste - Management oi spent fuel is outside the domain of the LTP. See id. at 23-26.
)
7 NECNP Amended Petition at 18-23 (Apnl 6.1998h CAN Amended Peution at 17 21 (Apnl 6.19931 l
M8 l
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l 3.
Inadequacies in dealing with environmentalissues - There is no requirc~
ment in the regulations for the L.TP to comply with NEPA and since Licensee notes in the LTP a compliance on environmental issues with its decommissioning plan, no injury can be supported by matters outside the scope of the proceeding.
See id at 26-28.
4 4.
Licensee's trustworthiness to conduct accurate analysis - Allegations o(
l prior mistakes in conducting analytical surveys to reveal levels of contamination l
cannot be considered within the scope of the present proceeding or as a foundation for injury. See id, at 28-31.
5.
Ha:ards unanalyzed in the LTP-This aspect again treats of spent fuel pool management which is outside the scope of the proceeding. See id. at 31-32.
6.
Inadequate evaluation oflikely accidents - Same conclusion as above.
See id. at 32-33.
7.
No compliance wi.WARA concerning residual radiation -The prem.
ise of assertions here is that instead of the LTP's site release criterion of 15. mrem /yr for the Total Effective Dose Equivalent (TEDE) that might be received by the average member of the critical population group of persons exposed to residual contamiriation at the site, ALARA requires a worst. case scenario in determining residual radioactivity tha. results in " doses many orders of magnitude above background." NRC's regulations do not require a worst-case scenario and the Licensee's response to CAN's petition makes clear that they will be in compliance. See id. at 34; see also Licensee Response to Amendments to Petitions to Intervene at 25-29.
8.
LTP does not adequaiety define crucial terms - The regulatory require-ment for the LTP is found in 10 C.F.R. 9 50.82 and does not include a definition of licase termination. The Petitioner does not state how the lack of such a definition injures its interests. See NECNP Amended Petition at 35.
9.
LTP lacLs adequate funding assurance - This assertion lacks particu-larity and alleges no injury to NECNP. See id.
10 LTP's site characterization and final survey plan are inadequate -
There is no requirement for the LTP to investigate offsite landfills and, accord-ingly, this concern is outside the scope of the proceeding. See id. at 35-36.
1I. LTP's proposed contamination sampling is inadequate - This assertion also lacks particularity and provides no demonstration of harm to the Petitioner.
See id. at 35.
- 12. LTP has questionable bases for determining background radiation -
l The NRC's regulations provide _that background tr.diation includes nuclear weapons-testing fallout and, consequently, no criticism can be levied - and j
no injury assumed - for its measurement by the Licensee. See id. at 36; see alsc 10 C.F.R. O 20.1003.
- 13. LTP inadequately addresses possible continuing contamination - The assertions concerning soil near the spent fuel (waste) pit building and designation 349 j
l
'ef nonimpacted areas in the final survey plan allege no injury to the Petitioner.
s See NECNP Amended Petition at 36-37. '
CITIZENS AWARENESS fiETWORK (CAN)
CAN's member, Deborah B. Katz, has authorized CAN to represent her in this prxeeding. CAN Amended Petition at 8,9; Katz Declaration at 1.
Ms. Katz lives within 6 miles of YNPS and claims concerns about the long-term environmental effects of low-level radiation; that the final site condition projected under the LTP will satisfy the NRC's criteria for general release; that the LTP appears to permit release of the. site for public use at levels much higher than the Commonwealth of Massachusetts standard of 10 millirem per year 8
above background radiation levels; sad that the LTP is vague about cleaning up the spent fuel pool and ion exchange pits. CAN is concerned about the l
migration of radioactive tritium inti Sherman pond. See Katz Declaration at l
2-5. CAN argues that the threat to Ms. Katz is not speculative but is supported by Mr. Lochbaum's declaration. CAN Amended Petition at 12.
In the Licensee and Staff resp (nses to NECNP and CAN's amended allega-1 tions, both parties argue that the Fetitioner's reliance on fuel management issues does not present a claim of a cognizable injury that will be adversely affected by the outcome of this proceedir.g.' The Licensee claims it already has a license for the spent fuel pool under Put 50 and is not seeking an ISFSI under Part 72.
It further contends that CAN's concern about not meeting the Commonwealth of, Massachusetts' standards is misplaced and that the Board must observe the standards promulgated in 10 C.F.R. 5 20.1402. The Licensee also argues that the language used to describ: tritium contamination in Sherman Pond neitter claims injury in fact nor is adequate to demonstrate injury in fact. See Licersee Response at 18-24 & n.32.
The Staff avers that altT.ough Ms. Katz's interests fall within the ze se of interests protected by the A EA and NEPA, those interests could not be a'fected by the outcome of this poceeding and thus do not constitute injury m fact.
It confirms that the Liceiuce is given a general license to store fuel >mder 10 4
C.F.R. 672.210 and expresses an uncertainty over what CAN means by being troubled by the notion thM the final [ radiological] condition of the sit, will meet i
the NRC criteria. The Staff meets this challenge by saying that if she means that the Licensee's performance in meeting the criteria or if sht means that the criteria itself is ins Jequate, neither will be affected by the ouxome of this
'Throughout this Memoranwns and order we use the units of ruharion dose as used by d e perden. To convert to SI units. I nutbrem equah 0.01 nulhSievert; one pR is assurned to equal 0.01 psv.
1
' Response of Yankee At nse Electric Company to Arnendrnents to Peudons to Interv :ne (April ll.1998);
NRC Staft's Response to (itiuns Awareness Network's Arnended Petidon to latervene (/ pril 20,1998).
l 350
?
i i
a proceeding. In the Staff's opinion, similar to the Licensee's, Ms. Katz has failed to establish an injury in fact. Staff Response at 3-6.
Ms. Katz also appears to base her injury-in-fact argument primarily on the notion that she will be harmed by the storage of spent fuel on the site or the f
threat of a potential irradiated spent fuel accident, the analysis of which has not been presented in the LTP. Ms. Katz's claim that spent fuel management is to be considered as part of the LTP submission does not agree with our j
understanding of the regulations. Section 72.210 of 10 C.F.R. clearly provides 1
. for a general license for the storage of spent fuel in an independent spent fuel storage installation at power reactor sites authorized to possess or operate nuclear power reactors under Part 50. The Board finds nothing in 10 C.F.R.
5 50.82(a)(9)(ii) that requires a submission of information concerning spent fuel management in the LTP and no evidence that the management of spent fuel is a j
subject of this proceeding. Mr. Lochbaum's declaration provides expert opinion l
concerning spent fuel handling, storage, and spent-fuel-related accidents. Since l
any injury claimed by CAN, like NECNP, originating with an accident from
)
or activities with spent fuel cannot be remedied by the denial of the license j
amendment sought in this proceeding, we cannot grant standing on the basis of any consequences from spent fuel management. We find that CAN's primary basis for standing does not meet the accepted test described above to demonstrate injury in fact.
In addition, CAN does not convince us that Ms. Katz will be affected, much 1
less harmed by long-term residual contamination from the site. She offers no expert opinion in this area. CAN provides no basis to convince us that Massachusetts law, providing for more stringent site release criteria than the NRC's, should prevail in this case. Nor does CAN's argument that the projected radioactive contamination levels calculated by CAN to result in doses to the l
public of 43 or 87 millirem per year persuade us that CAN has demonstrated an injury in fact. CAN claims that Licensee's site release criteria of 15 millirem per year (see LTP at 1-1, 4-1, and A-7) will be exceeded by the radiation exposure rates also allowed by the site release criteria (id. at A-7) of 5-10 R per hour. Licensee's criteria state that the Total Effective Dose Equivalent (TEDE) is applied to the average member of the critical group. Our review of the Commission's Radiological Criteria for License Termination (62 Fed.
l Reg. 39,058) confirms the Licensee's and Staff's view that it is not necessary to calculate the doses from the residual levels of radioactivity in a site using l
worst-case assumptions. CAN does not demonstrate that this should not be so or provide us with a credible argument that the Licensee will not meet the 15 millirem per year criteria regardless of the proposed average hourly or maximum dose rate limits of 5 and 10 R. CAN's argument that Licensee's site release may not be ALARA because of inadequate soil remediation and monitoring j
does not explain how the requirements in the LTP for soil and groundwater 351 l
I l
monitoring fail to meet standards or will harm Ms. Katz. LTP at A-30. We note that the criteria for site release in the LTP are well within the 10 C.F.R.
(20.1402 NRC regulatory standard of 25 millirem per year. 62 Fed. Reg. at 39,088. As discussed above, NRC decommissioning regulations do not require worst-case assumptions in calculating release levels. CAN's purported injury from the site residual radioactivity appears hypothetical and speculative relative to Ms. Katz. CAN has not demonstrated that its postulated injury from the site release criteria is distinct and palpable, particular and concrete.
The' descriptive aspects submitted by CAN, like those of NECNP, are also evaluated for any substantive support for Petitioner's standing arguments.
Although some of the specific aspects CAN proposes to litigate may be germane to the subject matter of this proceeding, we found none that rise to the level to justify injury in fact:
1.
Failure to maintain AIARA standards - CAN claims release criteria are not ALARA since the calculated doses could be between 43 and 87 millirem per year by assuming a family farmer would inhabit the area 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day, 365 days per year. Although not stated, CAN appears to arrive at these values j
by using the LTP's additional site release criteria of 5 to 10 pR per hour. The standards for site release are 25,15, or 10 millirem per year (NRC, EPA, or MA).
CAN Amended Petition at 22,23. We agree with the Licensee and the Staff that
]
l CAN has not made a case that it is necessary to postulate an incredibic worst-case scenario in order to demonstrate that the Licensee will not meet its required release limits of 15 millirem per year. It is also well-established NRC law that a state does not have the power to set radiological standards for NRC nuclear 1
power plant licensees. Long Island Lighting Co. (Shoreham Nuclear Power
- Station, Unit I), ALAB-818,22 NRC 651,662-64 (1985) (federal government d
has exclusive jurisdiction with regard to radiological health and safety matters],
j citing Pacific Gas and Electric Co. v. State Energy Resources Conservation &
\\
Development Commission,461 U.S.190,20712 (1983). To the extent that this aspect challenges the release criteria, it is not germane to this proceeding. See s
CAN Amended Petition at 22-23.
)
2.
Soil remediationfigures arefaulty and may not meet AIARA consider-ations - The Staff points out that NRC regulations in 10 C.F.R. Il20.1402 I
and 20.1003 only require analysis of the critical group and it is not r.ecessary l
to include all half million visitors a year to the Deerfield River Valley in the control group. CAN has not convinced us that a worst-case analysis is required for determining if an activity is ALARA. This aspect is not germane. Nor has j
CAN demonstrated that the prospective monitoring as outlined in the LTP (see j
LTP at A-29 to A-32) is inadequate. See CAN Amended Petition at 23-25.
)
l 3,
The site release plan does not adequately describe planned decommis-sioning activities in violation of 10 C.F.R. f 50.82(b). The NRC should have created an EIS and required an ISFSI under Part 72. The Staff is violating 352 t
t l
.)
(.
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l NEPA and claims that the remomi of the spent fuel pool is part of the de-commissioning activities. CAN is also concerned that Greater Than Class "C" l
waste will be stored on site as well asfuel. Again, the Board agrees with the Licensee and Staff that decommissioning activities and spent fuel storage activ-ities are beyond the scope of what is required by 10 C.F.R. 9 50.82(a)(9) to be submitted in an LTP. This aspect is not germane. See CAN Amended Petition at 25-26.
4.
The LTP does not detail how the Licensee plans to protect the public from access to the ISFSI. As discussed above, spent fuel management activities are not a germane aspect of this proceeding. See id. at 27-28.
5.
No cost comparison is provided between establishing an ISFSI and leaving thefuelin afuelpool Same conclusion as above. See id. at 28.
[
6,7 and 8.
The Staff violated NEPA by not writing an EISfor the cleanup of the site and to investigate documented and undocumented groundwater contamination: there has been illegal moving and dumping of radioactiveJill on the site of a spill that took place in the 1960s and an investigation needs to be performed about the dispersal of tritium and the extent of a plume of radioactive contamination under the site; claims that H-3 has not been studied in sediments.
Each of the Petitioner's aspects raise issues that cannot be remedied by the LTP and are, accordingly, outside the scope of this proceeding. See id. at 28-32.
FRANKLIN REGIONAL PLANNING BOARD (FRPB)
The FRPB seeks standing on three bases: (1) organaational or representa-tional; (2) as an interested governmental agency; and (3) discretionary. FRPB identifies itself as a " broad-based coalition." It states that it is one of three bodies that comprise the Franklin Regional Council of Governments, with the Executive Committee and the Council (the representative body) being the other two. According to the FRPB,"[a]Il three bodies shalljointly have and may exer-cise any and all authority for regionalplanning as may be authorized by current and future federal and state laws." FRPB Amended Petition at 2 (emphasis supplied). FRPB states, without citation, that its purpose and objective "shall be to promote and protect public health, safety and welfare and the natural and cultural resources of the Regional Planning district." Id; According to FRPB, j
this " purpose" mandates that the Board protect not only the people and property at the Yankee Rowe site, but also the people and property within the 10-mile evacuation zone, the Deerfield River Basin, and the entire downwind population that could be affected by activity at the site. Id. at 3. FRPB also states that it is 353 l
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I l
1
" mandated by law to promote economic development while protecting the county's natural and cultural resources."* Id. at 6. "Not only does the Board do long range economic planning but also resource conservation, preservation, and development as well." Id. at 7.
The lianklin Regional Planning Board's primary purpose appears to be solely related to regional planning. Without more, its " mandate" to " promote" the public health, safety, and welfare and the natural and cultural resources appears to reflect a mandate to plan for the region's future with those objectives to guide its planning efforts. As the Staff and the Licensee point out, FRPB does not explain how its responsibilities are interests that are within the zones of interests protected by either the Atomic Energy Act or the National Environmental Policy Act. Staff Response at 7; Licensee Response at 7. Moreover, there is no attempt to explain how it meets the injury requirement for standing. FRPB has not established how its purported organizational interests [ planning for the district within its mandate to protect the public health and safety] would be adversely affected by the acceptance of the LTP. Nor does it allege that it would be inhibited froa carrying out its planning activities. The FRPB's amended i
petition alleges that "if the site of the Yankee Nuclear Power Station is not decommissioned in a complete and proper fashion, the citizens of Franklin county can be impacted by radioactivity and radionuclides present in the air and water proximate to and in the area of the plant's operation." FRPB Amended Petition at 5. It also claims potential harm from the proximity of a nuclear site on its tourist and economic base. Id. at 6-7. But these allegations are far from particularized and appear to be offsite concerns that are tied to the plant's past operation and current decommissioning, both activities that are already licensed and are not within the scope of this proceeding. The Staff and the Licensee agree with this assessment. Staff Response at 7; Licensee Response at 7-8 &
n.8. It is the Board's judgment that FRPB has failed to establish standing based on injury to its organizational interests, j
An organization may also invoke representational standing by (1) identifying
)
at least one of its members by name and address; (2) demonstrating how that member may be affected by the licensing action; and (3) showing (preferably by affidavit) that the organization is authorized to request a hearing on behalf of that member. See Yankee Atomic Electric Co. (Yankee Nuclear Power Station),
CLI-96-1,43 NRC 1,6 (1996). An organization must provide a description of the nature of the injury to the person, and demonstrate that the person to be WThe staff argues that as a general matter, broad economic interests with re9ect w economic injury to the general commumty are insufficient to establish standing, ciong Babcock eM Wilcox (Apollo, Pennsyhama Fuel Fabricanon Facility), LBP-M-4,37 NRC 72,78 n 6,94 n 64 (1993). We beheve the stafr's analysis is apphcable I
here.
1 1
354 i
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l represented has in fact authorized such representation. Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535,9 l
~ NRC 377,390-96 (1979).
In this regard, FRPB submitted the affidavit of Daniel B. Hammock attached to its amended petition. 'Ihe Affidavit states (1) that Mr. Hammock lives in l
Ranklin County; (2) that he has been involved in Franklin county government for 8 years; (3) that he currently serves as one of five members of the Executive Committee; and (4) that he declares that the FRPB is representing the interests l
of Franklin County on the " issues pertinent to the above-entitled matter" and l
not Hammock's own interest. However, to establish standing, an organization seeking to intervene on behalf of the member must show that the individual member can fulfill all the standing elements. Yankee, 43 NRC at 6.
Mr.
Hammock must demonstrate that (1) he has suffered or will suffer a distinct and palpable injury that constitutes injury in fact within the zone of interests
~
arguably protected by the AEA or NEPA; (2) that the injury is fairly traceable l
to the Staff's action of accepting the LTP; and (3) that the injury is likely to be redressed by a favorable decision. None of which has been done.
Nor is Mr. Hammock automatically entitled to a presumption of standing based on his living in proximity to the plant. Even if he lived and worked and had property interests within a 50-mile radius of the power plant, there is no presumption of standing because this amendment proceeding does not involve an obvious potential for offsite consequences. Florida Power and Light Co.
(St. Lucie Nuclear Power Plant, Units I and 2), CLI 89-21,30 NRC 325,329-
)
30 (1989). Here FRPB has failed to show the requisite elements to establish i
standing based on representational interests.
In its Amended Petition, FRPB also alleges that it has standing under 10 C.F.R. 5 2.715(c) because it is "an interested County [ body]." The cited provision of the Commission's regulations reads in pertinent part:
The presiding officer will afford representatives of an interested State. county, rnunicipality, and/or agencies thereof, a reasonable opportunity to participate and to introduce evidence, interrogate witnesses, and advise the Commission without requiring the representative to take a position with respect to the issue.
As originally worded,10 C.F.R. 6 2.715(c) only allowed participation by the representative of a state, but the provision has been amended to include counties and municipalities and " agencies thereof." 43 Fed. Reg. 17,798, 17,800 (1978). While states, counties, and municipalities are commonly recognized forms of representative government, the Commission, when it added the wording
" agencies thereof," did not expound on their limitations. However, it would be unprecedented to suggest that any and all governmental or quasi. governmental entities could invoke the provision for participation in a proceeding. This 355
l Licensing Board is confident, even without such guidance, that the Commission
'did not intend to allow participation by agencies that neither had standing on their own nor had legal authorization from a recognized government with a j
sufficient interest in the proceeding.
The ability to participate in an NRC proceeding is offered only to " units of the government which.. have an interest in the licensing proceeding."
43 Fed. Reg. 17,798, 17,800 (1978). The words " interest" and " interested" as they are used in 10 C.F.R. 9 2.714 and 10 C.F.R. 5.2.715 appear to be synonymous with the term " standing." See Vermont YanAce Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-87-7, 25 NRC 116, 118 (1987). Given jurisprudential standing requirements, it is appropriate to require a representational government, or an agency thereof, to have a foundational element of directly representing the citizens of the area affected.
l Such representation is not validated by delegation to an advisory body, like the FRPB. To find otherwise would be to dismiss the " interest" requirement out of 10 C.F.R. 6 2.715.
Even assuming the FRCG could be considered a section 2.715(c) governmen-tal entity, we do not find the affidavit attached to the FRPB Amended Petition to be a delegation of authority to the FRPB to represent the interest of the Franklin Regional Council of Governments. The Licensing Board received a letter, dated March 26,1998, from Brad C. Councilman, Chair, Franklin Regional Council of Governments, which informed the Board that the FRPB is an advisory board
)
and is not acting on behalf of the Council of Governments. Such a delegation of authority would require a clear and convincing showing that the delegation
)
was legal and within the power of the delegacing authority to delegate. No such l
showing has been made here and, accordingly, the Board denies standing under this provision of the regulations.
l Finally, it is important to understand that this provision does not entitle an i
interested government agency to standing or the right to convene a hearing. The provision is capt'oned " Participation by a person not a party." The mere filing by an interested government agency to participate in an amendment application l
process is not cause for ordering a hearing. Northern States Power Co. (Tyrone Energy Park, Unit 1), CL1-80-36,12 NRC 523, 527 (1980). The provision l
only allows participation in a convened proceeding. This means that interested governmental bodies can only participate where proceedings have already been l
l
. authorized. In this instance, given the Board's findings that NECNP and CAN l
lack standing, no proceeding has been authorized.
l The FRPB also seeks intervention in this proceeding based on " discretionary standing." Although a petitioner may lack standing to intervene as a matter of right under judicial standing concepts, he may be admitted to the proceeding in the Licensing Board's discretion. In deterruining whether discretionary l
intervention should be permitted, the Commission has stated that the Licensing i
t l
356
(
. Board should be guided by the factors enunciated in Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27,4 NRC 610,616 L(1976). Those factors include:
(a) Weighing in favor of allowing intervennon -
(1) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(2) 1he nature and extent of the petitioner's property, financial, or other interest in the
. proceeding.
(3) The possible effect of any order which may be entered in the proceeding on the petitioner's interest.
(b) Weighing against allowing intervention -
(4) The availability of other means whereby petitioner's interest will be protected.
(5) The extent to which the pentioner's interest will be represented by existing parties.
(6) The extent to which petitioner's participation will inappmpriately broaden or delay.
the proceeding.
The primary factor to be considered is the significance of the contribution that a petitioner might make. Id. at 614-17, 7he need for a strong demonstration that the Petitioner can make a valuable contribution to the decisionmaking process is especially pressing where no Petitioners have established standing as of right (as l
the situation exists here) and where, absent such a showing, no hearing would be held. See Tennessee Valley Authority (Watts Bar Nuclear Plant, Units I and 2), ALAB-413,5 NRC 1418 (1977).
The burden of convincing the Licensing Board that a petitioner could make a valuable contribution lies with the petitioner. Nuclear Engineering Co.
(Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737,.745 (1978).. Considerations in determining the Petitioner's ability -
to contribute to development of a sound record include:
. (t) a petitioner's showing of significant ability to contribute on substantial issues of law or fact which will not be otherwise properly raised or presented; (2) the specificity of such ability to contribute on those substantial issues of law or fact; (3) justification of time spent on considering the substantial issues of law or fact; (4) provision of additional testimony, particular expertise, or expert assistance; (5) specialized education or pertinent experience.
. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-81-1,13 NRC 27, 33 (1981).
FRPB's petition is devoid of the necessary showing that it would aid in the development of a sound record. It states that it has the " intent" to develop a strong record and that it is well versed in the " matters at stake"(FRPB Amended 357 I:
1 l
l Petition at 4) but FRPB fails to demonstrate its prowess to develop meaningful issues. Instead, FRPB has requested the NRC to provide it with $100,000 for it to be able to intervene in this proceeding and further admits that it does not have the ability to make a substantial contribution at the present time. Id. at 10.
NRC does not possess authority to provide FRPB with these requested funds.
FRPB also confuses the implications of the grant of discretionary intervention I
when it states that it is "not required by C.F.R. 0 2.715(c) 'to take a position with respect to the issue / ""and in this section of this filing, has no interest in j
taking any position" and furthermore,"wants and requested a full, fair and open l
proceeding and not an adversarial one." Id.
As to the second and third factors to be considered (the nature and extent of property, financial, or other interests in the proceeding and the possible effect any order might have on the Petitioner's interest), the Commission has held that interests that do not establish a right to intervention because they are not l
within the " zone of interests" to be protected by the Commission should not I
be considered as positive factors for the purposes of granting discretionary l
l-intervention. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2),
LBP-78-11, 7 NRC 381, 388, aff'd, ALAB-470, 7 NRC 473 (1978). As stated before, FRPB claims that its purpose is planning for the protection of the health and welfare of the citizens of the region and the conservation of its cultural and natural resources. FRPB Amended Petition at 4. FRPB has not provided, besides this broad and unspecific information, any argument or information upon which a finding can be made that its interests are within the zone of interests protected by the AEA or NEPA. We do not find that FRPB has sufficiently defined its interests to weigh the second or the third factors of the Commission's test for discretionary intervention in its favor. Pursuant to the above, the Board finds that the Franklin Regional Planning Board has failed to demonstrate that it can or has a significant ability to contribute to the development of a strong record or that it has particular expertise or experience to comment on the License Termination Plan which is the focus of this proceeding.
Without this demonstration, discretionary intervention must be and is denied.
As a final comment the Board desires to emphasize that determinations of standing adverse to Petitioners, as is the case here, should not be considered as reflecting unfavorably on any organization seeking participation in NRC adjudications. Standing requirements are simply essential for the sole purpose of determining whether there is a legitimate role for adjudication in dealing with a particular grievance."
" Westinghome. 39 NRC at 331.
358 l
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t 5
. In accordance with the provisions of 10 C.F.R. 9 2.714a, this Decision may.
be appealed to the Commission within 10 (ten) days after service of the Order.
'THE' ATOMIC SAFETY AND
- 1,ICENSING BOARD James P. Gleason -
ADMINISTRATIVE JUDGE '
Thomas D. Murphy ADMINISTRATIVE JUDGE Thomas S. Elleman 1 ADMINISTRATIVE JUDGE Rockville, Maryland ;
June 12,1998 359
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Cite as 47 NRC 360 (1998)
!.. P-98-13 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
G. Paul Bollwerk, Ill, Chairman Dr. Jerry R. Kilne Dr. Peter S. Lam in the Matter of Docket No. 72-22-ISFSI (ASLBP No. 97 732-02-ISFSI)
PRIVATE FUEL STORAGE, LLC.
(Independent Spent Fuel Storage installation)
June 29,1998 In this proceeding concerning the application of Private Fuel Storage, L.L.C.,
under 10 C.F.R. Part 72 to construct and operate an independent spent fuel storage installation, the Licensing Board rules on the admissibility of contentions concerning the Applicant's physical security plan (PSP).
RULES OF PRACTICE:. CONTENTIONS (AD.\\11SSillILITY; SPECIFICITY AND BASIS)
For a proffered legal or factual contention to be admissible, it must be plead with specificity. In addition, the contention's sponsor must provide (1) a brief
- explanation of the bases for the contention; (2) a concise statement of the alleged facts or expert opinion that will be relied on to prove the contention, together with the source references that will be relied on to establish those facts or opinion; and (3) sufficient information to show there is a genuine dispute with the Applicant on a material issue of law or fact, which must include (a) references to the specific portions of the application (including the accompanying l
environmental and safety reports) that are disputed and the supporting reasons for l
360 I
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l l-i the dispute, or (b) the identification of any purported failure of the application to contain information on a relevant matter as required by law and reasons supporting the deficiency allegation. See 10 C.F.R.12.714(b)(2)(i)-(iii). A l
contention that fd!5 to meet any one of these standards must be dismissed, as must a contention that, even if proven, would be of no consequence because it would not entitle a petitioner to any relief. See id.12.714(d)(2).
l l
RULES OF PRACTICE: CONTENTIONS (CHALLENGE TO -
. LICENSE APPLICATION) 1 An improperly based challenge to a license application includes one that is rooted in a misreading or misinterpretation of the license application. See Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, j
Georgia), LBP-95-6,4i NRC 281,300, vacated in part and remanded on other grounds, CLI-95-10,42 NRC i, aff'd in part on other grounds. CLI-95-12,42 NRC 11I (1995).
RULES OF PRACTICE: SECURITY PLANS (ACCESS);
CONTENTIONS (ADMISSIBILITY)
There are two distinct inquiries involved in connection with the forn i.aion of Intervenor PSP contentions: (1) whether to provide access to the security plan so the Intervenor can use it to draw up its contentions; and (2) what is the information - documentary, expert opinion, or otherwise - necessary to l
support the admission of the Intervenor's proffered contentions.
RULES OF PRACTICE:. SECURITY PLANS (ACCESS) 1 The Board-mandated requirements in Duke Power Co. (Catawba Nuclear otation, Units 1 and 2), LBP-82-51,16 NRC 167,177 (1982), that an intervenor group obtain the services of a security expert and subject itself to a protective order as conditions'of obtaining access to a security plan so it could then
" develop" nore specific contentions are prudent precautions in light of the potential sensitivity of the information in a security plan. Without those requirements, a Board would lacs assurance that the individuals reviewing a plan on behalf of a petitioner both understand the need to afford the plan confidential treatment and are serious about formulating and pursuing contentions relating to the plan, as opposed to simply seeking access as a matter of curiosity, a
361 l
I L__________________:-___________-__
RULES OF PRACTICE: SECURITY PLANS (ACCESS)
I An intervening State fulfills the Catawba preconditions for access when it l
(1) subjects itself to a Board-approved protective order governing its access to'and disclosure of the information in the PSP; and (2) for access purposes
)
provides the functional equivalent of a security plan " expert" by proffering one of the NRC-approved State officials designated by the State Governor under 10 C.F.R. 6 73.21(c)(1)(iii), as having a "need to know" such that he or she should have PSP access and thereby become responsible for maintaining the requisite "information protection system" that will protect against unauthorized disclosures from the plan. See id. 0 73.21(a).
i 1
RULES OF PRACTICE: SECURITY PLANS (ACCESS)
In assessing whether to give an intervenor access to a security plan, there is no question about the seriousness of the intervenor's interest in challenging the plan when it commits, in the event the individual supporting its contentions is found not to be an expert, to obtain such an expert for the litigation of any admitted contentions (or to withdraw those contentions).
RULES OF PRACTICE: CONTENTIONS (ADNIISSIBILITY; SPECIFICITY AND BASIS; SUPPORTING INFORMATION
. OR EXPERT OPINION); SECURITY PLANS (CONTENTION ADNIISSIBILITY; CONTENTION SPECIFICITY AND BASIS; CONTENTION SUPPORTING INFORMATION OR EXPERT OPINION)
Once having PSP access, any contention an intervenor formulates is then subject to the same basis and specificity requirements as other contentions.
Expert opinion support is not required for a contention, at least as long as there is other supporting information sufficient to provide the contention with an admissible basis.
RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY; SPECIFICITY AND BASIS; SUPPORTING INFORMATION OR EXPERT OPINION)
When the individual put forth by an intervenor as sponsoring a contention is found not to provide " expert" support for the contention, in assessing the contention the presiding officer must then consider whether the other supporting information provided is sufficient to establish that the contention is admissible.
362 I
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.l RULES OF PRACTICE:. CONTENTIONS (ACCEPTANCE WilERE SUBJECT TO PENDING RULEMAKING; CHALLENGE OF COMMISSION RULE)
Although a revised rule will not become effective for six months, for the purpose of determining the admissibility of an intervenor's contention, the rule's adoption by the Commission gives it a regulatory force a presiding officer cannot
-d
. disregard. See Potomac Electric Power Co. (Douglas Point Nuclear Generating
{
Station, Units I and 2), ALAB-218,8 AEC 79,85 (1974).
]
l MEMORANDUM AND ORDER (Ruling on State of Utah Physical j
Security Plan Contentions)
Pending before the Licensing Board are nine contentions filed by Intervenor State of Utah (State or Utah) regarding the adequacy of the physical security plan (PSP) filed by Applicant Private Fuel Storage. L.L.C. (PFS), as part of its application under 10 C.F.R. Part 72 for authority to construct and operate an
- independent spent fuel storage installation (ISFSI) on the reservation of the Skull Valley Band of Goshute Indians (Skull Valley Band)in Skull Valley, Utah. For the reasons set forth below, we find that (1) expert sponsorship of the State's PSP contentions is not an absolute prerequisite to their admission; and (2) only one of those contentions - Security-C -is admissible as it raises the question whether the Tooele County sheriff's office, the local law enforcement agency
.j (LLEA) with which PFS has response arrangements, will provide a " timely" response to any unauthorized activities at the PFS facility.
L BACKGROUND As we previously noted in LBP-98-7, 47 NRC 142,160 (1998), shortly before the November 1997 deadline for submitting contentions in this proceeding l
the State sought a protective order to gain access to the Applicant's PSP. The Board issued the requested protective order, which was necessary because the PSP contains " safeguards information" that is not subject to public disclosure under 10 C.F.R. Part 73, and established a separate filing schedule for any State
.i PSP contentions. The contentions now at issue, designated Security-A through Security-1, were timely filed by the State in early January 1998, and subsequently were the subject of responses by PFS and the NRC Staff. See LBP-98-7, 47_ NRC at 161,162; see also [ State) Contentions Security-A Through Secu.
]
rity-I Based on Applicant's Confidential Safeguards Security Plan (Jan. 3,1998) 1 l
363
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lt-
.___________o
thereinafter State PSP Contentions]; Applicant's Answer to [ State] Contentions Security-A Through Security-l Based on Applicant's Confidential Safeguards Security Plan (Jan. 20,1998) [ hereinafter PFS PSP Contentions Response]; NRC Staff's Response to [ State] Security Plan Contentions (Jan. 20,1998) [ hereinafter Staff PSP Contentions Response]. During a late January 1998 initial prehearing conference, to avoid closing the proceeding to the public for security reasons, the Board limited arguments from these parties on the PSP contentions to the issue of the expertise of the witness sponsoring the State's contentions. See Tr.
at 442-65. Thereafter, the Board permitted the State to make an additional reply filing on the substance of those contentions' admissibility. See LBP-98-7,47 NRC at 165-66; see also [ State] Reply to NRC Staff and Applicant's Responses to Utah's Security Plan Contentions Security-A Through Security-l (Feb. I1, 1998) [ hereinafter State PSP Contentions Reply].
Prior to any ruling by this Board on the admissibility of these nine contentions, the Chief Administrative Judge issued an order designating a separate Licensing Board with jurisdiction over PSP matters, including the admissibility of the State's nine contentions. See LBP-98-7, 47 NRC at 166. Subsequently, in ruling on the State's request for party status in this proceeding, this Board found the State had standing as of right and had submitted a number of admissible contentions concerning non-PSP matters. See id. at 247-48. Following that ruling, and after consulting with the parties, the PSP Licensing Board scheduled i
a prehearing conference for June 17, 1998, to hear oral argument on the admissibility of the State's PSP contentions. Applicant PFS and the Staff, however, had objected to the Chief Administrative Judge's action establishing a second Board, and in a June 5,1998 decision, the Commission reversed I
the Chief Administrative Judge's action. See CLI-98-7,47 NRC 307 (1998).
Consequently, the State's PSP contentions once again have come before us for a ruling on admissibility.
l In a June 8,1998 directive, we offered the State the opportunity to make an oral presentation on the previously scheduled date concerning the admissibility of its PSP contentions. See Licensing Board Memorandum and Order (Request for Election Regarding Oral Argument on Security Plan Contentions)(June 8,1998)
(unpublished). The State accepted that offer and we conducted an in camera prehearing conference on June 17,1998, at which the State, PFS, and the Staff made presentations concerning the admissibility of the nine PSP contentions.
i See Tr. at S-1 to S-106.8 l
I Citations to the transenpt for the Board's June 17,1998 in carnera nession have the designacon "$ ". Transcript citations without this pre 6s refer to public Board sessions.
i 364 l
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L_________________._________
1 II. ANALYSIS A.
Standards for Admission of Contentions In LDP-98-7, 47 NRC at 178-81, we provided an extensive discussion of the standards that govern the admission of contentions in agency licensing adjudications. We will not repeat that exposition here. Instead, we simply note that the general requirements in 10 C.F.R. 9 2.714(b)(2)(i)-(iii) mandate that a contention's sponsor provide (1) a brief explanation of the bases for the contention; (2) a concise statement of the alleged facts or expert opinion that will be relied on to prove the contention, together with the source references that will be relied on to establish those facts or opinion; and (3) sufficier.t information to show there is a genuine dispute with the Applicant on a material issue of law or fact, which must include (a) references to the specific portions of the application (including the accompanying environmental and safety reports) that are disputed and the supporting reasons for the dispute, or (b) the identification of any purported failure of the application to contain information on a relevant matter as required by law and reasons supporting the deficiency allegation. A contention that fails to meet any one of these standards must be dismissed,2 as must a contention that, even if proven, would be of no consequence because it 1
would not entitle a petitioner to any relief. kl. s 2.714(d)(2).
j As we also noted in LBP-98-7,47 NRC at 179-81, under the agency's existing
{
case law interpreting these section 2.714 requirements, a number of more specific J
corollaries have developed regarding contention admissibility. Thus, a contention
{
is subject to dismissal if it (1) improperly challenges applicable statutory i
requirements, the agency's regulatory process, o; its regulatory requirements; (2) seeks to raise matters outside the scope of the proceeding as defined by the notice of hearing or opportunity for hearing; (3) lacks materiality; (4) lacks adequate factual information or expert opir. ion support; or (5) fails properly to challenge the licensing application at issue.2 B.
Expert Support for the State's PSP Contentions DISCUSSION: PFS PSP Contentions Response at 2-6, State PSP Contentions Reply at 2-4; Tr. at 452-65.
2 The Boar (s use of the conjunctive "and/or"in connecdon with its ruhngs on these PSP contentions and the non-PSP contentions Aled by the State and the other Petitioners is intended to reflect the fxt that a failure relause to any one of the requirernents of section 2.714(b)is suf6cient grounds for disnussal of a contention.
3 With regard to this last precept, an irnproperly based challenge to a license application includes one that is rooted in a ausreading or rnisinterpretation of the heense apphcation. See Georgia In.ntrare ofTechnology (Georgia Tech Research Reactor, Adanta. Georgiak LBP-9s 6,41 NRC 281,300,weared in part and remnded on other groundr. C1.19510,42 NRC I, afd in part on other ground.r, CLI-9512,42 NRC ii! (199$1 i
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RULING: Before considering each of the State's nine PSP contentions against these standards, we must resolve an overarching issue regarding the factual infor-mation or expert opinion needed to support an admissible PSP contention. Citing the language in the Licensing Board's decision in Duke Power Co. (Catawba Nuclear Station, Units I and 2), LBP-82-51,16 NRC 167,177 (1982), that "an l
Intervenor must have a qualified expert and must submit to a protective order if he wishes to pursue a security plan contention," PFS asserts (1) a security plan contention can be admitted only if sponsored by an expert witness; and (2) the individual who has provided an affidavit supporting the State's contentions, Utah radiation control program head William J. Sinclair, is not a physical secu-rity expert. As a consequence, PFS declares, the State's PSP contentions must be dismissed ab~initio. See PFS PSP Contentions Response at 2-6; Tr. at 455-57.
Both the State and the Staff disagree. He State asserts Mr. Sinclair's expe-l rience and training are sufficient to qualify him as an expert for the purposes of contention admissibility. See Tr. at 452-55. In addition, both the State and the Staff maintain that the issue of Mr. Sinclair's expertise is irrelevant to the degree there is documentary or other information sufficient to support a PSP contention's admission. See State PSP Contentions Reply at 2-4; Tr. at 458-65.
In reviewing this matter, we conclude there are two distinct inquiries involved in Intervenor PSP contention formulation: (1) whether to provide access to the security plan so the Intervenor can use it to draw up its contentions; and (2) what is the information - documentary, expert opinion, or otherwise - necessary to support the admission of the Intervenor's proffered contentions. We also find the l
Catawba case cited by PFS goes only to the first question and, in this instance, l
providing Mr. Sinclair (and other designated State officials) with access to the Applicant's PSP is consistent with that decision.
In Catawba, under the heading " Access to the Catawba Security Plan," the focus of the Board discussion cited by PFS was on whether an intervenor group would be allowed to review the facility PSP so the group could " pursue" specific security contentions in the case,' See LBP-82-51,16 NRC at 176. The Board there required that the group obtain the services of a security expert and subject itself to a protective order as conditions of obtaining the plan so it could then
" develop" more specific contentions. See 14. De Catawba Board's " expert
]
retention" condition thus was directed at providing security plan access rather than assessing security plan contention adequacy and admissibility, an issue the
)
Board did not even reach.
I A
4 The Carawba Board had "conditionaUy" adnntted a security plan contention conditioned on its intervenor's complying with the Board's requirernents for access to the plan. after which the innervenor was to have the opportumty to " develop speci6c contentions." LBP 82-51,16 NRC at 176. shortly thereafter, condiuonal adrninion of contentions ror any reason was banned. See Daka Power Co (Catawba Nuclear station, Units 1
1 and 2), ALAB-687,16 NRC 460,467 (1982). rev'd on other grounds, CLI-83-19,17 NRC 1041 (1983).
l 366
_. - - - - - ~ - - _ _ _ - _ _
'Ihese conditions for facdity security plan access are a prudent precaution in light of the potential sensitivity of the information in a security plan.
Without those requirements, a Board would lack assurance that the individuals reviewing a plan on behalf of a petitioner both understand the need to afford the plan confidential treatment and are serious about formulating and pursuing contentions relating to the plan, as opposed to simply seeking access as a matter of curiosity.5 Here, the State has subjected itself to a Board-approved protective order governing its access to and disclosure of the information in the PFS security plan. Moreover, fulfilling the Catawba Board's other precondition, for access purposes the State has provided the functional equivalent of a security plan
" expert" with Mr. Sinclair. As the designee of the Governor of the State of Utah under 10 C.F.R. I 73.21(c)(1)(iii), Mr. Sinclair is one of the NRC-approved State officials with a "need to know" such that he has PFS security plan access.
By accepting this designation, he becomes responsible for maintaining the requisite "information protection system" that will protect against unauthorized disclosures from the plan. See id. 9 73.21(a). And there is no question about the seriousness of the State's interest in the PSP plan given its commitment, in the event Mr. Sinclair is found not to be a physical security " expert." to obtain such an expert for the litigation of any admitted contentions (or to withdraw those contentions). Tr. at 460-61, 463. We have no difficulty, therefore, in concluding that the State has provided the requisite assurance of its commitment to protecting safeguards information and of its genuine concern about the adequacy of the Applicant's PSP to meet the requirements for security plan access outlined in Catawha.
Once having plan access, any contentions the State formulates are then subject to the same basis and specificity requirements as other contentions. Expert opinion support is not required for a contention, at least as long as there is other supporting information sufficient to provide the contention with an admissible
{
basis. Thus, contrary to the Applicant's assertions, Mr. Sinclair's purported lack of physical security expertise would not be a basis for rejecting the State's PSP contentions out of hand.
Having found that Mr. Sinclair's credentials are sufficient to merit providing access to the PFS security plan, we also note that, on the basis of the record before us, the State has failed to establish he has the requisite knowledge, skill, training, education, or experience to be considered an expert on physical security matters. His education, training, and experience in environmental health and j
hazardous substances does not support a finding he has the necessary expertise i
in physical security matters. Nor does his NRC health physics training, his l
3 1a the Catawba case. by imposing these access requirenwnts the Board discovered the petitioner was unwilhng to commit to giving enpropnate treatment to safeguards inrarmation. See LBP.82-51,16 NRC at 176.
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position and activities as Director of the State Division of Radiation Control, or his status as the Governor's designee for receiving the PFS security plan, see Tr. at 452-55,460-63, provide him with the requisite credentials for designation as a physical security expert. Because his sponsorship of those contentions j
does not provide " expert" support relative to their admissibility, in assessing the
]
contentions below we must consider whether the other supporting information i
provided is sufficient to establish that the State's PSP contentions are admissible.
I l
r C.
State Security Plan Contentions'
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SECURITY-A - Security Force Staffing CONTENTION: The Applicant has failed to establish a detailed plan for security i
measures for physical protection of the proposed ISFSI as required by 10 CER.172.180, including failure to demonstrate that it has adequate staffing capabihty to cope with or respond to safeguards contingency events.
]
1 DISCUSSION: State PSP Contentions at 2 3; PFS PSP Contentions Response
)
at 7-14; Staff PSP Contentions Response at 10-12; State PSP Contentions Reply at 5-8; Tr. at S-38 to S 48.
RULING: Inadmissible, in that (1) the contention and its basis regarding the i
adequacy of the number of security personnel at the PFS facility impermissi.
bly challenge the Commission's regulations and/or rulemaking related generic determinations, including the recently revised 10 C.F.R. 9 73.51(d), see 63 Fed.
Reg. 26,955, 26,957, 26,959 (1998);7 and/or lack adequate factual support; and l
(2) the contention and its basis regarding the availability of local housing for j
off-duty security personnel to supplement the on-duty security force impermis-sibly challenge the Commission's regulations and/or rulemaking related generic determinations; lack adequate factual support; and/or fait properly to challenge l
the PFS application. See LBP-98-7,47 NRC at 179,180-81. Moreover, to the extent the State seeks to rely on the question of the designated LLEA's lack of
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jurisdiction and law enforcement authority on the Skull Valley Band's reserva-
)
i
' Ahhough the State PFS, and Staff filings regarding the PSP contentions have not been placed in the public record of this proceeding. the Board previously obunned the agreement of those parties that the language of the j
State's contenuons do not include safeguards informacon so as to permit pubhc disclosure of those contenuona.
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See Ucensing Board Menerandum and order (Memonalizing Prehearing Conference Directives)(June 18,1998)
)
at 2 al. The Board hkewise has attempted to craft this Memorandum and Order to avoid any discussion of safeguards information, thereby pernutting this decision to becone a public issuance in toto. Nonetheless, we initially are according it confidential treatnant by providing it only to the PSP parties with the request that they advise us whether its pubhc release woukt involve the disclosure of any protected safeguards information See infra p. 374.
7 Akhough this revised mie will not become effective anal November of this year, for the purpose of determirung the admissibdity of the State's PSP courentions, its adoption by the Commission gives it a regulatory force we cannot disregard. See Potomac Electric P<nwr Co. (Douglas Point Nuclear Generaung Station, Units I and 2),
ALAB-218,8 AEC 79,85 (1974).
368 i
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l tion as a basis for this contention, that assertion lacks adequate legal or factual support. See id. at 180 81; see also infra p. 370.
l SECURTTY-B - Equipment and Training CONTENTION: The Applicant has not described the type or location of security equipment available to accurity force personnel, nor has the Applicant described adequate training for fixed site guards or armed response personnel.
1 DISCUSSION:. State PSP Contentions at 3; PFS PSP Contentions Response at 14-19; Staff PSP Contentions Response at 12-13; State PSP Contentions Reply at 8-10; Tr. at S-48 to S 54.
RULING: Inadmissible, in that the contention and its supporting basis lack j
materiality; and/or lack adequate factual or expert opinion support in that the State has failed to make a sufficient showing the referenced requirements for security equipment and training for fixed site guards and armed response
- personnel under 10 C.F.R. Part 73, App. B., Criterion V.A. which generally do not apply to security force members at an off-site ISFSI, see 63 Fed. Reg. at 26,957, should be applied to the PFS facility. LBP-98-7,47 NRC at 179-80,
{
180-81, Moreover, to the extent the State seeks to rely on the issue of the designated LLEA's lack of jurisdiction and law enforcement authority on the
' Skull Valley Band's reservation as a basis for this contention, that assertion lacks adequate legal or factual support. See id. at 180-81; see also infra p. 370.
{
]
SECURtTY-C - Local Law Enforcement CONTENTION: The Applicant has not met the requirements of 10 C.F.R. Part 73, App. C, Contents of the Contingency Plan, Law Enforcement Assistance.
DISCUSSION: State PSP Contentions at 4-7; PFS PSP Contentions Response 1
at 19-31; Staff PSP Contentions Response at 13-14; State PSP Contentions Reply at 10-14; Tr at S-7 to S-38.
i RULING: Admissible as sufficient to establish a genuine material dispute i
adequate to warrant further inquiry in connection with its basis alleging PFS has not described the estimated response times for the principal LLEA relied j
upon for security assistance at the PFS facility so as to establish compliance with the requirements of both existing 10 C.F.R. Part 73, App. C, 5 3.d, see
_ Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, NUREG-1497, Interim Licensing Criteria for Physical Protection of Certain Storage of Spent Fuel 9 4.9.2 (Sept.1994) (physical protection plan "should describe [LLEA] estimated response times") (supporting 10 C.F.R.
~ 5 73.50(g)(2)) [ hereinafter NUREG-1497], as well as the recently adopted 10 C.F.R. 5 73.51(d)(6), see 63 Fed. Reg. at 26,959; Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, NUREG-1619, 369 E
I itandard Review Plan for Physical Protection Plans for the Independent Storage of Spent Fuel and High-level Radioactive Waste 5 4.9.2 & Guidance (May 1998),
that a designated LLEA will provide a " timely" response to an unauthorized entry.8
- Because a cooperative law enforcement agreement has been shown to exist between the LLEA, the Bureau ofIndian Affairs of the United States Department of the Interior, and the Skull Valley Band, see Letter From Jay E. Silberg, Counsel for PFS, to Licensing Board encl. (June 24,1998), which has not been 1
subjected to an adequately supported legal or factual challenge by the State, this contention is inadmissible relative to its bases alleging (1) a failure to provide
(
such an agreement in the application; (2) the difference between security plan j
and emergency plan statements about the LLEA agreement; and (3) lack of
[
jurisdiction and law enforcement authority by the LLEA on the Skull Valley l
l Band's reservation.' See LBP-98-7,47 NRC at 180-81 Further, this contention l
is inadmissible relative to its bases regarding mutual aid agreements between the LLEA and other local governments and the availability of special weapons and tactics (SWAT) teams in that these assertions impermissible challenge l
the Commission's regulations or generic rulemaking-associated determinations; j
l and/or lack adequate factual or expert opinion support. See id. at 179, 180-81.
SECURITY-D - Power Supply
{
CONTENTION: The Applicant's discussion of the security power system does not I
ensure that the security system provides the protection required by 10 C.F.R. Part 73.
L DISCUSSION: State PSP Contentions at 7-9; PFS PSP Contentions Response r-at 3144; Staff PSP Contentions Response at 14-15; State PSP Contentions Reply at 14-16; Tr. at S-55 to S-M.
RULING: Inadmissible, in that the contention and its supporting bases im-permissibly challenge the Commission's regulations or generic rulemaking-l associated determinations (bases one, four, and five); lack adequate factual sup-l port (bases one, two, three, and five); and/or fait properly to challenge the PF3 application (bases two, three, four, and five).to See id. at 179, 180-81.
r 8 To the degree the State's claim regarding helicopter use has some relevance to the question of a "tirnely" LLEA response, it is within the scope of this contention as admitted.
'The State han suggested that the legal quesuon of the jurisdiction of federal, staie, and local law enforcement agencies on Nauve Arnerican reservations is "very murky." Tr. at S-8; see Tr. at S-32 to S-33. In light of the State's own discussion of this issue, see State PSP Contentions Reply at 1213. nothing on the face of the cooperative agreement gives us cause to question its validity as it provides such jurisdiction on the Sku;' Valley p'
Band's reservation for the designated LLEA.
'U l
ta its reply pleading, the State questicos the Applicant's compliance with a provision of the Staff's interim licensing criteria that requires standby power duration to equal or esceed twice the LLEA response time. See l
State PSP Contenoons Reply at 16 (citing NUREG-1497, at i 4 6.3). Puttmg aside the question of whether this is u
l (Contmuod)
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370 4
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SECURITY-E - Alarm System Performance CONIEIVTION: The Applicant has not demonstrated that the performance of the alarm systems described in its Security Plan are adequate to assess the detection of intruders at the site in that:
(a) The Applicant has only generally discussed the perimeter intrusion detection systems in its Security Plan and has failed to give minimum specifications for the system in accordance with 10 C.F.R.173.50(b)(4) and Regulatory Guide 5.44.
(b) The Applicant's closed ;ircuit television (CCTV) system and coverage plan de-scription are too hmited to show the logic for the location of the devices or their operational capability nor does the Applicant's description of the CCTV system confirm the assumptions relied on by the Applicant in the Security Plan to show that the CCTV system is adequate to dete::t intrusions.
DISCUSSION: State PSP Contentions at 9-10; PFS PSP Contentions Re-sponse at 44-50; Staff PSP Contentions Response at 15; State PSP Contentions Reply at 16-19; Tr. at S-64 to S-78.
RULING: Inadmissible in that this portion of the contention and its sup-l porting bases impermissible challenge the Commission's regulations or generic rulemaking-associated determinations fparagraphs (a) and (b)); lack adequate factual support (paragraph (a)); and/or fait properly to challenge the PFS appli-cation (paragraphs (a) and (b)), See id. at 179, 180-81.
SECURITY-F - Intermodal Transfer at Rowley Junction CONTENTION: The Security Plan fails to address the performance objectives and requirements of 10 C.F.R. (( 73.25, 73.26, 73.45, 73.46, 73.50, and Part 73, App. C for Axed site physical protection of the intermodal transfer facility at Rowley Junction or to adequately protect transit of spent fuel into and out of Rowley Junction in that:
(a) ne Security Plan must address the applicable requirements of Part 73 and 10 C.F.R. 6 72.180 for transportation to and from the proposed ISFSt.
I (b) The Security Plan must address physical protection at the intermodal transfer point because the intermodal transfer point could be considered a fixed site subject to the requirements of 10 C.F.R. (( 73.45,73.46, and 73.50.
(c) The Security Plan fails to address essential regulatory components for providing security at the intermodal transfer facihty.
(d) The inte.rmodal transfer facility represents a high risk for unauthorized access or activities because of its proximity to Interstate 80.
an attempt to amend the contention without nweting the late 41ing criteria of 10 C.F R. I 2.714(aKI), although we admit that portion of State's contention Security.C that concerns LLEA respome urnes, see supra p. 369, we are unable to find this power duration concern has an adequate basis given the backup generator operation duration and the potenual for extending that operanon duranon. See Tr. at S-56, S-64.
371 I
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i DISCUSSION: State PSP Contentions at 10-12; PFS PSP Contentions Re-sponse at 50-59; Staff PSP Contentions Response at 16-18;.Seite PSP Con-tentions Reply at 19-20; Tr. at S-78 to S-90.
RULINo: Inadmissible in that the contention and its supporting bases im-i permissibly challenge the Commission's regulations or generic rulemaking-associated determinations, including 10 C.F.R. Parts 71, 72, and 73 as they govern physical security for the off-site transportation of spent fuel." See id. at 179.
SECURITY-G - Terrorism and Sabotage CONTENTION: The Applicant has failed to adequately assess and describe procedures that will protect spent fuel from unauthorized access or activities, such as terrorism and sabotage, as required by 10 C.F.R.1173.25,73.45, and Part 73. App. C.
DISCUSSION: State PSP Contentions at 13-16; PFS PSP Contentions Re-sponse at 59-72; Staff PSP Contentions Response at 18-20; State PSP Con-tentions Reply at 20-21; Tr. at S-90 to S-92.
RULING: Inadmissible in that the contention and its supporting bases lack materiality; impermissible challenge the Commission's regulations or generic rulemaking-associated determinations, including 10 C.F.R. 0 72.184(a) concern-ing the submission of procedures and 10 C.F.R. Parts 71,72, and 73 as they
)
govern physical security for the off-site transportation of spent fuel; lack ade-quate factual support; and/or fail properly to challenge the PFS appFeation.. See id. at 179-81.
SECURITY-H - Transportation of Spent Fuel to and from the ISFSI CONTENTION: The Applicant has failed to demonstrate how it plans to comply with applicable physical protection requirements during transportation to and from the proposed ISFSI in accordance with 10 C.F.R. 9 72.180 in that:
(a) The Security Plan is inadequate to demonstrate how the Applicant will comply with 10 C.F.R. 5 73.37, includmg monitoring spent fuel movements, reacting to unforeseen situations, or communicating with necessary individuals, and other applicable portions of Part 73, as required by 10 C.F.R.172.180.
(b) The Security Plan does not provide adequate in-transit physical protection to protect the health and safety of the public because the Applicant does not describe route conditions or designate transportation routes and alternatives, or describe H Our ruling on Security.F is based on the State's reliance upon rail transponation volume / queuing and trat:sportation-related sabotage as the bases for this contention, which we previously rejected as appropriate bees for adnutted contentions Utah B and Utah C. See LBP.98-7,47 NRC at 184,186.198 a.20. It should be noted, however, that our ruhng here has no impact on the admissibihty or scope of Utah B, which states with respect to the Rowley Junction intermodal transfer point that "it in important to provide the public with the regulatory projections that are afforded by compliance with 10 C.F.R. Part 72, including a secunty plan.
" LBP.98-7, 47 NRC at 251.
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security measures f7 each of the potentialin-transit routes and evaluate any natural conditions or man made characteristics which may impact security procedures.
DI.9CUSSION: State PSP Contentions at 16-18; PFS PSP Contentions Re-sponse at 72-79; Staff PSP Contentions Response at 20-21; State PSP Con-tentions Reply at 21-22; Tr. at S-92 to S-99.
P.UUNG: Inadmissible in that this contention and its supporting bases im-permissibly challenge the Commission's regulations or generic rulemaking-ast ociated determinations, including the recently revised 10 C.F.R. 6 72.180 as it limits stand-alone ISFSI security measures to onsite transportation,63 lied.
Eeg. at 26,961-62; see 60 Fed. Reg. 42,079,42,082 (1995), and 10 C.F.R. Parts
- I and 73 es they govern physical security for the off-site transportation of spent fuel. See LBP-98-7,47 NRC at 179.
SECURITY Establishment of a Central Communications Center CONTENTION: The Applicant has failed to identify the establishment of an adequate communications center as required by 10 C.F.R. t 73.37(b)(4) in that:
(a) The Applicant makes the statement that the status of spent fuel during transit will be monitored. however, nowhere in the Security Plan does the Apphcant describe a designated communications center with the capability of tracking spent fuel shipments from any or all of the 110 reactor sites.
(b) Neither the Applicant's Central or Secondary Alarm Stations nor the Appbcant's i
Alarm Station Communications Center appear to have the ability to track spent fuel shipments across the country.
I DISCUSSION: State PSP Contentions at 19; PFS PSP Contentions Response at 79-81; Staff PSP Contentions Response at 21-22; State PSP Contentions Reply at 22-23; Tr. at S-99 to S-105.
RULING: Inadmissible in that this contention and its supporting bases im-permissibly challenge the Commission's regulations or generic rulemaking-associated determinations, including 10 C.F.R. Parts 71, 72, and 73 as they govern physical security for the off-site transportation of spent fuel. See LBP-98-7,47 NRC at 179.
III. CONCLUSION With regard to the nine PSP contentions proffered by Intervenor State of Utah, we find that only its PSP contention Security-C is admissible to the extent it concerns the issue whether, in accordance with applicable regulatory requirements, see 10 C.F.R. Part 73, App. C, 5 3.d, see also 63 Fed. Reg. at 373 l
)
26,963 (to be codified at l'0 C.F.R. 573.51(d)(6)), the designated LLEA will provide a ' timely" response to any unauthorized activities at the PFS facility.
Ihr the foregoing reasons, it is this twenty-ninth day of June 1998, ORDERED that:
1.
Intervenor State of Utah's physical security plan contention Security-C
' is admitted for litigation in this proceeding.82 2.
'Ihe following State pnysical security plan contentions are rejected as inadmissible for litigation in this proceeding: Security-A, Security-B, Secu.
rity-D, Security-E, Security-F, Security-G, Security-IL and Security-I.
3.
On or before Monday, July 6,1998, the State, PFS, and the Staff should advise the Board in a joint filing whether they have any objection to the public release of any part of this Memorandum and Order because it would involve the disclosure of 10 C.F.R. Part 73 " safeguards information."')
~4.
Motions for reconsideration of this Memorandum and Order must be filed on or before Friday, July 10,1998, and responses to such motions must be filed on or before Wednesday, July 22,1998. Both reconsideration motions and i
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12 The language of this admirted contention is as set forth in the text above. Ses supm p. 369.
13 Unless they contain proprietary or safeguards information. the lilings required or pemutted under this Memorandum and Order shrndd be served on the Board. the Office of the Secretary and counsel for the other 1
participants by facsimile transmission. e-mail, or other means that will ensure receipt by close of business (4:30 J
p.nt EI7r) on the day of 6 ting. See Ucensing Board Memorandum and Order (Initial Prehearing Order)(sept. 23 1997) at $-6 (unpubbshedh Ucensing Board Memorandum and Order (Additional Guidance on service Procedures) l (Nov.19.1997)(unpublished).
]
If a 6hng required or permined under this Memorandum and order includes proprietary or safeguards I
information. it should (1) be served in the munner and on the individuals described in paragraphs LH.l.e-b of
. de Board's December 17,1997 meererandum and order as amended, and include a cover letter or nemorandum that shall be served on all other participar.ts as described in paragraph I.H.2 of hat issuance, see Ucensing Board
. Memorandum and Order (Protecove Order and schedule for Fihng security Plan Contentions)(Dec. 17.19971 at
- 8. 9 (unpubbshedh Ucensing Board Memorandum and order (Additional Amendments to Protective Order)(Dec.
23,1997) at 2 (unpublished); and (2) be served so as ensure receipt by d2 individuals described in puragraph IH.l.a of the Board's December 17,1997 memorandum and order tr/ the next business day.
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i l responses are subject to the previously established ten-page limit. See LBP ;
- 7. 47 NRC at 246. "-
l THE ATOMIC SAFET'l AND LICENSING BOARD" G. Paul Bollwerk, III -
ADMINISTRATIVE JUDGE Jerry R. Kline ADMINISTRATIVE JUDGE 1
Peter S. Lam.
ADMINISTRATIVE JUDGE 3
- Rockville, Maryland June 29,1998
[ Editor's Note: After receiving a July 6,1998 filing indicating that the State, PFS, and the Staff had no objection to public issuance of this decision, on July 7, 1998, the Licensing Board made this issuance publicly available. See Licensing Board Memorandum and Order (Making Decision on Admissibility of [ PSP]
Contentions Publicly Available)(July 7,1998) at 2 (unpublished).]
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" Copies of this Memorandum and Order were sent this date to counsel for Applicant PFS and for intervenor State of Utah by evernight/ express nual, and to Staff counsel through the agency's internal nutil system, la addition, this date a memorandum was sent by e-rnail to all the partnes in this proceeding advising them of the issuance of this decision and the Boards detemunation to afford it confidential treatment pending a response by the State. PFS, and the Staff to the Board's inquiry under ordenag paragraph three above. See Licensing Board
- Memorun&rn (Notice Regarding Issuance of Decision on Admissibihty of Physical Security Plan Contentions)
Uune 29.1998)(unpubhshed).
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l Cite as 47 NRC 376 (1998)
LBP 98-14 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL Before Administrative Judget:
Peter B. Bloch, Presiding Officer l
Thomas D. Murphy, Special Assistant in the Matter of Docket No. 40-8968-ML (ASLBP No. 95-706-01-ML)
(Re: Leach Mining and Milling License)
HYDRO RESOURCES, INC.
I (2929 Coors Road, Suite 101, Albuquerque, New Mexleo 87120)
June 30,1998 l
I Interveners' Motion for Reconsideration is denied.
1 RULES OF PRACTICE AND PROCEDURE: SUBPART L; AREAS OF CONCERN i
In a Subpart L proceeding in which there are many areas of concern, the completeness of an application can be determined in the context of the I
areas of concern rather than as a separate area of concern. Incompleteness or
]
contradictions in the application may be part of intervenor's case for its other areas of concern.
RULES OF PRACTICE AND PROCEDURE: SUBPART L; AREAS OF CONCERN A Presiding Officer determines areas of concern. During the proceeding, proof may be submitted to supplement the application. Hence, the Presiding l
l 376 l
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Officer's determination does not depend solely on whether an application is comple:e or orderly.
J RULES OF PRACTICE AND PROCEDURE: SUBPART L; k
- MATERIAL ISSUES Material issues will be considered in a Subpart L proceeding, even if there e must be some delay because some of the information concerning those issues
)
. is not yet available. The method of managing a case and scheduling the -
'l determination of issues is within the discretion of the Presiding Officer, who may choose to use a prehearing conference to obtain information relevant to this L responsibility.
MEMORANDUM AND ORDER (ENDAUM and SRIC's Motion for Reconsideration of LBP-98-9)
MEMORANDUM ENDAUM and SRIC (Interveners) submitted a " Motion for Reconsideration 3
of LBP-98-9" on June 5,1998 (Motion).' The n'otion is denied.
"Ihe first issue raised in the motion is the allegedly improper exclusion of an area of concern that HRI's application is " disjointed, incoherent and self-i contradictory." The motion does not provide any reason to reverse the prior i
rulini;. In LBP-98-9, I suggested that ENDAUM and SRIC speak with the Staff about how to ensure that the hearing record is orderly and useful. Now that record has been filed.2 It may be used by SRIC and ENDAUM to build
- their case. To the extent that material may be " disjointed, incoherent and self-con'radictory," SRIC and ENDAUM may take advantage of those aspects of the record. Interveners have not demonstrated why it is necessary or appropriate to litigate this as a separate area of concern when it is already litigable with respect to admitted areas of concern 10 C.F.R. 9 2.1209(a).
A possible implication of the Interveners' concerns is that they expect the Presiding Officer to determine the adequacy of the application, as filed and amended. Pursuant to established NRC practice, however, the Presiding Officer
]
I See HRI's Revonse to ENDAUM's and SRIC's Motion for Reconsideradon." June 15,1998, and the Staff's
)
~ " Response to ENDAUM/sRIC Joint Modos for Reconsideration." June 22.1998. See also ENDAUM and sRJC*s l
i i
Madon to Partially Strike the NRC Staff's Response to Motion for Reconsiderat on or, in the Alternative, Motion to Respond (Expedited Review Ikquested), June 24,1998.
I 2 1karing File, attaded to a letter to the adininistrative judges from John T. Hull, Counsel for NRC Staff, June i1. 1998.
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determines the validity of admitted areas of concern, not of the application.
In the course of that determination, the entire recoxi is considered, including material added to the record when it is filed by a party (10 C.F.R. 6 2.1233(d))
or developed by the Presiding Officer (10 C.F.R. 5 2.1235).
Interveners'second concern is that "the deferral of HRI's submission of ma-terial licensing information until sometime after license issuance deprives Inter-venors of their right to a public hearing on all material licensing issues (emphasis added). However, Commission regulations do not provide for a hear-ing priar to issuance of a license. Furthermore, Interveners have tried and failed to obtain a stay of the effectiveness of the license. CLI-98-8,47 NRC 314 (1998).
He tentative plan that I have proposed for this proceeding defers the determination of certain issues but will not deprive Interveners of anything.
As the Court stated in Union of Concerned Scientists v. United States Nuclear Regulatory Commission, citing 5 U.S.C. 55 554 and 557,735 F.2d 1437,1447 (D.C. Cir.1984), cert. denied, 469 U.S. I132 (1985) (UCS case):
we believe Congress vested in the public, as well as the NRC staff, a role in assuring safe operation of nuclear power plants. In sum, we find no basis in the statute or legislative history for NRC's position that Congress granted it discretion to eliminate from the hearing rnaterial issues in its licensing decision.
i Although the UCS case involved the licensing of a nuclear power plant, the principle is applicable here. Material issues must be determined in the licensing proceeding. See Louisiana Energy Services, LP. (Claiborne Enrichment Center),
CLI-97-2,45 NRC 3,5 (1997).
He tentative plan for this hearing would permit the immediate examination of HRI's current operations, using the supporting information that should already be available. He general principal governing this hearing is that HR1 taust
}
demonstrate an adequate assurance of safety and protection of the environment.
i 10 C.F.R. 5 40.32. At the upcoming prehearing scheduling conference, we may f
examine the readiness of HRI to demonstrate compliance with 10 C.F.R. I 40.32, both with respect to current operations and future operations. All scheduling issues will be considered at that conference. (He conference will be more l
fully defined in my determination of HRI's Motion for Reconsideration and for i
Bifurcation.)
l By way of clarification, let me state that there is no need to decide whether to change my determination that the area of concern related to Performance Based I
Licensing (PBL) is germane, as suggested by the Staff. This case is governed by the NRC regulations. He substantive regulation appears to require that HRI demonstrate an adequate assurance of safety and protection of the environment with respect to the areas of concern submitted by Interveners and found to be l
378 l
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germanc.,10 C.F.R.140.32. Although the area of concern related to PBL is germane, it may subsequently be dismissed if it is shown to be either withriut '
- i. a basis or contrary to Commission regulations, which may not be challenged in this proceeding.
tn-t ORDER R)r all the foregoing reasons and upon consideration of the entire record in -
this matter, it is, this 30th day of June 1998, ORDERED that: -
1.
ENDAUM and SRIC's Motion for Reconsideration of LBP-98-9, June
- 5,' 1998, is denied.!
. 2..;: Appeals may no. longer be deferred because of the pending tr.otion for reconsideration.
.1 Peter B. Bloch, Presidirg Officer ADMINISTRATIVE JUDGE Rockville, Maryland v
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O Directors' Decisions Under 10 CFR 2.206 l
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Cite as 47 NRC 381 (1998)
DD-98-4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i
OFFICE OF NUCLEAR REACTOR REGULATION
' Samuel J. Collins, Director I
in the Matter of Docket Nos. 50 245
)
50-336 1
SN23 l
(License Nos. DPR-21 l
NORTHEAST UTILITIES (Millstone Nuclear Power Station, Units 1,2, and 3)
June 1,1998 By a petition dated February 2,1998, submitted by the Citizens Awareness J
Network (CAN) and the Nuclear Information and Resource Service (NIRS)
(Petitioners), Petitioners requested that the NRC take immediate action to revoke Northeast Utilities' (NU's or Licensee's) license to operate the Millstone nuclear power plants Units 1-3 due to both ongoing NU management intimidation and harassment of the NU workforce, as well as persistent NU defiance of NRC regulations and directives to create a questioning attitude that would allow NU_ employees to challenge NU management on safety issues without fear of harassment or reprisal. Petitioners also requested that the NRC refer the Nuclear Oversight Focus 98 List (list), the existence of which Petitioners believed buttressed their above claims, and reported NU management attempt to
. destroy the list to the Department of Justice (DOJ) due to a potential coverup.
In a Director's Decision dated June 1,1998, the NRC denied Petitioners
- requests as described above. With regard to the request for license revoca-tion, the Decision stated that, based on the NRC Staff's examination of NU's responses to NRC requests for information as well as independent NRC inves-tigative efforts, the NRC Staft concluded that the wording at issue in the list was due to poor word choice rather than an effort by NU management to in-
-331 i
hibit or suppress NU employees' ability to speak out on safety concerns. The Staff also concluded that the recall and destruction of the list by NU was an attempt to avoid continued dissemination of a document widely viewed to have been misinterpreted. The Staff noted the extensive efforts NU has made in the area of employee concerns, including the NRC ordered use of an independent third-party organization to oversee NU efforts in this area. Petitioners' request for license revocation was therefore denied. Finally, the Decision explained that NU's recall of the list was not inappropriate given the facts, and that NU had no obligation to provide the list to the NRC. Accordingly, Petitioners
- request to refer the list's recall to DOJ was also denied.
DIRECTOR'S DECISION UNDER 10 C.F.R. l2.206 t
i L INTRODUCTION On February 2,1998, Ms. Deborah Katz, Ms. Rosemary Bassilakis, and Mr.
Paul Gunter filed a petition, pursuant to section 2.2% of Title 10 of the Code of I
Federal Regulations (10 C.F.R. 5 2.206), on behalf of the Citizens Awareness f
Network (CAN) and the Nuclear Information and Resource Service (NIRS) i (Petitioners).
{
The Petitioners requested that the NRC take the following immediate actions:
(1) revoke Northeast Utilities' (NU's or the Licensee's) license to operate Millstone Units 1,2, and 3 as the result of ongoing intimidation and harassment l
of its workforce by NU management; (2) revoke NU's license to operate Millstone Units 1, 2, and 3 as the result of persistent Licensee defiance of NRC regulations and directives to create a " questioning attitude" for its workers to challenge management on nuclear safety issues without fear of harassment, l
intimidation, or reprisals by NU; and (3) refer the Nuclear Oversight Focus 98 List and the reported NU management attempt to destroy the list to the l
Department of Justice for investigation of a potential coverup.
As bases for the Petitioners' assertions, the petition states that an NU document (Nuclear Oversight Department's Focus 98 List, dated January 11, 1998) directs the Nuclear Oversight group to address areas needing improvement by focusing on the " inability to ' isolate' cynics from the group culture" and
" pockets of negativism." The petition further states that the list demonstrates the sustained and unrelenting policy of NU's senior management to undermine a safety-conscious workplace at Millstone, and that despite 2 years of increased regulatory scrutiny of the managerial mistreatment of its workers and the corporation's mismanagement of its employees' safety concerns program, a
" chilled atmosphere" remains intact and entrenched.
382 l.
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As a basis for the Petitioners' request for a Department of Justice investiga-tion, the petition states that l
l
[sjince it has been reponed that NU management employees attempted to destroy the bst, l
NRC has a duty to refer this apparent deliberate atteinpt to evade the otherwise lawful exercise of authority by NRC to the Department of Justice for complete invesugation. This alleged attempt to cover up wrong doing by NRC's licensee is a potential obstruction of justice that should be fully and fairly investigated.
On March 11, 1998, the NRC acknowledged receipt of the petition and informed the Petitioners that the petition had been assigned to the Office of Nuclear Reactor Regulation to prepare a response and that action would be taken within a reasonable time regarding the specific concerns raised in the petition.
The Petitioners were also informed that their request for immediate action to revoke the operating license and refer the incident to the Department of Justice was denied because, due to the three Millstone units being shut down, protection of public health and safety did not warrant immediate action. The Petitioners were also informed that the NRC would consider the Licensee's response to the Staff's Itbruary 10, 1998 request for information concerning the incident before the Commission allows restart of any Millstone unit. To this extent, the Petitioners
- request for immediate action was partially granted.
IL DISCUSSION The NRC Staff has completed its evaluation of the Petitioners' requests.
The following discussion is based on information provided by the Licensee and information independently obtained by the NRC Staff. The Petitioners' first two requests are similar in nature and are addressed in Section II.A. The third request is addressed in Section II.B.
A.
Request to Revoke the Operating License for Millstone Units 1,2, and 3 The Petitioners based this request on their assertion of ongoing intimidation and harassment of the workforce by NU management and persistent Licensee defiance of NRC regulations and directives to create a " questioning attitude" for its workers to challenge management on nuclear safety issues without fear of harassment, intimidation, or reprisals. As support for their assertions, the Petitioners referred to the wording in a document prepared by NU's Nuclear Oversight Department titled " Focus 98: Director /VP View of Nuclear Over-sight (1/11/98)." The document listed seven " Positive Qualities of Nuclear Oversight" and seven " Areas Needing Improvement." Within " Areas Needing 383 l
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improvement" was a category entitled " Current SCWE [ safety-conscious work environment) and issues." One of the six areas listed in this category was "in-ability to ' isolate' cynics from group culture."
On January 29, 1998, the U.S. Nuclear Regulatory Commission (NRC) became aware of the Nuclear Oversight Department's Focus 98 document.
The NRC was concerned that language contained in the document was not consistent with encouraging a questioning attitude necessary for fostering a safety-conscious work environment. As a result, the NRC required the Licensee, in a February 10,1998 letter, to describe in writing, under oath or affirmation (1) the circumstances surrounding the creation and distribution of the document and whether the events constitute a violation of 10 C.F.R. 9 50.7; (2) how l
this document came into existence, in light of NU's efforts to create a safety-conscious work environment, and NU's assessment of the document's effect on 1
the willingnes.s of employees to raise concerns with the company; and (3) any remedial actions needed to prevent recurrence.
NU responded to the NRC's request in March 12. March 26 and April l
24, 1998 letters. NU's March 12, 1998 response included reference to an NU-directed investigation into the circumstances surrounding the creation and distribution of the Focus 98 document. The March 12, 1998 response also contained a redacted copy of a survey conducted in February 1998 by consultants Nilsson and Associates to determine whether the events that the Petitioners complained about negatively impacted the Millstone workforce and had created any reluctance to raise safety issues at the Millstone facility. He investigation report was transmitted to the NRC by the March 26, 1998 letter. The April 24,1998 letter provided additional information regarding the collection of the Ihcus 98 document. In its submittals, NU described two Nuclear Oversight Department meetings relevant to the development of the Ibcus 98 document, its
. use, and its distribution.
He first meeting, was held on January 11, 1998, and involved the Vice President-Nuclear Oversight, his three Directors, the Executive Assistant to the
{
Vice President, and a consultant to the Vice President. The meeting was held to j
prepare for an upcoming Nuclear Oversight management team-building session and explore the strengths and weaknesses of the Nuclear Oversight organization for discussion at that meeting. Each of the six participants brought to the I
meeting approximately three strengths and three weaknesses that each considered applicable to Nuclear Oversight, and it was from these inputs that the Focus 98 i
document list of " Positive Qualities of Nuclear Oversight" and " Areas Needing Improvement" was developed. The inputs from the meeting participants were recorded and grouped, and the Licensce's consultant used this information to prepare the one-page Focus 98 document. Prior to the January 21,1998 team-l building session, the Focus 98 document had been distributed to the January l
11,1998 meeting participants for review and had generated no comments. NU 384 l
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concluded from its investigation, including interviews with each of the meeting participants, that the participants did not intend for the wording to convey the notion that Nuclear Oversigitt managemeat should seek to isolate individuals I
who have raised concerns in the past, nor did rnanagement intend to send the I
signal that it views people who raise concerns as " cynics" or bad influences on the organization. NU concluded that the phrases in the document " isolation of ' cynics,'" "too much negative energy (personnel issues)," and " pockets of negativism" were poorly chosen words that were intended to convey the belief that the Nuclear Oversight organization recognizes that there are people who have ill feelings toward NU and who are seeking to impose their views on others who may disagree, and that this imposition was affecting the organization. NU pointed out in its submittal that the document was intended to generate discussion and did not represent policy or direction of Nuclear Oversight management.
The second meeting was held on January 21, 1998, and involved Nuclear j
Oversight management ranging from first-line supervisors to the Vice President-Nuclear Oversight. The purpose of the meeting was Nuclear Oversight team building and one topic on the agenda was a discussion of the organization's strengths and weaknesses. The Focus 98 document was distributed when the organization's strengths and weaknesses were to be discussed. NU states that soon after the Focus 98 document was distributed, several managers / supervisors objected to the included phrase " inability to ' isolate' cynics from group culture."
NU further states that the Vice President and Directors were initially surprised by the reaction, and ultimately agreed that the words had been poorly chosen and were not reflective of management's position.
On the basis of its investigation, NU concluded that the circumstances of the creation of the ibcus 98 document indicated that no one in management intended to encourage any form of discrimination against anyone engaging in protected activity. NU also responded that no action took place because of the document's existence and, thus, no person who had engaged in protected activity suffered any adverse employment action.
He NRC Staff reviewed NU's responses to the NRC's Ibbruary 10, 1998 letter, including the investigation report, and separately interviewed eight people involved in the preparation, use, and distribution of the Focus 98 document. The Staff determined that the Ibcus 98 document had been developed as material for establishing talking points for a then-upcoming January 21.1998 management team-building session. The Staff also determined that points listed in the Ibcus 98 document under " Areas Needing Improvement" were intended by those participating in the January 11,1998 meeting to convey potential organizational weaknesses as points for discussion, and not to represent current or future management policy. He Staff also found that the Focus 98 document had been developed informally, with no formal review and approval process, for use as a handout at an upcoming Nuclear Oversight Department team-building session.
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The NRC Staff's reviews, including interviews with NU staff involved in the incident, confirmed that the general purpose of the Nuclear Oversight management team meeting on January 21, 1998, was to improve Nuclear Oversight organizational interactions. Furthermore, the NRC Staff found that the Focus 98 document was intended to facilitate the discussion of one of many topic areas to be covered at the all-day meeting. The NRC Staff's inquiries confirmed that Nuclear Oversight management was surprised by the immediate reaction and concern of the January 21, 1998 meeting participants regarding certain language in the Focus 98 document, and that following a discussion of the wording, management recognized the unintended implication of the words. After reviewing the available information, the NRC Staff concludes that the wording at issue used in the focus 98 document was no more than poorly selected terminology intended to convey a perceived Nuclear Oversight organizational weakness.
In its March 12, 1998 response, NU stated that once it became apparent that nonsupervisory employees in the Nuclear Oversight Department, who had not attended either the January 11 or January 21, 1998 meetings, knew about the troubling language in the Focus 98 document, NU took several actions to mitigate and assess the potential consequences to ensure that the release of the Focus 98 document and surrounding circumstances did not cause a chilling effect on the organization. On January 29,1998, the Vice President-Nuclear Oversight held an all-hands meeting with members of his organization at which he apologized for the language in the document and assured the organization that he and the Directors were not trying to discourage anyone from voicing concerns. Hat same day, the President and Chief Executive Officer of Millstone and the Vice President-Nuclear Oversight met with the Millstone leadership team and described the circumstances surrounding the document. On January 30,1998, NU issued a site wide communication discussing the two meetings in detail. NU also assessed the effect of the document on the workforce through investigations and surveys. NU directed the consulting firm Nilsson and Associates to conduct an in-depth assessment of the document's effect on j
Nuclear Oversight Department employees and on employees who interact with
]
the Nuclear Oversight Department. He assessment found that none of the fifty-six people interviewed indicated that the document has made them reluctant to raise concerns.
The Petitioners also refer generally, as a basis for their regnest, to ongoing NU intimidation and harassment of its workforce and persistent Licensee defiance of NRC regulations and directives to create a safety-conscious work environment.
NU performance in these areas has been extensively assessed. An NRC Order issued on October 24, 1996, required NU to take specific actions to resolve problems in its processes for handling employee safety concerns at the Millstone Station. As required by the Order, NU developed and implemented a 386
i comprehensive plan for reviewing and dispositioning safety issues raised by its employees, and for ensuring that employees who raise safety concerns can raise them without fear of retaliation. NU's plan included elements to (1) improve the operation of its Employee Concerns Program organization; (2) enhance management and employee training related to establishing and maintaining a l
safety-conscious work environment;(3) form an Employee Concerns Oversight Panel; and (4) identify and respond to organizational safety-conscious work environment challenges. NU began implementing the plan in Ibbruary 1997, and substantially cornpleted implementation by January 1998. As required by the Order, NU also submitted for NRC approval a proposed independent third-party oversight program organization to oversee implementation of its comprehensive plan. Little Harbor Consultants Inc. (LHC) was approved by the NRC as the third-party oversight organization and has been performing that function since April 1997.
LHC's assessments of NU's programs to improve the safety-conscious work environment at Millstone Station have noted significant improvements in the past year. Based on information gained from interviews with NU staff, program reviews, and assessment of Licensee responses to emerging personnel issues, LHC concluded at an April 7,1998 meeting with NRC and NU that programs have improved and are at an acceptable level. As reported in an LHC quarterly report for the first 3 months of 1998, transmitted to the NRC on April 22,
)
1998, LHC's interviews with 298 NU employees, conducted in Ibbruary 1998, j
showed an improved work environment. LHC concluded from the results of j
these interviews that at Millstone improvements have been made regarding the I
willingness of the workforce to raise concerns, the confidence of the workforce i
that safety concerns will be handled properly, the existence of a questioning attitude, and the lack of any chilling effect.
The NRC has monitored and assessed LHC's oversight activities and inde-pendently assessed NU's actions to upgrade its Employee Concerns Program and improve the safety-conscious work environment at the Millstone Station. The NRC's April 21,1998 letter to John Beck, President, LHC, documents the NRC Staff's evaluation of LHC's oversight of NU's programs for handling employee concerns. The Staff found that LHC's oversight activities have been thorough and complete and that LHC has effectively carried out its oversight activities.
The NRC's April 20,1998 letter to NU forwarded the results of the NRC Staff's evaluation of the Employee Concerns Program and safety-conscious work en-vironment at the Millstone Station. He NRC Staff's assessment of these NU programs found that they were improved and functioning effectively.
Based on the above, the Petitioners' request that the NRC revoke Millstone's operating licenses for workforce intimidation and actions to prevent the estab-lishment of a " questioning attitude" with regard to employees voicing safety concerns is denied.
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11.
Request for Imestigation of NU Attempt to Destroy Focus 98 Document The Petitioners also request that the NRC refer the Focus 98 document j
and NU's attempt to destroy the document to the Department of Justice for I
investigation of a potential coverup. The Petitioners base this request on reports I
that NU management attempted to destroy the document. The Petitioners consider the NRC to have a duty to refer this apparently deliberate attempt to evade the otherwise lawful exercise of authority by the NRC to the Department of Justice for a complete investigation.
l In its March 12, 1998 letter to the NRC, NU states that participants at I
the January 21, 1998 management team meeting agreed that the words in the document were poorly chosen and, at the suggestion of a consultant who was facilitating the meeting, the participants agreed that the Focus 98 document should not be distributed further because of the deficient wording. NU states I
that most meeting participants dropped off their copy of the document with the consultant when the meeting was over at the end of the day, and others left it on i
tables in the room before they left. NU stated that no one attempted to ensure
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that all the Focus 98 documents were returned, counted the returned documents j
to determine if some had not been turned in, or ordered the participants to turn
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in the documents.
l De NRC Staff reviewed NU's responses to the NRC's Ibbruary 10, 1998 l
letter, including NU's investigation report, and conducted separate interviews of individuals involved with the distribution and collection of the Focus 98 document. Information from interviews conducted by the Staff confirmed that meeting participants generally concluded that certain wording in the Focus 98 document was inappropriate and susceptible to misinterpretation. Also, the Staff's information was consistent with NU's report that there was general agreement by meeting participants to leave the document at the meeting. The Staff concludes that NU's actions to address the Focus 98 document were not inappropriate. Therefore, the Petitioners' request to refer the Focus 98 document and its recall and destruction to the Department of Justice is denied.
)
Ill. CONCLUSION The NRC Staff has determined, for the reasons provided in the above discussion, that the incident involving preparation and distribution of the Ibcus 98 document does not represent action by NU to discriminate against persons in the Nuclear Oversight Department. Although wording in the document may have l
been inappropriate, the process for preparation of the document, the inforraal l
nature of the document, and the use of the document as discussion points on organizational strengths and weaknesses all indicate that the language in question I
388 1
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in the document involved a matter of poor word choice. The NRC Staff also has determined that efforts to collect the Focus 98 document after its distribution at the end of the January 21, 1998 Nuclear Oversight Department team. building session were not inappropriate, and that NU, given the nature and use of the document, had no regulatory obligation to provide it to the NRC or inform the NRC of its existence. As discussed previously, the NRC was concerned that a document prepared for use at an NU organizational function could contain such inappropriate language, even if unintended. The NRC was further concerned that the document could have a " chilling effect" on the NU workforce. The NRC's Ibbruary 10,1998 letter to NU required NU to respond to these NRC l
concerns. Based on the NRC Staff's review of NU's response and the NRC's own independent assessment of the event, the NRC Staff is satisfied with the actions taken by the Licensee to assess the chilling effect of the incident and to prevent recurrence. Accordingly, the Petitioners
- requests for revocation of NU's license to operate Millstone Units 1,2, and 3 for reasons associated with development of the Focus 98 document are denied. The Petitioners' request that the NRC refer the matter of the document's collection and destruction to the i
Department of Justice for investigation is also denied.
As provided for in 10 C.F.R. 5 2.206(c), a copy of this Director's Decision will be filed with the Secretary of the Commission for the Commission's review.
This Decision will constitute the final action of the Commission 25 days after issuance unless the Commission, on its own motion, institutes review of the Decision in that time.
FOR Tile NUCLEAR REGULATORY COMMISSION Samuel J. Collins, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this ist day of June 1998.
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Cite as 47 NRC 390 (1998) 0D-98-5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Samuel J. Collins, Director in the Matter of Docket Nos. 50-361 50-362 SOUTHERN CALIFORNIA EDISON COMPANY, et al.
(San Onofre Nuclear Generating Station, Units 2 and 3)
June 5,1998 he Director, Office of Nuclear Reactor Regulation, denies a petition filed by Patricia Borchmann requesting that the Nuclear Regulatory Commission (NRC) take immediate action to prevent the San Onofre Nuclear Generating Station (SONGS) Units 2 and 3 from restarting. In support of the requested action the Petitioner asserted a variety of safety issues concerning the SONGS units, including the adequacy of the emergency evacuation plans for SONGS, the size of the SONGS pressurizer, the condition of the SONGS Unit I membrane under the spent fuel pool (SFP) and SFP leak detection monitoring, loss-of-coolant accident dose calculations, the potential for criticality accidents due to the use of high-density storage racks in the SFP, the NRC's failure to comprehensively address issues that have been raised and the withholding of certain data, the production of tritium, and the cumulative effects of low-level radiation.
DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206 I.
INTRODUCTION By petition dated June 23, 1997, and supplemented by letters of June 28, July 11, and October 21,1997, Patricia Borchmann (Petitioner) reouested that the Nuclear Regulatory Commission (Com. mission or NRC) take action with l
i 390 f-u
i regard to San Onofre Nuclear Generating Station (SONGS) Units 2 and 3. The
- Petitioner requested that the NRC take imrnediate action to prevent the SONGS units from restarting until all the issues she raised were resolved. In support of the requested action the Petitioner asserted a variety of safety issues concerning the SONGS units. The issues raised included those concerning the emergency evacuation plans for SONGS, the size of the SONGS pressurizer, the condition of the SONGS Unit I membrane under the spent fuel pool (SFP) and SFP leak detection monitoring, loss-of. coolant accident dose calculations, the potential for l
criticality accidents due to the use of high-density storage racks in the SFP, the NRC's failure to comprehensively address issues that have been raised and the withholding of certain data, the production of tritium, and the cumulative effects I
of low-level radiation. In its letter dated September 22,1997, acknowledging the petition, the NRC informed the Petitioner that there was insufficient basis to warrant the immediate action requested and that as a result of an evaluation of the issues raised, only two issues would be considered pursuant to 10 C.F.R. 6 2.206
' for preparation of a Director's Decision. The first issue involves whether, when responding to issues regarding SONGS, the NRC has fragmented responses and failed to comprehensively address issues in total and whether issues identified at SONGS when considered as a whole, reveal trends or systemic problems in the operation of the SONGS units. The second issue involves the SONGS analysis of evacuation time in the emergency preparedness plan. 'lhe Petitioner stated that the evacuation time estimates and the traffic capacity analysis for SONGS underestimated the actual number of vehicles that would be on the road and were based on the flawed assumption of only one vehicle per household. Further, the Petitioner was concerned that the analysis did not assume lane closures of major roads, which have been observed during natural events in the past.
My Decision in this matter follows.
II. DISCUSSION t
A.
Assessment of Whether SONGS Issues Considered as a Whole Reveal Trends or Systemic Problems In the Petitioner's June 28 letter, the Petitioner asserted that NRC responses to another individual's concerns reflected a tendency to fragment issues and isolate responses, and that the NRC failed to comprehensively address the " big picture." In the October 21 letter, the Petitioner asserted that the NRC responses to concerns related to a SONGS Unit 1 SFP plastic membrane further reinforced the Petitioner's concerns related to the NRC fragmenting issues. In the NRC's September 22, 1997, and Itbruary 17, 1998 responses to the Petitioner, the NRC indicated that an assessment would be performed to determine if issues considered as a whole reveal trends or systemic problems associated with the 391 I
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safe operation of the SONGS units. The NRC further informed the Petitioner that it would review the handling of the Unit i SFP membrane to determine if issues considered as a whole indicated systemic problems or trends associated with the operation of the SONGS units.
In order to effectively respond to concerns related to SONGS, the Staff has maintained documentation of the issues raised and the NRC responses to these issues. To ensure that NRC responses to SONGS Units I,2, and 3 issues are consistent and that previously raised issues are taken into consideration, the NRC has designated a manager to serve as the NRC point of contact for responding to these issues.
Furthermore, the process for evaluation and determination of the safety signif-icance of issues raised includes reviewing previously identified issues regarding SONGS. The previously identifed concerns and responses are evaluated to de-termine if they are similar, if they have an impact on the issues under review, if they should be included in the evaluation of the issue under review, and if the response to the issue under review changes previous evaluations.
The Staff performed an independent review of the previous SONGS issues together with those noted in the petition. This review determined that there was no indication of trends or systemic problems affecting the safe operation of the SONGS units or affecting the validity of existing conclusions. Moreover, the Staff did not find any evidence that issues had not been fully considered or that relationships with other issues had been ignored. In sum, the Staff has concluded that issues identified regarding the SONGS units have been satisfactorily reviewed and that there is no basis for the Petitioner's assertion.
II. Analysis of the SONGS Traffie Capr. city Analysis Title 10 of the Code of Federal Regulations (C.F.R.), section 50.54(q), states, in part, that "[al licensee authorized to possess and operate a nuclear power reactor shall follow and maintain in effect emergency plans which meet the standards in i 50.47(b) and the requirements in appendix E of this part." Part 50 of 10 C.F.R., Appendix E, 6 IV, " Content of Emergency Plans," states, in part, that "[tlhe nuclear power reactor operating license applicant shall also provide an analysis of the time required to evacuate and for taking other protective actions for various sectors and distances within the plume exposure pathway EPZ
[ emergency planning zone] for transient and permanent populations." Guidance on developing an evacuation time estimate (ETE) study is given in Appendix 4 of NUREG-0654/ FEMA REP-1, Rev. I," Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants." The analysis of the time required to evacuate the transient and permanent population from various areas within the plume exposure pathway EPZ at San Onofre is set forth in Appendix G of the SONGS Emergency Plan.
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The ETEs in the San Onofre Emergency Plan are also reflected in the emergency plans for the offsite jurisdictions located in the plume exposure pathway EPZ for San Onofre, which is about 10 miles in radius.
As indicated in the September 22, 1997 response to the Petitioner, the NRC requires nuclear power plant licensees to study the population distribution relative to the transportation network in the vicinity of a nuclear power plant and to develop ETEs on the basis of the results of the study. However, NRC regulations do not specify any preset minimum evacuation time that must be met in order for a site to be acceptable or for emergency plans to be approved.
The objective of an ETE study is to have Ellis that reasonably reflect the evacuation times for the various sectors and distances surrounding a nuclear power plant site for a number of evacuation scenarios for use by emergency planners and decisionmakers in the emergency planning process. ETEs are used primarily during the planning process to identify potential traffic bottlenecks l
so that effective traffic control and management measures can be developed.
In the event of a serious accident requiring offsite protective actions such as evacuation, plant conditions are the primary indicators used by the NRC and Licensee to determine protective actions rather than offsite dose calculations and estimates of evneuation times.
Guidance on protective actions for severe reactor accidents is given in draft Supplement 3 to NUREG-0654, " Criteria for Protective Action Recommenda-tiws for Severe Accidents," issued in July 1996. This guidance states that in the event of a severe reactor accident involving actual or projected core dam-age with potential for offsite consequences, plant operators should recommend prompt evacuation of the area near the plant. In this case, the decision to evac-uate is based on plant conditions, including the status of the reactor core and the systems intended to protect the core, and not on the amount of time it may take to ewcuate the nearby areas.
He NRC Staff took the Petitioner's concerns into consideration during a review of an updated ETE analysis for San Onofre submitted by the Licensee on July 25,1997, in Revision 7 to the SONGS Emergency Plan. The Ittitioner asserted that the emergency plans for SONGS underestimated the actual number of vehicles projected to be used during an emergency event, resulting in an overestimated assumption about traffic system capacity. He Petitioner stated that the evacuation and traffic capacity analysis for SONGS was based on the flawed assumption that only one vehicle per household would be used during an evacuation following an emergency event at SONGS. The Petitioner indicated that this was not a realistic assumption and that many more vehicles would be used during an emergency evacuation because parents working at separate locations would need more than one vehicle to evacuate with children attending different schools or daycare centers or engaged in other activities.
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Although the use of one vehicle per household is often assumed in ETE studies, the NRC found, based on a review of the ETE study in Revision 7 to the SONGS Emergency Plan (section 3.4 at 12-13), that the San Onofre ETE analysis assumes a higher number of vehicles. Different numbers of vehicles are used in daytime and nighttime scenarios to reflect different conditions. All the scenarios assume more than one vehicle per household. Based on its review, the NRC concludes that the methodology used to generate the number of evacuating vehicles reasonably reflects the number of potentially evacuating vehicles for an emergency at San Onofre.
'Ihe Petitioner asserted that even under worst-case scenario assumptions, such as flooding, the current ETE analysis assumes there would be no lane closures, such as occurred during flooding and mudslides in 1994 in Laguna Beach. On the basis of a review of the ETE analysis in Revision 7 of the SONGS Emergency Pla, the NRC found that the Elli study contains a comprehensive analysis of road closures after earthquakes (Chapter iI at 66-80), and that the road closures in the analysis were very severe and provide a very clear understanding of the sensitivity of the ETE analysis to road closures (section 5.4 at 17). Thus, the NRC concludes that ETEs can be used by emergency planners to aid in decisionmaking for a wide range of adverse conditions, including lane and road closures caused by flooding and mudslides.
I The Petitioner expressed a concern for the need for an updated traffic capacity
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analysis and evacuation time study to evaluate capacity and levels of service on l
Interstate 5 (15) at the Via de la Valle exit at peak hours during summer when j
both Del Mar Fair and Del Mar Race Track are operating. The Via de la Valle interchange is about 30 miles to the south of San Onofre. This is well beyond the influence area of the EPZ' evacuation traffic. Furthermore, areas to the south of San Onofre generally have lighter evacuation traffic since the population in the EPZ is more concentrated to the north Thus, the NRC finds that there is no reason that the ETE needs to consider traffic congestion in the Via de la Valle Interchange area on I-5 as it is well beyond the EPZ and outside the EPZ perimeter traffic control area.
Finally, on January 27,1998, FEMA informed the NRC that on the basis of the results of the full participation exercise conducted at San Onofre on October 28,1997 FEMA found that the offsite radiological emergency response plans and preparedness for the State of California and the jurisdictions specific to 3 Regarding the Petitioner's comment that an evacuation zone hmited to only 10 nules is " sorely inadequate,"
the size of the EPZs for commercial nuclear power plants in the United states is estabhshed by NRC regulanons, and the NRC has consistency found that a plurne exposure EPZ of about 10 miles in radius provides an adequate planning basis for radiological emergency planmng. See NUREG 1251. Vol.1. " Implications of the Accident at Chernobyl foe Safety Regulation of Comniercial Nuclear Power Plmus in the United States * (Apnl 1989), and see rong Island OgMas Ca. (Shoreham Nuclear Power Stauon, Umt I), CL1-8712,26 NRC 383,395 (1987), where the Comnussion ruled that 10 C.F.R.150.47(c)(2) precludes adjusta ents on safety grounds to the size of an EPZ that is "about 10 nules in radin" 394 i
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the San Onofre site can be implemented and provide reasonable assurance that appropriate' measures can be taken off site to protect the health and safety of the public in the event of a radiological emergency at San Onofre.
- III.- CONCLUSION :
>Ihe NRC Staff has conducted a review of the previous SONGS issues -
. together with the issues raised by the Petitioner ' nd determined that there is a
no basis for concluding that the,NRC has fragmented issues and there is no.
indication that issues reveal trends'or systemic problems with the conduct of
. reviews of these concerns or operation of the SONGS units. As a result, I find that the NRC has evaluated the issues appropriately and find no trends'or
. systemic flaws that would invalidate those reviews. '
2 As discussed above, the NRC Staff has evaluated the emergency planning
' concerns raised by the Petitioner and found that the current emergency plans and preparedness at San Onofre adequately address the Petitioner's concerns.- On -
the basis of FEMA's findings on offsite emergency preparedness and the NRC's ~
' findings on the adequacy of onsite emergency preparedness, the NRC continues
- to find that there is reasonable assurance that adequate protective measures can.
and will be taken in the event of a radiological emergency at the SONGS facility.~.
For the reasons discussed above, no basis exists for taking the action requested by ~ the' Petitioner. Accordingly, the Petitioner's request for action pursuant to section 2.206. is denied. A copy of this Decision will be filed with the -
Secretary of the Commission for the Commission to review in accordance with -
.section 2.206 of the Commission's regulations.' As provided by this regulation,
" the Decision will constitute the final action of the Commission 25 days after' issuance, unless the Commission, on its own motion, institutes a review of the
. Decision within that time.
FOR THE NUCLEAR :
REGULATORY COMMISSION Samuel J. Collins, Director Office of Nuclear Reactor Regulation j
I Dated at Rockville, Maryland, 4
4 this 5th day of June 1998.
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Cite as 47 NRC 396 (1998)
DD-98-6 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Samuel J. Collins, Director in the Matter of '
Docket Nos. 50 361 50-362 SOUTHERN CALIFORNIA EDISON COMPANY, et al.
(San Onofre Nuclear Generating Station, Units 2 and 3)
June 11,1998 The Director, Office of Nuclear Reactor Regulation, denies a petition filed by Stephen Dwyer requesting that an investigation be conducted to determine if San Onofre Nuclear Generating Station (SONGS) Unit 2 has experienceri degradation in the steam generator supports similar to that found in Unit 3, that further seismic analysis be performed ~for the SONGS steam generators, and that a retrofitting upgrade of the steam generator supports be accomplished at this time. As basis for the requests, the Petitioner stated that the ability of the SONGS steam generators to withstand a major seismic event is seriously compromised by the degradation observed in the SONGS Unit 3 steam generator internal tube supports during its 1997 refueling outage.
DIRECTOR'S DECISION UNDER 10 C.F.R. Q 2.206
~ I.
INTRODUCTION
' By e-mail dated April 25,1997, Stephen Dwyer (Petitioner) requested that the Nuclear Regulatory Commission (NRC) take action with regard to San Onofre Nuclear Generating Station (SONGS) regarding his concerns about the ability of 396 l-L..
the' SONGS steam generators to withstand a major seismic event.' Specifically,
'the Petitioner stated that the ability of the SONGS steam generators to withstand a major seismic event is seriously compromised by the degradation observed in the SONGS Unit 3 steam generator internal tube supports (eggeiate supports) during its 1997 refueling outage. The Petitioner requested an investigation to determine if Unit 2 has experienced degradation similar to that found in Unit 3 and also stated that further seismic analysis should be perforraed for the SONGS steam generators and that a retrofitting upgrade of the steam generator j
supports could be accomplished at this time. On June 26,1997, the NRC Staff acknowledged receipt of the petition as a request pursuant to section 2.206 of
- Title 10 of the Code of Federal Regulations (10 C.F.R. 5 2.206) and informed i
the Petitioner that there was insufficient evidence to conclude that immediate action was warranted. Notice of the receipt of the petition indicating that a final decision.with respect to the requested action would be forthcoming within a reasonable time was published in the Federal Register on July 3,1997 (62 Fed.
Reg. 36,085).
My Decision in' this matter follows.
. II. DISCUSSION A.
Request for an Investigation to Determine if SONGS Unit 2 lias Experienced Eggerate Degradation Similar to Unli 3.
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~ The SONGS units utilize Combustion Engineering Model 3410 recirculating steam generators. His model of steam generator contains 9,350 Inconel 600 (ASME Material Specification SB-163) U-tubes with a nominal diameter and wall thickness of 0.75 and 0.N8 inch, respectively. Secondary-side tube sup-port structures consist of seven horizontal full eggerate supports, three horizontal partial eggerate supports, and upper bundle supports (i.e., two batwing diagonal supports and seven vertical supports). He materials used for fabrication'of the I
steam generator vessels and internals (including tube supports) are low-alloy and carbon steels, respectively. Figure 1 is a simplified cross-sectional diagram I
Tim Petitioner sought to add this concern to his petition dated September 22,1996, wtwrein he requested the NRC to shut down the SONGS facthey "as soon as possible" pending a complete review of the seisnuc design of the SONGS erats bawd on informadon gathered from the Landers and Northndge earthquakes. By letter dated
- June 26.1997, the NRC advised the Peduoner that his e-mail request dated April 25,1997, concerning the abihty of the SONGS steam generators to withstand a major seismic event. would be treated as a separate 10 C.F.R.
5 2.206 pectioet The Director's Decision (DD-97-23,46 NRC 168) issued by the NRC on September 19.1997, denied the Petitioner's september 22.1996 request to shut down the SONGS umts, providing a detuled discussion of the adequacy of the seismic licensing basis for the SONGS facility.
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of the SONGS steam generators that clearly displays the ten eggerate support levels, and Figure 2 is a three-dimensional representation of the steam generators that gives additional structural detail.
The eggerate supports consist of 1. and 2-inch carbon steel strips interlocked perpendicular to each other as shown in Figure 3. He eggerate supports limit lateral motion of the tubes and, at the same time, allow free flow of fluid around the tubes.
During the 1997 refueling outage for SONGS Unit 3, the Licensee discovered that portions of the eggerate supports had experienced degradation, ranging from m;nor wastage of the eggerate material to severe thinning in localized areas.
The significant degradation observed during this refueling outage was confined mainly to the periphery locations of the eggerate supports. The secondary sides of the steam generators in both units were inspected during their 1997 refueling outages and during their 1998 midcycle outages and, as discussed below, significant degradation was limited to the periphery locations of the I
' SONGS Unit 3 eggerate supports.
He Licensee has extensively researched the cause of the eggerate degradation and has concluded that the degradation was caused by a form of flow-accelerated corrosion (FAC), a general term describing processes that use assistance from fluid flow to remove the protective oxide layer from base material. Removal of
'the protective oxide layer exposes the base material to the fluid environment, allowing further material removal through corrosion and/or erosion processes.
l The carbon steel eggerate material utilized in the SONGS steam generators can j
be susceptible to FAC in the presence of sufficiently high fluid velocities.
He Licensee concluded that the FAC occurred during recent operation of Unit 3 primarily as a result of steam generator secondary-side increased fluid velocities caused by the buildup of deposits on the steam generator tubes. This buildup of deposits on the tubes significantly reduced the available tiow area
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within the tube bundle, causing flow diversion to the periphery of the tube j
l bundle. The flow diversion to the periphery was also affected by the increased steam quality of the fluid within the tube bundle. The buildup of deposits on the tubes changed the heat transfer characteristics of the tubes, causing the steam quality to increase in the central region of the steam generators. This resulted in an increase of the flow resistance in the central portions of the steam generator, forcing more flow to the peripheral regions, with resulting higher velocities.
The resulting large velocity gradients at the periphery initiated vortices which further elevated local velocities that were capable of dislodging the protective oxide layer of the eggerate material and initiating erosive FAC.
He chemical cleaning of the SONGS Units 2 and 3 steam generators during the 1997 refueling outages removed the deposit buildup and restored fluid flow to their original design values (i.e., nominal conditions). The Licensee stated
- in its October 17, 1997 letter that with the flow area restored to nominal 399 l
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conditions, the high fluid velocities that lead to FAC would no longer exist, thus stabilizing eggerate support degradation. %e Licensee has also made changes to the chemistry control program for the secondary system at SONGS Units 2 and 3 to reduce the feedwater iron transport. %is is expected to prevent the level of deposit buildup observed in the steam generators before chemical cleaning was done in 1997. The Staff concurs with the Licensee's evaluation that FAC was caused by deposit buildup on the steam generator tubes and that removal of the deposits should restore the steam generator secondary fluid flow to within nominal design values, thereby eliminating continued significant eggerate degradation. To confirm that FAC has been stopped by the chemical cleaning of the steam generators, and to ensure that no significant degradation of the eggerate support structures goes undetected, the Licensee has committed to conduct periodic inspections of the secondary side of the steam generators in l
' both units during future outages. The Licensee will conduct periodic inspections
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of the secondary side of the steam generators to check the level of deposit i
buildup on the tubes and to verify that future degradation of the eggerates, if any, remains within the assumptions used in the analysis to demonstrate continued operability of the steam generators (discussed later in this Decision).
2.
Description of the Eggerate inspections The SONGS Licensee inspected the steam generator secondary-side support structures, which include the eggerate supports, in both SONGS units during j
their 1997 refueling outages and during their 1998 midcycle outages. The results l
of these inspections are contained in the Licensee's letters dated May 16,1997, and June 5,1997 (SONGS Unit 2 and Unit 3 refueling outage inspections results, respectively), and letters dated March 10, 1998, and April 15,1998 (SONGS Unit 2 and Unit 31998 midcycle outages, respectively).
He objective of the inspections for both units was to provide video documen-tation of all areas in which indications of support-bar degradation was suspected and to verify that other areas did not exhibit these same characteristics. The extent and results of these video inspections are summarized below.
He inspection of the secondary side of each steam generator was divided into six areas: (1) general inspection, (2) inner tube bundle, (3) batwings and vertical straps, (4) eggerate periphery, (5) eggerate interior (blowdown lane),
and (6) stay cylinder. Each of these areas was inspected to the extent necessary to understand, with a high degree of confidence, the amount of degradation present. The majority of these areas did not exhibit any significant degradation and therefore the design function of the support structures was not adversely impacted.
The general inspections were prformed in the steam generators from the top of the moisture separator can deck and included the general area, U-bend, 402 i
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and annulus regions. The areas inspected includ-d I-beams,1-beam-to-shroud attachments, drains, vertical supports, batwings and the batwing hoop. and baffle antirotational keys. These inspections identified no significant degradation in either unit in these areas.
The inner tube bundle consists of that area between the outer or peripheral tubes to the inner tubes of the stay cylinder. The inner bundle inspections were performed in both steam generators from the can deck. A small camera was dropped down between the tubes in a number of different locations to assess the general material condition of the eggerates away from the periphery area.
For the steam generators in both units, the inspections indicated that the inner bundle did not exhibit the degraded characteristics of the periphery,eggerates found in the Unit 3 steam generators during the 1997 refueling outage.
No indications of thinning were detected during the inspections of the interior i
batwing and vertical strips on either unit.
Comprehensive peripheral eggerate inspections were performed in both steam generators in the two units from the can deck. This included the lattice bars and I
tube-to-lattice bar interfaces at each eggerate. He area near the periphery of l
the eggerate supports in the Unit 3 steam generators experienced the maximum thinning, as shown in Figure 3 and discussed above. As stated earlier, minor l
isolated instances of thinning were observed in the peripheral eggerate locations in the SONGS Unit 2 steam generators, but overall the thinning was considerably less than that observed on SONGS Unit 3.
Inspections of the blowdown-lane eggerates were performed in the steam generators through the 6-inch handhole at the secondary face of the tubesheet from the handhole to the stay cylinder. His included the lattice bars and the eggerate rings. He inspection scope was to sample the eggerate area nearest the tubes on both the hot-and cold-leg sides of the blowdown lane. Minor amounts of eggerate degradation were found in the steam generators of both units, with the Unit 3 steam generators exhibiting the larger amount of degradation in this area.
Ihr the inspection of the overall condition of the eggerates and ring in the stay cylinder, a support-plate inspection device was used. Little or no degradation was found in this area in either unit.
3.
Summary of SONGS Unit 2 Eggerate inspection He Licensee's initial assessment of the Unit 2 steam generator eggerate supports, conducted after the degradation issue was identified in the SONGS Unit 3 steam generators, was reported in its letter dated May 16,1997. He Licensee concluded that the Unit 2 eggerate supports were in very good to excellent overall condition, based on the limited video examinations of the eggerates performed in support of the chemical cleaning process. Although 403 l
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the Licensee considered operation for the normal period of operation between refueling intervals to be acceptable on the basis of this limited examination, the Licensee conservatively performed a more extensive video examination of the eggerates during a midcycle outage that began on January 24,1998. As reported in its March 10,1998 letter, the Licensee observed minor isolated instances of thinning in the periphery areas of the eggerate supports, but overall the thinning was considerably less than that observed on SONGS Unit 3.
He NRC reviewed the program established by the Licensee to conduct the video examinations of the eggerate supports during the SONGS Unit 2 midcycle outage and reported its findings in Inspection Report 50-361/98-01; 50-362/98-01, dated May 29,1998. His program was similar to the Licensee's program for inspecting the Unit 3 eggerate supports during its midcycle outage. De primary difference between the inspection programs for the two units was that a larger portioa of the Unit 3 eggerate structures was inspected. He Staff concluded in its inspection report that the scope of the SONGS Unit 2 secondary-side visual inspections was satisfactory and the results supportive of the Licensee's conclusion that no steam generator tubes needed to be removed from service due to insufficient support from any secondary-side support structures, which includes the eggerate support structures.
4.
Actions Taken as a Result of Observed Egg: rate Degradation:
Ibilowing the secondary-side inspection ar.tivities conducted during the SONGS Unit 31997 refueling outage and 1998 midcycle outage, the Licensee plugged and stabilized (by insertion of a steel cable inside the subject tube) some Unit 3 steam generator tubes as a precautionary measure due to the degra-dation observed in certain eggerate supnorts. No tubes in the Unit 2 steam generators were removed from service. Once the tube is removed from ser-vice in the above-described manner, mpport from the eggerate structures is no longer needed. The criterion established by the Licensee for removing tubes from service is described in detail 'oelow.
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11.
Concern About the Sels nic Adequacy of the SONGS Steam Generators l
l He Petitioner asserts that the degradation of the steam generator eggerate supports could seriously weaken the supports and make the steam generators vulnerable to seismic events.
In its letter of May 16,1997, the Licensee committed to perform an evaluation of the effect of the degraded eggerates on steam generaten tube integrity in the SONGS Unit 3 suam generators before return to power from the Unit 31997 404 l
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refueling outage. This initial evaluation was provided by the Licensee in its letter of June 5,1997, and included the effects of a postulated design-basis earthquake.
The Licmee submitted the final version of the degraded eggerate support evaluation for SONGS Unit 3 on October 17, 1997. As stated in the previous section, the amount of eggerate support degradation observed in SONGS Unit 2 was considerably less than that observed in Unit 3. Therefore, the Staff concludes that demonstrating the ability of the SONGS Unit 3 steam generators to withstand a design-basis seismic event will demonstrate the adequacy of the Unit 2 steam generators as well.
%e Staff's review of the seismic adequacy of the SONGS Unit 3 steam generators is detailed below.
1.
Methodology and Acceptance Criteria The Petitioner did not specifically request the Staff to evaluate the eggerate supports assuming other design loads concurrent with earthquake loads. How-ever, to provide additional conservatism, and to conform with General Design Criterion (GDC) 2 of 10 C.F.R. Part 50, Appendix A, the Licensee, in its Oc-tober 17,1997 letter, evaluated the ability of the eggerate supports to perform their intended safety function, assuming the most limiting combination of load conditions.
GDC 2 requires, in part, that the design bases for structures, systems, and components important to safety reflect appropriate combinations of the effects of normal and accident conditions with the effects of natural phenomena such as earthquakes. He earthquake for which these plant features are designed is defined as the safe-shutaown earthquake (SSE).2 The Petitioner's concerns on the adequacy of the seismic design of the SONGS units, based on information i
gathered from the Landers and Northridge earthquakes, were addressed previ-ously by the Staff in DD-97-23 (see note 1).
Appendix A of Standard Review Plan)(SRP) 9 3.9.3,"[American Society of Mechanical Engineers] ASME Code Class I,2. and 3 Components, Component Supports, and Core Support Structures," delineates acceptable design limits and appropriate combinations of loadings associated with normal operation, postu-lated accidents, and specified seismic events for the design of Seismic Category I fluid system components (i.e., water-and steam-containing components). This 2 The sSE is denned. In part, as "that earthquake which is based upon an evaluation of the maxinmm earthquake potennal considering the regioned and local geology and seismology and specinc chsactenstics of local subsurface material. It is that earthquake which pruduces the mammum vibratory ground motion for which certan structures.
systems. and components are designed to rensun functional." See 10 C F R. Purt 100, Appendia A. I m(c).
3 The Standard Review Plan (SRP) is published as NUREG4800, and is used as guidance for the Ofhee of Nuclear Reactor Regulation staff responsible for the review of applications to construct and operate nucles power plants.
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appendix also provides that necessary plant features important to safety meet the
- appropriate design limits specified in section III of the ASME Boiler and Pres-sure Vessel Code (ASME Code) when the component is subjected to concurrent loadings associated with the normal plant condition, the vibratory motion-of the SSE, and the dynamic system loadings associated with the faulted plant con-
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dition hutted plant conditions are those operating conditions associated with postulated events of extremely low probability, such as loss-of-coolant accidents l
(LOCAs) or main steamline break (MSLB) accidents. The design limits and
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loading combinations utilized by the Licensee in the October 17,1997 evalua.
tion of individual steam generator tubes are the same design limits and loading combinations that were reviewed and approved by the Staff at the time of plant l
licensing. This evaluation is contained in Chapter 3 of NUREG-0712.4 There-I fore, the Staff finds acceptable the Licensee's use of these design limits and
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l loading combinations in evaluating the impact of the degraded eggerate sup-l-
ports on individual steam generator tubes.
The evaluation of the potential for lateral movement of the entire steam l
' generator tube bundle (whole bundle evaluation) was not explicitly addressed i
during the Staff's review performed at the time of plant licensing. Also, the.
ASME Code does 'not provide specific design limits-for the whole bundle.
evaluation. The whole bundle evaluation contained in the October 17, 1997 letter was performed by the Licensee to. verify that the structural integrity of the eggerate is maintained to ensure that it does not shift in a way that l
could damage the tubes. This is not an ASME Code evaluation; however,
. ASME Code techniques were used by the Licensee to generate and assess the l
results. The Staff has' reviewed the specific ASME Code techniques utilized
' by the Licensee, and concludes that they provide conservative results, and are, therefore, acceptable for the whole bundle evaluation.
Furthermore, the loading combinations used in the Licensee's whole bundle evaluation are the same loading combinations used in the individual tube evaluations, and are the same loading combinations that were reviewed and approved at the time of plant licensing.
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Degraded Eggerate Support Assumptions l:
l The Staff reviewed the assumptions used in the Licensee's October 17,1997.
evaluation regarding the amount of eggerate support judged to be available, and verified that these assumptions were supported by the results of the L.icensee's i
inspections.
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'NUREG4712. " Safety Evaluation Report related to the operation of San Onofre Nuclear Generaung Suion, Units 2 and 3," Chapter 3, Rbruary 1981.
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Ihr the individual steam generator tube analysis, the Licensee calculated the maximum loads that could occur, assuming that adequate support was not available at two consecutive eggerate levels (see Figure 1). The Staff finds this assumption conservative and acceptable because the Licensee has removed from service all tubes where two consecutive eggerate levels were found degraded to the point where adequate support could not be ensured.
For the whole bundle analysis, the Licensee used the inspection results to sort the eggerates into categories based on a conservative estimate of the remaining thickness of the eggerate lattice bars. The Staff reviewed the sorting criteria used by the Licensee, and concluded that the material strength assumptions established by the Licensee for the degraded eggcrate supports are conservative, and appropriate for evaluating the ability of the eggerate structures to perform their intended function.
The visual inspections performed by the Licensee during the 1998 midcycle outages for both units confirmed the appropriateness of these assumptions pertaining to the amount of eggerate support degradation used in the L.icensee's evaluation.
3.
Emluation Results Using the above-described methodology and assumptions, the Licensee de-termined that the peak calculated loads on the individual steam generator tubes would remain below the allowable design limits approved by NUREG-0712 dur-ing and following a postulated design-basis canhquake.
The results of the Licensee's whole bundle evaluation confirmed that the eggerate structure will provide sufficient support to ensure that the tube bundle will not impact the eggerate support ring during and following a postulated design-baris earthquake.
The Staff finds these results acceptable, and as detailed above, also finds acceptable the methodology and assumptions used by the Licensee in the generation of these results. The Staff concludes, therefore, that the amount of degradation observed in the eggerate supports will not prevent the SONGS Units 2 and 3 steam generators from performing their intended safety functions 8 4.
Confirmatory Actions The Licensee's 1998 midcycle inspection of the SONGS Unit 3 steam generators confirmed that the condition of the Unit 3 eggerate internal supports
$ Since the arnount of support degradation in songs Unit 2 was observed to be cunniderably less than that observed in Unit A the NRC Starr concludes that the f.icensee's october 17.1997 evaluation or songs Unit 3 stearn generator structural integrity and the staff's review of that evaluation support the adequacy of soNos Unit 2 steam generators to withstant a design-basis event and perturrn their imended safety function.
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remained within the analytical assumptions used in the Licensee's evaluation contained in its October 17, 1997 letter and also supported the Licensee's contention that the phenomenon (FAC) that led to the degradation of the eggerates had been arrested by the chemical cleaning of the steam generators.
Furthermore, the Licensee has committed in its letters to the NRC (April 15,1998, for Unit 2 and October 17, 1997, for Unit 3) to inspect the eggerate supports during future outages to ensure that their condition remains within the analytical assumptions used in the Licensee's evaluation. These inspections will continue to be conducted until it is established that further inspections are not required.
In summary, on the basis of the video inspection results for the steam generators in both units, and the Staff's review of the detailed evaluations performed by the Licensee, the Staff concludes that the SONGS steam generators are fully capabic of performing their intended safety function during and following a postulated SSE, and no retrofitting upgrade of the steam generators is required.
III. CONCl,USION As explained above, there is no evidence of significant degradation of the SONGS Unit 2 steam generator eggerate supports, and the extensive analyses demonstrate the ability of the steam generators in both SONGS units to perform f
their intended safety function. Accordingly, the Petitioner's requested action, 1
pursuant to section 2.206, is denied.
A copy of this Decision will be filed with the Secretary of the Commission for the Commission to review in accordance with 10 C.F.R. 9 2.206(c) of the Commission's regulations. As provided by this regulation, the Decision will constitute the final action of the Commission 25 days after issuance, unless the Commission, on its own motion, institutes a review of the Decision within that time.
FOR THE NUCLEAR REGULATORY COMMISSION Samuel J. Collins Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, l
this lith day of June 1998.
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