ML20246A027

Nuclear Regulatory Commission Issuances for March 1989. Pages 211-343

ML20246A027
Person / Time
Issue date:	05/31/1989
From:	NRC OFFICE OF ADMINISTRATION (ADM)
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References
NUREG-0750, NUREG-0750-V29-N03, NUREG-750, NUREG-750-V29-N3, NUDOCS 8907060114
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i Errors in this publication may be reported to the Division of Freedom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20666 (301 /492-8925) ,

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l NUREG-0750 Vol. 29, No. 3 Pages 211-343 NUCLEAR REGULATORY COMMISSION ISSUANCES March 1989 This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Appeal Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judge (ALJ), the Directors' Decisions (DD), and the Denials of Petitions for Rulemaking (DPRM).

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

U.S. NUCLEAR REGULATORY CO e Prepared by the Division of Freedom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555 (301 /492-8925) a - - - _ _ _ - _ _ _ _ - - - _ _ - - _ _ _ . - _ _ _ _ _ _ _ - - - - - . _ _ . _ . - _ - - _ - _ .

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COMMISSIONERS Lando W. Zech, Jr., Chairman Thomas M. Roberts ,

Kenneth M. Carr i Kenneth C. Rogers James R. Curtiss i

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1 CONTENTS Issuances of the Nuclear Regulatory Commission LONG ISLAND LIGilTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

Dockets 50-322-OL-3,50.322-OL-5 DECISION, CLI-89-2, March 3,1989 . . . . . . . . . . . . . . . . . . . . . . 211 3 PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.

(Seabrook Station, Units 1 and 2)

Dockets 50-443-OL-1,50-444-OL-1 (Onsite Emergency Planning and Safety Issues)

MEMORANDUM AND ORDER, CLI-89-3, March 6,1989 ....... 234 l PUBLIC SERVICE COMPANY OF NEW H AMPSHIRE, ci al.

(Seabrook Station, Units 1 and 2)

Dockets 50-443-OL,50-444-OL (Offsite Emergency Planning)

MEMORANDUM AND ORDER, CLI-89-4, March 6,1989 . . . . 243

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Issuances of the Atomic Safety and Licensing Appeal Iloards ALL CIIEMICAL ISOTOPE ENRICHMENT, INC.  ;

(AIChemlE Facility-1 CPDF) (AlChemIE Facility-2, Oliver Springs)

Dockets 50-603-CP/OL,50-604-CP DECISION, ALAB-913, March 20,1989 . . . . . . . . . . . . . . . . . . . . 267 LONG ISLAND LIGHTING COMPANY i (Shoreham Nuclear Power Station, Unit 1)

Docket 50-322-OL-3 (Emergency Planning)

MEMORANDUM AND ORDER, ALAB-911, March 13,1989 .. 247 LONG ISLAND LIGHTING COMPANY (Shorcham Nuclear Power Station, Unit 1)

Docket 50-322-OL-5 (EP Exercise)

ORDER, ALAB-912, March 13,1989 . ... ...... .. .. .. 265 9 l

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Issuances of the Atomic Safety and Licensing floards ADVANCED MEDICAL SYSTEMS, INC.

(One Factory Row, Geneva, Ohio 44041)

Docket 30-16055-SP (ASLBP No. 87-545-01-SP)(Suspension Order)

MEMORANDUM AND ORDER, LBP-89-11, March 21,1989 . . . . . 306 PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.

(Seabrook Station, Units 1 and 2)

Dockets 50-443-OL-1,50-444 OL 1 (ASLBP No. 88-858-01-OL)

(Onsite Emergency Planning and Safety Issues)

MEMORANDUM AND ORDER, LBP-89-9, March 3,1989 . . . . . . 271 PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.

(Scabrook Station, Units 1 and 2)

Dockets 50-443-OL,53 444-OL (ASLBP No. 82-471-02-OL)

(Offsite Emergency Planning)

MEMORANDUM AND ORDER, LBP-89-10, March 8,1989 . . . . 297 Issuances of the Administrative Law Judges II&G INSPECTION COMPANY, INC.

Docket 30-29319 (ASLBP No. 88-575-01-CivP) (EA 87-145)

(Material License No. 42-26838-01)

ORDER, ALJ-89-1, January 9,1989 .. ....... .. . . . . . . . 319 PRECISION LOGGINO & PERFORATING COMPANY Docket 30-19498 (ASLBP No. 88-578-02-CivP) (EA-87-184)

(Materials License No. 35-17186-02)

ORDER, ALJ-89 2, March 15,1989 . ... ..... ... . . ....

322 Issuances of Directors' Decisions i GENERAL ELECTRIC COMPANY (Wilmington, North Carolina Facility)

Docket 701113 DIRECTOR'S DECISION UNDER 10 C.F.R. I2.206, DD-89-1, March 13,1989 ... .. ... ,, .. . ... . 325 1

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1 SACRAMENTO MUNICIPAL UTILITY DISTRICT (Rancho Seco Nuclear Generating Station)

Docket 50 312 DIRECTOR'S DECISION UNDER 10 C.F.R.12.206,  !

DD-89-2, March 21,1989 . . . . . ........ . . .. .. . . . . . . 337 4 1

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Cite as 29 NRC 211 t1989) CLI-89 2 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS: 4 Lando W. Zech, Jr. Chairman Thomas M. Roberts Kenneth M. Carr Kenneth C. Rogers James R. Curtiss in the Matter of Docket Nos. 50-322-OL 3 50-322-OL 5 LONG ISLAND LIGHTING COMPANY - (Shoreham Nuclear Power Station, ' March 3,1989 s Unit 1) On directed certification from the Appeal Board on the question of whether the conduct of the Intervenor Governments in the Shoreham proceeding warrants '

   'I their dismissal from the proceeding, or some other sanction, the Commission concludes that the Interveners' willful defiance of Licensing Board orders caused
     ..'                                        great harm and delay to Applicant's efforts to demonstrate the sufficiency of its                                     ,

V f emergency plan and to the integrity of the Commission's adjudicatory process. . Accordingly, in view of all of the circumstances, the Commission dismisses Suffolk County, the State of New York, and the Towt. of Southampton as parties g from all pending proceedings. J n s NRC: POI. ICY STATEMENT ON CONDUCT OF LICENSING PROCEEDINGS (SANCTIONS) In its Statement of Policy on Conduct of Licensing Proceedings, CLI 81-8, 13 NRC 452 (1981), the Commission established a graduated scale of sanctions ,, ' including, in severe cases of a participant's failure to meet its obligations, 's . , , ,'q , . , f j',:p

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NRC: POLICY STATEMENT ON CONDUCT OF LICENSING PROCEEDINGS (SANCTIONS) In its Statement of Policy on Conduct of Licensing Proceedings, the Com-mission identified the following factors to consider in deciding what sanction to impose: "the relative importance of the unmet obligation, its potential for harm to other parties or the orderly conduct of the proceeding, whether its oc-currence is an isolated incident or a part of a pattern of behavior, the importance of the safety or environmental concerns raised by the party, and all of the cir-cumstances." 13 NRC at 454. . NRC: POLICY STATEMENT ON CONDUCT OF LICENSING PROCEEDINGS (SANCTIONS) The Commission finds that the County's production of a detailed emergency plan dating back to 1983 and its announcement that it would no longer comply with the Board's discovery orders, both events occurring in June 1988, constitute a hearing in which one party controls the information to be disclosed and the l cvidence that may be produced to be so grossly unfair and biased as to amount to hardly any hearing at all. NRC: POLICY STATEMENT ON CONDUCT OF LICENSING PROCEEDINGS (SANCTIONS) . The Governments' obstructionist tactics and refusal to comply with discovery obligations as ordered by the Board were patently unfair to the Applicant , ,, and effectively " stalled the proceeding in its tracks." Commonweahh Edison . Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-678,15 NRC 1400, . 1417 (1982). . [Gldj;j.y,.,f, ,. , NRC: POLICY STATEMENT ON CONDUCT OF LICENSING ' -6 PROCEEDINGS (SANCTIONS) ,

                                                                                                                                                                      '[Q.,('h,,h,h ,s In determining whether sanctions should be imposed against the Intervenor                      (                     ,

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                                                                                                                                                                             .'?,',                        s the Governments have engaged in a pattern of resistance to Board orders and                          ,
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NRC: POLICY STATEMENT ON CONDUCT OF LICENSING PROCEEDINGS (SANCTIONS) Taking into xcount all the circumstances, the Commission fashions a sanction that will, if possible, mitigate the harm caused by the parties' failure to fulfill their obligations and that will bring about improved future compliance not just for this case but for future cases and parties as well. RULES OF PRACTICE: INTERVENTION BY A STATE Even though NRC regulations recognize a distinct role for state and local governments in NRC proceedings, the Commission las always held that all S parties, including interested states and local governments, must strictly adhere to NRC requirements. Gul/ States f>.. Oles Co. (River Bend Station, Units 1 and 2), ALAB-444,6 NRC 760 (1977). DECISION I. INTRODUCTION This matter is before the Commission pursuant to our Order of November 9,1988, directing that the Atomic Safety and Licensing Appeal Board certify to us the appeals of Suffolk County, the State of New York, and the Town of Southampton (" Governments" or " Interveners") from the Atomic Safety and Licensing Board's decision dismissing them from the proceeding, LBP-88-24, 28 NRC 311 (1988). Extensive litigation has already been completed on most of the controverted issues raised on the application for an operating license for the Shoreham facility. Over the years, this litigation has involved several hundred hearing days, testimony from over 200 witnesses, and over 60,000 pages of transcript. All technical health and safety issues have been resolved in favor of the Applicant 1 Long Island Lighting Company ("LILCO") currently holds a low-power license, pursuant to 10 C.F.R. 650.47(d), authorizing operation up to 5% of rated power. Only offsite emergency planning issues remain to be decided.2 , The case that the Commission decides today presents difficult and sensitive issues of law and policy. We are called upon to decide whether the conduct of three Interveners in this proceeding - Suffolk County, the State of New York, I tEP-83 57,18 NRC 445 (1983); IEP-8445,20 NRC 1343 (1984); LDP-85-18,21 NRC 1637 (1985). 2 A number of quesbans concerning the adequacy or emergency planning have beer decided in Illfo's favor as well. tEP 8512,21 F3C 64A (1985). 213 I

1 and the Town of Southampton - warrants the imposition of sanctions, and if so, what sanction is appropriate. The ultimate sanction, dismissal from the proceeding, would mean the termination of the entire Shoreham formal hearing. The imposition of sanctions on a party is never an action to be taken lightly. In the first place, sanctions amount to the public censure of a party's conduct, and before rendering such a judgment on any party, we should be sure that the criticism is deserved. Where the penalty results in ending an adjudicatory , hearing, we must be especially circumspect, for the opportunity for public hearings on nuclear power plant licensing is a central element of the NRC's governing statute, the Atomic Energy Act of 1954. Finally, there is especially good reason not to be precipitous in dismissing a state or local government from our proceedings. Though no one argues that different parties should be held to different standards of conduct, we cannot ignore the fact that where a state or local government is a party, the dismissal question touches upon federal-state relations that should in the ordinary course be marked by mutual cooperation rather than confrontation. But while all these factors suggc.it the imprudence of imposing sanctions , j lightly, an. unwillingness ever to punish misconduct would be worse than imprudent; it would be an abdicadon of responsibilities owed to the parties and the public. Nr on the other side of the scale from the considerations mentioned , above, there are also powerful reasons for levying sanctions when sanctions are deserved. There is, first of all, the obligation to take account of the rights of any party harmed by another party's misconduct. In addition, if misconduct in Commission proceedings is to be deterred, it must be shown to be ultimately counterproductive. Last and perhaps most important, the Commission must ensure that it is not prevented, through a party's misconduct, from performing the task assigned it by Congress, that of making health and safety decisions about nuclear power plants. In the present case, we conclude with regret that the Interveners' conduct in ' this proceeding not only permits the imposition of a heavy sanction but compcis it. Our judgment is based on a careful review of the decision of the Atomic Safety and Licensing Board and the filings of the parties. Oral argument has also helped to illuminate further the issues in dispute. We emphasize that in placing sanctions on the Intervenor Governments, we are not penalizing them for having opposed the Shoreham plant, or for having refused 10 m nerate in developing an emergency plan fcr Shoreham. Our sanctions M et directed at the Interveners' ends, which we assume to have been motivated t>y their view of what would be best for their citizens, but only at the means used to achieve those ends in our proceedings. , As we shall describe below, those means included the willful refusal to obc 3 orders of the Licensing Board in the " realism remand" proceeding, and a serious a i1 il 214 , i b N n

{' I i f failure to meet obhgations to produce witnesses and documents in the discovery process. The latter is no mere procedural trific. Rather, it is the linchpin of the fact-fmding process, for the ability of an adjudicator to arrive at the truth depends on the parties' willingness to produce relevant information and witnesses. When parties refuse to meet that obligation, they cripple the adjudicators' ability to make sound and just decisions. It is worth focusing on the particular issue that brought the proceeding to j an impasse in .fune 1988 and led to the imposition of sanctions. The irnpasse

arose over the Interveners' assertion that the Licensing Board had no legal i authority to question or allow any inquiry into their claim that they would l

never plan for a radiological emergency, but would instead decide ad hoc what to do if an accident occurred. When the Lkensing Board ordered the Interveners to produce witnesses to be deposed as to what they would do in an emergency, the Interveners declared that the Licensing Board had made it impossible for the proceeding to continue. Thus the proceeding came to an end not because Interveners were being forced to prepare an emergency plan or take any other affirmative act, but rather because Interveners insisted that their clairned response to an accident - unlike any other factual issue in the adjudication - was off limits for further inquiry. The purpose of an adjudicatory process should be to find truth, and all parties to a proceeding should be contributing to that process. Of course, parties will disagree as to where the truth lies, The adversary process is premised on sound decisions emerging from the vigorous clash of opposing views of what is correct. But when parties cross the line from vigorous advocacy to willful disobedience of licensing board orders, they disable the fact-finding process and prevent the truth from being ascertained. At that point, it is the duty of an adjudicator to take w hatever action is needed to protect the integrity of the process. We believe, for the reasons that follow, that the point has been reached where dismissal from the proceeding is the only appropriate sanction. II. IMMEDIATE PROCEDURAL BACKGROUND On September 23,1988, the OL-3 Licensing Board in the Shoreham pro-cceding issued its Concluding Initial Decision (CID) on Emergency Planning, LBP-88-24, Supra.3 The Board granted LILCO's motions for summary disposi-3

                                                                        %e Canmission has used several boensms boards to resolve discrete segmenu or the shoreham operstmg licenams proceeding as a case managemeru tool. 48 Fed. Reg. 22.235 (1983); 51 Fed. Reg.37.682 (1986). De oL.3 Board has junsdictum over au mauers related to emersency planrung. except tar maners relatmg to the prelicense emergency escrers requuernent,10 Cf R.150.47(b)(14),10 Cf.R. Part 50, Appaidts E l!VE, which have been assigned to the OL.51.icensmg Board. Ses AIAB.901,28 NRC 302,308 (1988), he ole 3 Board established the subdocket "ol,6" tar ritma or papers related to Utro's request for authonzation to operate at 25% power.

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                                                                                       ~t ion on emergency broadcast systern, bus driver, and hospital evacuation issues.

The Board found Suffolk County. the State of New York, and the Town of Southampton (" Interveners") in default of Beard orders on discovery on the realism issue and dismissed them from the proceeding. l Just prior to the Licensing Board's decision, on September 20,1988, 0:e Appeal Board remanded to the Licensing Board in the OL-5 docket, which had presided over the hearings on the 1986 Shoreham emergency planning exercise, any issues raised in connection with the 1988 exercise at the Shoreham facility. ALAB-901,28 NRC 302 (1988). In an expedited response to an appeal by the Interveners of the Licensing Board's CID, the Appeal Board concluded that the OL-3 Board did not have . the authority to dismiss Interverurs from parts of the proceeding pending l before another Board. Consequently, because issues remained to be resolved ' in the proceeding, no full power license could yet be autherized. ALAB-902, 28 NRC 423 (1988). He correctness of the OL-3 Board's decision on the

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merits, including whether the OL-3 Board's sanction against the Interveners .j was appropriate, remained before the Appeal Board. On November 9,1988, the Commission directed that the Interveners' appeal of their dismissal from the proceeding be cenified to it for decision. He Commission stated that it would decide "whether Governments' conduct was i such as to warrant their dismissal from the entire proceedingd and whether, if dismissal from the entire proceeding is not warranted, what ether sanction, if any, { j is appropriate." Order of the Commission, November 9,,1988 (unpublished), ' at 2. Following the Appeal Board's vacation of the full power license authoriza-tion, LILCO filed a motion before the OL-3 Board for authorization of 25% power operation, ne Board granted LILC,O's motion, not on the merits, but because it was unopposed, as Interveners had been dismissed from proceedings before iL LDP-88-30,28 NRC 644 (1988). The Board also concluded that as the sanction issue was now pending before the Commission, its decision should be referred to the Commission. In ALAB 908, the Appeal Board certified to the Commission, (1) the Board's authorization of the 25% license, (2) the In-tervenors' appeal of that decision and motion for stay of that decision, and (3) the Appeal Board's views on whether under 10 C.F.R. 650.57(c) the Licens-ing Board could authorize the issuance of a 25% license as long as emergency planning contentions were pending before another Board ALAB-908,28 NRC 626 (1988). d

                                                                                          !f the parties are properly dismissed from the enure procexLng. the reznaimng issues win be resolved by the Dtrectar of the omce or Nuclear Reactor Regulsuon like any other uncontested matte prior to bcense assuance.

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In considering the questions before it, the Commission has received volumi-nous briefs f.om all of the parties and has carefully considered the record before the Licensing Board.5 Ill. DETAILED ll ACKGROUND , 1 Suffolk County, the Government most directly affected by the emergency planning for Shoreham, did not oppose licensing of Shoreham and withdrew support for ernergency planning only when the plant was well under construction and LILCO, for better or for worse, had committed itself deeply to the project. Following the decision by Suffolk County to withdraw its support for emergency  ; planning at the Shoreham facility, the Commission considered a utility-only emergency plan. CL1-83-13,17 NRC 741 (1983), After Ll'LCO submitted its plan for NRC consideration, Suffolk County submitted a number of contentions, several of which asserted that LILCO lacked the legal authority to implement certain features of its radiological emergency plan, including the authority to control traffic and to inform the public, in August 1984, LILCO filed a Motion for Summary Disposition on the legal authority contentions, arguing, among another things, that even if LILCO lacked legal authority, the State and the County would respond in a real emergency either by implementing the plan themselves or by deputizing LILCO personnel to implement the plan. The l Licensing Board denied the motion, finding, in part, that even assuming an l emergency response by the State and County, there was no assurance that the response would be other than ad hoc and uncoordinated with LILCO's actions. LBP-85-12,21 NRC 634 (1985), aff'd, ALAB-818,22 NRC 651 (1985). In CLI-86-13,24 NRC 22 (1986), we directed the Licensing Board to evaluate the adequacy of the LlLCO emergency plan assuming that the State and County would exercise their best effofts to respond in the event of an accident and that such response would involve the use of the LILCO plan as the best source for emergency planning information and options since it was superior to no plan at all. With these assumptions the Board was directed to develop a record regarding the adequry of the LILCO plan assuming a best efforts government response. SThe Interveners have argued that by taking revtew or their appeals of the t.icensms Board's decision dismissing them from the proceedmg. the Comnussim has somehow violated the Intervenous' due process nghts. Gwemments' Mouan for Reversal or Comnussian order of November 9.1988, dated November 23,1988. This is a involous argument. De Commission decisim to dunct certacetscam of this maner to it far review is expliett!y pcmunnd by our Rula of Pisctice.10 CIA $1785(d) ne Now.mbei 9 Order created no new issues Itw decisim. %e lmerverors were affonled a heartng on the orJy &sputed factual suuen which form the bans of this dectsim San Tr. 20,9M si seg. (July 11,12,14, and 19,1988) Our decisie sches exclusively on sworn trutunory tefore the t.acmwg hard and matten of reewd in As pmewhng. Mnecover, the Interveners have been given every gipratunuty to present their case through entresive bnefs and ers) argument. See unpubbshed Comnusee Orden. dated December 16.1988 December 22,1984. and January 24.1989 l 217

1 Following the Commission's remand, LILCO filed its second motion for summary disposition of the legal authority contentions. On September 17,1987, the Licensing Board denied LILCO's motion. LBP-87-26,26 NRC 201, 227 (1987). But the Board went on to state that, while Interveners' response was sufficient to defeat the motion,"(w]e expect that in connection with the remand hearing where the Commission requires that it be established what the State and County response would be, Interveners will be fully forthcoming so that the facts will be developed." 26 NRC at 216. On November 3,1987, the realism principle stated in CL1-86-13 was codified, in somcwhat modified form, through amendment of 10 C.F.R. 9 50.47(c)(1). 52 Fed. Reg. 42,078. The rule embodies a presumption that governments will use the utility plan as the best source of guidance to respond to an emergency in the absence of a state or local plan. The presumption may be rebutted by "for example, a good faith and timely proffer of an adequate and feasible state and/or local radiological emergency plan that would in fact be relied upon in a radiological emergency." 10 C.F.R. 6 50.47(c)(1)(iii)(B). This rule was upheld by the U.S. Court of Appeals for the First Circuit after challenge by Suffolk County and others. Massachusetts v. United Sfates,856 F.2d 378 (1st Cir.1988). On December 18,1987, LILCO again moved for summary disposition of the  ; realism contentions on the basis of the assumption embodied in the new rule, 10 C.F.R. 6 50.47(c)(1). The Board again denied summary disposition of the  ; realism contentions because LILCO had not established the adequacy of its plan assuming a best-efforts government response.' But the Board also held that the Interveners' case on the merits must include positive statements of the projected behavior of the governments. "A determination to respond ad hoc would be acceptable only if accompanied by specification of the resources available for such a response, and the actions such a response could entail including the time factors involved." Order at 4. The Board's Order also put the parties on notice that under the regulation it was bound to determine the adequacy of the best-cfforts response by state and local governments and that the parties were equally bound to supply the information necessary to make that determination if they wanted their views to be heard. Id. The Board expanded its rulings in a written opinion issued April 8,1988. LBP-88-9,27 NRC 355 (1988). On March 10, 1988, the Board issued an order establishing the final dates for the discovery period and a hearing schedule for the remaining issues in the proceeding. The discovery period was to end April 15. On March 9, 1988, LILCO had filed interrogatories sccking information about Interveners' testirnony and witnesses. Its Second Set of Interrogatories, filed on March

           ' Confirmatory Mernorandom and order (Ruhng on 111Co's Mouans for summary Daposioon of Contenuons

1. 2. 4. 5. 6. 7. 8. and 10. and lloard ouidance on lasues for 12tgaum). I ebruary 29.1988 (unpablmhed). In the february 29,1988 Order, the 11oerd alri issued guidance on further lingauon of the rubsm contenuona.

218 l l

i l 24, 1988 t ocught information from the Interveners on the nature and adequacy of a County and State response to a Shoreham emergency not involving the LILCO plan. The interrogatories sought copics of all plans and procedures for responding to emergencies, radiological or nonradiological, affecting Suffolk County and plans and procedures that New York State would use in responding to radiological emergencie's at other nuclear facilitics with EPZs within New York State. The State and County responded to the first set ofinterrogatories on March 23, stating that they had not identified any wimesses. On April 5,1988, LILCO noticed depositions for six County employees and five State employees.' In response to interveners' request, the Board twice extended discovery, ordering Interveners to complete depositions by April 29 and to respond to interrogatories. In responses to LILCO's interrogatories, filed on April 20 and 22,1988, j Interveners objected to most of the document and information requests, asserting that plans or resources for nonradiological emergencies or for other nuclear facilities were irrelevant. On April 1,1988, LILCO filed its prima facie case on the legal authority issues. On April 13, Interveners filed an Objection to the Board's February 29 and April 8 Orders and an offer of proof of testimony.' The Interveners objected to the Board's rulings as erroneously interpreting 6 50.47(c)(1) and precluding relevant testimony by the Governments' witnesses. The County's proffered testimony stated, essentially, that they could not lawfully implement or use LILCO's plan or delegate legal authority to LILCO; they would not cooperate with LILCO or use its plan because they have found it unworkable and LILCO incompetent. Moreover, it would be " unproductive to engage in make-believe by pretending how the County would act under the hypothetical circumstances of an accident at Shoreham after the plant were somehow licensed by the NRC." Testimony of P. Halpin at 8. Nor did Mr. Halpin know what resources would be available to respond to a Shoreham emergency. Id. In testimony on behalf of the State of New York, Dr. Axelrod stated that he could not speculate on what resources might be available in the hypothetical situation that Shoreham were licensed. Testimony at 4 LILCO conducted depositions of several panels of State and County rep-resentatives and the two designated witnesses, County Executive Halpin and Dr. Axelrod, Chairman of the New York State Disaster Preparedness Commis-sion, between April 19 and April 29. Interveners terminated the depositions of 7 By 1 citer to cour sel ror t.nfo, dated Apnl 14.1988, and letter to the 12cesing Board, dated April 15,1988 Interveners sought to cancel. 6s unnecessary, all depositions other than those for their two proffered witnesses. Dr. Axelrod and Mr. Halpm. The Caumy 6d not produce the Director of Emergecy Preparedness (Regan) until the 8 July discovery abuse heanns and never &d produce the County lleahh C<rnnussioner (Dr. Hams). ritings already made on the subject of the ru!c. such a motic i would be futile, Gove of February 29 and Apnl 8 ordens m the Raahsm Rcrnand and offer of Proor. April 13,1988, at 12, 219

l L I i Mr. Italpin and Dr. Axelrod after permitting only 2 hours of questioning and engaging in a pattern of objections and interruptions " designed to impede the discovery process."' The depositions of the Assistant to the County Executive (Petrone), County Assistant Police Chief (Roberts), and the State REPG panel (Papile, Czech, and Baranski) were also peremptorily terminated. Deponents were generally unresponsive to questions concerning Interveners' response to a l radiological emergency at Shorcham, were unfamiliar wDh Cou.ity general dis-aster plans with any applicability to Shoreham, or refused to " speculate" about a response to a Shorcham emergency. LILCO filed a motion on May 2d describing Interveners' obstructionist behavior during depositions and requesting either dismissal of the realism contentions or an order to compel discovery. At the prehearing conference on May 10, the Board ordered the depositions of Halpin and Axcirod reopened, characterizing Intervenor counscis' conduct during the depositions "to be almost a deliberate obstruction effort of the discovery process." Tr.19,381. The Board also ruled that all emergency plans in New York State including plans of the State and subsidiary governments such as Suffolk County were relevant to the proceeding. Tr. 19,381-82. On May 26th, the Board issued a bench ruling on Applicant's motion to compel discovery. It ordered depositions continued for witnesses identified by LILCO in its May 2d filing and again ordered responses to LILCO's interrogatories. Tr. 20,432-36. The Board declined to reconsider its previous rulings interpreting the new rule and denied as premature the motions to dismiss the realism contentions on the basis of Interveners' evidentiary default. On May 25,1988, the County produced to LILCO, as part of the discovery ordered by the Board on May 10th, a document that had a dramatic impact on the course of the proceeding. The document, approximately 760 pages long, was  ! entitled the Suffolk County Emergency Opciations Plan ("SCEOP"). Counr.cl for LILCO served the plan on the Board and other parties on May 27th during the hearing on other remand issues. 'the document consisted of a Basic Plan and a series of Annexes which described responsibilities and procedures of various governmental sectors such as police, fire and rescue, and social services in the event of emergencies. After reviewing the materials briefly, the Board indicated that it viewed the sudden appearance of this information very seriously, in light of previous responses by Intervenor representatives during depositions indicating lack of knowledge of plans like this. The Board again ordered Interveners to respond to interrogatories and to arrange depositions requested by LILCO and directed the Interveners to file by June 1 a paper describing the SCEOP and I

                                       ' Mernorandom and order (on Dosrd Ruhng on vanaus Mouons Reisung to Pendmg Reaham !ssues), ha 21, 1988 (unpubbshed), at R. Counsel ob;ccted to shout every slurd goesuon te Mr. Ils;pm; counsel objecuans sprear on 42 or 108 pages of Dr. Atelrod's dep<siuan.

220 i 4

I i why it had not been provided previously. 'n. 20,549-50. After reviewing those filings, on June 3, the Board directed that any discovery, interrogatories, and depositions of persons identified by the Applicant be concluded by June 20th. Tr. 20,835 36, 20,840-41. On June 9,1988, thc Interveners filed a " Notice That the Board lias Precluded i Continuation of the CL1-86-13 Remand." They asserted that the proceeding "cannot continue" because the Board's interpretation of the new rule in its February 29th and April 8th Orders had framed the litigation in such a way as to compel testimony " contrary to their lawful sovereign decisions and has directed wasteful discovery into irrelevant matters " Notice at 1. They stated I that they have lawfully declared that they will not use LILCO's plan (thus, rebutting the presumption of the rule) or interface with LILCO; consequently, "no rationale can justify any inquiry whatsoever , , , into a point of fact that  ! has been categorically ruled out of ti.e realm of possibility." Id. at 5. I At a teleconference on June 10th, previously scheduled to deal with discovery disputes, the Board questioned Interveners on the Notice and confirmed that the Notice meant that the Interveners were not going to comply with Board orders on discovery. Tr. 20,852,20,860-61. The Board stated that it would take action to impose appropriate sanctions against Interveners. 'n, 20,862. But in any event, it was retaining jurisdiction over the discovery 1Aucs surrounding the production of the SCEOP.!' Between July 11 and 19,1988, the Board conducted an inquiry on the production of emergency plans, whether they should have been produced earlier and the circumstances of nonproduction. The Board heard festimony from twelve 3 witnesses. The Board found that the SCEOP had existed in essentially its present form since 1983. While the County maintained that the SCEOP was produced in 19821983, it had no records to establish that it was produced then or at any time prior to 1988 nor witnesses who could remember specifically that it was produced LILCO had detailed discovery records which showed that it received about 160 pages of the SCEOP in several different submittals in 1982-1983. The Board concluded that the SCEOP should have been provided in response to discovery requests in 1982-1983; those sections added or updated after 1983" should have been provided under Interveners' duty to amend prior discovery responses,10 C.F.R. 6 2.740; however, a number of existing sections of the SCEOP were not produced prior to 1988. l'In a teleconference on June 17.1988, the Board conrtrmed that the Board had decided not to pmceed funher with the veahsm contentions. but had not yet determmed the basis a whidi they would be deposed of. Dunrig a telecmrerence m June 24, in response to a request by LilL'o, the Board indicated that it would emsider danussms the Interveners from the proceeding Tr. 20.923. ,

                   "Sas, e g.. hst of pages added or updated after 1983. IACo's Supplement to its June 15 Brier on Dacmery          ]

sanctions in Light of subsequent Developments, July 26,1988, at 26 n.20. j 221

l On September 23, the Licensing Board issued its decision dismissing Inter-venors from the proceeding. The Board concluded that the Interveners' refusal to comply with Board orders was an act of willful disobedience which consti-tuted bad faith,11 found Interveners' position, that the Board's orders coerced actions legally precluded, totally unacceptable. It noted that it had ruled that the realism contentions would not be dismissed due to Interveners' failum to pro-duce some evidence of an emergency plan. Neither its rulings nor the new rule 10 C.F.R. 6 50.47(c)(1) could compel Interveners to develop a particular plan. But the Applicant was entitled to explore through discovery the extent to which Interveners had resources available and would respond in an emergency. Dis-covery became particularly important after the SCEOP was provided in light of , previous uniform interrogatory replies that any State or County response would be speculative. The Board viewed Interveners' actions as the culmination of a pattern of conduct designed to prevent resolution of contentions regarding the adequacy of LILCO's emergency plan. The Interveners created the situation that made the realism contentions important, but then refused to contribute to their resolution. They persistently relied on statements of noncooperation and policy statements that an adequate emergency plan was not possibic in the face of NRC statements and federal case law that the adequacy of emergency planning is NRC's jurisdictional responsibility. In evaluating all the circumstances surrounding Intervenorv actions, in an effort to tailor sanctions to mitigate the harm caused by their failure to comply wit!. discovery obligations, the Board found no mitigating factors in the sequence of events leading up to its decision. No protective orders were sought, no advance warning was provided, and no subsequent offer of compliance was made beyond the unacceptable proffer of the two witnesses.n The Board also concluded that the failure to produce the SCEOP carlier resulted in three LILCO summary disposition motions being decided on an unnecessarily incomplete record. LBP-88-24, supra,28 NRC at 374-75. The Board rejected dismissal of contentions as an adequate sanction both because of the above actions tainting the adjudicatory process itself and because a prior finding of default and dismissal of sanctions did not deter the current conduct." Examining the actions, omissions, and consequences cited, the Board found a " sustained and willful strategy of disobedience and disrespect for the Commissica's adjudicatory processes " 28 NRC at 376. Having created the situation that gave rise to the realism contentions, fair practice on the part of Interveners was of critical importance. And although the disobedience was narrowly and selectively applied, it had a significant impact on the factual inquiry 12 The Board also noted out Interveners refused to permit ducovery by tlLCO on the EBs issue. U lms 1.rland Lighting Ca. (shoreham Nuclear Power stauan, tsnit 1). L.BP-82115.16 NRC 1923,1935 (1982). 222 I ___ _ _ _ _ _ _ _ J

l into the adequacy of the LILCO plan. The Board concluded that the sanction of dismissal was the only appropriate remedy. Judge Shon dissented from the Board's decision on sanctions. lie would have dismissed the legal authority contentions but not the parties from the proceeding. While he found Interveners' June 9 Notice objectionable, and their " steadfast j reluctance" to disclose the SCEOP " clearly untenable after the issuance of CLI-86-13," he was unwilling to conclude that Interveners had acted in bad faith. 28 NRC at 389-90. IV. COMMISSION DECISION A. Commission Policy on Sanctions In our Statement of Policy on Conduct of Licensing Proceedings, CL1-81-8, 13 NRC 452 (1981), we established a graduated scale of sanctions including, in severe cases of a participant's failure to meet its obligations, dismissal from the proceeding. We identified the following factors to consider in deciding what sanction to impose: the relative importance of the unmet obligation. its potential for harm to other parties or the orderly conduct of the proceeding, whether its occurrence is an isolated incident or a part of a pattern of behavior, the importance of the safety or environmental concerns raised by the party, and all of the circurnstances. 13 NRC at 454. Sanctions were to be tailored if possible to mitigate the harm caused by the conduct and to bring about improved future compliance. We also made clear in our Statement of Policy that "[f]airness to all involved in NRC's adjudicatory procedures requires that every participant fulfill the obligations imposed by and in accordance with applicable law and Commission regulations." Id. II. Applications of the Sanctions Policy to Shoreham

l. (

The importance of the Unmet Obligations and the Concerns Raised As should be clear from the background, the discovery sought from Inter-venors went to the very heart of the remaining matters to be decided on Shore-ham. After years of litigation, both before the Commission and in the courts, the critical issues remaining to be resolved for a final decision on LILCO's operating license application boiled down to these: Would the Governments, especially Suffolk County, generally follow the utility plan if Shoreham were to go into operation and an accident were to occur, or would the Governments respond in some manner other than in a completely ad hoc way which had been i 223 i I 1 i I 4

1 I t. I i i dismissed previously as illogical and contrary to the safety of the citizens of Long Island; and, whatever the response anticipated, did the Governments have the resources and knowledge to implement the response in a reasonable fashion? l After numerous filings and extensive argument before the Commission and its adjudicatory boards and the courts, the Interveners finally reached the point last June when simple denials of cooperation and protestations of ignorance about what would happen if an accident were to occur would no longer hinder or delay a decision. Officials in responsible positions were to be put to the test in examination on depositions, and interrogatories had to be answered. At this critical juncture two extraordinary events occurred. First, a detailed county emergency plan dating back to 1983 was produced. More timely i production of this plan would have dramatically altered the proceedmg. Not only would the Governments' protestations of lack of knowledge about how they would in fact respond in the event of an emergency at Shoreham have been severely undercut, but the development and evaluation of LILCO's own utility plan would have been materially assisted. Second, Interveners told the Board that they would no longer comply with its orders but would instead themselves { decide what witnesses and information would be produced. Needless to say, .j a hearing in which one party controls the information to be disclosed and the ]1 evidence that may be produced is so gmssly unfair and biased as to amount to I hardly any hearing at all.

1. Harm to the Other Parties and the Proceeding Obstructionist tactics and refusal to comply with discovery obligations as j i

ordered by the Board on May 26 and June 3,1988, were patently unfair to the Applicant and effectively " stalled the proceeding in its tracks." Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-678,15 NRC 1400,1417 (1982). Our decision in CL1-8613, the statements supporting adoption of the amendments to 6 50.47(c)(1) and several Licensing Board rulings made it clear that one of the critical issues in litigating the realism contentions was what the Governments would do in the event of a radiological emergency at Shoreham. LILCO was entitled to pursue through discovery what the response capabilities and intentions of the Governments would be in order to establish the sufficiency under $ 50.47(c)(1) of an emergency response based on the LILCO offsite plan and LERO resources. Following the County's submission of the

                          '                         SCEOP, in the words of the Licensing Board,"[t]he importance of discovery in being able to plumb the ramifications of the County EOP with State and County officials, in light of previous uniform discovery replies that any State and County    l response would be ' speculative,' cannot be overestimated." LBP-88 24, supra,          I 28 NRC at 365.

224 _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ __ _ J

I f The Board rejected Interveners' argument that Board orders required them to take actions that are legally precluded or are an impossibility. We reject it also.5* The Board's orders did not compel any particular response to discovery.ts What the Board ordered was discovery to permit other parties to probe the basis of their statements and test the veracity of their statements of what they 1 would or would not do, particularly in light of the SCEOP, in the event of a Shorcham emergency. But Interveners refused to comply. Once a Board issues ( an order compelling discovery, the party to whom it is directed has no option but to comply with discovery or scck a protective order. Interveners did neither. Instead, they refused to comply or even to continue with the proceeding. As the Appeal Board noted many years ago, American jurisprudence has king passed the point where a party - particularly one represented by experienced counsel - may refuse to participate in a case because the presiding official ruled in a rnanner it did not like. 'Ihere are appropriate ways of preserving objections to quch rulings; going home is not one of them. Northern Indiana Public Service Co. (Bailly Gcncrating Station, Nuclear-1), ALAB 224,8 AEC 244,251 (1974).

3. Pattern of Conduct We have examined the record of this proceeding to assess whether the actions of Interveners are part of a pattern of behavior to delay or divert the proceeding. The record amply demonstrates that Suffolk County has engaged in a pattern of resistance to Board orders. During an earlier phase of the Shorcham proceeding, Suffolk County refused to comply with a Board order requiring '

public prehearing depositions on cmergency planning contentions. Then as now the County contended that the Board ruling was illegal and refused to participate further in the matter. The Board dismissed their contentions as sanction for their conduct. Long Island Lighting Co. (Shorcham Nuclear Power Station, Unit 1), LDP.82-115,16 NRC 1923,1935-36 (1982), ag'd, ALAB 788,20 NRC 1102 (1984). In 1983, the same Licensing Board issued a decision on other emergency planning contentions that suggests that its 1982 sanctions had brought no change in Suffolk County's conduct. The Board declared: "The difficulty of our task. Id !ntervenors rest theu argument on County Resolutions that the County will not expend resources to test or implement an emergency response plan for the shoreham facihty. But they cite no law that protubna disclosure of mformauon on possible emergency responses or on resources available to reaped in the event of an cmergency. In any event, such county law cannot interfere with the NRC's junsdiction to carry out fact rmdmg necessary to deternune matters matenal to beensing a power plant. Su LIlfo v. Sgolk Cowiry,628 F. Supp. 654,664-66 (L DNY 1986).

                       " Menwrandum and order (On Board Rulmg of Vanous Wuona Relaung to Resham Isauca). June 21.1988 at 6.

225 j

l l

                                                                                                                          )

l l l trying to be objective in consideration of each of the parties' submissions, is j l further compounded by the County's misrepresentation of the complete record - ) l by omission, selective citations and distortion of recorded testimony." LBP 83-57,18 NRC 445,579 (1983). At another point, the Licensing Board commented, I

                                  "[t]he County's misreading of the record in this instance can only be viewed as being intentional .           " 18 NRC at 515.

The County's failure to produce the Emergency Operations Plan in a timely nanner is even more serious. The question of County plans to respond to

                                                                                                                         )'

l i emergencies, inclu< ling nonnuclear ones, has been an issue in this proceeding since 1982.28 It has continued as an issue in this proceeding since that time and has been the central one since our remand in CL186-13. Yet the Board found that a number of existing sections of the County's SCEOP were not produced until May 1988. The County acknowledges that the Government's emergency planning information was requested in 1982 and 1983 and should have been produced then. The County maintains that it did provide its plans in response to discovery in the 1982-1983 period. But that argument only gets them so far. li they did submit the SCEOP carlier, then they had a duty to amend their responses as parts of the plan were added or updated.10 C.F.R. 9 2.740(c). Ilad they done so, LILCO, the Staff, and the Board would have been alerted to the fact that the underlying document was not in their possession. LILCO has consistently sought to have Interveners' resoarecs that could be used to respond to an emergency disclosed. Three summary disposition motions by LILCO have been rejected because no evidence was presented to show what the Governments' response in an emergency would be. The County's failure to submit the plan, or additions or updates, cicarly affected the basis for the decisions on the summary disposition motions. In April and May 1988 the County resisted providing any but the'r own des-ignated witness for deposition and obstructed LILCO's questioning of witnesses during depositions. Finally, when ordered by the Board to provide witnesses for deposition following disclosure of the SCEOP, the County filed the June 9 Notice refusing to continue with discovery, or even with the proceeding itself which was being conducted at great expense to all of the parties largely at the County's own insistence. The State of New York engaged in similar tactics during the remand proceed-ing. Despite the identification by the Board of the relevance of emergency plans in other areas or at other New York State nuclear facilitics as one of the material issues to be heard, the State resisted providing any information on other plans in 4 38 Prehearmg Conference Order (Phase ! - Emergency Nnnmg). JuJy 27.1982, at 23 24. 226 1

I 4 I 1 1 both depositions and responses to interrogatories.81 The State attempted unilat-erally to limit deposition discovery to their designated witness.28 When directed by the Board to proceed with all noticed depositions 2' counsel for the State of New York unjustifiably obstructed questioning of witnesses and the witnesses, often cued by counsel, were generally nonresponsive regarding information on , the means by which the State would respond to a radiological emergency at  ! Shoreham." Despite repeated orders from the Board on May 10, May 26, and June 3. State witnesses were not made available for deposition. Instead, on June 9 the State along with Suffolk County, and the Town of Southampton sub- ) mitted their notice to the Board that the proceeding could not continue, While the Town of Southampton had not responded separately to any interrogatories, identified any witnesses of their own, or been subject to deposition discovely, they nevertheless declared on June 9 along with the other Interveners that the proceeding could not continue.

4. The Governments' New Position on Appeal \

The Governments have now argued before the Commission that the June 9th Notice was merely a good faith attempt to obtain appellate review of the Li-cen>ing Board's February 29th and April 8th decisions interpreting 6 50.47(cXI). They assert that the Board refused to rule on their offer of proof or to issue a final ruling dismissing the legal authority contentions. Thus the only way they could obtain appellate review was to refuse to comply with the discovery order.2 But this is nothing more than an effort at rationalization after the fact. First of all, as Interveners acknowledged during oral argument, refusal to comply with the Board's order was not the only way Interveners could obtain appellate re-view of the Board's rulings. The ordinary and proper response in the face of disagreement with a Board decision is to abide by the Board's order and sock re-lief on appeal, In addition, under Commission practice, interlocutory review of Licensing Board rulings may be sought through a motion for directed certifica-tion pursuant to 10 C.F.R. 56 2.718(i) and 2.785(bXI), where the Board ruling, 17 1n discovery rulings an other emergency planning contentions, Licensing Boards had consistently ruled that informataen an other plants in New York was relevani. See, e s., Memorandum and order (Rulms an Governments' Mraian to strike Purtions of 1.!!XXTs Tesurnony en the suitabihty of Reception Centers) at 8 (May 7,1987); Mernorandum and Order (Ruhng on LIlfo*s March 18, 1987 Motian to Campel) at 4 (Man:h 25,1987); Memorandum Memorializing Ruhng on Motion to Campel Response to tJ140's in errogatones and to Produce Documenw (March 17.1987); Memorandum and order (Rulms a titro's Motions to Compel New Yak state to Answer ljlro's Ftrat set of Interrogates and fcr a Protective Order) at 54 (December 19,1986) (all unpublished). i"See note 7, egra. l' Confirmatory Mamarandum and order, dated April 12,1988, and Confirmatory Memorandum and order, Apnl 18,1988. 5 e g., Deposnian of David Analmd April 22,1988, at 65 76,931(r1.

                                                                                                                                                            # ea, 21 Governments' Reply Bnef an lasue identdied m Commissian's Novanher 9 Order, January 3.1989, at 13-14 227

absent immediate appellate review, threatens a party with serious irreparable impact or affects the structure of the proceeding in a pervasive or unusual man-ner. Public Service Co. of New Hampshire (Seabrook Station, Units I and 2), ALAB-271,1 NRC 478 (1975); Houston Lighting & Power Co. (South Texas Project, Units I and 2), ALAB-637,13 NRC 367 (1981). Secondly, nowhere in the text of the Notice or in the transcript of the teleconference on June 10 in which the parties discussed the Notice is there an indication that Interveners were merely trying to obtain an expedited appeal of the ' Board's earlier rulings. As the Board indicated in its decision, it received no advance warning that In-tervenors did not intend to comply with the discovery; no protective orders were sought.22 Rather, Interveners waited for 2 months after issuance of the second order which they allege infringed on their " sovereign rights," until after the ap-pearance of the Suffolk County Emergency Plan and the onset of discovery into its significance, and until the eve of litigation of the realism contentions, before taking any action that could conceivably lead to appe!! ate review of the rulings. The Interveners' pleadings before us cannot alter history. Interveners make the further argument that their defiance of the Licensing Board's discovery orders was appropriate because the Board, in a misinterpret-i tation of the Commission's new emergency planning rule, was attempting "to ' compel the Governments to submit an ' adequate and feasible plan' that they would follow, or to agree to implement either the LILCO Plan or some other plan." Governments' October 27,1988 Brief at 11 n.29. This argument fails on several counts, factual and legal. First, the Licensing Board was not seek-ing to compel the Governments to submit'a plan. Rather, it was saying that in accordance with the rule's presumption (a presumption upheld by the First Circuit Court of Appeals), it would rule that the Governments would follow LILCO's plan in an emergency unless the Governments offered evidence that they would follow a different but adequate and feasible plan or offered other evidence of like kind.22 What the Licensing Board was not prepared to accept was the Governments' assertion that they had no idea what they might do in an emergency, and that any attempt to pursue the issue was improper. We do not view the Licensing Board's approach as contrary to the letter or spirit of the 1987 emergency planning rule, though we need not reach that issue today. Even if the Licensing Board's interpretation had been in error, however, there would have been no justification for the Interveners' refusal to comply 22 g,gp,gg4g, ,,y,s. 28 MtC at 368. 23 Conrtrmatory Memorandum and order (Ruhng an Illro's Mouans far surnmary Dwposition of Contentions

1. 2. 4. 5,6. 7. 8. and 10. and Board omdance m tasues for IJtissuon), February 29.1988, et 2. In its wntten opunan capanding on these ruhngs the Board stated "the Comnussion had no intent to have specified in comples daarl what respmasve measures a nonparticipaung gwernment - state er local- will pmvide in an emergmcy.

Ilowever, whatever rneasures are planned, the Commusion's rules do regare that that plan be produced and evaluated far adequacy? ! BP-88-9,27 NRC 355,369 (1988). 228 i 1 i

I with discovery. All that was being sought in discovery was information. If the Interveners truly had no plans to respond to a radiological emergency, all the documents and all the deposition testimony LIILO might obtain would simply have reinforced the Interveners' position. If questions asked in depositions turned out to be pointless, because they sought information about nonexistent planning, it is difficult to see how the mere taking of depositions could have harmed the Interveners. In sum, there was no excuse for the Interveners to arrogate to themselves the right to interpret the Commission's rules and to determine what discovery was or was not irrelevant. There were avenues for sccking review of decisions with which they disagreed; they chose not to use them. The Licensing Board's rulings placed them under no compulsion other than to provide truthful information. This obligation, which rests on every participant in an administrative or judicial proceeding, they were unwilling to meet. Interveners would also dissuade us from dismissing them from the proceeding because a pattern of misconduct has not been established for all of them, particularly the Town c,f Southampton. While it is true that no depositions were sought from the Town, it chose to sign the June 9th Notice declaring that the proceeding could not continue under the circumstances prescribed by the Board. We regard that prospective refusal to comply with the Board's authority to be as much an act of willful disobedience as the additional refusal by the other two parties to comply with Board-ordered discovery. Marcover, given the lack of separate contribution by the Town on the issues before the Board, we find that the participation in the June 9th Notice outweighs the other factors that might counter a decision to dismiss.

                                    'Ihe Interveners also assert that dismissal is unjustified because they have committed no sanctionable conduct in other proceedings; to the contrary, they say that during 7 years of litigation, they have made significant contributions to the Shorcham proceeding and to the safety of the Shoreham plant.""Ihey point, for example, to their pursuit of diesel generator safety issues, the applicability of General Design Criter:on 17,10 C.F.R. Part 50, Appendix A, to low-power operation, as well as a number of emergency planning issues, such as the failure of LILCO's 1986 exercise to comply with regulatory requirements for a full-participation exercise. It is true that the Interveners have on occasion made a useful contribution. But this is not to say that the sum of their actions related to the Shorcham licensing controversy has necessarily been positive.

For example, in 1986, a new law took effect in Suffolk County, enacted only wecks after the Federal Emergency Management Agency announced, over the objections of Suffolk County and New York Stat- that LILCO's emergency 8 See omernmans' Reply Bnef on lasue Idenufied in Comnussim's November 9 order. January 3.1989. at 32 35. 229 i i i.

                                                                                                                                   ?

x

plan would be tested in February 1986." The February 1986 exercise, required by NRC regulations, was designed to test the adequacy of the emergency plan by simulating the responses of LILCO personnel and responsible officials. In vicw of the refusal of state and local officials to participate, their roles were to be played by federa! and utility < personnel. The new law made it a crime, punishable by a year in prison and a fine of $1000,"for any person to conduct or participate in any test or exercise of any response to a natural or man-made emergency situation if that test or excitise includes as part thereof that the roles or governmental functions of any Suffolk County officials will be performed or simulated (without County approval]."2' In short, compliance with a federal regulation had been made a local crime.

                                                                                                                         'LILCO immediately sought a preliminary injunction, and on February 10, 1986, the U.S. District Court for the Eastern District of New York struck down y                                                                                                                      the law as an unconstitutional interference with a preempted federal area. The court commented that "there is hardly any more effective way to interfere with an activity than to arrest the participants and subject them to criminal prosecution."

LILCO v. County of Suffolk,628 F. Supp. 654,665 (E.D.N.Y.1986). The court l described the law's effect: "In sum, if the enforcement or specter of Local Law 2-86 prevents LILCO from participating in the test, then Suffolk County will have impeded the NRC's fact gathering and licensing authority under the Atomic Energy Act." Id. Finally, in words that are directly applicable to the issue before us today, the court declared: l States and localities are not required to develop emergency evacuation plans and a refusal i to do so can be based on any ressan or no reason. k is quite another matter, however, for a local government affirmatively to obstruct the information gathering process of the NRC for a reason that lies within the NRC's congressionally-mandated sphere of authority 27 Whatever Interveners' contributions to this proceeding may have been, the fact remains that on the central issues left to be resolved in this proceeding, Interveners have refused to comply with Board-ordered discovery as detailed i -

                                                                                                                   - above. Significantly, Interveners did not indicate in either their pleadings or oral argument that they regretted their conduct or would refrain from such conduct in the future. As the Licensing Board stated," Interveners created the situation that gave rise to the realism contentions, which were sufficient in themselves to D

An carber test of the ULCo plan had been scheduled ror February 198s. but was cancelled sher suffolk County, New York state, and the Town of Southampton obtained a declaratory judgment that Ulro lacked the ' ' legal authonty to conduct the test, because as a private company it could not perform public functions traditionally reserved to state and local governmenia. Cuomo v. ULCo, No. 84 4 615 CtY. sup. Ct. suffolk Cty. Feb. 20 1985). The Commission subsequently decided that Ulf0 should be permitted to test those pans or the plan that it could legally caercise, and IntA informed the NRC that it would be able to conduct the test. ULCo

                 ,                                                                                                  v. County of S#oM,628 F. Supp. 654 (E.D.N.Y.1986).

Quoted in ULCo v. County ofSgoM. syra,628 F supp. et 659. 27

                                                                                                                       /d at 666.

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                                 ,                        block issuance of an operating license if there were further rulings adverse to LILCO. Fair practice in their resolution was of extraordinary importance in the

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         +               '                                                                                                                                   /                    W case." 28 NRC at 376. But Interveners' conduct did not comport with such fair                                            ,' ,b r

prxtice. In our view, the most recent actions by Interveners far outweigh any 4)

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                                        ),.              carlier contributions C the proceedmg.                                                                .. . ,% /

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                                                                                                                                                          ,[ ;                  k D.D U                                                         V. CONCLUSION ac1                        Q^                                                                                                                            'M ,n .)W 4 ' s. o gg                                                           Taking into account all the circumstances, we must fashion a sanction that
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obligations and that will bring about improved future compliance not just for 1L-G$ 3,,4 g V. ,' this case but for future cases and parties as well. We also consider the views of f, h, - our Licensing Board which has evaluated this case. The Licensing Board has ' ;M OM '3d k{ t

                               ,n,                       had day-to-day contact with the parties and therefore is in an excellent position 3

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                       %[4hn j for concluding what sanction is appropriate for the actions and omissions that occurred before it.

g a O Cjr f i f OjM);A in sum, we are driven to much the same conclusions as the L,icensing Board-iF li that the Interveners chose to willfully disobey Board orders compelling discovery and refused to continue with the proceeding under the Board's direction, that I i f the County and the State unjustifiably obstructed discovery prior to the filing { g of the Notice, and that the County, by not submitting the complete SCEOP F until May 1988, exhibited at a minimum careless disregard for its obligations [ to provide relevant information in response to discovery requests and to amend g their respenses on the County's nonnuclear emergency planning. Under the

                                           ;            circumstances, we conclude that the Interveners should be dismissed from the Archam proceeding.

We fmd that the actions of the Intcsvenors before the OL-3 Licensing Board warrant their dismissal as parties from all proceedings pending before the Commission. 'Iheir refusal to comply with the Board's orders or to continue with the proceeding in the manner prescribed by the Board strikes at the heart of the authority of the Board to conduct a duly authorized proceeding and challenges the integrity of the Commission's adjudicatory process itself. We nave considered the various options short of dismissal available to us, including a formal reprimand and warning and dismissing the Interveners' realism contentions. But our evaluation of the circumstances set forth above compels us to conclude that dismissal is appropriate and necessary. We would be remiss in our obligation to ensure that our licensing proceedings are managed fairly and with due regard for the rights of all the parties before us if we were to permit a party to arrogate unto itself the power to decide which of a Board's orders it will er will not comply with. 231

l  ! I I i Judge Shon in the decision below disagreed with his colleagues' conclusion , that dismissal from the proceeding was the only appropriate penalty. He would  ! have taken note of the fact that the parties subject to sanction were governments, that the Commission's rules provide for special treatment of states, and that in view of this special treatment extcided by the Commission to state and f local governments, particularly in regulations bearing on emergency planning, j the Board should have been more reluctant to bar the Governments from the proceeding than they would be to bar private parties. We cannot (nor did the j parties to this proceeding when questioned during oral argument) agree with ' Judge Shon that willful defiance of Board orders and Commission requirements by parties who are governme its should be treated differently from misconduct committed by nongovernmental parties. While our regulations do recognize a distinct role for state and local governments in our proceedings, we have always held that all parties, including interested states and local governments, must strictly adhere to NRC requirements. Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444,6 NRC 760 (1977). If anything, we would have expected a greater respect for the orders of duly authorized adjudicatory boards from fellow governments.

        ,                               We have examined the practice in federal courts to assess whether our action here is inconsistent with that of others in analogous situations. We conclude that it is not. National Hockey League v. Metropolitan flockey Club, Inc.,427 U.S. 639, 642-43 (1976) (per curiam); lones v. Niagara Frontier Transportation Authority, 836 F.2d 731,734-36 (2d Cir.1987), cert. denied,            U.S. 109 S. Ct. 74 (l988); Chapman v. U.S. Commodity Futures Trading Commission,
       't-                          788 F.2d 408 (7th Cir.1986).

3 We conclude that Interveners willfully defied the Licensing Board's orders, f j. thereby causing great harm and delay to the efforts of LILCO to demonstrate j jj> the sufficiency of its emergency plan under 10 C.F.R. 9 50.47(c)(1) and to the

 . JQ s                             integrity of the Commission's adjudicatory process. Accordingly, in view of
    .  'g'                          all of the circumstances before us, we hereby dismiss Suffolk County, the State fg,                           of New York and the Town of Southampton as parties from all proceedings pending before the Commission or any of our subordinate adjudicatory boards.
 'Q Nl,/
       /g$ ' .                      All contested proceedings are now at an end; the proceeding on the 1988 emergency planning exercise before the OL-5 Licensing Board is terminated.
  !                  ..             As this decision constitutes the fmal adjudicatory decision in this matter, we also direct the following actions to ensure that no safety issues remain unexamined d,.p[,                             before iscnance of an operating license for the Shoreham facility. The Director of Nuclear Reactor Regulation shall evaluate cach contention that remains
 )p$.y&                             outstanding as a result of this Decision and explain to us in a public meeting 14\                               whether, and if so, how, each has been resolved. Only after the conclusion Q                  J              of such a briefing, after the necessary findings of 10 C ? R. i 50.57 have been hbh[h%s W jy '*

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1 made, and after an affirmative Commission vote to authorize issuance, would a 11:

                                -r                                    license for operation above 5% power be issued for the Shoreham facility.                                                                                                       k
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..', It is so ORDERED.

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i For the Commission * ;i *., < ?.

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9A)g[h; k g% jh((fi f(N.4 y SAMUEL J. CHILK

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e, Secretary of the Commission ' fQ c * -["ff[

 /,'y(([jf[3 4                          d                                                                                                                                                                            Q                            <@L (S ,jj0                                                              Dated at Rockville, Maryland,
                                                                                                                                                                                                              , d '.. : ' r f .$' i        t Tpi%Qh                                                               this 3d day of March 1989.

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                                                                      *Canmissioner Curuss did not participsie in this Decision.

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Cite as 29 NRC 234 (1989) CLI-89 3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS: ( Lando W. Zech, Jr., Chairman Thomas M. Robe.1s . Kenneth M. Carr ' Kenneth C. Rogers James R. Curtiss in the Matter of Docket Nos. 50-443-OL-1 50-444-OL-1 (Onsite Emergency Planning and Safety issues) PUBLIC SERVICE COMPANY OF

                                        ,                                    NEW HAMPSHIRE, et al.                                                                                                                                            *
                               ,       ,                                (Seabrook Station, Units 1 and 2)                                                              March 6,1989 h,                                                       The Commission denics motions urging reconsideration of its decision in                                                                                    '

I, CLI-88-10, 28 NRC 573, on the basis (1) that the Commission should not have ' ' , Q,:' denied Interveners' rule waiver petition on the ground that no significant safety 4[4 g question was presented because the parties were unaware of that criterion, and [')I /, s (2) that the Commission should not have resolved decommissioning fundmg . f " ; ' a4 At: issues on the basis of the existing record. The Commission determines that , implicit in the " compelling cin umstances" standard for granting rule waiver is q, a requirement that a rule waiver petition show that the safety matter at issue, if [e.L,n',i b' g[ [. not " compelling," is at least "significant" and thus, absent such a showing, the ', f .g. Qf,;k;y,,l+ Commission should be expected to deny the petition. On the decommissioning 4 g ff' decision, the Commission determines that when CLI-88-7,28 NRC 271, invoked cy, J!,iy . ,

                  ,dpVI;f;'      /   i-both the reopening requirements and the standards for a late-filed contention,                                                                                   .i g s
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                                             '                         Interveners must have been on notice that they should make an evidentiary case when they presented their contentions and that Applicants' prima facie case                                                                                            ,

g, would prevail sbsent evidence to the contrary. Moreover, the Commission was y>pg[3, under no obligation to scarch for "a needle in a haystack" with reference to a

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figure for spent fuel costs which appeared in a massive document incorporated by reference in the Massachusetts Attorney General's motion to reopen the record. FINANCIAL QUALIFICATIONS: PUllLIC IIEALTII AND SAFETY CONCERNS NRC: IIEALTII AND SAFETY RESPONSIIIILITIES RULES OF PRACTICE: WAIVER OF RULES OR REGULATIONS Implicit in the " compelling circumstances" standard in an agency whose mission is to ensure public health and safety is that to qualify for consideration, a rule waiver petition would need to show that the safety matter at issue, if not "compe!!ing," was at least "significant." l FINANCIAL QUALIFICATIONS: PUllLIC IIEALTil AND SAFETY  ! CONCERNS NRC: IIEALTil AND SAFETY RESPONSIIIILITIES OPERA'llNG LICENSE: CRITERIA (FINANCIAL QUAISICATIONS) RULES OF PRACTICE: WAIVER OF RULES OR REGULATIONS

                                                           'Ihe Commission's interest in financial qualifications is focused on any possible tclationship to safety. Absent a showing of safety significance, the Commission should be expected to deny rule waiver petitions.

FINANCIAL QUALIFICATIONS: PUllLIC IIEALTH AND SAFETY CONCERNS OPERATING LICENSE: CRITERI A (FINANCIAL QUALIFICATIONS) RULES OF PRACTICE: WAIVER OF RULES OR REGULATIONS Since the parties did not present any contrary argument on safety significance in their motions for reconsideration, the Commission maintains the view that, having provided for decommissioning funding, a rule waiver is not necessary to

                          ,                          ,  address a significant safety problem on its merits.

235 4 k-I u I J

0 RULES OF PRACTICE: EVIDENCE; FINDINGS OF FACT  ! Parties must clearly identify evidence on which they rely. RULES OF PRACTICE: EVIDENCE; FINDINGS OF FACT; MOTION (S) A petitioner may not simply incorporate massive documents by reference as the basis for or as a statement of his contentions. Wholesale incorporation by i reference does not serve the purposes of a pleading. RULES OF PRACTICE: EVIDENCE; FINDINGS OF FACT; MOTION (S) Parties shall clearly identify the matters on which they intend to rely with reference to a specific point. The Commission cannot be faulted for not having searched for a needle that may be in a haystack. RULES OF PRACTICE: CONTENTIONS; CONTENTIONS (CIIALLENGE AITER ACCEITANCE); EVIDENCE; FINDING OF FACT Where a contention is based on a factual underpinning in a document that has been essentially repudiated by the source of that document, the contention may be dismissed unless the intervenor offers another independent source. RULES OF PRACTICE: CONTENTIONS; CONTENTIONS (CilALLENGE AITER ACCEITANCE); MOTION (S); MOTION FOR RECONSIDERATION; MOTION FOR RECONSIDERATION (RAISING MATTERS FOR THE FIRST TIME) A motion for reconsideration cannot open the door for a new contention, nor can a party complain when it receives essentially what it requested. MEMORANDUM AND ORDER I. INTRODUCTORY OVERVIEW This Memorandum and Order responds to motions before the Commission seeking reconsideration of its December 21,1988 decision on all then-pending 236

                                                                                                                                                               )
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                                                                                                                                                                                                                                                .i financial qualification and decommissioning cost matters in this proceeding,                                                                                                                            )

CL1-88-10, 28 NRC 573, in that decision the Commission did not accept Applicants' decommissioning funding plan as presented, but rather required j that before low-power testing could be authorized Applicants fully fund a i separate and segregated account with Applicants' Disbursing Agent in the sum of $72.1 million and provide specified additional guarantees to reasonably assure that funds will be available to safely decommission the reactor in the event that a full-power license is not granted. In light of this unprecedented and substantial requirement and the absence of any other financial issue with significant safety implications for low-power testing, the Cofnmission further decided in CLI-88-10 not to exercise its discretion to grant the requested rule waiver. Thus, no financial qualification review is currently available in this proceeding. On consideration of the views of the parties, the Commission continues to believe that its decision in CLI-88-10 is sound and comports fully with its responsibilities. Accordingly, reconsideration is denied. II. BACKGROUND AND POSITIONS 'OF T!!E PARTIES i A. Background In CLI 88-7, 28 NRC 271 (1988), the Commission recognized that the in-tervenors" chief financial concern related to the ability to fund safe decommis- J sioning after low power testing in the event full-power operation was not autho- j rized.2 In this light, the Commission in CLI48-10 established specific financial j assurance requirements to provide reasonable assurance of the availability of de-  ! commissioning funding in the above circumstances hypothesized by Interveners. It is evident that by establishing these requirements the Commission provided a level of assurance of availability of funding that equals or exceeds the level of assurance generally required by the decommissioning rule. That rule, if it applied to the circumstances of this case,8 would have been satisfied were Appli-cants to have done no more before receiving any operating license than establish a funding plan and begin periodic payments into an external account.' 3 De Attomey General of Massachusetts (ManaAo), scacosat Anti-Pullution t.eague (sAPL), Town of flampton (IDID, and New England Coalition m Nuclear Pollutie (NECNP) are the Interveners that have moved for recenaideration. We refer to them collectively by that term in the menorandum. 2 De Commission has never considered -let alone decided - that a full power bcense caanot be issued fw seabmok at some time subsequent to low-power testmg. 3 The Commission held an CtJ-88 7, syre. that the decomnuasioning rule did nor directly apply to the decommissionmg requirements necessary in the circumstances hypothesized by interveners - Le.. md of plant l his after low power testing.

                                              "Da rirst requued payment need not have exceede/ , , milhm on an annual basis. See 10 C.F.R. Il 50.7s(c)(1)(i) and (e)(1)(ii).

237 y a { e sl o

1 (

11. ' Position ofIntervenors By motion of December 27,1988, MassAG raises two " problems" with CLl-88 10,8 which SAPL and NECNP adopt by joint motion of January 5,19E9.

With respect to the certified rule waiver petition, Interveners find a violation of due process in the Commission's basing its decision on the absence of a significant safety' question because the parties were allegedly unaware of that

                                                                        " criterion." On the decommissioning decision, MassAG complains that the Commission erred i:1 resolving the decommissioning funding rnatter 'on the basis of the record. This complaint focused almost entirely on the alleged error in deciding on the fuel storage costs that would be likely to be involved in decommissioning Scabrook in light of allegedly conflicting evidence on the record from Applicants' own expert.' SAPL, TOH, and NECNP not only embrace this argument but enlarge it with a broad claim that the procedure                                         i followed by the Commission was insufficient under Q 189a of the Atomic Energy                                      i Act, as well as under constitutional requirements for due process. For support they relied on an alleged lack of notice that the Commission would decide the decommissioning questions on the existing recoid and without a full-fledged trial of the issues preceded by adequate discovery and time for preparation.

C, Position of Applicants and Staff On the financial qualifications waiver, Applicants argue that Interveners have not shown that the Commission erred in not finding safety significance in the matter. This being the case, they assert, due process does not require a hearing. 1 Regarding complaints of violation of i 189a hearing rights, Applicants make two  ! points: first, that the matter before the Commission was whether to suspend its rules, a matter of broad discretion; and second, that the Commission was operating in the realm of financial qualifications and reasonable assurance of funding where it has been judicially recognized that the Commission has broad discretion on financial qualifications and "cannot be 'second guess [ed]' as to l 5 on February 1.1989, ManaAo filed an addnianal documere denominated " Reply of the Massachusana Anarney oaneralin the Responsen of the Ambctnts and staff to the MassAo's Motian for Reconsideration of CLI-88-10." De regulations provide no sotamaue nght far such a reply, and leave has not been sought. To date in the interest of a complete record, the C<rnnussion has accepied all or the pleadings lodged wuh it by parties and amicus save one that was spectricaDy excluded by CLI-8810. Su 28 NRC at 601. Ilowever, the panies are abuams the Canmission's solcrunce by fathng to put in initial pleadings all the arguments then synilable to them. On threshold review. MasaAo's reply appears in substantial measure to praens such a case. He matters discussed for the most pan not ordy could have been raised in the ongmal mouan for reconsideratimi, but should have been raised at the ume of fihng contenuons in grasiuon to Appbcants' decommissioning plan. Acconhngly we reject MassAo's " Reply" and counsel the parues to cheerve more carefully the procedures em fonh in 10 Cf.R. Pan 2 subpan o.

 <                                                                       'MassAo noted that its mouon filed on December 28 was not intended to raise an its concerns given the "potenhauy imrnedate impact of CLI-88-10." MauAo's Motion at 2 n.l. MassAo did not seek to rtle any supplementary basis at least until Februa71,1989.

238 I , . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ . _ _ _ . _ i

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q k the level of proof the reasonable assurance requires.'" With respect to the cost estimate alleged to conflict with that employed by the Commission, Applicants j cxplain that the scope of the two estimates was not substantially the same.

                                                                                                                                                                                                                                   ]    -

Applicants say tint its carlier cost estimate included costs that were extrancous ' to the Commission's current inquiry or were otherwise included under separate , headings.

                                                                                                                                                                               'L                                               1 nc Staff secs no error in the Commission's exercise of its discretion f

not to grant a waiver petition that had been certified to it. Staff essentially supports Applicants' view of the fuel cost" discrepancy" and in addition, proffers *{ an affidavit to show that the estimate adopted by the Commission comparcs , , p p favorably with the storage costs incurred in decommissioning other facilitics.' -. I Finally, the Staff asserts that the Commission offered the opportunity for a hearing, but no hearing was thereafter required given the circumstances. Staff y enumerates the aspects presented by Interveners' contentions and argues that, L l on some, Interveners prevailed and on the others they lost as a matter of law or , for failure to meet their burden under Commission rules so that none remained to be litigated. v! * > b e>:., 111. COMMISSION DECISION (k N Q $':,' ( 2 s j. ' A. Interveners feign surprise that the Commission should care whether

• 7[,-

there is any safety significance in waiving a rule and complain that they Of , were unaware that they should present this factor la their pleadings. Their y g r g. g]'p;.,Q p% , %f

          ;y
                   ;M:.c 3,
                                                  ;.E[,         y argument is unpersuasive. It has long been Commission law that a rule waiver would be granted "'only in unusual and compelling circumstances.'" Public Scrvice Co. of New llampshire (Scabrook Station, Units 1 and 2), ALAB-('
                                                                                                                                                                                                                            ,[

W' W, ' ' 895, 28 NRC 7,16 (1988), quoting Northern States Power Co. (Monticello Q rg 6 J l UWf[n,

               ,I)hh{

Nuclear Generating Plant, Unit 1), CLI-72-31,5 AEC 25,26 (1972) (emphasis y;j, @ l provided). Implicit in the " compelling circumstances" standard in an agency [UlMf;)S[k[p id. whose mission is to ensure the public health and safety is that to qualify f/ y@kl ) d N for consideration, a rule waiver petition would need to show that tne safety y[d fg,hi , matter at issue, if not " compelling," was at least " significant." Moreover, it $g$f/ c k i has been no secret that the Commission's interest in financial qualifications is wJ k.[whgj@/c. d-ghh . focused on any possible relationship to safety. Therefore, absent a showing of safety significance the Commission should have been expected to deny the rule

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gg %' %Q[jl Ok yM, 6 jf% y' 7 Appbcants' Answer to NECNP et al.'s Mouan ror Reconsideration Ganuary 13,1989) at 3. quonag Ns= h) I kN N &I' ) f?, England Coaldion on Nucle follutwa v. NRC, sB2 F.2d 87,93 Ost Cir.1978).

                                                                                                                                                                                                -{NY y/fy ,Qj.                          8 The Conunissian has decided not to access b affidsvit or any affidsvit or ev des ce presented on reconsidereuon.
                                                                                                                                                                                                 ?-                                 y
                      , spg%y b                   Reconsiderstmn will be on the basis of the recurd before the Commiss on at the urne it rr. ached its decunon an ct n s a                                                                                                                             tM e
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petitions to the Commission emphasized the safety importance of not allowing Seabrook to go to low power without the assurance of the availability of funds for safe decommissioning. In any event, the parties did not present any contrary j argument on safety significance in their motions for reconsideration. Hence ) the Commission maintains the view that, having provided for decommissioning \ funding, a rule waiver was not necessary to address a significant safety problem on its merits. i B. When CLI 88-7 invoked both the reopening requirements and the stan-dards for a late-filed contention, Interveners must have been on notice that they should make an evidentiary case when they presented their contentions and that Applicants' prima facie case would prevail absent evidence to the contrary. In L i ! many areas Applicants and Staff presented the only evidence on point. In other areas - for example, the contingency factor - the Commission agreed with In-tervenors' position, and Interveners therefore are not prejudiced by the decision procedure. In still other arca! - for example, scope of the decommissioning plan - CLI-88-10 resolved purely legal or policy issues for which no eviden-tiary hearing is required by law. This responds to Interveners' general claims of denial of hearing rights and due process. Interveners' specific claim that the Commission denied them their hearing rights in establishing the amount for spent fuel storage costs is also unfounded. De claim here is that MassAG presented on the record conflicting figures, which had been prepared by Applicants, of at least $700,000 per month for spent ft.el costs, and thus the Commission failed to try a genuine issue of fact. The claim fails for several reasons. First, parties must cicarly identify evidence on which they rely. MassAG tells us that he put the contradictory figures in evidence. Yet nowhere in h a funding plan or in the iatesssAG's contention or basis on the decommissioning ed contentiort on fmancial qualifications, where these figures are reportedly referenced, is there a specific reference to developed figures on spent fuel storage cos . Certainly, MassAO's own expert offered no figure. Nor is there any statement that would have pointed us clearly in the direction that the MassAG would now have us follow. MassAG now relies certain introductory language in papers filed with the Commission in response to CLI-88-7 that "[allt of the facts and assertions contained in (his] petition under 10 C.F.R. 2.758" are " incorporated by reference."' It is notable that the MassAG's 6 2.758 petition, as multiply supplemented and amended is a ,

                               ,         sizable document. Commission practice is clear that a petitioner may not simply inco porate massive documents by reference a the basis for or as a statement of
                                          'see Motion or Massachusetts Attorney cencral James M. shannon to Reopen the Reced to C Concerning the Joint Appbcants' Enancial Quahrications to operate the scabrook Nuclear rvwer statim an      i 4

Adnnt 11 the Attached late F0ed Cantetaans Concerning said haancial Quahricabans. Attadtrnent I (Contentio{ j 240 l i

                                 .~ - .

l

l I 1 his contentions. Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units j 1 and 2), LBP-76-10,~ 3 NRC 209,216 (1976). Such a wholesale incorporation I by reference does not serve the purposes of a pleading. See Commonwealth _ Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-20,21 1 NRC 1732,1741 (1985), rev'd and remanded on other grounds, CLI-86-8,23 j NRC 241 (1986). The Commission expects parties to bear their burden and to clearly identify the matters on which they intend to rely with reference to a specific point. The Commission cannot be faulted for not having searched for a needle that may be in a haystack. Even were Applicants to have fairly presented contradictory figures for the i same element, MassAG could not have relied on the earlier figure without i independent corroborating evidence. Commission law is clear that where a _l contention is based on a factual underpinning in a document that has been S essentially repudiated by the source of that document, the contention may be  ! dismissed unless the intervenor offers another independent source. Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), ALAB-872, 26 NRC 127,136 (1987). This is all the more true where, as here, both of tlie allegedly inconsistent positions were available to Interveners prior to their being , required to file their contentions and evidence. At the very least, Interveners  ! might have attempted to explain why one particular estimate was the better one. Finally, the figures relied on by MassAG do not squarely challenge those included in the Commission's determination. 'Ihe Applicants correctly detail that the 5110,000 costs the Commission derived from Table 2 of 63 of the Applicants' plan in Response to NRC Order CL188-7 were solely for costs associated with storing fuel on site after completion of decontamination and removal of the reactor vessel and associated equipment. The costs of decommissioning and decontamination, contingency, and the like were included as separate items, unlike the earlier figures, preferred by MassAG, which were l prepared to answer a different question and thus had a different scope. C. NECNP, SAPL, and TOH on reconsideration complain that tne specifi-cations of the guaranteed prefunded account demanded by the Commission are insufficient. A motion for reconsideration cannot open the door for a new con-tention. Only S APL carlier addressed the institutional arrangements for funding, , and SAPL conceded that "if the costs reasonably to be needed are appropriately estimated and prefunded" by Applicants, that would be sufficient. SAPL did not then state any method that must be followed to establish a prefunded account.20 lo in this sxmtest it is of internat that MassAo sought use of the rule to estahhsh the sum to be ensured. 'that

".         surn Masa Ao computed to be s75 A84 milhan, and by happenstance that som was not sigmricantly difrerent from the amount requued by the Comrmanion. Sse MassAo James hL shannon's Laie Filed Cantantions. Corrected                                           i Auschment I at 3. November 9,1988. It is true that ManaAo also sought to add costs related to spent fuel durposal, but were the,MaasAo correct that the decommissioning rule was appbcable to the response to our C1188 7 order, spent ruel costs would have been by rule excluded.

241

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I l l l Thus, S APL cannot be heard now to complain that the Commission will accept a prefunded separate and segregated account so long as it is fully guaranteed by two financially healthy utility-guarantors. Such an account, although not externally held, is appropriate in these special circumstances and gives SAPL essentially what it requested. , I IV. CONCLUSION For the foregoing reasons, the Commission adheres to the views it expressed in CLI-88-10." It is so ORDERED. For the Commissions SAMUEL J. CHILK Secretary of the Commission Dated at Rockville, Maryland, this 6th day of March 1989, t e d H The terms of this ader durpose of all pendmg mouons before the Csmmissian itself on the rule waiver and decommissiomng issues. U Conunissioner Rubens was not presmt for the affirmsuon of das order, if he had been present te would have appnwed it. 242. i N

                                                                                                                                                  .n r

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l l l l Cite as 29 NRC 243 (1989) CLl-89-4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS: Lando W. Zech, Jr., Chairman Thomas M. Roberts Kenneth M. Carr Kenneth C. Rogers James R. Curtiss In the Matter of Docket Nos. 50 443-OL 50 444 OL (Offsite Emergency Planning) PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, er al. (Seabrook Station, Units 1 and 2) March 6,1989' ' The Com;nission determines that interveners had not met their burden of showing a lack of fundamental fairness in the hearing schedule that rose to the level of a violation of due process. RULES OF PRACTICE: ADMINISTRATIVE FAIRNESS; COMMISSION CONSIDERATION OF PROCEDURAL MA'ITERS; SCIIEDULING The schedule at issue simply cannot be said to be so draconian as to raise an issue of constitutional duc process dimensions.

       *Resemco March 9,1989, of Cannussion's Manorandum and Order. dated March 6.1989, to pnwide CU daignauon and conect capuan, a

243 p k i, l l 1

1 I MEMORANDUM AND ORDER By Memorandum and Order of February 8, 1989,3 the Atomic Safety and  ; Licensing Appeal Board (Appeal Board) forwarded to us the joint motion of the Attorney General of Massachusetts, the Scacoast Anti Pollution League, and the New England Coalition on Nuclear Pollution (Interveners) seeking interlocutory-relief from a scheduling order of the Atomic Safety and Licensing Board that is hearing offsite cmcrgency planning issues in this operating license proceeding.2 We considered Interveners' motion for directed certihcation, along with responses of Applicants and the Staff 2 to the motion, to determine whether Interveners had met their burden of showing a lack of fundamental fairness in the schedule that rose to the level of a violation of due process. See Public Service Co. of New Hampshire (Scabrook Station, Units 1 and 2), ALAB-889, 27 NRC 265, 269 (1988) (citing Public Service Co. ofNew Hampshire (Scabrook Station, Units 1 and 2), ALAB-864,25 NRC 417,420-21 (1987)). In arriving at our ruling we also reviewed the three rulings of the Appeal Board on previous , motions for directed certification of schedules in this proceeding to ascertain  ! where the schedule at issue here fell on the spectrum between one schedule l that had been adjudged warranting grant of certification and those adjudged :i warranting denial. See ALAB-889 (denial), ALAB-864 (grant), and ALAB-858,  ! 25 NRC 17 (1987) (denial). On consideration of all the foregoing, it is clear to us that, at the least, the Staff is correct that the schedule at issue " simply cannot be said to be

                                                                                                  'so draconian as to raisc an issue of constitutional [due process] dimensions.'"

Staff's Response at 11, quoting ALAB 889,27 NRC at 269 (insertion provided). That being so, Interveners have not met their burden. Accordingly, Interveners' motion for directed certification is denied. l l 3 AtM910, 29 NRC 95 0989) (nating cmstrains in ruhng an the subject motion in hght of a February 3, 1989 Cornmission statement commendmg the ticensing Board). De Commission's February 3 staternent which commended efrons toward a goal of"bnng[ing] Qua proceeding to a close within a reasonable umeirame, takmg o into account the rights of the perues" mas not itsended as a rurmal, adjudicatory approval or the schc4tuhng i ordre at issue here Moreover. it is nm ivamipnate foi the Comnussion in its superv sory capaeuy to interest ,  !.uelf in '\arget" date est.rnates, especially k. zwaers that are paraculady resource incensive. Such dates are not requirements unless otherwise stmed. 2 Memorandum and order (Settes Heanns Schedule). January 24.1989 (unpubhshed). 2 De Commisstun found the Sta!r's paper parucularly helpf.alin evaluaung this matter, i b 244

• l i

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                                                                                                                                                                                                                                                                   'll 1

s+ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ - . . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ - . _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ ______u

i Commissioner Curtiss did not participate in this order. It is so ORDERED. For the Commission

• SAMUEL J CHILK Secretary of the Commission Dated at Rockville, Maryland, this 6th day of March 1989.

i e f i d

                                             'Carnrnisaioner Robens was nr. prescru for the smrrratmn of uus otAc. if he had teen mesent he would have a[ proved it 245 1

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                                                                                                                        //
                                                                                                                         /

Atomic Safety and Licensing Appeal ' Boards issuances ATOMIC SAFETY AND LICENSING APPEAL PANEL 1 i Christine N. Kohl, Chairman Alan S. Rosenthal Dr. W. Reed Johnson Thomas S. Moore - Howard A. Wilber O l m __I l

                                                                                                                                <t un CL O_
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l l 1 j i l l Cite as 29 NRC 247 (1989) ALAB 911 _I i UNITED STATES OF AMERICA 1 NUCLEAR REGULATORY COMMISSION 1 i ATOMIC SAFETY AND LICENSING APPEAL BOARD I Administrative Judges:

                                                                                                                                                                                }1 Christine N. Kohl, Chairman Alan S. Rosenthal Howard A. Wilber in the Mitter of                                           Docket No. 50-322-OL 3 (Emergency Planning)

LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Fower Station, Unit 1) March 13,1989 Followinf, the Commission's termination of the proceeding by its dismissal cf tbc interveners, the Appeal Board dismisses their pending appeals from the Licensing Board's decision on certain emergency planning issues, LBP 88-24, 28 NRC 311 (1988), and, in the exercise of its sua sponte review authodty, ter Jers an advisory opinion on the results of its review of the record on those issues, RULES OF PRACTICE: SUA SPONTE REVIEW Under long. established, Commission-endorsed practice, in the absence of an appeal, the Appeal Bor.rd reviews "sua sponte 'any final disposition of a s - licensing proceeding that either was or had to be founded upon substantive determinations of significant safety or environmental issues.'" Sacramento i

                                          '-                     Municipal Utility District (Rancho Seco Nuclear Generating Station), ALAB-                                 -

655,14 NRC 199, 803 (l981) (quoting Washington Public Power Supply System (WPPSS Nuclear Project No. 2), ALAB-571,10 NRC 687, 692 (1979)). See J. , 247 .

                                                                                                                                                                           =1

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also Northern States Power Co. (Monticello Nucicar Generating Plant, Unit 1), ALAB 611,12 NRC 301 (1980), RULES OF PRACTICE: SUA SPON7 E REVIEW Although the Appeal Board usually undertakes sua sponte review in pro-ceedings that have become uncontested because all of the interveners have ci-ther withdrawn or declined to appeal, sua sponte review is not precluded where interveners have been dismissed as a sanction. See, e.g., Consumers Power Co. (Midland Plant, Units I and 2), ALAB-691,16 NRC 897 (1982), review ' declined. CLI.83 2,17 NRC 69 (1983). RULES OF PRACTICE: SUA SPONTE REVIEW The purpose of Appeal Board sua sponte review is protection of the public interest in general (as opposed to a particular litigant's interest) by providing another independent level of review of significant health, safety, and environ-mental issues on which a substantial evidentiary record already exists. RULES OF PRACTICE: SUA SPONTE REVIEW The Appeal Board generally will not undertake sua sponte review where all the parties have agreed to a stipulated settlement of the contested issues,

               ,,,f                                                           effectively resulting in a dismissal of the proceeding Portland General Electric                             .

(;, ,. Co. (Trojan Nuclear Plant), ALAB-796,21 NRC 4 (1985).

               .,p                                     '
                .%                                                            RULES OF PRACTICE: OFFICIAL NOTICE

1

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The Commission's Rules of Practice allow the taking of official notice only  ;' ,.

                  /                                                           of"any fact of which a court of the United States may take judicial notice or of                             ,
            . /i-                                                             any technical or scientific fact within the knowledge of the Commission as an expert body." 10 C.F.R. 5 2.743(i).

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a [ Q[>f 7c, EMERGENCY PLANS: F. NOTIFICATION REQUIREMENTS ' i44 g, Absent NRC regulations or evidence to the contrary, it can be presumed

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that a station that undertakes to become a part of an established Emergency Broad ast System will carry out in any emergency (nuclear or otherwisc) the fik3} fGif, . responsibilities it has assumed. N $2 9? %,,,? Q,.W,  ?

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1%l41Mne%9W!anddd wg.Di.g , jG g$ J RULES OF PRACTICE: SUA SPONTE REVIEW If, in the course of sua sponte review, the Appeal Board concludes that j corrective action adverse to a party's interest is necessary, the Board ordinarily 7y

                                                                                                         +

affords that party an opportunity to address the matter. See Ogshore Power Systems (Manufacturing License for Floating Nuclear Power Plants), ALAB- s/ 689,16 NRC 887,891 n.8 (1982). , TECIINICAL ISSUES DISCUSSED Emergency Broadcast System Role Conflict Faced by School Bus Drivers During Emergencies. ,

                                                                                                    ; 1 MEMORANDUM AND ORDER in LBP-88-24, the Licensing Board ruled on three emergency planning issues before it (the adequacy of the emergency broadcast system (EBS),

school bus driver role conflict, and hospital evacuation) and also dismissed the intervening Governments (Suffolk County, the State of New York, and the Town of Southampton) from the remainder of the proceeding as a sanction.1 The Governments appealed their dismissal as well as the Board's disposition of the EBS and school bus driver issues. In ALAB-902, we concluded that the Licensing Board had exceeded its authority insofar as it purported to dismiss the Governments from a portion cf the proceeding pending before another Licensing Board, and we therefore reversed LBP-88-24 to that extent.2 The Commission ultimately declined to review our jurisdictional ruling, leaving it intact.5 In an unpublished order issued November 9,1988, however, the Commission stacd that it would decide the merits of the Governments' appeals from the dismissal order, but left for us to resolve in the first instance the remaining issues on appeal (i.e., EBS and school bus drivers). Earlier this month, in CL1-89-2, the Commission upheld the Licensing Board's dismissal of the Goectnments from all pending adjudicatory proceedings.' As the Commission succinctly stated,

               "[alli contested proceedings are now at an end,8 Thus, we are obliged to dismiss the Governments' remaining appeals from LBP-88-24 I

28 NRC 311 (1988). 228 NRC 423 (1988). 3CLI-8811. 28 NRC 603 (1988).

• 29 NRC 211 (1989k 5M at 232.

249

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)t          A W s % ;', ~-,,                Under long-established, Commission-endorsed practice, however, in the ab-                                                  yg P           p?q A     .gg                 sence of an appeal we " review sua sponte 'any final disposition of a licensing                                    apg d> *
          ;      h"q( Df              proceeding that either was or had to be founded upon substantive determinations                                                  Q' g i    g ;.,

of significant safety or environmental issues,'"* Usually we undertake such re-  ? g h( .f  %) "- view in proceedings that have become uncontested because all of the interveners N k have either withdrawn or declined to appeal - unlike here, where they have , l', j Kr. been dismissed as a sanction. We see no reason, however, why that should .

                                                                                                                                                              .. . . c;r;      i Pgp              preclude sua sponte review here, given the purpose of such review: protection                                       ,'g                 ,

of the public interest in general (as opposed to a palticular litigant's interest) by , ft  ! s g((d: providing another independent level of rcview of significant health, safety, and -

                                                                                                                                                                 .y 9

[, l d%, environmental issues on which a substantial evidentiary record already exists.' t'% I lN T ( > Moreover, sua sponte review of the Licensing Board's disposition of the school G

                        ~ - d. :      bus driver issue is especially appropriate, inasmuch as the Board's ruling is a                                      ;s ?              v p'          direct consequence of our own prior remand of that issue in ALAB-832, well                                          ' ' 1[J    g MQ,            before the circunotances existed that gave rise to the decision to dismiss the                                             JL            ^J Governments,' Finally, the Commission did not impose the dismissal sanction                                              h,               H

[d.4 retroactively so as to reject ab initio previously admitted and litigated con- <t h/k

                         . 7,;

tentions, Nor did it vacate, affirm, or otherwise address the portions of LBP-88-24 still before us. Indeed, the Commission explicitly " terminated' only the ', [k[da:[l

h' portion of this licensing proceeding that involves the 1988 emergency exercise, M 5 termed the "OL-5" docket ' In these circumstances, we therefore find no reason j

                          - $J        le depart from our customary practice and have reviewed n;a sponte the Licens-                                                              1 ing Board's disposition of the EBS, school bus driver, and hospital evacuaticn A     issues. 0
                                $           We recognize, of course, that the Commission described CLI-89-2 as "the 7     final adjudicatory decision in this matter" and instructed the Director of the Office of Nuclear Reactor Regulation (NRR) to " evaluate each contention that remains outstanding as a result of this decision and [to) explain , , . in a public
                                        ' sacramento Municipal Unkry Dsrrrict (Rancho seco Nuclear Generstmg stauon), ALAB45s,14 NRC 799, 803 (1981) (quotmg WarAnston Public Power supply syssem (WPPss Nuclear Project No. 2), ALAB-571,10 NRC 687,692 (1979)). see also Northers ssores Power Co. (Monticello Nuclear oenersung Plant, Urut 1),

AIAB-611,12 NRC 301 (1980). T in a sirnilar sausuon, in Commmars Powr Co. (Midland Plant, Umts 1 and 2), AIAB 691,16 NRC 897 (1982), review dachand, C11812,17 NRC 69 (1983), we disnussed an miervenor's appeal after concluding that the intervenor's conduct amounted to a waiver of its appeal rights. We nonetheless went on to conduct sua sponse review of the tacensms Board's decision. Only where all the parties have agred to a stipulated settlement of the centested issues, effectively resultmg m a disnusaal of the proceedmg, have we dc lmed sua sponte review. . forrland Canarol Userrie Co. (Trojan Nuclear Plant), AIAB-796,21 NRC 4 (1985). l

                                        'see 23 NRC 135,152-54 (1986),rav'd in part on otAsr grounds, CL1-87-12,26 NRC 383 (1987).                                               I
                                        'CLI 89 2,29 NRC at 232.

30 Decause the Governments' appeal was fully bnefed and argued and our considerabon of tt was neanns l' completion when the Commission issued Ct189-2, it would deny reahty to claim riow that we have given no considersticsi whatsoever to the parues' arguments on appeal. Thus, gwen the unusual posture of this proceedmg, our sua sposts review has been sided equally by the presentauons of all the parucipants, past and present, in keepmg wah the purpose and proper scope of sua sponte review, however, we do not addreas any of the pmcedural aspects of the t.tcensmg Board's decision to which the Governments objected in their now distrussed appeals. l 250 i l

                                                                                                                                                                                                               ,[
                                                                                                                                                                                                                  .Y
                                                                                                                                                                                                                    .ke meeting whether, and if so, how, enh has been resolved."" The stated purpose
                                                 ,                  of this public review by the Diret: tor of NRR is "to ensure that no safety issues                                            ,            ,pj remain unexamined before issuance of an operating license for the Shoreham                                                                    4 facility."" Because we have already devoted considerable attention to several of those outstanding safety issues, we believe our views might well aid the Director
                                                                                                                                                                                                                .f].

y and ultimately the Commission in their evaluation of them.n Publicly providing j) those views in the context of sua Sporate review is, in our opinion, fully consistent .1i . with CLI-89-2 and the responsibility generally vested in us by the Commission. .,

                 ,,                                                 To that end, we offer the following essentially advisory opinion.

[p I. EMERGENCY BROADCAST SYSTEM  ; yl 1 , The Commission's regulations require that "means to provide early notifica-tion and clear instruction to the populace within the plume exposure pathway A Emergency Planning Zone [EPZ) have been established"U At one time appli-cant Long Island Lighting Company (LILCO) contemplated that this requirement ( $ s would be met in part by a network of radio stations in which a lead role would be - f

                                                                                                                                                                                                              ,Q played by WALK, located on Long Island. Subsequent to a Licensing Board de-                                                             j#Q
       ).f4           ,

termination that the WALK network provided an adequate emergency broadcast [, i f ,,o .

                                     ,,                            system, WALK withdrew from participation in the system. This development led the Commission to direct that the record be reopened on the EBS matter."

(,

• lj ]j j bD[g ,h- ic 'dt After an aborted attempt to substitute a radio station network headed by N, $ e

 .[d N)jph                        $N.            [$[1;,            WPLR-FM located in New Haven, Connecticut, LILCO ultimately informed the Licensing Board that it proposed to rely upon an already existing EBS g .-

l, j,d/

                                                                                                                                                                                                       )
     .          & t/N'                                             for Nassau and Suffolk Counties.52 That EBS was established by the State of                                                   h
   $j           M%y,p[                                             New York and approved by the Federal Communications Commission (FCC) in                                            [p[T'[j(
 's 3                                      i                        1981 In the event of a natural disaster or other emergency situation warranting                                            , ng
,'                  o y y{d,y (M9 communication with the public in those counties, it can be activated by federal, y                ;                                                  state, or local authorities. The lead facility is WCBS, a 50,000-watt station dh               4 d                           ;[ h        Wh' % g.9                                                                                                                                      g located in New York City. Should there be an emergency necessitating resort R                          '7,                                      to the system, WCBS is first contr.cled. It is then responsible for both (1)                                       qt,.

• 7,- .

broadcasting any emergency informational messages provided to it, and (2) J N

                                                 .d                                                                                                                                               ~ *p a ri 9            U Ct189 2,29 NRC at 232.                                                                                                  .

12  ;$ {' lbid. See also id. at 216 n.4. N g-

                                                     ?

2 U h 4 j 7, 1n dua connenian, we note that another outstandmg issue concerns the suitabibty or applicara's recepuon centers. In AIAB 905,28 NRC 515 (1988),revis,,vd declined (February 17, 1989),we remanded two matters to f

• 9 gt.' the ticensmg Board for its further consider tim. See id at 535 & n.75. Thus far, that Bosrd has taken no sedon n(, on the rernand, g 14 a f, ptj [{ ,

Sea, eg., ALAB.90c,28 NRC 275,284 85,p<rariosfor review dreied CLL8811,28 NRC 603 (1988). u 0l C.F.R. 6 50.47(b)(5). 9 g ', p} ct pU "See CLI 87 5,25 NRC 884 (1987). 4  ; l

                           * '                                    37 Ic          J                       j l

yn Ses titfo's Second Motion for summary thspostuon of the LBs lasue (June 20,1988) [heremsfter "second Modun'*], Attachment 1.

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men seN haidhh)$d%$O*Q q .5~/- l' j l4%w y ; 3

t gu g transmitting the messages to a network of more than 30 radio stations for g W' t dissemination by those stations to their Nassau/Suffolk audiences.58 After some procedural skirmishing, the Licensing Board entertained and . ,, i

[ then granted iri LBP-8S-24 LILCO's motion for summary disposition on the adequacy of the WCBS-based EBS. The Board concluded that the materials  ! offered in support of the motion demonstrated, without sufficient refutation by { 1s the Governments, that, by itself, WCBS provided full coverage to the Shoreham . l EPZ. The Board went on to opine that, even were this not so, such coverage would be supplied by the entire network of stations."  ! The Licensing Board's determination that the signal strength of WCBS will enable that station to broadcast messages that will be heard throughout the EPZ rested upon an engineering report and affidavit prepared for LILCO by Cohen and Dippell, P.C., Consulting Enginects, Radio and Television 2o That determination was reached despite the fact that the report itself indicates that the WCBS signal level does not meet throughout the Shoreham EPZ the FCC 5 standard of 2.0 millivolts per meter (mV/m) for primary service to communities with populations in excess of 2500 persons.21 To the contrary, according to the report, ialn analysis of the field strength measurements shows WCBS provides a maximum signal level of 2.35 mV/m and a minimum signal level of 0.58 mVhn to the IFZ area. Based on the measured radial method for determining AM service, the WCBS 0.5 mVhn contour extends to a distance of 105 kilometers from the WCBS transmitter site. The distance to other cantours can be determined by reference to the attached graph of field strength versus distance. A 0.5 mVhn signalis the FCC required for primary service to rural areas and communities with population less than 2500 persons, and this WCBS contour covers the entire f71. Ilowever, a signal strength of 2 mVhn is required by the FCC standards to serve communities with population in excess of 2500 persons including " Census Designated Places"(CDP's). The EPZ consirts of numeroar CDP's and comnuanities in excess of 2500 persons 22 Significantly, the Licensing Board omitted this last sentence in its excerpt frcm the Cohen and Dippell report. Its rejoinder, however, was that is 5aa ad, Attachnwnt 4.

            "1.BP-88-24,28 NRC at 327 28. 331.

20 Saa secand Moum, Attachment 6. 2 Two poruons of the ICC regulauons are perunent to dus usue. "Pnmary semce area" is that area wherein "the groundwave is not subject to objecuonable mierference or objectionable fading" 47 C.F R. 6 73.14 (1987). The groundwave signal streogs requued to render pnmary semce is 2 0 mV/m for commuruues with populauons of 2500 or more. and 0.5 mVAn for corimunines with populanons of less than2500. 47 C.F R l?3.182(c). 22 seced Mouan. Attachment 6 at 2 (emphasta added) 252 l l l

[ijt is immaterial to a determination of adequacy of the State EBS whether WCBS meets the FCC criteria as a provider of primary service in every portion of the EPZ The question before us is whether or not it can adequately notify residents of the EPZ in an emergency. 'Ihe Board declines, however, to put an absurd construction on a federal rule, and we therefore do not accept the pessibihty that FCC has defined broadcast signal strengths for primary service that are too weak to be received. Even though the consultant report does not give the minimum signal strength for adequate radio reception, the only reasonable interpretation of the federal criteria for primary stations cited by the consultant is that a strength in excess of 0.5 mV/m provides acceptable reception. h is uncontroverted that WCBS operates at maximum permissible power for AM stations and that it provides a signal strength of at least 0.58 mV/m throughout the E?Z. (Second) Motim, Attach. 9. 'The Board concludes that whether or not WCBS meets the FCC definition of a primary station within the FEI, LIlf0's consultant plainly intended to establish with the foregoing information that the signal strength . of WCBS is adequate to provide emergency information to residents throughout the EP7. No material facts to the contrary have been presented that would justify opposition to that conclusion.D This analysis does not carry the day. Specifically, the Licensing Board supplies no reasoned basis for brushing to one side the FCC 2.0 mV/m standard for primary service in larger communities. In this connection, we fail to understand the Board's endeavor to justify its rejection of that standard on the theory that the FCC would not have " defined broadcast signal strengths for primary service that are too weak to be received," Among other things, the Board seemingly did not focus upon the fact that the different FCC signal strength standards are a result of the need to mitigate increased interference in more populous areas,2d in short, the crucial consideration is not whether a s , particular broadcast signal is too weak to be received; rather, it is whether the signal is strong enough to be heard over local interference.

                                                                                     ~                                            Nor can we accept the Licensing Board's unsupported speculation that
                         <y "LlLCO's consultant plainly intended to establish . . . that the signal strength f'                   .,

of WCBS is adequate to provide emergency ifirormation to residents throughout . the EPZ."2 We have discovered nothing in the record of this proceeding to [j .; indicate that a signal strength of less than that required for routine broadcasts s (fQ' ' , .,' is adequate for the broadcast of emergency information.28

                         '$, ' , . ,                                                                                   U
                ,, ;q                                                                                                       LRP 88 24,28 NRC at 327 (emphasia added).

p , Q s > a ].M -4i 24g,, supre note 21. See also 28 Fed. Reg. 13,572, 13.577 (1963). ,, j ,,.tc* *

                                                                                                                       "LBP.88-24,28 NRC at 327 y                           'p%%           if h;                .q )q ; ^ "                              26 our cursory revicw of the ICC's emergency bmadcast system regulations,47 C.F.R.1%n 73, subpan o, reveala Q                                                                           1

f. }.4; , /; .W y, ,. g e no distmenon in signal suength for rouune and emergency 'crundcasts. Tacidy acknowledgma the lack of reemd .

yU \ and regulatory support for the Board's view, at oral argument Illfo's counsel sugg sted that we take official r@( p ph. er Ny'. > nunce of his claim that "a h2gher qushty of sgnal is necessary for music and the sata of thmgs that radios Lks to broadcast sIl the time as oppmed to simple verbal messages which sre a los easier to get across." App, Tr. 50. 4j ,yaj h i".?i e' y: A,

                                                                              ', ' i                                   We dechne to do so, For one thms, LRro apparendy did n9 call upon the Licensmg Board to take such nouce of that purponed " fact" and, in any event, the Board did not do so. More important, the Commission's Rules y vN ,,
                       .Q tW ',                                                '

of Practice allow the takmg of official notice only of "any fact of which a coun of :he United stata may take judicial nouce or of any techrucal or scienutic fact within the knowledge of the Commissian as an expert body." p'

              ,y % ,L .f {,,o:                                                                                         10 Cf.R. $ 2743(ii 11 na doubtful at best that the assened " fact"in question is "not subject to reasonable durpute"
                                                                                             '                                                                                                                                   (Continued) 2" mAhk iam m-kh,
                                                                                                                                                                                                                                                              .m h,c 77p' a.3aEM,e og                                                                                                                                                                                        av, 7.,
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z. But, as earlier noted, the Licensing Board found in the alternative that, even d if WCBS did not itself provide full coverage to the Shoreham EPZ, LILCO could rely upon the requisite coverage being su;' plied by the full EBS network of more hh;! 1; 4-than 30 radio stations on Long Island.27 The Board found that no evidence had been presented "that would raise a serious question as to whether an adequate warning to residents of the EPZ could be delivered through the network of [?'/h 7 ,. : gi stations in the State EBS."2 It also rejected the Governments' argument that, P in the absence of assertedly required letters of agreement (presumably between  ? LILCO and the network sta' 'ns), it cannot be assumed that the network stations will broadcast emergency racssages. The Board concluded in this regard that NRC regulations do not require such letters of agreement "where a preexisting agreefnent between the State and the broadcast industry complies with NRC i guidance."" The Board also stressed that no evidence had been adduced to controvert the fact of this existing agreement.20 The record supports the Licensing Board's decision that the participants in the state-established EBS network will be both willing and able to broadcast messages throughout the EPZ in the event of a radiological emergency at Shore-ham. There is no evidence to suggest that the network is technically incapable of providing cmcrgency broadcast information to the affected areas. Indeed, in the absence of such evidence, it must be presumed that the State of New York and the FCC knew what they were doing in establishing and approving, respec-tively, a communications network designed to provide emergency information to the entire area of Nassau and Suffolk Counties. Nor do NRC and FEhiA reg. ulations require more than the preexisting agreement between the state and the network stations to establish a presumption of a willingness to participate. For instance, the only documentation mandated by FEh1A relates to the " station's or broadcast system's ability to participate in the public notification process."31 FEhiA goes on to note that "(p] participation in a ' Local Emergency Broadcast System Operational Area Plan' [c.g., the EBS for Nassau and Suffolk Counties) is considered satisfactory."32 In this regard, it is noteworthy that, in announcing in the Federal Register the availability of FEhf A. REP-10, FEh1A observed that. - in response to comments on earlict guidance, it had " replaced the requirement [in that earlict guidance) for written agreements that individual broadcasting widun the meanmg of Rule 20!(b) of the Federal Rules of Evidmce, governmg the judicial notice of adjudicauve facts in the United states courts Nor does dus Comnussion's " knowledge . . as an expert body" extald to the required quality of radio signals. 77 LEP-88-24. 28 NRC st 327 28. 2s14 at 328.

                                               " Ibid 30 /d  at 329,331, 83 fBIA RIF10. 'hde for the Evaluauan of Alen and Nouricauon systems for Nucicar Power Plants" govember 1985), at 122 (emphasis supphed).

Ibsd 254

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[ diam u,,- .c ' Y WY ' Y Y Y- - hd- q lw.f ~.hp/!gY@[

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w. we w

                       ?             -
 'p, Jy, .; e d,y               stations will participate in the EBS with a requirement for documentation indi-
    !                                       cating that they are able to participate in the EBS."32 In short, FEMA obviously                                   }];p g+

[hmJ/ ~ M,% h.ffWM/diMy% proceeds on the premise that a statior that undertakes to become a part of an established EBS will carry out in any emergency (nuclear or otherwise) the re- ;Q' g,f gpg r. sponsibilities it has assumed. In the absence of NRC regulations or evidence to {M

  ,p                   ,'I-{                the contmry (and there is none in this record), we have no reason to conclude Q                               - >>       otherwise.)*

M ' [$ 3 In sum, the record does not establish that, standing alone, WCBS will provide ip G the requisite EBS coverage. Because, however, the record contains nothing to i? rebut the presumption that such coverage will be supplied by the entire multi-

                           '! gyh 1    - ,                                   station network (a presumption arising from the state's establishment and the

($ FCC's approval of the network), we agree with the Licensing Board's ultimate resolution of the EBS issue in LILCO's favor. l

k[ i g 'hj IL SCIIOOL BUS DRIVER ROLE CONFLICT

[ , i Students attending schools in the Shoreham EPZ are transported in buses owned and operated by either a bus company under contract to provide such r: Q services or the school district itself. Initially, the LILCO emergency response (4 plan relied entirely upon the availability of those resources to implement any p j carly dismissal occasioned by a Shoreham emergency. More specifically, the

j. i plan contemplated that the buses would make the number of trips necessary to

[ transport the students to either their homes or a reception center. In Contention 25.C, the Governments asserted that many of the drivers would experience a conflict between the discharge of their emergency duties and the fulfillment of perceived family obligatio t, with the consequence that sufficient numbers of neither school buses nor drivers would be available to carry out the plan. Thereafter, the role conflict issue was litigated in the context of not merely school bus drivers but, as well, individuals with other responsibilities in the event of a Shoreham emergency.58 in an April 1985 partial initial decision, the Licensing Board determined that, although some such conflict may occur,"the preponderance of the credible evidence of record establishes that this will not 33 30 Fed. Reg 43,084,43,08s (1985) (emphasis suppbed). 3"The fact that radio sisuona such as WAI.K wnhdrew from a filf0-estabhshed EBs does not support the thesis that they will not panicipate in the state estabhahed EDs (from which, insofar as the record reflects. they have not wahdrawn). 15 Droadly speaking. the issue focused upm persons who, ahhough having a funcuan to perform in a shoreham emergency, are not part of the LRIDestabhshed local Emergency Response o ganizsuan or its support organusuons such as the Amencan Red Crosa, the lis. Department or Energy, and local ambulance campanies in addition to the school bus dnvers, such unaffihsted indmduals include teachers and some heahh care personnet 255 u > C

e t ,

                                                                                                                                                                                                         &  d:
                                                                                                                                                                                                                                    .w b

be a significant problem at Shoreham and that a sufficient number of emergency 'W workers will respond in a timely fashion to perform their assigned duties."36 *;, -

       '[.
                                                                               ,            Before the Licensing Board during the 1983-84 hearing, the Governments
                                                                                                                                                                                                               .N                 1,[k Y,'                                                             '

presented the results of a survey of the school bus drivers in the Shoreham EPZ  ?,' ' ? C '/*g[ 4

                                                                                       - both bus company employees and persons in the employ of a school district                                              %
                                                                                       - that indicated that significant role conflict might occur.8' But they failed in their endeavor to introduce testimony related to a survey of volunteer firemen on

('1- ,[][4 f

          ,                                                                            the same subject.38 The Licensing Board concluded that the firemen survey was                                                               //
               ,';f . t ( ;

M .*'I/2 M ";i irrelevant, apparently accepting the NRC staff's view that this was so because

                                                                                                                                                                                                         =
  ' ;;/ g yp'b ;;.r:i'                                     '

the LILCO cmcrgency response plan does not rely on firemen."

              ;                                                                              In agreement with the Governments on their appeal from the Licensing                                          " / ' N Y
    \(' M . .,[, b
   ?)[M'&                                                                              Board's resolution of the role conflict issue, we determined that the firemen                                          yf)gg pg$                                                         ,                     survey had been erroneously excluded. As we saw it, "the results of a survey

[D mWiV,iyj as to the potential for role conflict among firemen, if they had been part of the 1 ge 6 f f)((DQ

    ! p                          it 1f ha. , t '                                       emergency response, would provide insight into the likely course of conduct of                                       $  M kgh.

h(yMD @ ,' school bus drivers."' This was because, *

                                                                                                                                                                                                                        'I 9
                                                                                                                                                                                                                   ?s& Q f g[j fhQ:h*

Y [+,, if a trained professional cmergency worker such as a fireman would put family obligations  ? hj M h M3 g.g ; a @ ; , ahead of the discharge of any Shoreham emergency duties that might be assigned to him or 9f4 1Jjj t ' her, it is a fair inference that an individual not in such a line of endeavor would encounter , ,(pgh k. a

  . . ,p $9                                                                                  at least as great role conflictM1                                                                               hh g

h %fw[ p, w e 8

        / iff t                                                           .h                 in light of these considerations, we found ourselves unable,"[o]n the record now before us, .              .   (to] make a finding dat a sufficient number of school                                  +

fk A9 4 g < AC 4".IhN bus drivers can be relied upon to perform their duties if an accident occurred [i I(f Q u M'4 ' at Shoreham."42 We therefore remanded the matter to the Licensing Board for I l NN.D further exploration of this limited issue. Our instructions were a me: L { i{ ^ Nhh j All parties will be free to adduce additional evidence on the issue; at minimmu, the Licensing lloard is to accept the tcstimmy related to the survey of volunteer firemen. L'pon review  %'g - y' [ h y- i

               .[
                                            ~{                            .j f the evidence preses.tcd at the reopened hearing, the ljcensing Board should reconsider                           1 lrt .

f^$(.L[NQ i [

               ^ '
 ! r                                                        i
                                       #f7D                     Ri$I 0

k 361.BP-85-12,21 NRC 644,679 (1985). l 37 Cone, fol. Tr.1216, at 2 8. l 3aSaa 44 at 12-16. c "Tr. 792. See NRC staff Mauon to stnke Certsm Prefiled Tesurnany of suffolk County (November 28,1983)

                                                            .A            y        p    ,, g
                                                                                       '0 A1.AB-832,23     NRC at 153 (focanate onuned).

g {.k L I ff

                                                                                        'l lb.d (footncie omined). In this connecuan, we referred to our decuuan in Cacmari Car A Doctric Co. (Wm. R Zimmer Nuclear Power station, Umt No.1). A1.AB-727,17 NRC 760, 772 (1983), in which we found that surveys of volunteer hfe squadsmen and firemen concermng the role confhet they would encounter raised "a menous quesuon as to whether bus drnus could be depended up<m to cany out their asponsibdaues"in the event of an accident at that plant.

1 - 42ALAB-832,23 NRC at 154. 256 e

os . . .. . ~ , ... w .- . - -. a o. ~ ~ ~ ~ ~ ~ " " " " ~ ~ " " " A' " *'- [

                                                                                                                                                                                                   - r a . . . .                4     ,k.        ..         ..

h

          " h[ , l
                                 ?f ' *   ... i N

• 1 its prior findings and condusions regardin5 the potential for role conflict among sdiool bus  ; 3 drivers.

9l

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  ,' r1     V %4),,y, l~,'>"l'.                               ,
                                                                                                                                                                                        '9; W                    '                '                               As earlier noted, the original LILCO proposal provided for a multiple-wave evacuation of school children to be accomplished by bus drivers in the employ j                                                of, or under contract to, the various school districts within the Shoreham EPZ 79 9 "g ;'
         +l               %."'

(hereinafter, " regular" bus drivers). Ibliowing our remand, however, LRCO k,. materially altered its proposal to call for the single-wave evacuation of the -[] { J'h,hl6'f$@h, j ff..

                                                                                                                                                                                             ,Qk
               ,                                                                                                                                                                                      2 children (i.e., each bus and driver panicipating in the evacuation would bc
 ' Ary' 9 pfd       g             !                               required to make but one trip from a designated school to a designated reception                        'S3
                                                                                                                                                                                          . % lI J.E[py W 7 h,
                                                 %/p['j
                                                         '~ ! i center).** In order to accommodate that alteration, LILCO further proposed to supplement the " regular" school bois drivers and their buses with LILCO-                         ' F ' (Il f

furnished drivers and buses.*8 Specifically, LILCO offered tc) supply 613 trained 'ih);j

                                            $1;h.4     "

drivers and 208 buses.*6 y ,i .

   ,?
                 ,4     ~

j< pg. LILCO arrived at these numbers through the following process. To begin ,je - R y pyd with,it undertook to ascertain how many drivers and buses would be necessary to evacuate the school population. To this end, it first determined the total fMM[' k' '. 1 W ,, y,pk student population within the EPZ on the basis of telephone surveys conducted  ;(

            '4                     7 y. g 1,f                                                                               in July 1987 and April 1988 and the responses to interrogatories submitted to                            f~

Q Q g,' li W y New York State and Suffolk County. It then assumed that, on any given day, .1 M,?g  %. five percent of the total school population would be absent and 20 percent of the J df high school students in attendance would respond to an emergency by departing j' ,#% in either their own automobiles or those of friends.*8 On the further premise that each bus could transport 40 high school students or 60 students in lower p ?r. ' 4 - grades," LILCO arrived at the conclusion that the single-wave evacuation would

                                                           #                         necessitate a total of 509 buses and drivers."
                                                         'h                                To meet their normal transportation needs, the school districts reportedly use a total of 301 buses and drivers.58 That being so, LILCO reasoned that it would g

9 need to supply 208 buses and an equal number of so-called " primary" drivers

                                                             ;f                      so as to reach the 509 figure to effect a single-wave evacuation.s2 Seemingly 4                  recognizing the need to have backups for both the " regular" drivers (employed by the school districts and their contractors) and the " primary" drivers (in LILCO's
                                                                                     '8 tha (footnote anutted)
                                                                                     ** Ses 1.Ero's Maion for senmary Dapraiuon er Conta1uan 25 C (" Role Confbet" or school Bus Dnves)

(october 22.1987) at IS17.

                                                                                     ** Iki
                                                                                     Crodar, et al. fat Tr.19,431, at 52 54.
                                                                                     '7 Tr.19,746.
                                                                                     "Tr.19.753-54.

d'Crocker, et at foL Tr.19,431, et 50 51. l l

                                                                                      "Id at 50.

l

                                                                                      id at St.

121d at $3. ( I 257

                                                                                                                           ._nna- aA                          w..  .a:.u 6x.                -
                                                 -                                                                                                                                                                a,)

A employ), LILCO indicated its willingness to have available 405 additional N drivers. Of those drivers,301 would serve as backups for the " regular" drivers '4 l on a one-for-one basis; the remaining 104 would backup, on a one-for two basis, the 208 " primary" drivers 53 _ At the hearing below on the new LILCO proposal, much of the testimony q! focused upon the role conflict question. On its analysis of that evidence, the Licensing Board concluded in LBP-88-24 that there was insufficient doubt M g respecting the availability of the " regular" drivers in a Shoreham emergency to require LILCO to produce its own substitutes for those drivers." In this

                                                                                                                                                                                       ,                        k.,

cornection, the Board pointed to historical evidence presented by LILCO that

j

                                            '                              satisfied the Board that past emergencies had not resulted in role abandonment                             '
                                                                                                                                                                                               . +

h among bus drivers." Moreover, according to the Board, emergency response organizations had not lost their effectiveness because of role abandonment during p past emergencies.56 With respect to the surveys of school bus drivers and firemen y put forth by the Governments, the Board found them of litt!c probative value

                                                                                                                                                                                                            ' ]%

when compared to the evidence pertaining to actual past emergency responses." [ t , On the strength of its role abandorunent determ! nation, the Licensing Board y;

                                            *                                                                                                                                                                   ,/f relieved LILCO of its offer to supply backup drivers for the postulated 301
        ','s                                                             " regular" drivers.58 The Board left unaltered, however, the LILCO commitment                                                            R T

q q.g g A A. to provide IM drivers as a bxkup for its own 208 " primary" drivers." LILCO had assumed this latter obligation because, in the words of a principal witness

                                                                                                                                                                                                               'j
      .k'y^hly-                                                          on the driver availability issue, "[i]n the interest of conservatism (LILCO) y',
                                                                                                                                                                                        ) A , , ;j'!}, ,'
                                                                                                                                                                                                             ,d, Ik:.'hhh.
     ' by M R(. .g .

customarily recruits more emergency workers than are needed, providing a 150% call-out for all of its . . . emergency worker positions."" Thus, as a result of [;y g, f. ,/ " h.hD the Licensing Board's determination that role abandonment would not occur in

   $,NMih[.:<                                                            the ranks of thc regular drivers and that there is, therefore, no need to supply                                  >3h          ,    c backups for them, LILCO now must supply only a total of 312 drivers (208 f((,If}fU k
                               " 'l y,,
                                                                        " primary" drivers plus 104 backups).                                                                                  il x

g:yfh b '

                   ' X!f, y.,                                                 Our examination of the record indicates that the Board's determination yrests                                     ,1 :

y;; on a very shaky foundation. 'Ihere is no dispute that, in the event of an accident ,

                               'Ud                                      at Shoreham, many of the " regular" drivers will be confronted with a role conflict
                                                                                                                                                                                          <r r                         s
                                 '

• h- M -

{4 - i.e., they will have to choose between fulfilling promptly their assigned ,

                                             $'                         transportation duties or, instead, first undertaking to ensure the safety and well-(" ,' ", b) h
                                                 'p ,
                                          . _ .h     .

D ib,4

     ?

I (%51,; 4k[,

                                                                       "28 NRC at 342.

88

                                                                           /d at343.
                                                                                                                                                                                        $. ' ' b         '

1

                                  \4                                                                                                                                                    g
                                                 ^%                    56 lb,4

! 1 F 4 ,/ I ?t

                                 ;;                                        /d at 343 44.                                                                                                  )        f~

58 fg ,g 344, [b.[ '{  % y< resuh n Tt- " Ibid he Board opined that the 104 backup dnvers would cover any driver shortfan that nught [L i sufficient nornber or buses will be avstlable to perrnit such an evacuation. It at 345. ia single wave evacumuon. l.Nd In rnaking that observation, the Board left it to the raff to make certain that a \s L

                                                                                                                                                                                                        ' ~

3 "Crexler. et al.. fol. Tr.19,431 at 53. s a { jyw o ([ "

                                                    ~~
 ,i 258 i
                                                                                                                                                                                      ,~

l

h. ide. U34 A

1 o i j i being of their families. Rather, the issue involved here relates to the choice that the drivers are likely to make. On this question, the record shows that the  ! expert witnesses were in sharp disagreement. Moreover, neither th: historical evidence nor the predictive surveys included in the record allow a confident judgment respecting the amount of role abandonment that is likely to occur and, thesefore, must be taken into account in emergency response planning. But it is manifest that, contrary to the seeming belief of the Licenring Board, some role abandonment is a real possibility.

                                                                             . ; reach this conclusion with full recognition of LILCO's historical evidence on the matter. Among other things, the applicant's witnesses appearing on the role conflict issue in the 1983-84 hearing referred to the studies of several disas-ters that disclosed a measure of role abandonment among emergency workers.62 One such study, published in 1952, focused upon the response to three tornadoes and one shipyard fire.a2 According to the author of that study,"[t]he great ma-jerity of persons interviewed who were involved in [ role conflict] dilemmas resolved them in favor of the family, or, in some cases, to friendship groups.""

A like observation resulted from studies involving emergency worker response to a 1953 flood in the Nethe riands;" Texas tornadoes;" and a hurricane.66 Still further, two general studies of disaster responses published in 1958 included the researchers' notations that "[f]or many of the husbands / fathers the role of protector structured activity during impact"" and "[h]elp for family members, close friends, and neighbors comes first, then, but apparently only then, other victims can be looked after."** Although supplying these studies, LILCO's witnesses attempted to minimize their significance. The Licensing Board was referred to yet another study, pub-lished in 1954, that was said by.the wnnesses to reflect that " role conflict does not result in role abandonment if emergency workers are provided - before an emergency - with a clear idea of what their emergency roles are." "Ihose witnesses went on to emphasize the importance of prior planning, stating that

                                                                      "[w]ithout planning, role conflict can, indeed, produce role abandonment."70 Along the same line, a later study presented by the LILCO witnesses was de-scribed as estabhshing that individuals without emergency roles tend to their families before volunteering, while individuals with clearly defined emergency              ..

f

                                                                      'I Cordaro. e4 al fol. Tr. 831, at $2 59.

a2 Id at 52 54. Saa also Cde, et al., fd Tr. 20.672. at 28.

• Cordaro. et al., fol. Tr. 831, at 54 (quotmg 1952 anacle by lewis Kahan).

                                                                     "Id at 55.
                                                                     "/d at 55 56.
                                                                     "id at $9.

U

                                                                         /d at 56-57 (quotmg 1958 dissertataan by Chades W. Rigleman).
                                                                     "Id ai 57 (quotmg 1958 bod by Wilham !!. Form and sigmund Nosow)
                                                                     "/d at 62 (emphasis m onginal).
                                                                     'O Id at 64.
                                                                                                                                                                       \
                                                                                                                                                               \l
                                                        .                                                                   259                              i b

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                                                                                                                                                               .5 3

ti

1 duties fulfill those duties (albeit with a considerable degree of personal stress until assured of the safe'y of their families).78 The same emphasis on role cer-tainty surfaced in a still further report that addressed three specific emergencies and found that 80 to 90 percent of the emergency workers resolved their role conflict in favor of the performance of their assigned duties.72 On the remand, LILCO cited all of this evidence, as well as additional studies presented at the 1983-84 hearing that did not disclose any role abandonment by

                                                 .cmcrgency workers.7) It then put before the Licensing Board newer studies, I

published in various books and articles.74 'Ihose studies found no full role abandonment on the part of any individual." Another study involving bus drivers revealed, however, instances of late arrival for evacuation duty because concern for family had been given priority.76 Interestingly, one of the recently published studies - in common with the older ones - sounded the theme that it is important that emergency workers have a clear perception of their emergency roles." At neither the 1983 84 hearing nor the remand hearing last year did LILCO satisfactorily explain how the " regular" school bus drivers would obtain the role certainty that, according to its own witnesses, is necessary to minimize the possibility that role abandonment will occur. The fact is that, while LILCO may have offered to provide the training that one of its witnesses opined " breeds emergency role certainty,"" on the current record the offer has been accepted only to a small degree." Moreover, because few of the " regular" school bus , drivers are involved to any extent in Shoreham emergency response planning, there is considerable relevance to the acknowledgment of the LILCO witness that, in the absence of planning, role conflict can produce role abandonment." , Accordingly, even if all the opposing testimony on the subject were totally ignored, it would be most difficult to subscribe to the Licensing Board's view that the record establishes that role abandonment in the ranks of the 301 " regular"

                              ,                     drivers is not likely to occur. If the other evidence of record is taken into i

account, any conceivable lingering doubt in that regard evaporates. Beyond their reliance on :; cme of the studies presented, and then discounted, by the LILCO witnesses, the Governments' witnesses asserted that one must consider the differing effect that different types of emergencies will have upon

'gj';**

l r t 73/d at 64 6s.

                                                    '2Il st 6667.
                 ' '                                "Crncier, et al., rol. Tr.19,431, at 9.

7'/d at 915.

                         *        > *   ,           npg                                                                                                                                y) 78 14 at 26-31.

r' "14 at 9.

                                                    " Cordaro, et al., fol. Tr. 831, et 67.
                                                    "Tr.19,490-97,19,693-94. 20,143.                                                                                                   'e
                                                                                                                                                                                       ?
                                                    *see supra p. 2s9.

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J 6 role conflict.' In this connection, the witnesses pointed to the continuing danger asrociated with a widespread radiological emergency." Because or that factor, they opined that, for present purposes, a Shoreham emergency should be analogized to the shipyard fire that led to considerable role abandonment, rather than to tornadoes which, once they pass through a particular area, no longer pose a significant hazard." Going beyond the Governments' critical appraisal of the weight that should be accorded to various studies of actual disaster response cited by LILCO, one of their witnesses, Dr. Stephen Cole, discussed three surveys that he had made for the purpose of determining how particular emergency role players would resolve their role conflicts. One was the 1982 volunteer firemen survey, ' previously excluded by the Licensing Board but ordered to be considered on remand pursuant to ALAB-832. A second covered school bus drivers, was also conducted in 1982, and had been admitted into evidence in 1983. The Wird was a new volunteer firemen survey, conducted in 1988. Most of the interviewees in all three surveys stated that, in the event of a radiological emergency at Shoreham, they would ensure the safety of their families before under1aking their assigned emergency duties." The Licensing Board agreed with LILCO, however, that the surveys nonetheless were not instructive. In its view, "an a priori attempt to predict human behavior from surveys of opinion must yield before the a posteriori evidence of what people have in fact done."" The Board elaborated:

                                                                                     ,                    We have previously found (in the April 1985 partial initial decisioni that Dr. Cole has used valid statistical and design methodokgy in his polls. De problem does not lie with the technique but with the fundamental conces. here is nothing inherent in the methodology that compels the conclusian that they have predictive value. The poll measures opinion at the time it is taken. It remains valid only as long as the opinians do not change. But we must pass upon a plan that is expected to remain viable for 30 years. Not only will the simple passage of time affect the real results that may occur, but the press of the situation in an accident will
                           ,' ,                                                                      dominate any response. It is,in fact, precisely that effect that t.Ilf0's witnesses tell us will change the minds of those who now say they will not help. We are inclined to agree with

[ the LItCO witnesses who say that the polls measure opposition to Shoreham and present cancern for family. nat opposition is well anown, but the Commission's rules do not allow

                                                        , , ,                                        such opposition to serve as a basis for a licensing decision.'7
              ?                                         ,
                                                                  ,    y)                                                                                                                                                     '

S I 83 Cole, et al, fol. Tr. 20,672, at 71-40. E /d at 32-33. 1' / U

                                                                                                   /d at 35-37.
                                                                                                "id at 40.

l "14 at 40 55 "1EP-88 24,28 NRC at 343. g . In fg ,,344.

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  %h4kh1                                                                                   11 may well be true that prior experience is the most reliable indicator of
  $$Q QQ1                                                                .,           probable f uture response in an emergency situation. On this score, a LILCO h       kdh* /

bilf$S hp3M witness referred to a study that, on the basis of interviews sccking to clicit the likely reaction of the public to a credible prediction of an earthquake, conclu$cd dhMWk that the reacDon would produce large social and economic costs for the entire h/h N ' community." Yet, when such a prediction surfaced in the Los Angeles area, no such consequences were encountered.8' But it does not perforce follow that

 }Qp%[hk         4                                              y           ,

Dr. Cole's surveys were appropriately dismissed as having no possible value y/j whatever on the question whether some role abandonment among the " regular" {y ghj]%[ S school bus drivers is a suf0cient possibility that Shorcham emergency response planning must take it into account. The school bus driver survey included Qhp[ ' drivers for school districts within the Shoreham EPZ" Once again, most of Q ,yr@lji* those drivers have not been trained in emergency procedures or otherwise l .$ participated in advance emergency response planning." Inasmuch as LILCO's b l ; ;he[,q . own evidence indicates that a lack of such training and participation brings about i

                            .Kg $N                                                    role abandonment, it is fair to assume that, should a Shoreham cmergency occur, at least some of the bus drivers will react as predicted in their interviews."

jjk

                                                                   ;Q ~                     Moreover, as we have also scen, the "a posteriori evidence {in the recordj i
                                        $jp$ r '!                                     of what peopic have in fact done" sheds very littic light on the probable fyy                  response of school bus drivers in the event of a radiological emergency. In this regard, we need not pursue the matter of the extent to which school bus drivers Opq@,

hMs should be analogized to police officers, firemen, or other individuals who are in occupations that, by their very nature, require responses in emergencies. For, irrespective of how that question might be resolved, there is very little experience , hg%' in the United Staws with responses by anyone to radiological emergencies.

                                                                  @h                  Insofar as the Three Mik Island accident in 1979 is concerned, there were                                                           .
                                                                  - g,gg              no reported instances of formal role abandonment but the Commonwealth of Pennsylvania noted a slightly higher than normal absentec rate among its employees and a volunteer fire department indicated that a few of its personnel y[37    g 7 g

left the area." I% b 15

                                                                              +
                                                                                      "Crocier et al fol Tr 19 431 nt 40-41.
                                                                                                   ,     .,  . . . , .                                                                                                   p 8'14 at 41.                                                                                                                                 ,-
                                                                                      " Cole, et al., fol. Tr 20,672, at 41.
                                                                                      " Ses supra p. 260,
                                                                                                                                                                                                                             *(
                                                                     ' g,             "In AIAU 905, we addressed a survey d ing Island residents aimed ai deternuruns the number of mdmdaals that maald report for momtonng m the event d an acadent at Sharcharrt 28 NRC at $27 n 41 'Diere, we agreed                      i 4
                                                                            %y         mth the 12 censing Board that such surveys are of httle vshar m predictir:g the percentage of the pgulation that mmld report for m<sutonna because that perventage mil be a;gmficantly mfluenced by the informaum provided Q   '

to the pubbc at the tirne or the accident. INd Here, we use the survey of bus dnvers not to predict thcar actans durmg a shoreham ernergency, but rather as evidence that a sigmficant perantage of th<we dnvers may c i n<x parucipate m trauung or plannmg enoe to such an emergency and, thus, as L.!!CO ttselr acknowledges, are

                                                                     '%                suscepuble to role abandmment d    \
                                                                                      "Cordaro, et alsful Tr 831, et 7176.

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                                                                                                                                                                                                                                                         ' 4, In a nutshell, then, on this record some role abandonment on the part of                                        .
                                                                                                " regular" school bus drivers must be assumed and should be accounted for in LILCO's emergency planning. 'the precise quantification of role abandonment, however, is quite another matter, We believe that LILCO's own 150 percent planning assumption for its " primary" drivas provides a reasonable basis for                                                                                   !

determining the number of additional school bus drivers that are needed to serve as backups for the " regular" drivers, Thus. LILCO should be required to C provide 151 trained drivers to backup the 301 " regular" drivers in the employ of the school districts or their contractors," These " regular" drivers will therefore (

                                                                                                                                                                                                                                                         ]

have the same 50 percent backup that, in "the interest of conservatism," LILCO  ;; has voluntccted to provide for its own " primary" drivers in order to accomplish - i its new single-wave evacuation plan." This brings the total number of trained

                                                                                               " primary" and backup drivers LILCO should be required to provide to 463 -

far fewer than the 613 to which LILCO was once willing to commit,'7 The remaining portions of the Governments' appeals from LBP-88-24 are I dismissed. In the exercise of our sua sponic review authority, however, we have reviewed Parts I, II, and 111 of LBP-88-24. For the reasons stated in this advisory  ;

                                         -                                                    opinion, we would affirm the Licensing Board's disposition of the emergency broadcast system issues (Part I). We would modify the Board's disposition of the                                                                          

school bus driver role conflict issue (Part II) so as to add the requirement that, n in the event of a radiological emergency at Shorcham warranting evacuation, h LILCO supply 151 (i.e., an additional 50 percent) trained bus drivers as backups y for the drivers in the emplof of, or under contract to, the school districts. The

                                                                                                                                                                                                                                                      ;y
                       ,,y,            ,   '[                   j si Licensing Board's disposition of the hospital evacuation issue (Part III) requires
                          '"r W     r           ,

no corrective action in our view and, accordingly, we would afirm.  %

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y There was linuted discussmn on the record frun the 1983 84 and remand heanngs of the backup dnvers who

• subsutute is the " regular" school bus dnvers an normal circumstances. Sas, e s., Cordain, et al., fol. Tr. 9156, i; q '

V ]i>;;>;4 8.j ' Vol. !!, at 59 61; Tr. 9314-16. 3/ , ' Ig , Danmus, fol. Tr. 9491, at 8-9 Tr. 20,174, Brodsky, as al., fol. Tr. 20,259, at 14,

                    , . ! O M., j [ f.,                           1:

21; Tr. 20,34143. ' Die estent of the badup provisions vanes sagruficantly, however, amars the bus companies a

                                                                                                                                                                                                                            ,t

#[t go 7 V 5, school &stncts. Funher, there is no indicauon that the Ucensing Board relied on this evidence for its finding that Q. ' g fgjy -

k,f Ie 4,k'j>*O & t K ','p [' ,y m tlLCo did not need to provide any hschup dnvers for the "regu)rr" dnvers. Without additional record evidence that a sufficient number of backup dnvern would be promptly available af needed, we cannot conclude that such l* .u ygy)d %l- [tj/,/h p ( g'7 4 g *q,d 'a *Y .'$[Y{\ t dnvers can be rehed upon to compensaie for any role abandonrnent on the part of the "regula/* dnvers.

                                                                                           "If, in the course of sua sposus review, we conclude that correcuve acuan adverse to a party's interest is neces
                                                                                                                                                                                                                          , r .. )

(( I

                                                                                                                                                                                                                                            >w we tw&sarily effont that party so opporturuty to address the rnatter. Sea ogshora Pawer sprtent (Manufactunng                 ',; .I l' Q @N Mh'd@,U/

d'(*M, [ License for Hosting Nuclear Power Mants), AtAB 689,16 NRC 887,891 n.8 (1982). liere,in hght of the full briefing and argtenent pnor to the Comtrussion's decmon rendenna this proceedmg uncnr%sted, there is no need c *, l ' 2 g' Y,4 l[' t

                        /

to sohett U11'o's views once sgain un the number of backup bus drivers necessary to effect a school evscuauan.

                                                                                           "ses supra p. 258.                                                                                                                                   7 %.
                                        ,Q[*

g N* * ' 8'={O, "We note that although there is an obvious relsumnhip between dnvers and vehicles, our rtmand in AIAB-832'( 'a 4 i g/: , i .M,, iOi,+ ;MM [lhjM [, did nas embrsee kr svailabihty That matter is left to the overs:ght of the staffin the performance ofits contmumg regut iory responsihihu a. s,,,yra note 59. y J## a pppp$ .N h hh hkk e d s w w e 6Y; % \ %n owmms dhEG o m m@a weM w a m #s @w w

It is so ORDERED. .f FOR 'IllE APPEAL BOARD

j Barbara A. Tompkins -

Secretary to the Appeal Boara .., 3 9

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                                                                                                                                                                                         'd Cite as 29 NRC 265 (1989)                  ALAB 912                                              (

1) UNITED STATES OF AMERICA d NUCLEAR REGULATORY COMMISSION j ATOMIC SAFETY AND LICENSING APPEAL BOAHD i. (i Administrative Judges: Christine N. Kohl, Chairman E Alan S. Rosenthal Dr. W. Reed Johnson in the Matter of Docket No. 50-322-OL 5 (EP Exercise) e b

              ,,                                                 LONG ISLAND UGHTING                                                                                                     ,

iI COMPANY ,: y.

                 'i',,                                           (Shoreham Nuclear Power Station,                                                                   ;                  s':

y Unit 1) March 13,198il

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Implementing the Commission's decision terminating this proceeding (CLI- 'j%

   -Q'                                                           89-2,29 NRC 211), the Appeal Board issues an order ending its consideration                               -

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                                )<.
                                                 .'              of the matters before it.

q[ m, . if J f.li y q . t N[ /,rk} a i. j r.6/C hkk \. a: $w . .  ;, RULES OF PRACTICE: STARE DECISIS EFFECT OF LICENSING BOARD DECISIONS

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                                          ,/                         Unteviewed licensing board decisions do not have precedential effect. See

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t' t Duke Power Co. (Cherokee Nuclear Station, Units 1,2, and 3), ALAB-482,7 }'1f;..! fW[jf,($. $ ri .: NRC 979,981 n.4 (1978). ,[ ( tG ,.J l [b 4 . .,ff ,ydw. lj yno ,. .

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4 Ef.,'M+,. M8 m$ r,; ,i. Q .Mw a y-p (%.f.#. ,9,mORDER . 6 m d - -@

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ing Board (CLI-89-2, 29 NRC 211), our consideration of the intervening Governments' appeal from that Board's January 3 certified ruling on contentions (LBP-89-1, 29 NRC 5) is also terminated. Our previous memorandum and order of January 4,1989, accepting the Board's certification in part, is there-fore w2cated and certification is declined. Further, the Licensing Board's Jan-uary 3 memorandum and order (LBP-89-1) will have only the precedential sta-tus accordeo to any unreviewed Licensing Board decision. See Duke Power Co. (Cherokee Nuclear Station, Units 1,2, and 3), ALAB-482,7 NRC 979,981 n.4 (1978). .. Still pending before us is a portion of LILCO's appeal from the OL-5 Licensing Board's February 1,1988, decision concerning the 1986 cmcrgency exercise (LBP-88-2,27 NRC 85). 'Ihis matter has been moot for some time, and, accordingly, the remainder of LILCO's appeal from LBP-88-2 is dismissed. See ALAB-903,28 NRC 499,504 (1988). Inasmuch as we previously reversed the legal standard adopted by the Licensing Board in Part I of LBP-88-2 (see

     '                                         id. at 504-08), the Board's application of that standard to particular contentions in Part II of LBP-88-2,27.NRC at 93-212, is vacated.

It is so ORDERED. c

FOR TIIE APPEAL BOARD

                                                                                                                                     ;   ,                     c
                    .,   M'                                                                  Barbara A. Tompkins                     -*
                                                                                                                                                              ~,,
                , ) '( y                

Secretary to the

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  .:     ^.: Mhg tbkM. r)                                                 UNITED STATES OF AMERICA                                   2     'l hf' -             j      ;. 3 -'.                                NUCLEAR REGULATORY COMMISSION                                   ~'y hlp2J.            *'

0i  ! i;i tf i y ATOMIC SAFETY AND LICENSING APPEAL BOARD j i l t njf); n, ; . y e: .  !

                                    ,]                                     Administrative Judges:                                       O

{ ,' A

                   ?;p"p# i                                             Thomas S. Moore, Chairman (W
                      $b
                   @fWg Christine N. Kohl Howard A. Wilber
                                                                                                                                    .[
                                      '1 in the M nter of                                       Docket Nos. 50-603-CP/OL
                                          ;                                                                           50-604-CP Njj     ALL CHEMICAL ISOTOPE f                                        '

ENRICHM ENT, INC. (AIChemlE Facility 1 CPDF) (AIChemlE Facility-2 Oliver Springs) March 20,1989 i The Appeal Board conducts a sua sponte review of the Licensing Board's decision in favor of the applicant in this uncontested, combined construction permit / operating license proceeding for two facilities that will use gas centrifuge machines to enrich nonradioactive isotopes for medical, industrial, and other uses. With two minor clarifications, the Appeal Board affirms the Licensing Board's authorization of the issuance of construction permits and an operating license for the plants. DECISION On February 1,1989, the Licensing Board issued an initial decision granting the applicant, All Chemical Isotope Enrichment, Inc. (AIChem!E), a construction permit and operating license in the combined docket 50-603-CP/OL and a con-267 i i

                      -L f

                                                                                       ~ UXhau                   -.~.a_              . .. .

6 f^ y struction permit in docket 50-6N CP. LBP 89-5, 29 NRC 99.' No interveners . y were granted party status by the Licensing Board and no appeals have been ' filed from the Board's initial decision. Nevertheless, as is our long-standing, 3() Commission approved practice, we have reviewed the Licenring Board's deci- M sion sua sponte. Sce, e.g., Virginia Electric and Power Co. (North Anna Nuclear . j; Power Station, Units I and 2), ALAB-491,8 NRC 245 (1978); Washington Pub- jl lic Power Supply System (Hanford No. 2 Nuclear Power Plant), ALAB-ll3,6 'y AEC 251 (1973). S In the combined construction permit / operating license proceeding, the ap- ,, , plicant sccks to modify and operate the Department of Energy's existing Cen- , 3,g-trifuge Plant Demonstration Pacility, located at Oak Ridge, Tennessec, to enrich ,  ; '4+ nonradioactive isotopes for medical, industrial, and other uses. Although the j; ,4 enrichment of such stable isotopes is not ordinarily within the Commission's

                                                                                                                                                                               *M.

reguhtcry authority, the classified centrifuge machines that the applicant will / use were originally designed, manufactured, and tested to enrich uranium, thus j bringing them under the definition of a production facility within the meaning  ; , of the Atomic Energy Act, as amended, and the Commission's regulations. Sec ,

                                                                                                                                                                                   , E[A 42 U.S.C. {s 2014v,2131; 10 C.F.R. 6 50.2. In the single construction permit                                                                                       y proceeding, the applicant seeks permission to build a second, larger facility ded.                                                  ,

o

                                                                                                                                                                                     ,g p

icated to the same purpose as the first, and located at Oliver Springs, Tennessee, g;%- some seven miles from the former DOE Demonstmtion Plant. The second plant will house additional gas centrifuge machines that the applicant will obtain from V}' h DOE and that were intended for use at DOE's now-?bandoned Gas Centrifuge N [^T " ' Enrichment Plant at Piketon, Ohio. The applicant will transport the machines to h its Oliver Springs site. In accordance with the Commission's hearing notices,53 Fed. Reg.15,315, d 15.317 (1988), the Licensing Board held a mandatory hearing on the uncontested construction permit applications. Scc 42 U.S.C. 62239a(1). The Board made findings on the issues enumerated by the Commission in the hearing notices ' and authorized the issuance of the construction permits as wc!! as the operating  ; license. Specifically, the Board received evidence and made findings on the adequacy of the applicant's safety analysis, safeguards provisions, and financial qualifications, as well as the adequacy of the NRC staff's review of each of these matters and its environmental assessment. We have reviewed the Board's decision and hnd it to be well supported by the underlying record. We thus affirm the Board's decision, with the following two minor clarifications.2 I The thrector or the orrwe of Nuclear Matenal safety and safeguards issued the authonzed construction permita io A1ChemIE on February 10.1989.

                    *These clanfastions of but two of the Board's findegs an environmental issues, whde not affectmg the outcome, are not merely ed tonal tn nature, as the ersicumns optmon suggests Rather, we smccrely bebeve that the matters addressed could be of pautsal concem to the pubbe end seek only to silay thcme cancerns as best we can.

268 1

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                                                                                                                                  ,s yt  . .

i

s. First, in connection with its discussion of a " worst case" accidental release of toxic material, the Board states that the loading docks at both facilitics will be

                                                                     " enclosed on all sides and equipped with an overhead door which could swing I

down to enclose the entire dock and thus climinate the release of material to the environment. Tr.183-84." LBP-89-5,29 NRC at 115. Because the record does not indicate that the dock enclosures and door will create a sealed environment, these mechanisms cannot climinate, but rather will substantially minimize, any toxic releases to the environment. In any event, as the Board noted, the staff's analysis conservatively assumed such releases cud concluded that they would l be well within established guidelines. Id. at 114-15. See Staff Exhibn I A, Environmental Assessment Related to the Construction and Operation of the AlChemIE Pacility 1 CPDF (September 1988), at 23-28. Second, the Board states that the Oliver Springs " site, which is still being used to pasture cattle, is not an appropriate habitat for any threatened or endangered plant species." LBP-89-5,29 NRC at 120. Inasmuch as the record on this score is somcwhat confusing, the Board's statement warrants some brief elaboration. The site and adjacent forest area potentially could provide a habitat for two plant species that the State of Tennessee considers " threatened," i.e., the Canada lily and goldenscal. Due to the already extensive use of the area for gmzing and timber harvesting, however, the site is no longer a likely habitat for either , species. See Staff Exhibit 5, Supplementary Testimony of Dr. Jerry J. Swift at 2; id. Attachment (December 5,1988, letter from James E. Hammelman); id., , 5 Attachment (November 18, 1988, Ecological Survey at 11,13, and Appendix (August 27, 1987, letter from Roberta E. Hylton)). , LBP-89-5,29 NRC 99, is affirmed. It is so ORDERED. FOR THE APPEAL BOARD Barbara A. Tompkins Secretary to the Appeal Board Mr, Moore, Concurring: I concur in the majority's result affirming the Licensing Board's decision. I do not, however, join in my colleagues' " clarifications" of the Licensing Board's

                                   <                                    factual findings.

In initially approving the Appeal Board's sua sponte review authority, the Commission intended to ensure that the agency fulfilled its responsibilities under the Atomic Energy Act and its obligations under the National Environmental 269

Policy Act by providing yet another level of review in those cases where there was either no appeal or no appeal of certain previously contested issues. In the uncontested proceedings at hand, I do not believe that the majority's action taking issue with the Licensing Board's choice of words in two factual findings - language that in context is abundantly _ clear - is an appropriate exercise of that authority. Stated otherwise, the majority's action in this instance neither corrects a substantial or significant common defense and security problem nor rectifies a serious or important environmental concern. The fact that the Commission has never acted as the majority has here in exercising its analogous sua sponte review authority over our decisions, speaks volumes as to the appropriate exercise of that review function. In exercising our sua sponte review authority, I do not believe we sit as self-appointed editors of the Licensing Board's decision. In my opinion, the actions , of the majority are needlessly destructive of our relationship with licensing  ! boards. Accordingly, I respectfully decline to join the majority's memorandum. 270 1 I I

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( ATOMIC SAFETY AND LICENSING BOARD PANEL '. W k if((,Wd@$?,nl'il b h.h ',h , J$;f ' B. Paul Cotter, ' Chairman h:y%Mgi[Sp3 h'yNi- Robert M. Lazo, 'Vice Chairman (Executive) a fi;,./f ;L.

                                                                                                                                                                      >;lI I.4..

i jg'"~ i,1 'NW,.e Frederick J. Shon, *Vice Chairman (Technicai) Q4.

                                                 ~
     ;.,                                                    pfj ;                                                                                                        s,9 +

g. . ,  :

m ' Members ff , Dr. George C. Anderson Dr. Cadet H. Hand. Jr. Dr. Linda W. Little .

                                                                                                                                                                                       .}

[,$ hhh Charles Bechhoefer* Peter B. Bloch* Jerry Harbour

• Dr. David L. Hetrick Dr. Emmeth A. Luebke Dr. Kenneth A. McCollom f' ' 1/'h:b -

Glenn O. Bright

• Ernest E. Hill Morton B. Margul.es*

Ni Dr. A. Dixon Callihan Dr. Frank F. Hoooer Gary L. Milhollin Ill Marshall E. Miller M[ ' ' h: James H. Carpenter

• Hugh K. Clark Helen F. Hoyt*

EIL'abeth B. Johns *:. rs, Oscar H. Paris'

                                                           . ,g h           Dr. Richard F. Cole

• Dr. George A. Ferguson Dr. Walter H. Jordan Dr. Daviu .~.'. C. Junk Dr. Michael A. Kirk-Duggan Ivan W. Smith
• M Dr. Harry Foreman Jerry R. Kline* Dr. Martin J. Steindler Seymour Wenner g Richard F. Foster John H Frye til*

Dr. James C. Lamb lli Gustave A. Linenberger* Sheldon J. Wolfe* James P. Gleason t

                                                                             *Pemianent panel members P
                   . - .         ...-.:._.____.mA_____.1__,.__.               _ _ , _ ,

Cite as 29 NRC 271 (1989) LB P-89-9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMWI!SSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: Peter B. Bloch, Chair Emmoth A. Luebke Dr. Jerry Harbour in the Matter of Docket Nos. 50-443-OL-1 50-444-OL 1 (ASLBP No. 88-858-01 OL) (Onsite Ernergency Planning and Safety lasues) PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al. (Seabrook Station, Units 1

                           ,     and 2)                                                         March 3,1989 After considering issues raised by a summary disposition motion, the Licens-ing Board admitted genuine is ~es of fact under three bases for an emergency
                             , planning contention. It encouraged the parties to develop agreed site visitation procedures to resolve issues under one of the bases.

SUMMARY

DISPOSITION Legal standard for summary disposition reviewed. EMERGENCY PLANNING Relationship among emergency planning regulations and guidance reviewed. 271 i o i l l

                                                                                                                   ,l
                                                                                                                  /
                                                                                                                   -l
                                                                                                                  .f l

1

f TECllNICAL ISSUES DISCUSSED IIcaring damage from sirens Discomfort from sirens Sifen loudness;icilection from buildings Measurement of clapsed time for alerting and notification (emergency plan-ning) Readiness of emergency personnel- mobile siren (VANS) drivers Measurement of clapsed time for route transit (cmcrgency planning) Siren ro:ation, effect on sound levels. MEMORANDUM AND ORDER (Summary Disposition) We shall grant in part Applicants" motion for summary disposition of all emergency planning contentions2 related to notification and warning of peopic within the Commonwealth of Massachusetts?  ! In this opinion, we will discuss separately cach of the bases for the admitted contention and state the extent to which summary disposition shall be granted. We .shall then also review each material issue of fact that Applicants allege not to be in dispute and shall dcarmine which of those facts are not in dispute. I. LEGAL STANDARD A. Procedural Standard Pursuant to 10 C.F.R. 5 2.749 of the Comn.ission's Rules of Practice, a party may move for summary disposition of all or any part of the matters involved in the proceeding. Paragraph (d) of 6 2.749 pros tics: The presiding officer shall render the decision sought if the filings in the proceeding, depositions, answers to interrogatories, and the admissims m file, together with the Pubbc Service Canparv of New llamphire, er al, which has filed a Motion for Summary Duposiuon m Amended Conteraun on Natificaum System of Attorney General for the Commmweahh of Mass;chuscus. Septemtier 14,1988 (Mauon). 2 Admitted by this floard's Mernorandum and Order (Rulms an Adrrussibility of Mass. Amended Contenuon and Bases). June 2,1988 (unpubbshed). In this opmion we shad refer to the Massachusetts Attorney Geneal as , Imcrvenor. I ln responst, the oths e parues filed the Answer of Massachusetts Attorney General m Opposinon to Appbcants' Wuon for Summery Dispositvm of Amended Cmtenum an Nouficouan system, October 11.1988 (Ao Respmse), and NRC itaff Response to AppLcants' Mouan for Summary Disposition of the Massachusetts Atuirney General's Amoded Contenuun on Nauficauon Systems, october 12,1988 (Staff Respanse). 272

l l l l statements of the parties and the affidavits. if any. show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law. The proponent of the motion for summary disposition must meet this burden even if the party opposing the motion fails to present evidentiary material to the contrary. Cleveland Electric illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443,6 NRC 741,753-54 (1977). To meet this burden, the movant must climinate any real doubt as to the existence of any genuine issue of material fact. Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), LBP-81-48,14 NRC 877,883 (1981); Perry, ALAB-443, supra,6 NRC at 753.* Morcover, the record is to be reviewed in the light most favorable to the opponent of the motion. Dairyland Power Cooperative (La Crosse Boiling Water Reactor), LDP-82-58,16 NRC 512, $19 (1982). Judging against these standards, most of the Applicants' motion must be denied. B. Substantive Law The relevant part of the Commission's emergency planning regulation re-quires that means to provide early notification and clear instruction to the populace within the plume exposure pathway Emergency Planning Zone have been established. 10 C.F.R. 6 50.47(b)(5); see also 10 C.F.R. 9 50.34(b)(6)(v) (requiring that an applicant demonstrate in its FSAR that it complies with 10 C.F.R. Part 50, Appendix E, Emergency Planning). Appendix E to Part 50," Emergency Planning and Preparedne ., for Produc-tion and Utilization Facilitics" also was published for notice and comment and adopted by the Commission. Administrative Procedure Act (5 U.S.C. 96 552, 553; 44 Fed. Reg. 75,167, 75,171 (1979); 45 Fcd. Reg. 55,402, 55,408. Ap-pendix E provides that The design objective of the prompt public notification system shall be to have the capability to essentially ccnnplete the initial notification of the public within the plume exposure pathway a EPZ within about 15 minutes. J

                               ' A heenstng board has said that summary dispuiticri is only authanied where it is qmte c! car what the facts                  l are" and the moving pany is entitled to judgment as e matter of law, 10 Cf.R. 6 2.749(d). Pac @c oas sad Dacanc Co (stanislaus Nuclear Pr yect. Umt 1). ISP-77-45,6 NRC 159,163 (1977). Another board said that "an ortler to grant a motion for summary espuition, the record before [the lxensing Board] must demonstrate clearly that there is no possibihty that there exists a htigable issue of fact." fo,wr Auzhonry of the Stais of New York (Greene Cmmty Nuclear Power P! ant), IEP-79 8. 9 NRC 339,340 (1979).

I 273 4 i

                                                                                                                                                              .i

l I Id. at 3-3. Appendix E then states the requirements for the content of cmergency i plans that must be met by an applicant for a license to operate a nuclear power plant. In addition to these regulations, W ' vc the force of law, this pro-cceding is aficcted by a " guidance" doewu, NUREG-0654, Rev.1 (1980), which provides further explanation of the plening criteria set forth in 10 C.F.R. I 50.47(b)(1) through (16). This NUREG was subject to public comment (44 Fed. Reg. 9768 (Feb.13,1980)) but which has a nonbinding or suggestive effect.8 Relevant puts of NUREG-0654 state: Planning Standard  ; [M)eans to provide early notification and clear instruction to the populace within the plume exposure pathway Ernergency Planning 7xne have been established. Id. at 43; see also 6 50.47(b)(5). Emluation Crisevia Each organiution shall establish administrative and physical means, and the time required for notifying and providing pranpt instructions to the public within the plume exposure pathway Emergency Planning 7one. (See Appendix 3.) It shall be the licensee's responsibility to demonstrate that such means exist, regardless of who implements this requirement. , NUREG-0654 at 45, , APPENDIX 3 MEANS FOR PROVIDING PROMPT ALIEllNG AND NOTIFICATION OF. . Tile POPULATION i l

                                                                                                                    ...                                                                                                                                            j Cornmercial broadcast messages are the primary means for advising the general public of the conditions of any nuclear accident. %e primary rneans for alerting the public to an impending notification by public authorities may be any combination of fixed, mobile or                                                                                                           '

electronic tone generators which will convey the aler0ng signal with sufficient timing and intensity to permit completian of notification by broadcast media in a timely rnanner. NUREG-0Mi, Appendix 3 at 3-2, l l l 35s4 Carolina row ad Ught Co. (Shearon llarns Nuclear Power Plant), IllP 8&ll, 23 NRC 294,36449 (1986) (h'UREG-0654 requunnent of alerting through 60 decibd svens not adequate to alert " essentially 100 percent" or residents at 2 a m.) In this case, we considered rnaking nighttune alerting a sua spows issue, pursuant l to 10 C.F.R I 2.760s, but in our dacretion we have the vww that the pohey guidance of NTRIG0654 is adequate { snd that a senous safety issue does not exist 274

r, _ -- - - . . _ _ - - _ - - - - - _ _ - - _ _ _ - - _ _ . . _ - _ _-_ _ _ _ - _ _ _ _ - - - _ _ - _ _ - _ - - _ _ _ - _ - _ l ' Wsthin the plume exposure EPZ the system shall provide an alerting signal and notification by commercial broadcast (e.g., EBS) plus special systems such as NOAA radio. .. .  !

                                                   . . The minimum acceptable design objectives for coverage by the system are:

a) Capability for providmg both an alert signal and an informational or instructional message to the population on an area wide basis throughout the 10 mile EPZ, within 15 minutes. b) The initial notification system will assure direct coverage of essentially 100% of the population within 5 miles of the site. c) Special arrangements will be made to assure 100% ouverage within 45 minutes of the population who may not have received the initial notification within the entire plume exposure EPZ. . . . Id. at 3-3. Sirens Wherever proposed as part of a system, subject to later testing by statistical sampling, the design concept and expected perfonnance must be documented as part of plans submitted by licensees . . The designs of such systems must take into account the demography and topography of the areas being considered. Id. at 3-7 to 3 8. The basic criterion needed for the design of a siren system is the acceptable dissonant sound level as described in " Outdoor Warning Systems Guide," Repon No. 4100, by Bolt, Beranek and Newman,Inc., June 1979 (l'EMA publication number CPG.I.17). As an acceptable criterion at most locations 10db above average daytime ambient background should be a target level for the design of an adequate siren system. Id. at 3-8; see Jonas Affidavit, Exhibit C, for FEMA CPG 1-17. Siren systems should be designed considering the demography and topography of an area, and taking into account other alert or notification systems in place or planned. The maxitnum sound levels received by any member of the public should be lower than 123db, the level which may cause discomfort to individuals. . . NUREG-0654, Appendix 3, at 3-8. 1he 10db differential above daytime ambient is meant to provide a distinguishable signal inside of average residential construction under everage conditions. Where specialindividual cases require a higher alerting signal,it should be provided by other means than a generally distributed acoustic signal. Id. at 3 9. 275 p

l l

                       'The sirm signal shall be a 3 to 5 minute steady signal si described in Paragraph IV E of 0%) 17 and capable of repetition.

l l

               /d. at 3-12.

t II. DISCUSSION OF BASIS A.1 Basis A.1 is: The VANS and the New Ilampshire fixed sirens because of their locations height, acoustic range and number, do not provide tone or message coverage for essentially 100 percent of the population in the Massachusetts plume exposure pathway EPZ at the sound { pressure levels required in Nt' REG.0654 and FEMA-REP.10. A. Applicants' Position The Applicants claim that Basis A.1 is "put to rest" because their VANS system does not and need not provide informational and instructional messages and because Wyle Laboratories has determined that essentially 100 percent of the population in the Massachusetts portion of the EPZ will be covered by the tone-alert mode of the sirens. Applicants' Brief at 3-5, They also submit an affidavit of David M. Kcast, who states that he was author of CPG-1-17, which was the source of the regulatory language limiting sound to no more than "123 dB, the level which may cause discomfort to individuals. Kcast Affidavit at

2. He claims that the 123-dB level used in this language was selected to avoid hearing damage to individuals and that no damage would be caused by a 134-dB rotating siren at 25 feet sounded for 3 minutes at 550 Hz. Id. at 4; see Kreiter Affidavit at 4.

II. Interrenor's Position With respcct to the message mode of the siren (also called "public address mode"), the Intervenor filed a Motion to Amend Bases on September 8,1988, which addresses the Applicants' claim tnat the VANS system need not provide instructional messages for the beach population. Ilowever, the motion was denied, Memorandum and Order (Granting Mass. Request to File a Reply; Denying Mass. Motion to Amend), October 12,1988 (unpublished), and is not an issue in this case. With respect to tone-alert coverage, Intervenor states that the Applicants' experts proceed from a faulty, crucial assumption. It assumes that it is acceptable for each VANS siren to put out 134 dBC of sound output. Applicants' calculations are based on that output. Stusnick Affidavit,18, Attach. E at 6 276 l s i

and 7 of 10. They also acknowledge, based on their own calculations, that the maximum sound level received by members of the public wi!! bc 131 dBC. Motion at 4 n.3; Sutherland Af0 davit,15. Intervenor also argues that NUREG-0654, FEMA-REP-1, Rev. I states that

                             "[t}he maximum sound levels received by any member of the public should be lower than 123db, the level which may cause discomfort to individuals."

NUREG4)654, Appendix 3 at 3-8. It states that Applicants' afGdavits concerning lack of hearing loss at 131 dBC are irrelevant, as the clear wording of the regulations is addressed to discomfort. It states that Applicants have far exceeded the allowable 123-dBC level in order to squeeze additional coverage from their limited number of sirens. If the sound level is limited to the acceptable 123-dBC level, coverage falls off sharply and leaves a substantial portion of the Massachusetts EPZ unprotected by an alert-and-notification system. Bouliane AIGdavit,131, Appendices 9 and 10. Intervenor states that there also are genuine issues of material fact cor.ccrning whether this calculation underestimates the sound level received by members of the public by not including sound reflection from buildings. See Affidavit of Thomas Bouliane,5125-30. C. Staff's Position 1 The Staff supports the motion of Applicants. Ilowever, Staff's agreement with Applicants does not result in a change in any of our conclusions concerning the existence of a material issue of fact. Wliat Staff's position can do is add to the weight of evidence, but it would not negate a genuine issue arising out of an affidavit submitted by Intervenor. See above, pp. 272-73. Consequently, we shall not separately review Staff's position, but we will remain aware of it in case it ought to have some effect on our determination. I). Findings The following genuine issues of fact exist and shall be heard: A.1 1. Whether sound levels in excess of 123 dBC cause enough discom-fort so that the Board should not approve the use of sirens at a higher level of sound. We note that this issue of fact also involves a legal question: What standard should we apply to determine the possible relevance of discomfort? On this question, we invite simultaneous briefs from Intervenor and Applicants 5 days prior to q the deadline that shall be set for the prefiting of testimony; and we ( invite a legal filing from the Staff simultaneously with the prcfiling j of testimony. l I f i 277 l i i I

1 l 1 l A.1-2. If there is some level higher than 123 dHC that , e Board should allow, what is that Icvel? A.1-3. Whether Applicants' sirens can provide adequate coverage if used at sound levels that are not unduly uncomfortable. A.14 Whether Applicants' position on the sound level resulting from their sirens is an underestimate because of sound reflection from  ; buildings. 1hc following are material facts that we find are not in dispute: l A.1-a. The alert function is performed by using the fonc mode of the siren. A.1 5. 'the Emergency Broadcast System (EDS) radio broadcasts arc relied ulmn to provide the notification function (i.e., providing information and instructions) to the public. ) A.1 c. The siren message mode is not used for alert or notificadon. ) A.1-d. I

                                                                'There is no dispute relevant to this casc concerning siren message        l mode substantive requirements.

A.1 c. The population density distribution for the geographical area within I I the Massachusetts plume exposure EPZ has been determined. A .1 - f.

                                                                'lhose areas where the population density exceeds 2000 persons            k per square mile have been identified and me depicted on Figure 2 2 of the Scabrook Station Public Alert i .U Notification System         f FEMA REP 10 Design Report.

A .1 -g. All other areas have a population density less than 2000 persons per square mile. A.1-h. The siren sound coverage for cach VANS siren was determined by means of a computer model developed by Wyle laboratories. A .1 -i. Figure 2 2 of the FIIMA REP-10 Design Report depicts 6(b and 70 dBC sound level contours calculated by the model and then graphically combined into the envelopes der,icting the total system coverage. A.1 J. Ambient sound surveys were conducted in all four areas that Applicants have admitted, based on siren sound levels in excess of 123 dBC, would not be covered by a sound level of at least 60 dBC. A.I.k. Applicants do not rely upon New llampshire fixed siren coverage for any of the portion of the coverage for Massachusetts. I 111. IIASIS A.2 Intervenor withdrew Basis A.2 based on arguments made by the Applicants. The following material facts are not in dispute: 278 i

A .2 -a. %c VANS sirens do not operate continuously. A.2-b. { We VANS sirens are not permanent, stationary facilities. Rather i they are mobile equipment, moved from place to place by truck, located at different sites (even in different states) at different times. A.2-c. The Governor of Massachusetts and the town officials of Amesbury will obey the statute of the Commonwealth of Massachusetts and the Constitution of the United States. A.2-d. . %c Governor of Massachusetts and the town officials of Amesbury will use their best efforts to protect the popclace in response to a radiological emergency at Scabrook Station. IV. HASIS A.3 i Basis A.3 is: I

                                                                                                                            '!he fourteen VANS locations

• are rhysically inaccessible to the VANS equipment.

A, Comparison of Parties' Positions ne Applicants ask for summary disposition on Basis A.3 based on the personal observations of a Seabrook employee, Joseph Story 11. We agree with Intervenor that those observations are sufficient to allow summary disposition with respect to acoustic locations VL-02 and VL-13, but they do not dispose of factual issues remaining for VL-03, VL-06, VL-07 and VL 12. On October 3,1988, Nancy Mason, an investigator for Intervenor revisited VL-03, VL-06, and VL-12 and made measurements of those areas to determine their accessibility to VANS equipment. The Ibrd Series F-800 truck is 95 inches wide, and the outriggers extend approximately 5 feet from the truck on each sid:. Mason Affidavit,13; Bouliane Affidavit,132, Appendices 11,12. With outriggers extended, a VANS truck parked at the side of the road at VL-12 will extend at least 6 feet into the road. See Mason Affidavit,16. The Board is not sure whether this conclusion is correct or, ir fact, whether that is a permissible location for the truck. Moreover, the Applicants acknowledge that VL-06 and VL-07 are inclined where the trucks would set up. Story Affidavit, 1111,12. .While Applicants characterize those inclines as slight or negligible Intervenor claims that its . ( photographs indicate otherwise. See Mason Affidavit, Exhs. C through H. In any event, the crane manufacturer's instructions state, "da not use this equipment "There are sixteen VANS locannns and six staging areas, trum which the VANS are deployed. Two or the staging amas also serve as a VANS locatim. Ses New Ilampshiro Yankee. "scabrook sinunn Public Alert snd Nouricatiras system: FEMA-Rr.P 10 Design Report." Apn130,1988, at 2-33 to 2 34 (rables 21 and 2 2). 279 l _ _ _ _ _ _ _ _ _ _ . . _ _ . _ _ _ _ . _ . _ l

i 1 i i except on solid, level surface," and that the "cranc must be level for operation." Bouliane Affidavit,132, Appendix 13; see Johnson Affidavit, Attach, C,2 of

2. The record does not contain information on the crane's tolerance for being on a slight inchnc.

                                                                                                                                         )

J Another factual issue is raised by Intervenor's observation that the grass and i dirt surface of VL-12 is uneven, again suggesting operation inconsistent with the manufacturer's specifications. Mason Affidavit,16. Finally, there was an issue concerning whether the Applicants had made ap- i propriate provision for acoustic location accessibility during the winter. Loca-tions VL-06, VL-07, and VL-12 are simply unpaved roadsides. Those locations - might have been blocked by snow piles in the winter, making access difficult. ' However, this argument has been disposed of by joint stipulation, based on Ap-plicants' contract with a firm to remove snow from each acousticallocation; and the Board accepts this stipulation. H. Hoard's Findings The following are genuine issues of material fact: A3 1. Whether the appointed destination locations, including VL-06, VL-07, and VL-12, are sufficiently level for the safe deployrnent of the VANS vehicles. A.3-2. Whethei or not VANS vehicles may gain physical access to VL-03, VL-05, VL-07, and VL-12. C. Requirement for Negotiation and Accurate Measurement The physical characteristics of the VANS destination sites are definitely knowable. Consequently, we expect the parties to engage in good-faith efforts so that Applicants can drive vehicles into the sites with Intervenor's consultant as an eyewitness. An agreed method also should be arrived at for measuring the degree of inclination at the site so that the Board will not ;.ced to litigate a fact that any person could obtain mercly by visiting the site. Appropriate protective order agreements should be entered into so that information about the sites will not become public. If the parties are unable to reach an agreement on a site visitation procedure, i they may ask the Board for informal assistance in reaching agreement. } The following facts are not in dispute: A3 a. Of the sixteen preselected VANS acoustic locations, two are located at the staging area where the VANS vehicle is parked. 280 l

                                                     .   . -         .m~ a u . . . . . .                . .-w . .. m . . u - ._ s .u ~~. .m -                                     ,

F A.1-b. At acoustic location VL-02, Applicants have observed the parking lot numerous times in the spring and summer, and it has never - been close to being full. In addition, part of the lot is not used for parking, and this part is large enough to accommodate the VANS vehicle. . g A.3-c. All VANS drivers will be trained to locate VL-03 (and all other - acoustic locations). When Applicants set the VANS prototype h up at VL-03, fully extending the boom, there were no observed *

                                                                                                                                                                                                 ,}

stability probicms. , , y M' A.3-d. Applicants are able to, and intend to, set up on the dirt rather than on the paved pad at VL-13. Applicants have set up the VANS . , prototyr.e here, fully extending the boom, with no problems. A.3-e. A review was conducted at each of the selected acoustic locations, y

                          ,                                                which entailed actually driving a Ford Series F-800 truck with a                      '

truck-mounted telescoping crane to each acoustic location. ,

                            .,                                   A.3-f. At VL-06, Applicants easily set up the VANS prototype, fully                                                              >
                                    ,                                      extending the boom, with no interference by the trees and without                         i                        ,
                     .,                                                    obstructing the access road.                                                                                     g 1

M M V. BASIS A.4 ,? +

                                                                                                                                                                                          %l.

M,,y(',

       ' '- )                          ,'                                                                                                                                '
                                                                                                                                                                                        ,d'
     % / 3,4; _m.                                            Basis A.4 is:                                                                                             p .. ,          ,. (N W,,\ t                                                                                                                                                                           ,

l/ ?b N h ', 'the VANS vehicles are inadequate for their intended use. 'Ihe vehicles cannot withstand F,

      $[                                                  and will not operate properly with the weights, amount and nature of equipment intended to                /                    '.I!
                                                                                                                                                                                             +

7 q NV Q I s be carried by the vehides. '!he weight distribution with the siren fully extended will cause 50 , r

 j j } h ',, q M ,

the equipnent to fail and/or the hfting mechanism to bend or break under heavy wind or .~# . . a) ; g ns L$ .y.M ii9 precipitation conditions. Moreover, the telescopic crane will not reliably hft the siren to its ..> g M M Uh , hlpgh (5 $/, fully extended position because of the weight of the siren and the capacity of the crane. (!. .d D9 QhhdN[ , The Intervenor does not dispute the affidavits presented on Basis A.4, hence 9l(([lp%

                                                                                                                                                                       %                M

$f%/f/h%. there are no genuine issues of material fact with respect to this basis, gyp [ ! q*gdD D* W NM All of the following facts are not contested: A .4 -a. The crane manufacturer has informed Interveoor that high winds

                                                                                                                                                                         )f
                                                                                                                                                                         , g fjp kg Pj: $p@& [ ..

will not impair the operation of the VANS crane assembly. ',pg;y/  ?

%                 jM  >
                           ! j 9 4; Q '                         A.4-b. 'Ihe deflection observed during Applicants' pull test is a normal structural phenomenon and " not indicate any failure of the                                   (W.Q h

5

%                        j Mg@,     g                                      VANS crane.                                                                                       I                       B hi Nr g[h,h' A.4-c.     'Itc wind tunnel test cited by Intervenor is 7 years old und was                              h@k[   f
                        ),              ,j '                               performed on a drive mechanism less than one-fifth as strong as                               edg 6                                 3lb                                       that used by Applicants.                                                                       9 54              ,h l                            ' &)lW          ye a                                                                                                                           f&r&}

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i 1 A.4-d. nc weight of a fully loaded VANS vehicle is far below inc gross vehicle weight rating for the model of truck to be used. A.4-c. %c VANS equipment is securely attached to the VANS tmek. [ A .4 -f. He only relevant concerns regarding the adequacy of a vehicle ) carrying or transporting equipment / material are the weight of the j equipment / material and the method used, if any, to secure it to the ' vehicle during transit. l j A.4 g. %c rated lifting capacity of the crane in any position far exceeds the hypothetical load. A.4-h. A pull test that was performed on a Nalonal Cranc Series 4 i hydraulic crane showed no structural or stability deficiencies, j A.4 i. Based on analysis and testing, the VANS lifting mechanism will j support the siren package under the various design environmental { loading conditions, and there is no danger of the equipment failing or the mechanism breaking. I VI. IIASIS A.5 Basis A.5 is: f

                                    *lhe time needed for driver alert, dupatch, route transit, setup and activatim in accordance with NRC regulations will exceed 15 minutes for many of t'e VANS vehicles in optimum                 j weather cmditions. 'Ihe reasons for this include the tine required to get vehicles on the
                                                                                                                                      )

road (which itself includes the time required to notify the driver, have the driver proceed to i the vehicle, check out the vehicle and equipment. start the vehicle and leave the staging area, almg with other vehicles at the staging area), the distance to be traveled. the traffic that will be encountered, the setup time and the need for toth alert signal and message capability within the 15 minute period. In poor weather heavy traffic, and nighttime conditions the times needed to accxnnphsh these tasks will increase. A. Summry of Positions

                                 %c Applicants' motion with respect to Basis A.5 is supported by six affidavits. These 2dfidavits address cach of the phases of deploying the VANS vehicles and they conclude that the total time clapsed will be under 15 minutes.

Intervenor, on the other hand, questions whether these time estimates are conservative, and it also questions whether Applicants have improperly failed to address "the reality that at any particular time drivers will be in different states of readiness for an alert signal." AO Response at 12 n.7. We shall address cach of the factual assertions separately in this portion of our opmion. 282 l

II. The Legal Setting

                                      'Dic 15-minute time requirement appears at 10 C.F.R. Part 50, Appendix E, 1 IV.D.3:
                                      'Ihe design objective of the prompt public notification system shall be to have the capabihty to essentially mmplete the initial notification of the public within the p!ume exposure Pathway EPZ within about 15 minutes. [ Emphasis added.1 'Ihe use of this noti 6 cation capabihty will range from immediate notification of the public (within 15 minutes of the time that State and local of6cials are notified that a situation exists requiring urgent action) to the more likely events where there is substantial time available for the State and local governmental officials to make a judgment whether or not to activate the public notification system. hl' REG.0654 sets forth what it describes as the " minimum acceptable design objectives"for the system:

a) Capability for providing both an alert signal and an informational or instructional message to the population on an arca-wide basis throughout the 10 mile EPZ, within 15 minutes. b) '!he initial notification system will assure direct coverage of essentially 100% of the poptdation within 5 miles of the site. c) Special arrangements will be made to assure 100% mverage within 45 minutes of the population who may not have received the initial notification within the entire plume exposure 174 NUREG-0654, Appendix 3 at 3-3. The Commission has concluded that the 15-minute time limit is a " general objective" and that planners have timing flexibility in designing a system to notify the population located between 5 and 10 miles from the plant. FinalRule on Emergency I'lanning, CLI 8040,12 NRC 636,638 (1980). C. Alert Applicants argue' that the initial notification call from the Scabrook Control Room Communicator is received by the New flampshire Yankee Offsite Re-sponse Emergency Operations Contact (Contact Person). Catapano Affidavit,

15. This Contact Person mobilizes the VANS by entering a simple code into a touch pad sitting on his desk where he receives the notification call. Id.,117-12.

The notification is completed and verified cicctronically within 10 seconds. /d.,

                               $ 12.

Intervenor argues that the 10-second time period is pure speculation. It argues that the system has not been constructed or tested. Desmarais Deposition at 85-86, Exh. A to Jonas Affidavit. However, it is not necessary that a system be constructed. The system to be used is described in the Catapano Affidavit, 11712. It includes automatic simultaneous dialing of all staging areas, with 7 Motion at 20. 283 l

automatic verification of receipt and decoding of the message. Provision is made for following up on any location that does not verify receipt. All this can be done within 10 seconds, according to the affidavit. And there is no contrary proof to raise a genuine issue of fact. The Intervenor relics on its own speculation, unsupported by any affidavit. So we find that there is no genuine issue of fact concerning the 10-second alert period. D. Dispatch We agree with Intervenor that Applicants have misinterpreted the requirement for conservative calculations with respect to dispatch time. Dispatch time tests included a maximum of 53.35 seconds. Beard Affidavit, Attach. B at 1 of 4 There were seventeen runs with a dispatch time of over 40 seconds. Id. We notice that all of the runs of over 40 seconds occurred in the first twenty-seven of the fifty runs, indicating a possibic bias due to a practice efTect. IIence, we conclude that these trials are consistent with a dispatch time of as great as 53 seconds. Furthermore, it is not clear whether these tests, where the operators l were aware that they would be repeatedly called, are a fair prediction of what would actually happen in an event with no forewarning. Over years of plant operation, how likely is it that each of the VANS operators will be actually available and alert (e.g., not in the restroom, not away from post on break, not believing that the situation is a false alarm) at the time an alert message is received? How long will it take if electronic activation fails and radio or telephonc voice contact becomes necessary? See AG Response at 11-12 n. We now that the actual personnci procedures to be used have not been made available to us. It is possible that those procedures would provide such measures as advanced alerting of personnel as would assure us that our concerns about driver readiness are not realistic. E. Route Transit Applicants state that route transit time may be es'.imated at 10 minutes, they j rely on 1397 lest runs donc in the spring and summer of 1988 and tabulated in Summary Tables 1 and 2 in the Desmarais Affidavit,118. As we review those tables, which are not contradicted by intervenor, they do show that it I is conservative to assume spring and summer route transit times of under 10 minutes for acoustic locations 1-15 and 15 minutes for acoustic location 16 (a i sparsely populated area between 10 and 11 miles from Scabrook; Desmarais Affidavit,122).

                                                                                                                                                 'l llence, the only issuc left here is whether, in the event of snow, the average transit times will exceed 10 minute

• and how frequently such a condition might 284

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1 be expected to occur. We note that Applicants concede that travel times might ) be as great as 11.5 minutes at one acoustic location and 10.45 minutes at another  ; in the event of snow or icy road conditions.1.icherman Af6 davit at 6. liowever, Applicants have demonstrated that: , it is very unusual for roads to be impassable for a significant amount of time. During the preparation of the Seabrook Station Evacuation Time Study . . the Police Chiefs of all ., ,4 Massachusetts towns in the 10. mile EPZ except Amesbury . . indicated that snow plowing ] r equipment is mobilaed and depk,yed dunng the snowfall after an appropriate amount of . snow has accumulated, in order to maintain passable roads. He general consensus was that . snow plowing efforts are generatly successful in maintaining roadwaj passage for all but the _ most extreme bliuards and icir; condit;ans. Lieberman Affidavit, j 8. Intervenor does not contradict this evidence by citing the Johnson Affidavit, Attach. B at 11 of 12, for the proposition that continuous

                ,                snow coverage of at least 1 inch lasts 30 to 45 days. %c testimony is that the                                        !

snow does not last that long on the roads, and the Johnson Af fidavit does not even address that proposition. O! b 6

                                                                                                                                                                                               %        l
         .           .           F. Setup of Sirens                                                                                                                                       't' 6
        ,,r            ,              The Applicants have introduced uncontradicted evidence that the setup of                                         f ',                     ,            ,;p; (3 ' ' ; '     ,

sirens can be accomplished withm 1 minute. We note that, to do that, it might f , * : , happen that sirens would be activated while the sirens were still being raised ..

                                                                                                                                                                                           ,.f
   ""  ,                       from 25 feet to 45 feet above ground level. See Sutherland Affidavit, $5 5-6.                                          T!'                  '
                                                                                                                                                                                        >$f
     <        =,0 .               Ilowever, we note that the activation of sirens its the 25-foot position would last                                    l:         ,

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• .$, less than 1 minute until a 45-foot clevation would be reached. Id. at 3. <

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                                                                                                                                                                                           / .fl f M ' y f [gh3 i             G. Siren Sounding

(%. c g 'y 3'a A' 4 p.g i,p A There is no conflict concerning Applicants' assertion that sirens will bc pygp'fg e ;%g.0

                                                                                                                                                                                        ; ?l
  ' di; ; r                       sounded for a duration of 3 minutes.                                                                                        s                          R.*

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h,m 3TkN[n' II. Message Capability Mf h A U ? %ph.< k / o The Intervenor argues that the Applicants ignore completely the regulatory re- ' da;[cSM[ h; l Q h@q M p quirement of"[c]apability for providing both an alert signal and an informational or instructional message" within 15 minutes. NUREG-0654, Appendix 3 at 3-3 . M,,[y6 g@'A,yyy (cmphasis added). "Within the plume exposure EPZ the system shall provide pg%dhg fy .' 3 @O[d&M' o&- 6 gW.\ n t ? an alerting signal and noti 0 cation by commercial bmadcast (e.g., EBS). Id. 0;;@.y[gp 1, , DNpmj

                                                                                                                                                         '%y,/p~or/g%

RhPM Applicants' conclusion that they can complete initial notification in the non- . M.R n  ;: tmwh y .

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dation for EBS or other instructional messages. See Applicants' Brief at 27. (The Applicants rely on the EBS radio network for providing i.4 formation and instructional messages. Desmarais Affidavit, Attach. D at 3 of 23.) The EBS messages drafted by the Applicants in the SPMC would require a considerable amount of time to read. The initial EBS message used in the June 28 29,1988 exercise took slightly over 2 minutes to read. Jonas Aflidavit, Exh. B. Therefore, there is a genuine issue of fact concerning how much time should be added for this actification function. We note that this question is apparently not simple since it appears to us that a person must hrst hear a siren before tuning in for notification. Not ali people will hear the sire 1 at the same time. Not all will i tune in their radios immediately. Not all will tune in at the beginning of a broadcast of the message. I. Overall Time There are enough questions concerning individual components of time for the In'ervenor to have raised a genuine issue of fact concerning the adequacy of the time for both alerting the public and transmitting informational messages to it. J. Genuine Issues of Fact For reasons already stated, the following are genuine issues of fact: A.5-1. What is an appropriate conservative estimate of the leng:h of time it would take for drivers to take the necessary actions before their vehicles leave their stations during conditions likely to prevail at the time of need?  ! A.5-2. Given that there is snowfall of 0.5 inch or more durind 5.5% cf the days of the year, would a conservative estimate of travel times to VANS acoustic locations include the somewhat prolongr<i travel times anticipated during snow conditions? If so, what time estimates should be included? A.5-3.  ! What is an appropriate conservative estimate of the length of time  ! it would take for people within 5 ms!cs of Scabrook to receive the informational message to be broadcast over the EBS? A.5 4 What is an appropriate conservative estimate of the total length of time for alerting and informing people within 5 miles of Seabrook? Is that estimate within acceptable guidelines? (if it is longer than 15 minutes, what are the factors we are to consider in deciding whether the time period is adequate?) 286

I i K. Issues of Fact That Are Not in Dispute The following are not genuine issues of fact:  ; A.5-a. Notification of the VANS is completed within 10 seconds. A.5-b. Applicants have established procedures by which the VANS drivers are responsible for ensuring that the vehicles are ready at all times for immediate dispatch, and no additional check is required upon notification. A.5-c. At the time of notification, procedures require the driver to walk to the vehicle, disconnect the external power cord to the battery , charger, and drive away. Fifty tests of this process (which included having the drivers walk 100 feet to the vehicle) used an average time for this phase of less than 40 seconds. A.5-d. Since there are at most three VANS drt would leave any staging area, they will not delay one another apptc :iably while leaving. A.5-c. The VANS transit studies, involving 1397 test runs, provide au-f thoritative transit time data under a variety of road conditions, in- l cluding clear road, heavy summer weekend traffic, rain, and dark-ness. A.5-f. The results of the VANS transit study show dist for acoustic locations VL-02 through VL 15, under test conditions, the transit l times are below 10 minutes.8 A.5-g. Applicants have arranged for a satellite staging aren within a , 0.6-mile travel distance of VL-01, to be staffed during summer 1 weekends and holidays. The short distance from the satellite staging area to VL-01 will ensure that the transit time can be accomplished in less than 10 minutca. A.5-h. 'lhe geographical area covered uniquely by the siren at VL-16 is between 10 and 11 miles from Scabrook Station and has a , maximum population, over 3 square miles, of 401 people, or less j than 0.2% of the EPZ population. . A.5 i. The transit time to VL-16 is less than 15 minutes. A.5 j. The VANS trucks are equipped with dual mud and snow tires on the rear axic, which with the weight of the vehicle will provide sufficient traction to propel the vehicle over a snow- or lec-covered roadway. A.5 k. Winter adverse weather conditions occur on affected roads about 5% of the time in the EPZ. 8 1n our judgment,it is not necessary to une the entreme nluca in a sample of tlus sne. We also would not use the mean Ilowever, uung a legal standard of reasonableness, we conclude that there is no genu.ne issue of fact about this smement. 287 l i i l L_--___---____-__ _ _ _ - _ _ -

l l A.5-1. Estimated adverse winter transit times can be determined, using I conservative assumptions, by multiplying spring average transit times by 133. A.5.m. Winter adverse weather conditions could delay a few VANS by 1.5 minutes or less. , A.5-n. The estimated adverse winter transit time to VL-16 is less than 20 minutes.' A.5 o. Applicants' VANS system is part of a utility emergency plan . i designed to replace a fixed-pole siren system for which Appli-l cants were unable to obtain proper authorizations from responsible - governments. A.5-p. The setup time of the siren consists of the time required for the VANS operator to proceed from the vehicle cab, remove the boom strap, lower the stabilizing outriggers, and raise the siren boorn to the operable position. This process was tested 50 times and found to take less than 1 minute. i A.5-q. The tarpaulin covering the boom and siren will be designed ' ' automatically to uncover when the siren is raised and does not need to be manually removed by the operator A.5-r. After remote activation, the sirens will sound for a period of 3 minutes.

                        ' A.5-s. If the activation signal is transmitted prior to th: siren being set up, the signal will be stored and the siren will automatically begin to sound once it is set up.

VII. BASIS A.6 Basis A.6 is: Snow, icy and extreme cold weather canditions will impede extension of the sirens to their operational position, rotation and oscillation of the sirens during the tone and message modes and operation of the sirens themselves. Intervenor abandons this basis. The following are not disputed issues of fact: A.6 as The VANS crane will extend and raise the siren to its operational position in snowy, icy, and extreme cold corxlitions because the crane boosa, crane control, and siren system components are kept under a tarpaulin-type cover which will prevent puddles and deflect precipitation te the ground.

                   'smco Intervenor did not move for summary disposition, Applicants were not requtred to respond to their suggestions or undisputed facts and we do not consider ourselvcs authonnd to adopt their suggestmns.

288

                                                                                                                                             ._     j i

i A.6 b. The VANS operators will perform the maintenance required to keep the VANS vehicles in a state of readiness for deployment, including removing snew and ice, as outlined in the SPMC procc-dures. A.6-c. Snow and ice would not hinder crane or outrigger operation, because the VANS hydraulic system generates enough excess power to overcome any resistance due to ice and/or snow, A.6-d. 1hc hydraulic control valves are covered and the hydraulic fluid has a rated operating range down to at least -22*F. A.6 e. The mechanism that oscillates the siren (rotates it through 360 and reverses) is designed so that weather conditions do not impede operation. A.6 f. The rotation mechanism is in a weatherproof housing and is effective in keeping out rain and snow regardless of operating position. A.6-g. The rotation mechanism will be covered by a tarpaulin while parked at the staging area. A.6-h. Extensive experience with the rotation mechanism has identified no failures of tha weather tightness design. A.6-i. The siren manufacturer has informed intervenor that weather con-ditions will not impair operation of the system, and that the system is used all over the world including Alaska. Vill, llASIS A.7 Basis A.7 is: At a sound level of 134 ditC anyone within 100 feet of the siren during its (peration wiU suffer severe hearing damage. As the Applicants recognize, see Applicants' Brief at 29-30, Basis A.7 derives from the instruction in NUREG 0654 that "[t]he maximum sound levels received by any member of the public should be lower than 123db, the level which may cause discomfort to individuals. Id., Appendix 3 at 3-8. This basis is discussed above, in our discussion of Basis A.I. The following are not material issues of fact that are in dispute: A.7 a. There are no permanent structures (except for two of the staging areas themselves) at or within 100 feet of the preselected siren locations. A.7-b. With the siren operating at 25 feet, the maximum sound level at car level (5 fect) is no more than 133 dBC. 289 b

                                                                                                          -l i

l i i i l r l l A.7-c. Exposure to the sound level produced by the VANS system will not cause permanent hearing damage or result in temporary hearing , loss. ) A.7-d. The VANS sirens comply with the safety criteria intended by NUREG 0654. (But there is still a dispute about whether they comply with the discomfort criteria also intended by NUREG-  ; 0654. See Genuine issue of Pact 11.1, above.) IX. IIASIS A.8 ilasis A.8 is: Bect.use of the large size of the intended dispersion angle (60 degrees), sound irregularities wir. occur within the coverage angles including gaps in sound coverage for certain s<'as. Moreover, the oscillation of the speaker assembly will cause gaps in coverage uhen the siren is used in its tone alert mode. What Intervenor has donc in its discussion of this contention is to raise an issue more properly belonging under Basis A.I. It is no longer alleging any

                           " gaps" or even " irregularities." instead, it is alleging that the sweep of the rotating sirens will result in peak sound along the axis of the siren and that as it rotates away from a listener the sound intensity will diminish. Thus, ahhough the sirens will sound continuously, the listener will not receive a steady tone as suggested by NUREG-0654, Appendix 3 at 3-12: "The siren signal shall be a 3 to 5 minute steady signal as described in Paragraph IV E of CIGI-17 and capabic of repetition."

llowever, when we reviewed $1V.E of CIGI-17 (Jonas Affidavit, Exh. B), we found the following language, which is a suggestion with whi h compliance is optional and which is apparently not an audibility requirement: 1 Different ciues and towns use their outdoor warning systerns in differeni wys. Most 1 Leal governments, however, follow the Federal l'.mergency Managemera Apacy (FD.tA) I guidance and use a certain signal to warn people of an enemy attack, and a ddferent sigtsal to noufy them of a peacetime disaster. These warning signals ax e.. Anestma or Alers Warning 'this is a 3 to 5 minute steady signal from sirens, horns, or other devicca. The signal inay be used as sathorized by kical government officials to alert the pubbe in peacetire.e emergencies. [T]he action or alert signal shatt mean I to all persons in the tJmted States, "lurn on radio or 'lV.1.isten for essential emergency information." We also note that rotating sirens are expressly authorized in j IV.A., id.: 290

                                                                                                                                                   . f.
                                                                                                                                                  .)

p N 4 4 _ _ _ _ - - _ _ - - - . - - .- J

l , l l l

                     'lhe most powerful sirens , , use a horn that radiates a beam of sound in a single direction.

The horn is then rotated several times a minute, so that the team sweeps through the entire area around the siren. For a stationary listener, the sound frorn such a siren goes up and down in loudness as the horn sweeps around. Our investigation of the legal materials cited by the Intervenor persuades us that there is no genuine issue of material fact related to the c? .nging levels of perceived sound from the mtation of a siren in the method that is planned. What will actually happen at Scabrook is described in New 11ampshire Yankee,"Scabrook Station Public Alert and Notification System"(FEMA-REP. 10 Design Report), (" Design Report"), April 30,1988, at 2-14: To ensure full 360* coverage by the siren, the speaker assembly is oscillated back and forth through an angle of about 360*. 'Ihe horn rotates 360* in one direction, stops, rotates lack to the same position, stops, and then sotates in the other direction. The cycle is repeated 2-4 times per minute. We have no affidavit that suggests that this procedure is not adequate to alert people, as intended. Hence, the following statements of fact are not in d;.,pute: A,8 a. The rotation of a siren in the tone-alert mode to assure 360 cover-age is an acceptable procedure, and changes in perceived volume to a stationary listener do not prevent the siren from producing an acceptable " steady" signal of 60 dBC in areas with population of 2000 people or less per square mile and of 70 dBC in more populous areas. A.8-b. Although the oscillation of the speaker assembly may cause changes in the perceived sound level to a listenes due to the di-rectionality of the signal, this oscillation will not cause gaps in coverage when the siren is used in the tone-alert mode. A.3 c. Sound irregularities due to sound cancellation are not at all likely to occur except for stationary, pure tone, point sources in a laboratory environment. X, B ASIS A.9 Basis A.9 is: Listeners in areas w here there is an overlap in sound coverage from 2 or more sirens, whethr both sirens are in Massachusetts or me is in Massache.netts and one is in New llampsire. ') will experiena severe echo conditions, rendering any voia message unintelbgible. 291 i

Since the Board has denied Intervenor's Motion to Amend Bases of Septem-ber 8, Basis A.9 is irrelevant. Memorandum and Order (Granting Mass. Request to File a Reply; Denying Mass. Motion to Amend), October 12,1988, at 9, I 152 3. The following is not a genuine issue of fact: A.9-a Applicants do not use the VANS sirens for voice messages. XI. IIASIS A.10 Basis A.10 is:

                                                             %e Appbcants have not indicated when and t cdct what circumstances the tone alert mode or the message maic will be used.

As Applicants and Intervenor agrec, Basis A.10 no longer applies. Xil. IIASIS A.ll Basis A.11 is: Sufficient drivers and backup drivers will not be stationed at the six staging areas to ensure 24 hour availabihty of the system. Moreover, the system will work reliably, if at all, only when cach vehicle is manned by at least two people. i The principal arguments underlying this basis may be litigated with respect to Basis A.5, as we have ruled above. The burden of proof will be on Applicants to demonstrate that a person will be on duty and alert at all times at cach station so that a 10-second alert time, or some greater period of time, is realistic. The following are not genuine issues of fxt: A.11-a. New Hampshire Yankee has a personnel plan that is designed to ensure continuous 24 hour per day coverage 7 days per week and that provides for supplemental drivers as well as backup VANS and drivers. (The likelihood that this plan may result in unplanned-for gaps in actual coverage is in dispute under Genuine Issues of Thct VI.1 and VI.2.) A. l l-b, The prototype VANS vehicle works reliably with one operator, as demonstrate-1 during training, by numerous tests, by inspection by NRC Region I inspectors, and by demonstration to Intervenor during discovery. A.11-c. The prototype VANS vehicle is comparable in all relevant aspects to the VANS vehicles to be used. 292 i 1 1

                                                                                                                                                                  *i i
                                                                                                                                                                    'I 4

                                                                                                                                           ]

l A. l l-d. 'Ihc ability of the VANS vehicles to work reliably with one operator was also demonstrated fifty times during recent dispatch and setup timing te s. XIII. IIASIS A.14  ; Basis A.14 is: The Applicants have not identified the equipment to be used for remote activation of the VANS sirens and, therefore, no conclusion can be reached mncerning the reliability of the l equipment. Moreover, the Applicants have not indicated whether the siren signals will be pre. recorded or broadcast to the remote locations and have not provided sufficient information to conclude that in either event the equipment has adequate fidelity to ensure intelligibility. Because this contention also addresses Applicants' use of the sirens in message mode, it has become irrelevant. Memorandum and Order (Granting Mass. Request to File a Reply; Denying Mass. Motion to Amend), October 12, 1988, a! 9, $12-3. XIV. IIASIS B Basis B is: The Applicants hs.c nA identified the circumstances under which the backup airborne alerting system would be called into operation, the flight path it would take, whether tone nr message mode would be used, the time necessary to complete a single operational run, or the areas the helicopter is intended to cover. This lack of information prevents this Board - fawn making a finding that the airborne system meets NRC regulations and str.ndards.

1. One of the circumstances whidi might give rise to the need for a backup system, poor weather (and in particular high wind, heavy rain, snow, icy or extreme cold l conditions),is equally or more debihtating for the use of a helicopter.

3. A steady 3 to 5 minute tone alert capable of repetition cannot be accomplished with the airborne system for significant numbers of people even within the covered area because the speed necessary to p ovide that duration of a tone is too slow for extended operation of the aircraft.

Since Applicants do not rely ca the airborne backup system to meet regulatory requirements, Intervenor has stated that it will not introduce evidence concerning this basis. The following issue of material fact is not in dispute: l 293 l \ l l i 1

l B a. Applicants' helicopter system is a backup system and, as such, is . not relied upon by Applicants in any way to meet NRC alerting I and notification regulations and standards. X V. BASIS B.4 Since Basis B.4 also deals with the airborne backup system,it is disposed of in our discussion of Basis B.3. i XVI. ORDER  ! Ibr all the foregoing reasons and upon consideration of the entire record in this matter, it is this 3d day of March 1989, ORDERED, in accordance with 10 C.F.R. I 2.749: J A. Genuine issues of l'act The following genuine issues of fact exist and shall be heard unless resolved through negotiation and agreement: A.I.l. Whether sound levels in excess of 123 dBC cause enough discom-fort so that the Board should not approve the use of sirens at a higher level of sound. We note that this issue of fact also involves a legal question: What standard should we apply to determine the possible relevance of discomfort? On this queshon, we invite simultaneous briefs from Intervenar and Applicants 5 days prior to the deadline Ll'at shall be set for the prefiling of tes6 mony; and we invite a legal filing from the Staff simultaneously with the prefiling of testimony. A.I.2. If there is some level higher than 123 dBC that the Board should allow, what is that level? A.I.3. Whether Applicants' sirens can provide adequate coverage if used at sound levels that are not unduly uncomfortable. A.1-4 Whether Applicants' position on the sound level resulting from their sirens is an underestimate because of sound reflection from buildings. A.3-1. Whether the oppointed destination locations, including VL-06, VL-07, and VL-12, are sufficiently level for the safe deployment of the VANS vehicles. A.3 2. Whether or not VANS vehicles may gain physical access to VL-03, VL-06, VL-07, and VL 12. 294 i 3i b 11 d s h -- _ _- . _ - i

1 A.5-1. What is an appropriate conservative estimate of the length of time it would take for drivers to take the necessary actions before their ' vehicles leave their stations during conditions likely to prevail at the tirne of need? A.5-2. Given that IMre is snowfall of 0.5 inch or more during 5.5% of the days of the year, would a cor.servative estimate of travel times to VANS acoustic locations include the somewhat prolonged , travel times anticipated during snow conditions? If so, what time l estimates should be included? . ! A.5-3. What is an appropriate conservative estimate of the length of time ~ it would take for people within 5 miles of Seabmok to receive the informational message to be broadcast over the EBS? i A.5-4. What is an appropriate conservative estimate of the totallength of time for alerting and informing people within 5 miles of Seabrook? Is that estimate within acceptable guidelines? (If it is longer than 15 minutes, what are the factors we are to consider in deciding whether the time period is adequate?) B. Facts Not in Dispute , All issues described in the opinion as not being genuine issues of fact or not being in dispute shall be considered resolved. The lettered paragraphs setting forth such issues may be cited as findings should they la some way appear to be relevant after hearing. j ii l C. Site Visits and Further Definition of Issues i "Ihe physical characteristics of the VANS c'estination sites are definitely , knowable. Consequently, we expect the parties to engage in good-faith efforts so I that Applicants can drive vehicles into the sites with Intervenor's consubmt as an l cyewitness. An agreed method also should be arrived at for accurately measuring l the degree of inclination at the site so that the Botrd will not need to litigate a fact that any person could obtain merely by visiting the site. Appropriate protective order agreements should be entered into so that information about the sites will not become public. There are other issues that may be able to be narrowed and focused through negotiation. We expect the parties to conduct such negotiations in good faith. If the parties are unable to reached agreements on site visitation and mea- l surement procedures or on issue focusing, they may ask the Board for informal assistance in reaching agreement.  ; We have allowed 2 weeks for good faith negotiation. j i 295 1 i f

                                                                                                                                                                                                                        +

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t D. Scheduling Conference l 'Ihere shall be an on-the-record telephc,nc conference at 9 a.m. on March 20 for the purpose of resolving procedural issues, scheduling the prefiling of testimony, and : luling a hearing. The parties shall confirm their participation prior to Marci. 5y telephoning Ms. Joyce McDow at 301-492-7479 and providing the nmnes of planned participants and the appropriate telephone number to call on the day of the conference. TIIE ATOMIC SAFETY AND LICENSING BOARD Peter B. Bloch, Chair ADMINISTRA'llVE JUDGE Emmeth A. Luebke ADMINISTRATIVE JUDGE Dr. Jerry Harbour ADMINIS'mATIVE JUDGE Bethesde, Maryland 1 296 t] 1 3 J i I _ _ _ _ _ _ _ _ _ _ _ _ _ - . _ _ - . - J

Cite as 29 NRC 297 (1989) LBP 89-10 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: , Ivan W. Smith, Chairman Dr. Richard F. Cole Dr. Kenneth A. McCollom In the Matter of Docket Nos. 50 443-OL 50-444 OL (ASLBP Ho. 82 47102 OL) (Offsite Emergency Planning) PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al. (Se Grook Station, Units 1 and 2) March 8,1989 j i MEMORANDUM AND ORDER

                                   ,                                                (Ruling on Motions by Scacoast Anti-Pollution League                                              .

and Massachusetts Attorney General Concerning > a Waiver of Commission Financial Qualification Rules)

                                                                                                                                                                                        .4 1
                         ,J                                                                           HACKGROUND t

On January 25,1989, Scacoast Anti-Pollution League ("SAPL"), supported by tlic New England Coalition on Nuclear Pollution ("NECNP"), filed a motion requesting the Board to "rcopen the record in this portion of the licensing

                             +

proceeding" (pursuant to 10 C.F.R. 9 2.734) to accept a late-filed contention (pursuant to 10 C.F.R. 6 2.714) regarding the ability of the Scabrook Station's l I

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i l owners to operate the nucicar facility in a safe manner if a full. power license { were to be issued to the plant.' SAPL's contention alleges: i i

                                                 'Ihe Seabrook Applicants have not demonstrated that they can prtwide reasonsble assurance that they either have or can obtain the necessary funds to safely operate the Seabrook plant. contrary to the requi cments of sec.182(a) of the Atornic Energy Act and 10 C.F.R. sec. 50.33(f)(2) and sec. 50.57(a)(4).

SAPL Motion at 8. On February 1,1989, the Attorney General of Mass ichusetts filed a separate motion (pursuant to 10 C.F.R. Q 2.758) requestirig a waiver of or an exception to the public utilitics exemption from the Commission's requirement that a ' demonstration of financial qualification be made prior to the issuance of a full-power operating license.2 The petition sccks a determination by the Licensing Board that the Attorney General establishes a prima facic showing that the financial qualification rule should be waived in this proceeding and that the issue should be certified directly to the Commission. MAO Petition at 6-7.5 Since both the SAPL motion and MAO petition involve the same subject matter w: address both in this Memorandum and Order. SAPL'S MOTION Contrary to NRC reg t!%ons, SAPL sccks la litigate the issue of the finan-n cial qua fications of Scabrook's owners. Sections 2.1(M(c)(4), 50.33(f), and I 50.57(c)(4) of 10 C.F.R. clearly exclude electric utilitics from the class of appli-cants required to demonstrate their financial qualifications to operate a nuclear facility safely vi full power. SAPL's motion neither sccks a waiver of these ] 4 regulations nor requests certification of the waiver issue directly to the Commis-sion pursuant to 10 C.F.R. 6 2.7E. Instead, SAPL argues that the Commission waived the application of the financial qualification exclusion, as it pertains to Seabrook's full-power license, in CL1-88-10, 28 NRC 573 (1988) ("CLI q y 10"). SAPL Motion at 3. First, SAPL states correctly that CL1-8810 " determined that financial qual-

                                                                                                                                                                                .)

ification would not be a significant safety issue for low power testing." SAPL c.

                                                                                                                                                                                 'j i

Iseacoast Anti Pollucon Imgue's Maion to Accept I. ate-Filed Comenne on Feancial Quahficauen m R apmae 4) to NRC Order ClJ 8810 ("SAPt. Moum") (January 25.1989). 2 :i Massachusetts Attorney General's 1%utse for a waiver of or an Encepuan to the fasanci) Quahfication Rules

                                                                                                                                                                               ,$ i for run Pbwer operaum (" mao Peuuon") (February 1.1989).

3 1n his peuuon the Attorney Ocneral incorporates by reference a sunilar mopon raled by his ofrice on March ij 7,1988. regardmg the issuance of a low-power bcensc. Masaachusetta Attorney General James M. shannon's h i Peti % Under 10 C.F.R. 7.758 for a Waner of or an Eacepuan fnrn the Public Uuay laemridan from the s R9arement of a Demonstrauun of Firw.icial Quahricaunn (March 7.1988).

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J I Motion at 3. "Hoa ever,' SAPL continues, CLI-88-10 shows "by clear impli- ' cation" that the Cummission has determined that financial qualification is an ' important safety issue for fuu-power licensing. /d. SAPL cites the following paragraph from CLI-88-10 to support its argument:d Whatever may be the legitimacy of this safety purpose for full-power operation, it stictches reason to suppose that the safety rationale would have any bearing on a limited license for low power testing. Shortcuts in safety at full power mnceivably could avoid shutdowns or d rating and thereby contnbute to greater plant availability and revenue frorn power sales. But shortcuts in low pov.cr testing safety w 3 not lead to generation of rnore icvenue that  ! would benefa the plant owners. S APL Motion at 2-3, quoting CLI-88-10, supra,28 NRC at 600. SAPL proceeds to argue the merits of its late-filed contention motion and avoids any further discussion of exactly how and where the Commission waived the rule in CLI-88-10. O.it reading of the Commission's decision in CLI-88-10 has been thorough and we have reached the following conclusions: The question of whether the financial qualification rules should be waived in the context of Seabrook's full-power license was never presented in CLI-88-10; the Commission never dL'ussed the waiver of the rule in the context of Scabrook's full-power license sua sponte; there is no way CLI-88-10 can be read responsibly to make a findire; that the financial qualification rule has been waived by implication; CLI-88-10 has no bearing, as a legal precedent, on the financial aspects of Scabrook's full-power operation For the foregoing reasons, SAPL's motion is denied. ATTORNEY GENERAL'S PETITION  ! Procedural Standards Governing Waivers of NRC Rules It is well established that a party may not directly challenge a Commission regulation a an agency adjudicatory proceeding. See 10 C.F.R. 52.758(a). Ilowever, the: Rules of Practice contain a limited exception to the proscription against chahenging NRC regulations and provide that a party to a licensing proceeding may petition for a waiver of a regulation. ' re 10 C.F.R. 5 2.758(b).

         'Ihc Commission has placed a heavy burden on a pt ,y sccking such a waiver or exemption:
         'The Attorney Genera! distancea hirnself from SAPL on dus issue. Ihs peuuon states that it is "nra clear" Ct.188-10 maived the fmancal quahncauon rule respectmg scabro<A stauon's full-po cr heaise. MAG IVuuan et i n.l.

299

i i

                                      'The sole ground for petition for waiver or esemption shall be that special circumstances with respect to the sub,ect snatter of thL particular proceeding are such that application of the rule or regulation (c' provision thereof) would not serve the purposes for which the ruk or regulation was adopted.                                                                    ;
                                 /d.l see Northern States Power Co. (Monticello Nuclear Generaung Plant, Unit 1), CL1-72-31,5 AEC 25,26 (1972) (waiver petitions should not be granted in absence of " unusual or compelling circumstances"). The Commission defines a                       j "special circumstance" as " facts, not common to a large class of applicants or facilitics, that were not considered either explicitly or by necessary implication in the proceeding leading to the rule sought to be waived." CLI 8810, supra, 28 NRC at 597. Special circumstances must be "such that application of the rule                    1
                                 . . . would not serve the purposes for which the rule or regulation was adopted."

10 C.F.R. 5 2.758(b). "[A]t a minimum, . . the special circumstances must be such as to undercut the rationale for the rule sought to be waived." CLI-88-10, 1 supr?. 28 NRC at 597. A petition for waiver or exemption must also " indicate that a waiver is necessary to address, on the merits, a significant safety problem related to the rule sought to be waived." Id.

                                      'Ihc party sccking the waiver or exemption must establish a prima facie                       ;

case in a petition that application of the subject regulation would not serve its intended purpose. Sec 10 C.F.R. 5 2.758(c). Commission case law establishes a prima facic snowing as one that "must be legally sufficient to establish a fact or case unless disproved." Pacific Gas and Electric Co. (Diablo Canyon Nuclear Pown Plant, Units I and 2), ALAB-653,16 NRC 55,72 (1981). In determining whcmcr a party has established a primafacie case for the purposes of 9 2.758(c), the presiding officer must consider not only the waiver petition itself, bu! responses, affidavits, and other information submitted. See 5 2.758(c). If the petition fails to establish a prima facie case, it must be denied. Id. Conversely, if a primafacie case is established, the presiding officer is to refer the matter directly to the Commission. See 10 C.F.R. 5 2.758(d); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-895,28 NRC

7. 11 (1988). Only the Commission is authorized to grant the petition and waive a rule. See 6 2.758(d).

To summarize, th; party requesting a waiver of or exception to a Commission regulation must es'ablish a primafacic showing (1) that "special circumstances" exist wr.ich (2)' undercut the rationale" of the rule sought to be waived and (3) a waiver is needed "to address a significant safety problem on the merits." Sec CLI 8810, supra,28 NRC at 597. f 300

H The Attorney General's Case

                                                                       'Ihe Attorney General asserts numerous arguments relating to the Applicants' financial condition to establish the existence of"special circumstances" tojustify a waiver of the Commission's exclusion of electric utilities from fmancial qualification review. See 10 C.F.R 6 2.104(c)(4),10 C.F.R. 6 50.33(f), and 10 3

C.F.R. l 50.57(a)(4). Two of the assertions in his pleading are factual allegations .i (Public Service Company of New Hampshire ("PSNH") is currently under the jurisdiction of the bankruptcy court, Massachusetts Municipal' Wholesale Electric Company ("MMWEC") is currently in default of fmancial obligations to Scabrook), while the remaining assertions are purely conjectural allegations (PSNH will remain in bankruptcy at the issuance of a full-power _ license, MMWEC will remain in default of its financial obligations; PSNH may be taken over by the State of New Hampshire; Northeast Utilities has offered to i buy PSNH's non-Scabrook assets leaving Seabrook to its unsecured creditors and security holders; increases in rates after full-power licensing will lead to a decreased revenue to Seabrook's owners due to lowering of ratepayer demand; the New Hampshire Public Utilities Commission will lower PSNH's non Scabrook rate base). MAG Petition at 4-6. All of these circumstances are alleged to support the gravamen of the Attorney General's petition, that the owner of Scabrook Stadon will not be in a secure enough financial position to ensure safe operation of the plant at full-power operation since full-power operation is costly and the owners would have incentives to take shortcuts in safety to save money. MAG Petition at 4,16, and at 6,110. We find that PSNil's current bankruptcy tends to fit within the scope of

                                                                   " facts, not 1 ammon to a large class of applicants or facilities, that were not considered either explicitly or by necessary implication in the proceeding Icading to the rule sought to be waived." CLle88-10, supra,28 NRC at 597.

However, the remaining assertions in the Attorney General's pleading are merely conjectural statements that do nothing more than highlight the current uncertainty surrounding the future ownership of Seabrook Station. As we explain in detail below, we do not find that this uncertainty in itself calls into question the ability of whoever ultimately becomes the owner of the Seabrook Station to opente the plant in a safe condition. Instead, our analysis turns to the Attorney General's effort to make a primafacie showing that the special circumstances he pleads tend to " undercut the rationale for which the rule was enacted." 10 C.F.R. 2.758(b).  ! 301 1

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i TIIE FINANCIAL QUALIFICATION RULE The original rule requiring financial quahfication review, prunulgated in 1%8, required j a Imding. prior to operating license issuance that the utility *posesses or has reasonable assurance of chiaining the funds necessary to cover the estimated costs of operation for the "8 period of the license or for five years, whichever is greater . . In CLI-8810, the Commission stated that the only justification for conducting a  ; fmancial qualification review is "to provide some added assurance that a licensee would not, because of financial difficulties, be under pressure to take some safety shortcuts." CLI 88-10, supra,28 NRC at 600.

                                     "At most, the Atomic Energy Commission, in drafdng the rule, must have intuitively concluded that a licensee in financially straitened circumstances would be under more                           l pressure to commit safety violations or take safety ' shortcuts

• than one in good financial shape. Acwrdingly, the drafters of the rule sought to achieve some level of assurance, prior to licensing, that licensees would not be forced by financial circumstances to choose between shutting down or taking shor: cuts while the license was in effect." l

                                 /d., quodng 49 Fed. Reg. at 35,749.                                                                                  i llowever, the Nuclear Regulatory Commission exempted electric utilities from the requirements of the financial qualification rule in 1984 Sec 49                                             ,

Fed. Reg. 35,747 (Sept.12,1984). Accordiag to the Commission, the " essential l' rationale" for this exclusion is that:

                                     " case-by. case review of financial qualifications for all electric utilities at the operating license stage is unnecessary due to the ability of such udlities to recover, to a sufficient degree, all or a ,ortion of the costs of construction and sufficient costs of safe operation through the ratemaking process."

I CLI-88-10, supra,28 NRC at 598, quodng 49 Fed. Reg. at 35,748. 7he Commission made it quite clear that the scope of its concern was not the adequacy of the rate base estabinshed by the ratemaking process as a whole, but: [He Commission's] concern is that reasonable and prudent costs of rafely maintaining at.:t operating nuclear plants will be allowed to be recovered through rates. His concern does not catend to any level of profit or rate of return beyond those operati g capenses. De i Commission's concern is with safe operation, not profits. 49 Fed. Reg. at 35,749. 8 Diminatie of Review of Financial Quahrications of Dectric Utilities in Operating license Review and lleanngs far Nuclear Power Plants,49 Fed. Res. 35.747,35.747 48 (sept.12,1984). 302 i , i

                                                                                                                                                    .)

I 1 1 I I J

The Commission offered an example of the type of showing that must be made before an electric utility applicant would be requir(d to demonstrate its fmancial qualifications if a waiver of the regulation was granted under 10 C.F.R. 5 2.758: lAln caception , might be appropriate where a threshold showing is made that, in a particular case, the local public utilny commission will not allow the total cost of operaung the facilay to be recovered through rates. t 1 d9 Fed. Reg. at 35,751.5 c We agree with the .;aff that the Attorney General has failo to make a prima facie showing in his petition becluse he has not offered any allegation that would meet the test set forth in i2.758(b).' he has made his point that there is uncertainty surrounding who wi!! ultimately bo the owner of Scabrook Station, but he has neither alleged, nor approached a primafacie showing, that those owners, whocver they may be, will not be allowed to recover sufficient operating expenses in the ra!: base to allow for safe operation of the nuclear facility, The New Ilampshire Supreme Court has upheld the right of Seabrook's owners to recover the costs of operating the facility at such time as Applicants  ; receive a full-power operating license and provide electricity to consumers. See j Petition of Public Service Co. ofNew flampshire,130 N.H. 265, 539 A.2d 263 (1988). Morcover, we find nothing in the Attorney General's petition to keep us from applying a Commission presumption that Seabrook's rate base will, if a - full-power license is issued, include the costs of safe operation that are pru katly = incurred. See 49 Fed Reg. 35,747-48, citing FPC v. Ilope Natural Gas Co., 320 U.S. 591, 605 (1944); Bluefield. Water Works and improvement Co. v. Public Service Commission of West Virginia,269 U.S. 679 (1923); see Duquesne Light i Co, v. Barasch,109 S. Ct. 609,102 L. Ed. 2d 646 (1939).' We know of no current impediments to the application of this presumption to the matter before l us. The Attorney General avoids discussion of this presumption in his petition,

                              '                                      except in passing (MAG Petition at 5), for good reason -it simply defeats the
                                             ,                       purpose of his pleading.

While it is of little use to go further in this analysis, it should be stated again that the gravamen of the Attorney General's complaint is that the Applicants will not be in a strong enough financial position to ensure that the Scabrook ' S 6

                                                                       !t should be noted that both the Appeal Board arul the Commission have stated that the eaample act forth immediately above is not the only way to make the showu,g nxpared to warrant a waiver. ses CtJ 88-10. supra.                                      '

28 NRC at $96, PuMc servics Co. of New Hampshirs (seabrook statim, Unita 1 and 2), AL.AB-895. 28 NRC 7,17 (1988). j.

                                                                    'NRC siafr Ruponse to Massachusetts Attorney General's Paiuon for a Waiver of or an Eaccpum to the financial Quahficatim Rules for Full Power operauon (Tchruary 21,1989), at 8-12, s Regardless of legal precedent. we find absurd the notion that any public utility comminim would set rates below what is nacenary for safe operation or a nuclear plant once the matter as p!sced before it 4

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plant will be operated in a safe condition once a full power operating license I issues. IIis reasoning is that the owners, if financially strapped, would have incentives to take shortcuts in safety. MAG Petition at 4,16. Applicants have provided what the Board views as succinct rebuttal to this claim.' Mr. Brown, the Chairman and Chief Executive Officer of New llampshire Yankee, sets forth in his affidavit several reasons for his view that the Attorney General's safety concerns are unwarranted. Of particular importance arc 113(d), 7, and 10(a): he Nuclear Regulatory Commission has resident inspectors supplemented by additional inspectim and audit teams who regularly review safety matters and ccenpliance with quality and !icense requirements. These independent reviews would not tolerate such " shortcuts in safety" as alleged by the Massachusetts Attorney General. [Iln actuality, today's generation of U.S. nuclear power plants have been left litde choice on whether or not to have an optimum maintenance program for nuclear safety related systems and components. Following the issuance of a license, licensee cenpliance with the . specific ticense conditions and commitmen's is rigorously monitored for the hfe of the l license. After the issuanm of a limnse, negotiations with the NRC to reduce the stringency of the initial license conditians are only infrequently suempted and even less rarely do these f negotiations result in significant reductions to the standardized regulatory specifications and codes. The relationship between the Joint Owners and NilY [is that] PSNil has one vote out of five on the IIxecutive Committee. NIIY management, not the Joint Owners' Executive Committee, makes the decisions on safety-related issues, plant operation and plant shutdown. ORDER For the foregoing reasons:

1. The Scacoast Anti-Pollution League's motion '.o reopen the record and to accept a late filed contention pursuant to 10 C.F.R. 5 2.734 and 10 C.F.R. 9 2.714 is denied;

2. The Massachusetts Attorney General's petition pursuant to 10 C.F.R.

9 2.758 for a waiver of those portions of 10 C.F.R. %2.lO4(c)(4),10 C.F.R. 9 50.33(f), and 10 C.F.R. 6 50.57(a)(4) that exclude electric utilitics from the class of applicants required to demonstrate their financial qualifications to

                    ' Afridsvit of Edward A. Drown, supplementing Apphcants' Response to Massachusetts Attorney General's Peution i

for a Waiver of or an Eacrnpuan to the hnancial Quahficauon Rules for Full Power operation (February 13.1989). ' 304 a o 1 F n

operate a facility safely at full power is hereby denied certification to the Commission. FOR THE ATOMIC SAFETY AND LICENSING BOARD Ivan W. Smith, Chairman ADMINISTRATIVE LAW JUDGE Bethesda, Maryland March 8,1989 l l 1 305

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i Cito as 29 NRC 306 (1989) LBP 8911 f i UNITED STATES OF AMERICA NUCLF AR REGULATORY COMMISSION ATOMIC SAFUY AND LICENSING BOARD Before Administrative Judges: Robert M. Lazo, Chairrnan Harry Foreman Ernest E. Hill  ! In the Matter of Docket No. 30-16055-SP (ASLBP No. 87 545-01-SP) (Suspension Order) 1 ADVANCED MEDICAL SYSTEMS,INC. (One Factory Row j Geneva, Ohio 44041) Merch 21,1989 In this Memorandum and Order, the Licensing Board hoids (1) 8. hat this challenge to an immediately effective suspension order is not moot despite the i subsequent revocation of the suspension order and resumption of operations by the Licensee under an amended license, and (2) that an award of attorney's fees under the Equal Access to Justice Act, 5 U.S.C. 0 5M, is, in appropriate circumstances, within the Board's authority. RULES OF PRACTICE: REQUEST FOR. AWARD OF ATTORNEY'S 5 FEES While the burden of estabbshing a causal connection between an enforcement proceeding and parallel action by the NRC Staff in its regulatory capacity may indeed be a heavy one, the question of" prevailing party" status under the Equal Access to Justice Act (EAJA), 5 U.S.C. 5 5N, turns on an analysis of the applicable facts rather than narrow and strained constructions of the statutory terms in the EAJA. 306

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RULES OF PRACTICE: REQUEST FOR AWARD OF A'ITORNEY'S FEES The Equal Access to Justice Act,5 U.S.C. 6 504, has been severely limited by subsequent legislation that precludes the NRC from using any of its appro-priated funds to pay the expenses of interveners. See, e.g., 5 502 of the En- I crgy and Water Development Appropriations Act of 1781, Pub. L. No. 96-367; and 5 502 of the Energy and Water Development Appropriations Act of 1989, Pub. L. No. 100-371. This restriction has been interpreted.to encompass any awards under the EAJA. See Matter of Availability of Funds for Payment ofin- , tervenor Attorney Fees-Nuclear Regulatory Commission,62 Comp. Gen. 692 (1983) (B-208637); Business & Professional People for the Public Interest +

v. NRC,793 F.2d 1366 (D.C. Cir.1986).

RULES OF PRACTICE: REQUESTS FOR /. WARD OF ATTORNEY'S FEES A Licensing Board's authorby to award attorney's fees under the Equal Access to Justice Act,5 U.S.C. 5 504, is limited only as to interveners in NRC adjudicatory or regulatory proceedings. The EAJA continues to authorize, in appropriate circumstances, fees and expenses to licensecs who, as petitioners, challenge NRC enforcement actions. RULES OF PRACTICE: REQUESTS FOR AWARD OF ATTORNEY'S FEES The Licensing Board has authority to entertain requests for fees and expenses under the Equal Access to Justice Act,5 U.S.C. 6 504, in enforcement proceed-ings where the licensec prevails on all or some of the issues joined for litigation. RULES OF PRACTICE: DECLARATORY RELIEF The grant of declaratory relief requires affirmative answers to two separate but related qu'.stions. First, does a genuine and live controversy exist sufficient to support a declaratory order. Second, is the issuance of declaratory relief appropriate. The former is necessary to ensure that a board has jurisdiction over the matter to be dxided, without which it cannot issue any relief, declaratory or otherwise. The latter is necessary because declaratory relief is discretionary and is to be granted only to terminate a controversy or climinate uncertainty and avoid unnecessary delay. 307 1 I i

RULES OF PRACTICE: LITIGABILITY OF ISSUES (ENFORCEMENT) The revocation of an immediately effective suspension order does not render a - challenge to the suspension order moot where there was injury that was " capable of tepetition, yet evading revicw." ^ Southern Pacific Terminal Co. v. Interstate Commerce Commission,219 U.S. 498,515 (1911). RULES OF PRACTICE: LITIGABILITY OF ISSUES (ENFORCEMENT) . A Licensing Board's authority flows from and thus is limited to those matters contained in the Notice of Ilearing. However, a Board is not precluded from reaching and deciding all the issues necessary to resolve the particular case before it simply because their resolution might have generic implications. MEMORANDUM AND ORDER l On December 3,1987, the Administrator of NRC Region 111 revoked the immediately effective suspension order giving rise to this proceeding in light of amendments to the license held by Advanced Medical Systems, Inc. (AMS). Based on this revocation, AMS asserts that it has obtained the relief it sought in this proceeding, and sccks, in addition to other relief, an award of attorney's fees and expenses under the Equal Access to Justice Act, as amended,5 U.S.C. I 504 In the alternative. AMS proposes seven issues for litigation before this Board. In part based on the same revocation, the NRC Staff (Staff) answers that this l Board's jurisdiction is at an end as neither litigable issues nor a right to attorney's fees exist. After careful consideration of the pleadings, the Licensing Board has con-cluded that AMS has raised several litigable issues which render its requests for attorney's fecs and other relief premature. Accordingly, for the reasons set forth hereinbelow, this Suspension Order proceeding must continue for the consider-ation of additional matters. BACKGROUND in order to understand the current factual posture of this proceeding, it is instructive to review the events that have led to the instant AMS request Under authority of Byproduct Mater *.I License No. 30-19089-01, AMS is in the business of, inter alia, installing and servicing radiography and teletherapy 1 l-308 1 4 x 7 4

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units used for medical diagnosis and treatment. Based on the results of two special inspections of AMS licensed activities by NRC Regional lil Staff, the Director of the NRC Office of Inspection and Enforcement issued on October , 10, 1986, an immediately effective order suspending AMS* License. An immediately effective suspension was warranted,in the Director's view, because the special inspections had revealed alleged violations of regulatory requirements evidencing a "carcicss disregard for license requirements."' As a consequence of the Order, all AMS licensed activitics came to an end. AMS filed a timely answer denying all violations described in the Order and requesting a hearing. A Notice of Hearing was issued by the Commission on November 28,1986, 51 Fed. Reg. 43,790 (Dec. 4,1986), and this Board was created December 2,1986,51 Fed. Reg. 44,850 (Dec.12,1986).2 As set out in the Notice of IIcarire the issue before the Board is whether, on the basis of the matters set fcrth in the Order, the Order should b sustained. I Subsequently, at a December 23, 1986 meeting between the Licensee and the Administrator of NRC Region III, AMS informally sought relief from the suspension order.) AMS' efforts proved unsuccessful at this stage, and  ! approximately 2 weeks later the Regional Administrator affirmed the propriety of the suspension order.' The Administrator emphasized, however, that should AMS advance acceptable proposals for action which addrened the Staff's < concerns, he was prepared to lift the immediate effectiveness portion of the  ! Order. On January 16, 1987, AMS filed a Stay Application with the Commission which was then referred to this Board for action. On January 23,1987, during the pendency of that Stay Application, AMS submitted to the Staff a proposai regarding the actions it was prepared to take to obtain an interim lifting of the effectiveness of the suspension order pending completion of the adjudicatory hearing. Viewing the January 23 submission as written commitments, the I Regional Administrator, by letter dated Fe'b ruary 2,1987, permitted AMS to resume licensed activitics subject to three conditions.8 After a 114-day j I Order suspendmg tjcense and ords to show Cause (Erfective immediately). EA E155 (october 10,1986) at 3. 2 As origmally cmmututed. Dus Board was composed of a single Admirustr>uve law Judge. Ilowever, when the press of other proceedings rendered the origtnal Judge unavailabic. the licensmg Board was reconstituted as a three-member Board. 52 Fed. Reg 37.383 (oct. 6.1987). 3 AMs had onginally sought intenm rehef fmm the immediate effecuveness aspect of the suspension order imm this Board. However, by letter dated November 6.1986. the secretary of the Canmasmn advised AMs that under the terms of the suspension order, such requests were m the first instance pmperly lodged with the Administrate for NRC Region m.

                      'see 5

Decimauon to Rescind immediate Effecuveness of october ll,.1986 suspenswn order (January 7,1987). , Those condiuons were (1) all semce work was to be performed by or under the supervismn of the two bcensed semcc ergmeers for AMs. (2) unul June 30.1987, AMs had to provide timely nouce to the NRC of en service 1 requests befort performing the work, and (3) AMs had to insutute and perform audats of internal and field semce actmues as deacnbed an its January 23 letter. m \ i i i 4 1 1 ________ - - - - - - l

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closedown, AMS was back in business, albeit st:bject to restrictive conditions it felt were excessive and unwarranted by the facts.6 On February 10,1987, AMS . withdrew its application for a stay. Shortly thereafter, the Staff orally sought and obtained, with the concurrence of AMS, a postponement of any prehearing conference pending completion of , discussions with the U.S. Department of Justice (Justice) concerning an ongoing, parallel criminal investigation of AMS. On March 9,1987, and at the request j of the Department of Justice, the Staff sought a stay of these proceedings ,( pending compfetion of the Justice investigation, including any resultant criminal i prosecution. The principal basis for the motion was that the continuation of ' this proceeding, including its attendant discovery, created a " grave risk" that - witness statements ant" other information may be unnecessarily and prematurely ., disclosed to criminal targets. In an Order issued May 4,1987 (ALJ-87-4,27 NRC 865), this Board declined to grant an open-ended stay. Instead, it granted _. a limited stay of the proceeding, to August 15,1087, subject to the filing of an l ' adequately supported motion for a continuance of the stay.' In early September 1987, AMS filed a statement of issues to be litigated, and the Staff filed a simultaneous statement that no litigable issue remained, since l the violations described in the suspension order had been resolved. Shortly I thereafter and at the request of AMS, the AMS license was amended to x. specifically identify the AMS personnel who were licensed technicians and list the activities they were authorized to perform. Based on his position that the + 1987 amendments resolved the matters giving rise to the Suspension Order and d superceded the conditions imposed by his February 2 letter, oe December 3, dj 1987, the Regional Administrator reveked the suspension order and the February y ' 2 letter permitting conditional resumption of licensed activities. On July 20,1988, following the lifting of the stay, a prehearing conference I g was held by the Licensing Board. At the conclusion of the conference, AMS M was requested to file a statement of litigable issues, ar4d the Staff was requested j to respond. AMS' instant motion resulted.

                                                                                                                                                              .p ATTORNEY'S FEES                                                                            i.                       ['
                                                                                                                                       ..y-AMS' claim to attorney's fees and expenses is based on its equating the Administrator's December 3,1987 revocation of the suspension order with the                                                                     .
                                                                                                                                                    > 'y/ j .

ultimate relief sought through this proceeding. Based on this asserted similarity,

                                                                                                                                                       . Al i j-A' 6Sss Response of AMs to Repon of NRC's staff Regarding Junsdic6mst and Board Nouricaum Questions                                                       'jL (october 19.1987) at s.6 and 8.                                                                                                                        t' 7As a result of a series of requests for a conUnuance of the risy, the entne discovery process wat ulumstely
                                                                                                                                                        ' \f[ e atsyed unn! July 12,1988. The Jus 6cc uwesuganon resulted in s enminal indictment wtuch was subsequently                              ,

3,, y dismissed July 11,1988, at the request of the Umted states. i ;f

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AMS argues that it is a " prevailing party" within the meaning of the Equal Access to Justice Act (EAJA), as amended,5 U.S.C. 6 504, and thus is entitled to an award of attorney's fees and expenses. At the outset, we reject AMS' underlying premise that "a revocation is a revocation is a revocation." Certainly the revocation of the suspension order obtained by AMS from the Regional Administrator, based upon amendments to its license, cannot smell as sweet as the relief sought from this Board, which would have been a declaration that the suspension order was void ab initio. We similarly reject the Staff's opposing position to the extent it argues that any relief from the suspension order obtained outside the four walls of this proceeding can iot support an award of attorney's fees.' While the burden of establishing a causal connection between an enforcement proceeding and parallel action by the NRC Staff in its regulatory capacity may indeed be a heavy one, the question of " prevailing party" status , turns on an analysis of the applicable facts rather than narTow and, in our view, strained constructions of the statutory terms used in the EAJA. Because we conclude below that litigable issues still remain before us, we need not at this juncture sail across the uncharted and, if the Staff's response is any weather map, stormy waters of whether attorney's fees should be awarded in this contested enforcement proceeding. However, there exists a more fundamental question than that of attorney's fees in this case, Arc attorney's fees under the EAJA available to a " prevailing pany"in any Commission proceeding? In order to climinate the uncertainty regarding this unresolved question, and to avoid any unnecessary delay should the question of attorney's fees in this case ripen, we exercise our authority under 10 C.F.R. 6 2.718 to issue a declaratory judgment on the availability of such awards in NRC enforcement proceed;ags.' Sec Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), CLI. 77-1, 5 NRC 1, 3-5 (1977). The EAJA authorizes the award of attorney's fees and expenses in most adversary adjudications conducted under 5 U.S.C. 9 554 to an eligible prevailing party" other than the United States "unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special s ses NRC staff Response to AMs statement oflasues (August 19,1988) C' staff Response") st 45.

                                                   !he EA3A requires each agency to issue regulations estabbstung the pmcedures for the submissian and
             +                                    consideration of apphesuans for fees and expenses. 5 U.s C. I 504(cXI). While the Commissian initia!!y issued proposed regulanons under the Act, 46 Fed. Reg. 53,189 (oct. 28,1981), those regulauons have yet to be pmmulgate.d as a Itnal nile. smce the pnznulgauan d final regulauons takes time, parucularly in hght of the
                                           '     pmbable need to seck addibanal pubhc comments due to the passage of ume, watting for the possible receipt of an appbrauon far anorney's fees at the end of tius pmecedmg would result in unnecessary delay, to the deutment of the t.icensee and perhaps the public nah. In hght of this, we elect to ehminate the uncenaaniy by suhng on thu

• assue, and then, due the custance of a quesuan d first impression involving a s,atute. refer our decuian directly to the Commissian for its review.

W Under the EAJA, not all "prevaihng parties" are elgible far an sward of attorney's fees and espenses. As a gateral rule, auch award: are hnuted to individuals with a net wanh of less than s2,000.000; busmesses.uruts of kral government, or orgamzauons with less than 500 employees and a net worth of Issa than s7,000,000; and tas.esempt organizabans or cooperative associations with less than 500 employees. 5 tis C. 6 504(c)o). 311

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( 1 circumstances make an award unjust." 5 U.S.C. 6 5N(a)(1). Under the terms of the Act, such awards are to be paid from the agency's own appropriated funds. 5 U.S.C. i SN(d). This statute of general application has been severely limited by appropria-tion legislation that has precluded the NRC from using any of its funds to pay l I l the expenses of interveners ia its adjudicatory or regulatory proceedings. Sr*, c.g., 5 502 of the Energy and Water Development Appropriations Act of 1981, Pub. L. No. 96-367; and 6 502 of the Energy and Water Development Appropri-ations Act of 1989, Pub. L. No. 100-371. His restriction has been interpreted to encompass any awards under the EAJA. See Matter of Availability of Funds for Payment of Intervenor Attorney fees - Nuclear Regulatory Commission, 62 Comp. Gen. 692 (1983) (B-208637); Business & Professional Peoplefor the Public Interest v. NRC,793 F.2d 1366 (D.C. Cir.1986). The limitation on a Licensing Board's authority to award attorney's fees ap-pears limited, ho:vever, only as to interveners in its adjudicatory or regulatory proceedings. Thi s, the EAJA continues to authorize, in appropriate circum-stances, fees and i xpenses to licensecs who, as petitioners, challenge NRC en-forcement actions. We believe recognition of the continued application of the EAJA to this category of Commission proceedings is proper for two reasons. First, such a reading does no violence to the statutory language giving rise to the Commission's limited ability to make EAJA awards following administrative proceedings. In most Comm ssion proceedings, parties other than an applicant or licensee appear as a mattc; of choice.u ne r economic interests or proposed course of business conduct tre not the subject of the proceeding and are not directly affected by its outcomu Such is not the case with respect to licensees who are the subjects of NRC enbrcement ections. For them, the choice is to defend their actions or to submit to the enforcement judgment of the Staff. Absent their initiative, there is no proceeding in which to participate. Second, the paramount purpose of the EAJA is to benefit individuals or small business entitics with limited financial resources who "may be deterred - from sccking review of, or defending against unreasonable governmental action because of the expense involved in securing the vindication of their rights." House Judiciary Committee, ILR. Rep. No. 1418,96th Cong.,2d Sess. (1980), reprinted in 1980 U.S. Code Cong. & Admin. News 4984. Our decision furthers that remedial purpose and simply focuses the application of the Act on that category of Commission proceedings that involve the type of parties and raise the type of issues that Congress had in mind when it enacted the EAJA. i HWe note that as dermed tsy 5 U,s.C. 6 504(cXIXC). adversary adjudicauons" do not include bcensing pnweedmas. tegically. dus exclusim entends to bcense amendment pmceedings. Thus, as a pracucal matter, a map poruon of the Commismon's proceedmgs are maa2de the scope of the EAJA. k 312 k

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Thus, we conclude that the Board has the authority to entertain requests l for fees and expenses under the EAJA in enforcement proceedings where the licensee prevails on all or some of the issues joined for litigation. EXISTENCE OF LITIGAHLE ISSUES l AMS idendfics seven specific issues for litigation in this proceeding in the event that it is not afforded " prevailing party" status under the EAJA. Those issues are:

1. Whether or not there was a substantial basis for the NRC to conclude that it laded the requisite reasonable assurances that AMS would comply with Commission requests in the future;

2. Whether or not there was a substantial basis for the NRC to conclude that continued conduct of certain licensed activities by AMS could pose a threat to the heahh and safety of the public, to wit: the performance of installation, service, maintenance or dismantling of r &ography or teletherapy units;

3. Whether or not the NRC had a substantial basis for concluding that the public health, safety and mtcrest required that AMS' License Number 3419089 01 should be suspended;

4. Whether or not the NRC had a substantial basis for cuncludmg that pursuant to 10 CIR Section 2.201(c) no prior notice was required as to its actions, and rursuant to 10 CFR Section 2.202(f) that the Suspension O:dcr of October 10,1986 should '

be immediately effective;

5. Whether or not the NRC had a substantial basis for the actions it took beyond and through its January 7,1987 Declination to Rescind Immediate Effectiveness of October 10,1986 Suspension Order.

6. Whether or not, and to what extent, all service, installation, maintenance and .

dismantimg of radiography or teletherapy units at issue herein must be performed by licensed individuals (including hospital personnel)[; andl

7. Whether or not 10 CIR Section 2.202(f), es seg , is constitutional.t2 Proposed issues 1 through 3 challenge the basis for the suspeasion order that  ! 1 gave rise to this proceeding, and Proposed Issue 4 seeks review of the immediate effectiveness aspect of that order. Proposed Issue 5 challenges the basis for ,

the Regional Administrator's January 7,1987 letter affirming the October 10 - q'" _ suspension order. Proposed issue 6 sccks a Board determination whether and to what extent all service, installation, maintenance, and dismantling of radiography and teletherapy units must be performed by licer. sed individuals. Proposed issue s 12 Advanced Medical system,Inc.'s statement of Issues (August s,1988) at 67. We note that elsewhere, AMs 4 characten7ed this proceeding as raistng, ahernauvely, three general issues (44. st 7 8), or two issues (Advanced i Medical systems Response to NRC staff Response (september 2.1988) ("AMs Response") at 3). wo elect to structure our analysis in terms of the assues as ongmally propounded by AMs. In addition, our identification of the issues as propounded by AMs does not reflect a determmauan that the Licensee's formulauan properly states  ;*

                            .                                                        the apphcable standard of review.                                                                                                                             -7, o                         ,.
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                                                                                                                                                                                                         @N k 7 would have the Board determine the constitutionality of 10 C.F.R. 6 2.202(f),                                                                                f(

the regulatory basis for the immediately effective portion of the October 10 41 suspension order. 1 As the Staff correctly perceives, given the factual posture of this proceeding, r. AMS in essence seeks a declaratory judgment on two general issues: (1) whether the immediately effective suspension order had a sufficient regulatory ,

              ,                          and factual basis, and (2) the scope of its business activities that must be                                                                                   A performed by or under the direct supervision of NRC-licen;ed personnel."                                                                            '
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I Tr. 236-38, 242-43. The grant of such relief requires affirmative answers to two separate but related questicas. First, does a genuine and live controversy

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exist between the Licensec and the Staff sufficient to support a declaratory order. . f l Second, is the issuance of declaratory relief appropriate in this proceeding. The former is necessary to ensure that a board has jurisdiction over the matter to be hh, s l decided, without which it cannot issue any relief, declaratory or otherwise. The latter is necessary because declaratory relief is discretionary and is to be granted [' 30 only to terminate a controversy or climinate uncertainty and avoid unnecessary ' ?

   ,                                     delay."                                                                                                                                                       ;[f.

The Staff does not oppose the grant of declaratory relief in this proceeding lj as inappropriate or unwarranted." Rather, the Staff urges the Board to decline AMS' invitation to issue a declaratory order because, in its view, there is no ' 1,

                                                                                                                                                                                                   -d.[ )
        ;4 ,;                            live controversy sufficient to support such relief. As the Staff would have it, the                                               ;                           (,
     ,1 h ,                              Regional Administrator's act of revoking the suspension order also extinguished                                          n.,.,                                            i y;fhO                              our jurisdiction by mooting all issues before us.

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     , , OE                                  At first blush, the Staff's position is facially appealing. However, on second 1('%                                reading, we find it inapplicable to this case. In our view, this case falls squarely                                       H;p ./. F .. th j%
   .. g/n                             within the ambit of the well-established exception permitting review where there                                            ESQ               : ,,

M,ML' was injury that was " capable of repetition, yet evading review." Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515 (l911).

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  ;pD                                                                                                                                                               " Qff, + w                                     l bY, U tn its september 2.1988 6hng (AMs Response at 3). AMs identt6ed the hoe outstandmg issues as "did [the]

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• NRC have the nght to onier a shutdown [or) AMs and does [the] NRC have the nght to arb.trarily and espaciously discrinunais amarg bcensees . . . We y ew the former as simply a catdesll restatement of Proptwed Issues {*y) - ,[ )46 ' 1

                                                                                                                                                                    .,g                            "

1 thru;gh 4. As to the latter. by castmg the inquary m tevms of the staff's nght to artutranly and capncmusly 4 l(( g 3))y.

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I T i 3.h".[4 J discrumnate." AMs poses a questian d.st begs its own ansur. Ilonver, even if pmperly framed. re reject this f ,. ,.7 l p;Ah M. ;Jg tr latter issue Neither the scope of other bcenses not the pmptiety of the subsequent 1987 emendments to the AMs license are dimetly before us. y y a 1 1 14 g,, w,yc,saA. CtL771. supra, and WarAmgfon Pubhc Power Supply Synse (WPPss Nuclear Pnyect Nos. 3 b ' I S g{,"g,,f

• and 5).1.BP 7715,5 NRC 643. 644-45 (1977), where the issue re sul was whether certain construcunn setmues

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                      %'                related to construcuan of a nuclear power plant could be unt*ertaken in advance of Co nmissian authonzstian in a hmited work authartracon (LWA).

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{ l*+ U our authonty to grant declaratory reber is not without lumt. As set oui by the Comrrissian. declaratory rebef y e l is proper where there is some connseta between us utsuance and the Board's duty to avoid delsy. We7 Crest, h j '4[

                ' . m.Q h;/

N .. supra. 5 NRC at 5. In WoFCreek, the Commtssian held that {t]he appbcant's motion. maJa to a huanag board e J h y already coarr, rated so Asar rAsir applearwn. has such a connect on." 14 (cmphasis added). We beheve such e connecuan custs in dus case. [c , y mn. 7v M 6 &r ;i

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l l A) case is not moat when *(l) the challenged action was in its duration too short to be fully i htigated prior to its cessation or expiration. and (2) there was a reasonable expectation that the some complaining party would be subject to the same action again. SEC v. Sloan,436 U.S.103,109 (1978) (emphasis in original), quoting Weinstein

v. Bradford, 423 U.S.147,149 (1975) (per curiam). See also Alton &

S. Ry. v. International Ass'n of Machinists,463 F.26 872,878 (D.C. Cir.1972) (key elements of test are likelihood of repetition and the public interest in ensuring review). We conclude that both prongs of the test are satisfied in this case. As to the first prong, we note that the suspension order was revoked over a year ago, during a period when this proceeding was stayed at the Staff's request, and that the immediately effective aspect of that order was rescinded 10 months before that. The fact that this action was obtained through negotiations between t!'c Licensec and the Staff is not fatal to an affirmative finding on this part of the Weinstein test. See Connecticut Light & Power Co. v. Federal Energy Regulatory Commission, 627 F.2d 467, 469-70 (D.C. Cir.1980) (settlement of financial issues did not moot entire case challenging suspension order where significant public interest in review in light of the effect of suspension orders on regulated companies and their customers). Moreover, AMS has consistently maintained that its acceptance of the Staff's required corrective action was only interim and done in an effort to preserve what remained of its financial health. R)r members of the nuclear industry, an NRC license is their commercial lifeblood. Because of this, we are troubled by any rule of law that would require dismissal of a challenge to immediately effective license suspension orders as moot due to intervening license amendments where such amendments could be obtained from a licensee under threat of financial ruin. At least as to the facts of this case, we decline to audior such a rule here. Recently, the District Court for the D'istrict of Columbia confronted the identical issue now before this Board in a case with remarkable similarities to the facts, issues, and arguments of the parties in this proceeding. Capital Engineering & MFG Co., Inc. v. Weinberger,695 F. Supp. 36 (D.D.C.1988). The court there concluded that the lifting by the Department of the Army of an ) immediately effective contmetor suspension onder did not moot the plaintiff's challenge to the suspension because the subsequent revocation was not based on a resolution of the underlying dispute between the parties, and left the suspension as part of the plaintiff's record. In holding that declaratory relief was appropriate, the court went on to hold that l [tjo rule otherwise would be to permit the Army to evade judicial review of allegedly unfounded suspensions. yet leave the blemish of such suspensions on the targets

• records, by the expediency of terminating the subject suspensian before adjudication. As to this issue, 315 I

l I 1 1 1

then, the murt is prescrued with "a real and substantial cmtroversy admitting of specific relicf through a decree of a conclusive character."  ! l

/d. at 39 (citation omitted). While AMS, like any licensee, has a heavy burden                 j to overturn Staff action in an arca where its discretion is perhaps at its zenith,            I we nonetheless believe the reasoning of the court in Capital Engineering applies with equal force here.

As to the secend prong of the Weinstein test, AMS notes that it "has been branded one of the thirteen worse licensees out of eight thousand, as disclosed by a public briefing to the Commissioners on July 13,1988 . . . ."2' And while asserting that it was not sufficient to support a fmding of a current controversy, the Staff acknowledged that "the controversy relates to the potential that future enforcement actions . . . could be influenced by the violations identified in the suspension order and the supp;rting inspection report."' To the extent the Staff has identified AMS as a " problem" licensee and in light of the continuing dispute over the scope of licensed activitics. we fmd a reasonable expectation that this Licenscc will at some future point find itself subject to the enforcement authority of the Commission. See SEC v. Sloan, supra,436 U.S. at 10910 (action against suspension of trading of stock not moot although no current suspension because SEC considered company to be chronic violator). Notwithstanding our conclusion that the exercise of our discretionary declara- I tory judgment authority is warranted in this case, not all of AMS' proposed issues are appropriate subjects for litigation. Pmposed Issue 5 is, in our view, a mere echo of Proposed Issue 4 in that both chslienge the immediate effec-tiveness of the suspension order. AMS advances, and we can divine, no factual basis upon which to distinguish the Administrator's initial decision to make the order immediately effective from his subsequent affirmance of that decision. { That being the case, the propriety of both decisions is inextricably intertwined. Proposed Issue 5 is rejected as duplicative. As to Proposed issue 6, the Staff characterizes it as an attempt to obtain from this Board a gereric determination as to the scope oflicensable activities applicable to the entire .cgulated industry, In addition, Staff notes that Proposed Issue 7 challenges the constitutionality of immediately effective orders issued pursuant to 6 2.202(f). Such issues, Staff argues, are beyond our authority, which flows from and thus is limited to those matters contained in the Notice of Hearing. l 36 AMs Resp,nse at s. 3' staff Kesponse at 12. l 316 1 1 I I

i j To the extent Proposed Issue 6 s1.eks such a generic adjudication, we agree with the Staff,2' Proposed Issue 6, as proffered, is rejected. However, this does not mean that we are precluded from reaching issues the resolution of which might have generic implications. Thus, in the context of further litigation on Proposed Issues 1-4, we believc that the Board has both the authority and responsibility to determine, to the extent necessary to resolve AMS' challenge, whether, under its preamended license, AMS' actions (1) constituted licensed activities, and (2) if so, whether all aspects of those activities had to be performed by or under the supervision of a licensed individual. Proposed Issue 7 is also rejected, not only for the reasons advanced by the Staff but also in light of 10 C.F.R. 5 2.758(a), which precludes this Board from entertaining challenges of the type advanced by AMS. Ihr the reasons above, Proposed Issues I thsough 4 set forth by AMS constitute litigable issues Proposed Issues 5 through 7 do not. ORDER For all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 21st day of March 1989, ORDERED:

1. that litigable issues 1 through 4 have been raised by American Medical Systems, Inc. (AMS) in this proceeding;

2. that AMS' requests for attorney's fees and other relief are denied as premature;

3. that AMS Proposed Issues 5 through 7 are rejected as nonlitigable issues outside the jurisdiction of this Loard; 4 that this Board has the authority to entertain requests for fees and expenses under the EAJA in enforcement proceedings where the licensk prevails on all or some of the issues joined for litigation; and

5. that this decision, to the extent it determines that awards of attorney's fees and expenses is within the authority of the Licensing Board in an enforcement 38 See Nmics of lleanna, s1 Fed. Reg 43,790 (Dec, 4,1986); $<gwyaA F els Corp. (tT 6 hmiuctm Facilny),

ClJ-86-19, 24 NRC 508, s12 n.2 (1986), Sasson Edson Co. (Ngnm Nuclear I%wer Statmn), Clj R216,16 NRC 44,45 0982), d'd sub som 8silosu v. N#C,72$ F.2d 1980 (D C. Car 1983), Cows.wah4 T4 son Co. q(New York (Zmn Sianon, Unas 1 and 2). A1 AB-616.12 NRC 419,426 (1980). 317 l

proceeding, is referred directly to the Commission for review pursuant to 10 i C.F.R. I 2.730(f). THE ATOMIC SAFETY AND LICENSING BOARD Robert M. Lazo, Chairman ADMINISTRATIVE JUDGE liarry Foreman ADMINISTRATIVE JUDGE Ernest E.11i11 ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland, this 21st day of March 1989, 318 l l 4

                                                                                           .1 i;

1

0 Administrative j Law Judge l w-  : O O j a 7 l 3  ! j W F i 4 cr f-(n ao s 4 l 1

1 J h 1 l Cite as 29 NRC 319 (1989) ALJ-891 < UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ADMINISTRATIVE LAW JUDGE:

                                                                                                                                                      .          l Morton B. Margulies in the Matter of                                                                  Docket No. 30-29319 (ASLBP No. 88-575-01 CivP)

(EA-87145) -j (Material License No. 42 26838-01) H&G INSPECTION COMPANY,INC. January 9,1989 ORDER (Approving Settlement Agreement and Terminating Proceeding) On December 15,1988, the parties to this enforcement proceeding, the NRC Staff and II&G Inspection Company, Inc., filed with the Administrative Law Judge (1) a Settlement Agreement resolving the imposition of a civil monetary penalty and the request for a hearing and (2) a joint motion requesting the Judge's approval of the Settlement Agreement and to terminate this proceeding. I have reviewed the Settlement Agreement under 10 C.F.R. 62.203 to determine whether approval of the agreement and consequent termination of this proceeding are in the public interest. Based upon the review, I am satisfied that approval of the Settlement Agreement and termination of 'lis fviceding  ; are in the public interest. The terms of the agreement satisfy S,e interests of the public and parties without the need for a hearing. 319 l L

                                                                                                                                                            'i i

4 m________._.____ _m_._______- - -__---_

Accordingly, I approve the Settlement Agreement attached hereto and incor-porated by reference into this Order. Pursuant to 62.203 this proceeding is terminated on the basis of the attached agreement. Morton B. Margulies  ! ADMINISTRATIVE LAW JUDGE Dated at Bethesda, Maryland, this 9th day of January 1989. l ATTACitMENT 1 SETTLEMENT AGREEMENT On April 7,1988, the Nuclear Regulatory Commission (NRC) Staff issued an Order Imposing Civil Monetary Penalty in the amount of seven thousand five hundred dollars (S7500.00) for violation of 10 C.F.R. 6 20.101(a) to H&G Inspection Company, Inc. The Licensee requested a hearing on that Order and the matter was referred to an Administrative Law Judge on May 24, 1988. A prehearing conference was held on August 30,1988. The parties engaged in informal discovery and discussions of settlement of the proceeding. As a result of these discussions, the parties reached an agreement and so informed the Administrative Law Judge on November 30,1988. The agreement reached by the parties is as follows: 1, in consideration of corrective actions taken by H&G Inspection Com-pany, Inc., to avoid future radiographer overexposure in violation of 10 C.F.R. 5 20.101(a), the NRC Staff agrees to reduce the amount of the monetary penalty to three thousand dollars (53000.00). 2. Accordingly, the NRC Staff agrecs that payment of three thousand dollars (53000.00) by H&G Inspection Company, Inc., will constitute payment in full l an.3 compliance with Paragaph IV of the Order Imposing Civil Monetary Penalty issued on April 7,1988, to H&G Inspection Company, Inc. 3. H&G Inspection Company, Inc., agrees to pay a civil monetary penalty in the amount of three thousand dollars ($3000.00) within thirty days of ) the approval of this agreement, by check, draft, or money c: der, payable to the Treasurer of the United States and mailed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington, D.C. 20555. 4 Having agreed that all matters concerning the April 7,1988 Order l Imposing Civil Monetary Penalty and the adjudicatory proceeding are resolved,

                                                                                                                                                                      \

i 320 l i i l i _ _ _ _ _ _ _ _ _ _ _ _ _ _ . . _ _ _ _ _ . _ _ _ ]

the NRC Staff and H&G Inspection Company, Inc., shall jointly move the Administrative Law Judge for an Order Approving this seulement agreement and terminating this proceeding. This agreement shall become effective upon l the approval of the Administrative Law Judge. I FOR THE NUCLEAR REGULATORY COMMISSION Colleen P. Woodhead Counsel for NRC Staff Dated the 6th day of December 1988 i FOR H&G INSPECTION COMPANY, INC. Billie P. Garde, Esq. Dated this 15th day of December 1988 i l l l 321 l l l l 1

Cite as 29 NRC 322 (1989) ALJ-89-2 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ADMINISTRATIVE LAW JUDGE: , Morton B. Margulles  : l In the Matter of Docket No. 30-19498 (ASLBP No. 88-578-02-CivP) (EA 87184) (Materials License No. 35-17186-02) PRECISION LOGGING & PERFORATING COMPANY March 15,1989 - ORDER  ! (Approving Settlement Agreement and Terminating Proceeding) On March 9,1989, the parties to this civil penalty enforcement proceeding, the NRC Staff and Precision Logging and Perforating Company, filed with the Administrative Law Judge: (1) a Settlement Agreement resolving the matters ( of the imposition of a civil monetary pena!!y and the request for a hearing; (2) a Joint Motion requesting the Judge's approval of the Settlement Agreement and the entry of an order terminating this proceeding; and (3) a proposed Order.

              '> -                                                                    I have reviewed the Settlement Agreement under 10 C.F.R. {2.203 to                                                 ', P i ?E ~
    '                                                                             determine whether approval of the agreement and consequent termination of
                                                   -                              this proceeding is in the public interest Based upon this review, I am satisfied                                                                    ,

that approval of the Settlement Agreement and termination of this proceeding s based therein are in the public interest. 'Ihe terms of the Settlement Agreement '

       'L[,. n,
         ^

satisfy the interests of the public and the parties without the need for a hearing. ( g# - g

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m1 1 [ Accordingly, I approve the Settlement Agreement attached hereto and incor- *4 Gy porated by reference into this Order. Pursuant to 10 C.FR. 6 2.203, I hereby

                                                                                                                                                                         ,                              'A terminate this proceeding on the basis of the attached agreement.

t Morton B. Margulies c (Ll

             ~;
                                         '                                                                            ADMINISTRATIVE LAW JUDGE                        .                               M

(,} Dated at Bet'icsda, Maryland,

                                                                                                                                                                                                       ;h t,

t this 15th day of March 1989. h% 3 :,; Q:, ' Qf. 7hM ' ATTACIIMENT N, . ' 2 QN,

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                                                                                                                                                                                                    ,. {

1' 'J' SETTLEMENT AGREEMENT BETWEEN TIIE NRC STAFF AND kY .] ' LICENSEE CONCERNING SE'ITLEMENT

                                                                                                                                                                             .                        I hf pyh m-                                                                                                                                                     U OF CIVIL PENALTY PROCEEDING                                              a                           g
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l. Precision Logging and Perforating Company (the Licensec) is the holder

[ of Materials License No. 35-17186-02 issued by the Nuclear Regulatory Com- - gv G mission ("NRC") on Decem!er 2,1981, and amended last in its entirety on {

   ' d}jup[y;:S' .

S14 'h'S. January 21,1988. The license authorizes the Licensec to use scaled sources for bl' " MV Qv M i ' khht oil and gas well logging in accordance with the conditions specified therein.

2. A routine inspection of the Licensce's activities was conducted on August 1

j h 18 and 19,1987. In the NRC's view, the results of this inspection indicated

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d g6 N -g , that the Licensec had not conducted its activitics in full compliance with NRC NM Q! ( [, L . , ,y, ' ~ requirements. A written Notice of Violation and Proposed Imposition of Civil 'b g gg Penalty was served upon the Licensee by letter dated December 10, 1987. p-

                                     ,h;;j                              The Notice stated the nature of the violations, the provisions of the NRC's                 /%lg{jj          ~t              ' g-requirements that the NRC believed Licensee had violated, and the amount of                  j) ( j% f]
                                     )f;h the civil penalty propssed for the violations. The Licensee responded to the               1 .!                           -

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                                - 9'*% ;

3 Notice of Violation and Proposed Imposition of Civil Penalty by two letters, both dated January 7,1988. In its response, the Licensee contested Violations A and D but not the other alleged violations. In addition, the Licensee requested kW  ; f" ' ( (A that the proposed civil penalty be reccinded for several stated reasons, including d I kl-( financial hardship. By letter dated February 16, 1988, the NRC provided the h ( @di h Licensee with the opportunity to submit specific financial information on the a ~ * [i:% company's recent profit and loss and its net worth. The Licensee submitted this di k' $ hj[Q information by letter dated February 15,1988. (? { q 3. After consi6eration of the Licensce's response and the statements of fact, q I ' SW@9 f @s h , explanation, and argument for mitigation contained therein, the Deputy Exec- 9 sh. g utive Director for Regional Operations in an " Order Imposing Civil Monetary {f.

      ,                             y,y gp .                          Penalty" (Order) dated July 7,1988, determined, as more fully set forth in the
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4 Appendix to that Order, that the violations had occurred as stated, but that the civil persalty proposed in the Notice of Violation would constitute an excessive fmancial hardship for the Licensee, and therefore should be mitigated by 50 percent. Tnereafter, in a letter dated July 22,1988, Licensec stated it found the propos'd penalty to be unacceptable and made a request for a hearing. 4 Licensee wishes to terminate this civil penalty proceeding by payment of the propose 1 penalty in the sum of 5500.000 without conceding its position as stated in its letters dated January 7,1988.

5. Accordingly, the Licensec waives its right to a hearing, and without admitting or denying any of the allegations of the Notice of Violation dated '

December 10, 1987, except as to jurisdiction, to which it admits, and solely . for the purposes of terminating this proceeding, agrees to the payment of the - 5500.00 civil penalty. -

6. The NRC, while affirming its position as to the alleged violations stated in the Notice dated December 10, 1987, and Order dated February 10, 1988, agrees that this proceeding should be terminated by payment of the ordered penalty by the Licensee.

7. ,

This civil penalty proceeding will be terminated upon the payment by the Licensee of a civil penalty in the amount of 5500.00 concurrent with executing the Agreement said payment to be made by check, draft, or money order, payable to the Treasurer of the Unitco States. For the NRC Staff For Licensee , t Bernard M. Bordenick Larry L. Oliver

                           , -                                                             Counsel for NRC Staff                           Counsel for the Licensee                            '

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                                     ,,                                                    Dated: February 9,1989                          Dated: March 3,1989 ps.              yr                                  a;              ,,
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I Directors' Decisions t Under i 10 CFR 2.206 1 l

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t I l Cite as 29 NRC 325 (1989) DD-89-1 UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION 1 Hugh L. Thompson, Jr., Deputy Executive Director i for Nuclear Materials Safety, Safeguards, and Operations Support in the Matter of Docket No. 70-1113 GENERAL ELECTRIC COMPANY (Wilmington, North Carolina Facility) March 13,1989 The Deputy Executive Director for Nuclear Materials Safety, Safeguards, and Operations Support grants in part and denies in part a Petition filed pursuant to 10 C.F.R. f 2.206 by Vera M. English and denics action requested in a previous petition filed by Mrs. English which was deferred in an earlier Director's .

                ,                                             Decision, DD-86-11, 24 NRC 325 (1986). Specifically, the present Petition
                  ,                                          sought imposition of a civil penalty in the amount of $40,635,000 upon General Electric Company (GE), plus $37,500 per day for every day after April 6,1987,
               ,,                                            that GE did not take corrective action for discrimination against Mrs. English, and imposition of a license condition upon GE requiring the Licensee to fully
         . <                                                 compensate Mrs. English for her losses endured as a result of GE's actions.
         'Ou              ,           .

In this Decision, to the extent that the Petitioner requested that the NRC take

       ,                                                     enforcement action against GE for discrimination against Mrs English, the s                  Petition has been granted. Ilowever, to the extent that the Petitioner requcsted          5 g,                          -

that the NRC impose a civil penalty in the amount stated above, and to the extent g4

• that the Petitioner requested that the NRC impose a license condition upon GE ,

fj Q Q O,. requiring it to fully compensate Mrs. English, the Petition has been denied. tt$@)}p%y/ hWW ,$/ >

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                                               ,            ENERGY REORGANIZATION ACT OF 1974: SECTION 210 3'h}y . a*                    -

r i, Generally, when a complaint has been filed with the Department of Labor I){tidp%)hl,7'i. dyhh. No allegine, discrimination Dy an NRC licensec, the NRC defers consideration of the matter until the IXpartment of Labor has acted. UQ

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I I i l l I RULES OF PRACTICE: 2.206 PROCEEDING As long as he does not abuse his discrcison, a Director, in making a decision regarding a 10 C.F.R. I 2.206 petition, is free to rely on a variety of sources of information, including documents issued by other agencies. NRC: ENFORCEMENT POLICY According to the Enforcement Policy, an action by plant management above first-line supervision in violation of $210 of the Energy Reorganization Act ' against an employee is classified as a Severity Level Il violauon. NRC: ENFORCEMENT POLICY  ! The section la the Enforcement Policy that provides for escalation for prior poor performance refers to the Licensec's enforcement history in the area of concern. NRC: ENFORCEMENT POLICY

                                         " Prior notice" under the Enforceracnt Policy refers to specific notice of particular types of events or potential conditions affecting licensed operations.

ENERGY REORGANIZATION ACT OF 1974: SECTION 210 In $210 of the Energy Reorganization Act, Congress has explicitly given to the Department of Labor the authority and responsibility to provide tradi-tional, labor related remedies such as compensation for individuallosses, while reserving to the NRC its authority under the Atomic Energy Act to take en-i forcement action against its licensees for violations of NRC requirements. This y statutory system has been implemented through a Memorandum of Understand- . ing between the two agencies. The NRC does not have the authority to order individual compensation. ,

                                                                                                                                      ~

DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206  ; / INTF ODUCTION I ll On April 6,1987 Anthony Z. Roisman and Mozart G. Ratner, as counsel for

                                                                                                                                     /

Vera M. English (Petitioner), filed a " Petition for Enforcement Action" pursuant a'

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                                                                                                                                                                                ,                           Nq to 10 C.F.R. 9 2.206. The PcFtioner reque:ts that the Nuclear Regulatory Com-                                      ;                           M l

mission (NRC) act to take appropriate action against the General Electric Com- 1 a JM pany (GE or Licensec) for its deliberate retaliatory discharge of Mrs. English.

                                                                                                                                                                                                         ]e The Petitioner sccks two separate and distinct NRC actions: (1) imposition of a civil penalty in the amount of 540,635,000 upon GE, plus $37,500 per day l                         j y

for every day after April 6,1987, that GE does not 6xe corrective action, and (2) imposition of a license condition upon GE requiring the Licensee to fully @

     ,,                                                                                                                                                                             ;                   . $)

compensate Mrs. English for her economic losses in the past and future result-

   $-              h'i ing from GE's alleged discrimination, for medical expenses entailed as a result                                                   * *
   ' ' %} ,[ ' '                                              of the alleged discrimination, for expenses incurred in " fighting GE," tod for i                , O@h
                               ,                                                                                                                                                               e
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                                                              " physical and mental pain she has endured" as a result of GE's actions,                                               (.

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                                   /"

The Petitioner states that the April 6,1987 Petition is nei*her a renewal of nor an attempt to relitigate a December 13, 1984 Petition filed by Petitioner. That I [l

      > U d L' I L petition also sought the finding of violations and ansessraent of civil penalties                                     r
                                                                                                                                                                                                  . M y%hj Nh                                 ,

against GE for having discriminated against Mrs. English.2 In addition, that pe-tition raised certain other allegations of wrongdoing by the Licensee. Regarding

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       *              ', @ ' t the December 1984 Petition, the Director, Office of Inspection and Enforcement, issued a Partial Director's Decisian pursuant to 10 C.F.R. l 2.206 which, among tl'           'yh
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f. y other things, stated that action with respect to the discrimination allegations raised by the Petitiomt was being deferred pending further determination by

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j,h @ h R the Department of Labor (DOL) . 'trsuant to 6 210 of the Encrry Reorganization y O

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• lVh; [ >' Act (ERA) of 1974, as amended,42 U.S.C. Q 5851, regarding the allegations. i;W q ((f ,

fL DD-86-II, 24 NRC 325, 331-32 (1986).2 With regard to the other issues of khkY s M % Q;pg ' wrongdoing, the Director noted that certain of these issues were being addressed within the Office of investigations (01) and that a supplement to the Decision l Myj t i; ti yWb ' b F jN < would be issued when that effort and the DOL proceedings were complete. Id. [6f1 ,f $ k@d h((f; j The present petition is a new request for action to be taken by the NRC on M! k by lh . ,

• the previously raised discrimination issues now that, in the Petitioner's view, the yg g;g.' 3 '

reason given for deferring action on the discrimination issues no longer exists. hh$[QMg%g MPd dhk % '

                                              .e '

On April 8,1987, Pctitioner submitted a correction regarding Petitioner's assessment of the costs and damages incurred as a result of the discharge of h@ J 4LS QWQ; Mrs. English. By letter dated May 13, 1987, 1, as the Director, Office of f. g h ONMg g ~p Nuclear Materials Safety and Safeguards (NMSS), informed the Petitioner that $h[y g hhp7 M?did? .lhhM[$ ph@ M her petition had been referred to NMSS for action. A notice was published in the Federal Register indicating that the Petitioner's request was under consideration. hy< hf' ff! kb MQM f.f.'h i"Mauon to insutute Proceedmg Pursusm to 10 C.F.R. I 2.202 for Impeiuon of Civil Fnalues and to Vacate

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S. and Reverse Inspecuan kcpons and to Schedule lleanrigs Thereon" rded on December 13.1984, and supplememed t tetters dated February 28, Mard 12 Apnl 11 and June 20,1985. ,J

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l. t ' hi M,Tp 'i 4 on september 29,1986, the Comemssmn decimed to review this Decunan. on Decmber 22,1986, Pettuaner g "7  ; g ,Y 1 Y

• 3 rled a peauan ror resw of the Director's Decision n the U s. Court of Appeals for the Distnet of Columbia Cnun 'Dus proceedmg was damassed on March 31,1987. Ent a4 f r NRC, No 86-1714 (D.C. Car., Mar. 31. g j ' ' ,y* hk N\[

                                                                                                                                                                                               .p
                                                           <       1987). Peuuoner also rded f.ve other acutrts in the D C. Circutt. All of these actmns were dismissed                         {           : on(
                                 @ %Aa. fy{ S;b $ ,Th             31,1987.
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l { l 52 Fed. Reg.18,764 (May 19,1987). On June 10,1987, the Licensee filed a response to the petition entitled " Response of General Electric Company to Vera i English's Section 2.206 Petition for Enforcement Action." On June 15, 1987, the Director, NMSS, met with Mr. Roisman, at the latter's request, to discuss the status of Petitioner's request.3 At that meetmg and in a subsequent letter dated ' July 7,1987, Mr. Roisman noted his intention to file, on behalf of Petitioner, a reply to GE's Response. In a letter dated October 5,1987, the Director, NMSS, advised Mr. Roisman of the Director's intention to act on the petition and the need to submit any additional input within the week if it were to be considered. On October 9,1987, Mr. Ratner submitted a document which he , indicated was the first portion of Mrs. English's reply to GE's Response. On l October 14, 1987, Mr. Ratner submitted a document entitled " Reply of Vera English to General Electric's Opposition to Petition for Enforcement Action" advising that the October 9,1987 partial reply could be disregarded. On March 21,1988, GE filed its response to this document entitled " Response of General Electric Company to Vera English's Reply in Support of Section 2.206 Petition." Because the petition reeks both escalated enforcement and license modifi. cation, it will be decided by me as the Deputy Executive Director responsible for those matters. For the reasons stated in this Decision, I have determined that, to the extent that the Petitioner requests that the NRC take enforcement ac-tion against GE for discriminating against Mrs. English, the petition is granted. , liowever, to the extent that the Petitioner requests that the NRC impose a civil  ; I penalty in the amount of $40,635,000 plus $37,500 per day for cach day after i April 6,1987, the petition is denied. Furthermore, to the extent that the Pc-  ! titioner requests that the NRC impose a license condition upon GE requiring l it to fully compensate Mrs. English, the petition is also denied. This Decision constitutes a final Director's Decision with respect to both the April 6,1987 Petition and the matters raised in the December 13, 1984 Petition on which a decision was deferred. r BACKGROUND l By way of backgmund, Petitioner was employed by GE as a laboratory technician in the Chemet Laboratory. For some time prior to and continuing into 1984, she reported safety concerns to GE managem:nt and the NRC. On

                                                                                                         ,           i March 15,1984, she was removed from her job in the Chemet Lab, barred from further work in controlled areas, and placed on indefinite temporary assignment                         i 3

he meeting is documented in a leuer to Mr. Roisman, and an enclosed memorandum to rde, both trum the Dtrcctor. NMss, and deed July 23.1987. Le leuer and memorandum are evanable in the NRC Pubhc Document Room, 328 I i 1 1

                                                                                                                     )

l 9 in a carchouse at the Wilmington facility. The ultimate reason given for her removal by GE management was her deliberate failure to clean up contamination. Subsequently, she was advised that she would have to bid for an open position. A time liniit was set and, there apparently existing no such position, she was involuntarily p! aced on a " lack of suitable wort" status and subsequently terminated on July 30,1984 Petitioner initially filed her complaint with DOL under 6 210 of the ERA on August 24, 1984. On October 2,1984, following an investigation, the Admin- , A istrator of the Wage and Hour Division, Employment Standards Administration, DOL, concladed that GE had discriminant against Petitioner. The Administra- , tor's decision was appealed by both Petitioner and GE. A formal DOL hearing was held, and on August 1,1985, a DOL Administrative Law Judge (AU) ,

               '                               issued a Recommended Decision and Order finding that GE had discriminated against Petitioner, and ordering reinstatement and compensation of Petitioner.

The case was remanded to the AU on May 9,1986, at the request of Petiuoner, to give her an opportunity to complete the presentation of her case, because the AU had refused to permit her to present the testimony of several wiuesses. The AU returned the case to the Under Secretary of Labor without

                                                                                                                                                                                      ,}

any additions to the record on the merits or. July 13, 1986.4 On review, the , Under Secretary of Labor issued a Final Decision and Order on January 13, .i - 1987, which did not address the merits of Petitioner's complaint, but found that Petitioner's complaint was untimely filed and dismissed the complaint. That decision was appealed to the U.S. Court of Appeals for the Iburth Circuit.s The two issues raised by the Petitioner on appeal were: (1) whether the

        '                                     Under Sec: tary erred in finding Mrs. English's complaint for discriminatory                                                         

discharge baeed as untimely, and (2) whether Mrs. English had established a i, y

            ,[*
                                             " continuing violation," in the form of retaliatory harassment, thus a' lowing her to seek relief for a series of related acts of workplace harassmem that might be time-k
                          ,                                                                                                                                  .n                   %

) barred if considered independently. This claim was based upon her assertion that t. p 4 she had been subjected to a continuing course of haressment while or temporary d; assignment in the warehouse. On October 6,1988, the Court issued a decision 6

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discharge as untimely. Ilowever, the Court found that

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Petitioner's claim of workplace harassment relating to harassment suffered while

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The At) had ordered the parucs to put addiuans) tesumany in the record by way or deposition. Peuumer's 4z 1i kfl kaj Q ggh 1 M;' y ., g counsel objecwd to that nocedure and to hrrmaums the AlJ placed on the scope of the witnesses' teaumony Aher W"dy; *, g failmg to oNain clankauon or the (Inder secretary's iemand order, Peuuoncr's counset refused to parue:pste m deposmms. 'p 9 3 j ' , '# (

  , @Qtyny i 4 #,M b Y- ' '                     n.utionet riled an acuan in District Coun for the 1:sstern Datnct of Nonh Carohna for mungful termmaton.

1; n hj hS The Coun demissed this acuan on February 10. 1988. Englun v. Censrel Electne Co. 683 F. supp.1006 (E D.N C.1988). 71us accon has been appealed. W Wp u[E[p.,gg.'[ , QQW

y.

• Engluk v. wh@,fd, ass F.2d 957 (dat Ctr.1988). ][,#Jy

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an ax.~ uu-.- - ~ .a-.~ A "- ' M ;.u ~ M w n .a 3 s y i  : A t B ( $p on temporary assignment in the warrhouse may constitute a continuing violation for statute-of-limitations purposes, and remanded that claim for first-instance 3[ consideration by the Secretary. As the court upheld the Under Secretary's , M decision that the complaint for retaliatory discharge was untimely, it did not Y address the merits of Petitioner's claim that this discharge was discriminatory. ji The Secretary remanded, by order dated February 13, 1989, the harassment 4 claim to an AU. Petitioner first ra. sed the issue of discrimination before the NRC in her - ' h, Petition of December 13,1984, as supplemented by letters dated February 28 , - 4 March 12, April 11, and June 20,1985. In his decision regarding that Petition, ', ip DD-86-11, the Director, Office of Inspection and Enforcement, noted that he did not reach the discrimination issues because the matter was still pending . . y$ before DOL The Director explained that generally, when a complaint has been ~'. 'I filed with DOL alleging discrimination by an NRC licensee, the NRC defers -{' . consideration of alleged discrimination until DOL has acted. This policy avoids ] ; duplication of effort and needless expense of resources by deferring NRC actions until DOL has fully considered the issues. Further, the Director noted that y( deferral of NRC consideration of any potential discrimination issues at the GE ,j Wilmington facility was appropriate in light of the extensive inspection activities N that had been conducted at the facility with acceptable results. DD-86-11, supra, -*I 24 NRC at 331-32.  ? '..

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DISCUSSION (p. ,n J' m ,',y q , 3 In her present petition, Petitioner lists three br,es for her request that the  ;% NRC act to impose the " maximum civil penah upon GE allowed by law," and

                                                                                                                ,,        M' to impose as a license condition a requirement that GE compensate Mrs. English                 ;%?pjg -

for alleged discrimination. Petitioner argues first that the reason given in DD- g (.g- M 86-11 for deferring action pending the alleged discrimination, i.e., pendency /W of the matter before DOL, is no longer valid. Second, Petitioner argues that a phfh recommended decision by a DOL AU finding that GE had discriminated against . lQ J Mrs. English is dispositive of the matter, and GE has not paid any fine for its  ; conduct, nor has Mrs. English been compensated. Third, Petitioner argues that the effectiveness of the NRC's program to protect and encourage workers to report safety violations will be severely hampered by any further delay, in that > there will be a " chilling effect" upon other workers who may wish to raise safety concerns, in this regard, Petitioner argues that the consequence of further delay on the part of the NRC will be to leave the impression not only on GE and its ( employees but on other licensees and all workers in the nuclear ir.dustry that employees who suffer retaliation for reporting safety vio?ations cannot rely on 330 mmi -

{ 1 1 1 the NRC to redress this wrong, and, as a result, safety problems will be less j likely to be discovered and corrected. j in reaching a decision regarding this tratter, I realize that I must do so without benefit of a fmal decision on the merits of the case by the agency recognized as the expert in employce-employer relations. I am awarc of the hundreds of pages of documentary evidence and many hours of testimony that have taken place regarding this case. Making an independent NRC determination regarding the alleged discrimialation against Mrs. English would involve an enormous expenditure of NRC agency resources. "Ihc obvious redundancy in having two government agencies review the same set of facts to drasv a conclusion regarding the same issue is unacceptable? Under the Administrative Procedure Act, the initia' decision of an Adminis-trative Law Judge has no binding effect on either the agency or on the parties to the proceeding. Sec 5 U.S.C. 5 557(b). However, as long as he does not abuse his discretion, a Director, in making a decision regarding a 10 C.F.R. 2.206 pc-tition, is free to rely on a variety of sources of information, including documents issued by other agencies. See Northcen Indiana Public Service Co. (Bailly Gen-erating Station, Nuclear-1), CLI-78-7,7 NRC 429,432-33 (1978). In the present case, the Staff has reviewed the DOL AU's Recommended Decision and Order. The decision is well reasoned and was based upon the AU's evaluation of the credibility of the witnesses who testified at the hearing, an analysis of the entire record, arguments of the parties (both oral and written), applicable regulations, statutes, and case law precedent.8 I therefore adopt the findings of the DOL AU that GE discriminated against Petitioner by removing her from the Chemet Lab and discharging her from employment with GE and that this discrimination was motivated by Petitioner's initiation of and participation in the NRC proceedings investigating GE's facility, specifically, the Chemet Laboratory? In light of this 7h was this very avoidance of duphcation of effort and needhas expense of sesot.rces that prompted the Director, office of inspecunn and linforcement. to defer NRC considerauon of any potential discnmmauan issues m his Decismn regardmg Mrs. Enghsh's December 13.1984Paition. See DDL8611. supra.24 NRC at 332. sThe AtJ s end.bihty desermmauan in this case is especial!y sigmficant because of the contradictory evidence m the transcript of the haanns.

                      ' A perunent i:: sue that was raised before the A!J and in subsequent fihngs by the Peuuaner and the 1.icensee mas whether Mrs. rmghsh lost her protechan under l210(g) of the t.RA because she debberately caused a violauan by willfully faihng to clean up contammsunn. Mrs. tighsh claimed that she left the contanunauon in order to bnng it to the auenunn of the GE management. In dus regard. we anphasin that it is c!carly unacceptable far an l

l employee to cause a safesy problem in order to raise an assue. Ilowever. the AIJ determmed that Mrs. Enghsh did not dehberately cause a uolauan under the etecumstances of this case. A1) Decunon and Order at 11. we also note that the Distnet Court for the Eastern Distnet of Nonh Carnhna considered the issue of 6 210(g) an a different content (i.e., regardmg whedrr Congress imended by subsecuan (9) to preempt staic acuans for wrmgful discharge and other disenmmauan with swpoci to whistleblowers). Engkrh v. Central Elacenc Co., supra. 683 F. Supp, at 1013 14. liowever, the court made no findmg specifically with regard to whether Mrs. !!nghsh had lost her protecuon. Tu the reasons stated above, the NRC dechnes to make an independent deternunaton on this tsaue. 331

l l decision of the DOL AU,I have determined that a violation of 10 C.F.R. 670.7 ' has been established and that enforcement action should be taken at this time.38 Proposed Imposition of a Cisil Penalty Petitioner states that "the maximum fme permitted by the statute" should be imposed upon GE for its discrimination against Mrs. English. The sum that Petitioner requests be imposed is $40,635,000, plus $37,500 for each day after April 6,1987, that GE does not take corrective action. In deciding the appropriate enforcement sanction to propose in this case, the guidance in the Commission's General Statement of Policy and Procedure for Enforcement Actions, which was applicable at the time of the violation a and which is set out in 10 C.F.R. Part 2. Appendix C, 49 Fed. Reg. 8583 (March 8,1984) (hereinafter referred to as Enforcement Policy), has been considered by the Staff, in this case, the decisions impacting Mrs. English were made by persons above first line supervision, but the NRC has no information suggesting i.solvement by senior corporate management. Therefore, the Staff has determined this violation to be a Severity 12 vel 11. The base civil monetary { penalty for a Severity Ixvel 11 violation involving a facility such as the Licensec's, at the time the discrimination occutTed, is $?O,000. The escalation and mitigation factors in the Enforcement Policy were considered. As part of this assessment process, the Petitioner's views on the amount of the penalty were considered. Based on the Staff's review, no adjustment has been deemed appropriate. The Petitioner's logic in arriving at the sum that she requests be imposed, and the Staff's assessment of the Petitioner's arguments, are set forth below.

1. The Petitioner claims that from March 15 until August 24,1984, when Mrs. English filed her complaint with DOL, GE was guilty of at least a Severity Level 11 violation, because its plant management above first-line supervision ]

was aware of the discrimination. flowever, from August 24,1984, GE's senior corporate management was aware of the violation, which constitutes a Severity Level I violation. The base civil penalty for these violations is $20,000 per violation from March 15 to August 24, and $25,000 per violation from August 24 to the date of the retition. Moreover, since GE was aware of the existence of the violation and failed to initiate corrective action, each day that the condition has been allowed to continue may be considered as a separate violation, and so l%twner alleges that Mrs. I.nghsh was 6scharged because of her repeated reportmg of oE's failures to comply with NRC safety regarements and that the vah&ty of a number or complamis was confirmed tiy oE's smanal inspecuan and the NRC's mspectmn. The AU,in determinmg that GE duenmmated agairut Mrs. Er:ghsh, noted that as was incirvant whether her complamts had ment, and &d not make a conclusive fmdmg an the issue. AU Decision and order at 8 9. In adopung the AU's Decamn. I adopt only ha findmg that GE disentmnated against Mrs Enghsh. and do nos reach the issue of whether her complamts had ment. 1 332 l 1

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                                             -                               as such is subject to an additional civil penalty. Thus, GE's base penalty is                   .; fp $

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                                        **                                   $3,240,000 for the Severity Level Il violation and $23,850,000 for the Severity
                                                                                                                                                                              '?' *$k3i(

Level I violation, making a total base penalty of $27,090,000. The Petiuoner

   , , UM$ .[i Q ; ';MN                                                      argues,[M    furthermore, that i 210 violations, as opposed to other violations, warrant          Y h'
       . M " l . t J $ [ ,,                                                  the most severe classification for enforcement action.                                            '"p) ja $,' ) ]O The Enforcemer.t Policy classifies different types of violations by their w          ]& l . lh                                                     relative severity, and describes the circumstances in which formal sanctions, N',                                          %[W[7  J                      including orders, civil penalties, and notices of violation, are appropriate. The
                                                                                                                                                                              '.N' fc ; $ :,

hf'i d! Enforcement Policy also provides examples of types of violations and the j eyy recommended severity levels for thex examples, Under the Enforcement Policy, , Severity Level I and 11 violations are of very significant regulatory concern. g

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[ l- pd. qf According to the Enforcement Policy in effect at the time of the violation, an 9:

                                                    ,       y q                         l,:,                  j                         action by plant management above first-line supervision in violation of $210                      M     .-l
  ,7
                                                      . %p!   W[.            against an employee is classified as a Severity Level 11. In the present instance, the NRC has determined that the violation should be classified as a Severity                       yg {p y;                                        ..y,              [og            Level 11 violation because the discrimination involved action by management                        pb(}l
                                               '#                            above first-line supervision. The violation has not been categorized as Severity                        '!

Q - y C[ l  ? Level I because the action taken to remove Mrs. English was apparently taken ._ 4 g Qn' without the knowledge of senior corporate management. Ihrthermore, daily y civil penalties have not been proposed. Both the Under Secretary of Labor and l

                                                                 %           Court o' Appeals rejected the theory that Mrs. English's termination represented                             :'

(r~ M W a continuing violation. Based upon this fact, the NRC has concluded that the violation was not a continuing violation. Accordingly, a daily civil penalty may [ 1 f not be assessed for a violation that is not considered to be a continuing violation.

2. The Petitioner claims that the factors identified in the Enforcement Policy N to be censidered in adjusting a civil penalty merit escalation of the civil penalty j in this case. Specifically, the Petitioner alleges that GE never reported the

                                                                      -        5 210 violation to the NRC, has taken no corrective action, has had prior poor performance in that Mrs. English felt pressure to "go along to get along for m         several years, had prior notice of similar events in that Licensee has been notified by the NRC of the importance of compliance with $210, and had multiple occurrences of the violation in that ca#, day that passes without corrective action reinforces the adverse impact sn other workers. These factors, according to Petitioner, warrant at least e 30% increase in the civil penalty.

The NRC finds these ar;,uments to be without merit. With regard to the issue of GE's failure to report the violation, the NRC does not require reports of discrimination. Nevertheless, the NRC was aware of the potential violation in this case from the time that Mrs. English filed a complaint with DOL on ' Augus 24,1984 With regard to the Petitioner's argument that GE failed to take corrective action, the NRC's primary concern in this area is ensuring that the alleged discrimination does not have a chilling effect upon other employees, z and that licensec actions do not thwart employees' reporting of safety concerns. 333 l 1

                                                                                                                                                                      , p -             %

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l As will be discussed below, an inspection was conducted March 28 through ' 30, 1988, by NRC Regional and Headquarters personnel (Inspection Report No. 70-1113/88-05). It is the Staff's view, based on this inspection, that the Licensce's program for receiving, evaluating, and processing employee concerns is multitiered and provides various avenues to employees for raising concerns, and that there has been no chilling effect. Therefore, it appears that the Licensee has taken adequate corrective action. Finally, Petitioner's arguments that the penalty be escalated due to GE's prior poor performance, prior notice of similar events, and multiple occurrences of the violation misconstrue these factors under the Enforcement Policy. The section in the Enforcement Policy that provides for escalation for prior poor performance refers to the Licensce's enforcement l history in the area of concern. 'ihe evidence documented in inspection reports and the record compiled by DOL do not support tic contention that the Liccince has a history of prior discrimination violations. " Prior notice" under the , Enforcement Policy refers to specific notice of particular types of events or l- potential conditions affecting licensed operations. Tic mere notice that the l NRC considers 5 210 to be important does not constitute such direct and specific l notice to GE that such a violation had occurred or might occur at its tacility, l

                                                                                                                                    " Multiple occurrences" refers to multiple examples of a pa-ticular violation. The l

Petitioner's argument that each day constitutes a multiple occurrence is simply another request that the NRC impose a separate civil penalty for each day that the violation continued, which for the reasons explained above, the NRC has l declined to do. In sum, a civil penalty in the amount proposed by Petitioner is vastly in excess of any amount contemplated by the Enforcement Policy for such a violation.

                          '                                                                                                         Rather, I have determined that a Notice of Violation and Proposed imposition of Civil Penalty (NOV) in the amount of $20,000 for a Severity Level 11 violation should be issued to GE for its discrimination against Mrs. English. An NOV is
                   ,                                                                                                                being issued today concurrently with this Decision. In taking this enforcement                             i action, however,I note that the U.S. Court of Appeals for the Iburth Circuit has
        .                                                                                                                           remanded to the Secretary of Labor the Petitioner's claim that sie had suffered a contmuing course of narassment while she was on " temporary assignment" status following her removal from the Chemet lab. Following completion of the DOL proceedings, tie NRC Staff will determine whether further enforcement action is appropriate with regard to this matter.

In this connection, I note that Petitioner argues that failure to impose a [ substantial penaky will have a chilling effect on the reporting of safety concerns by workers at the GE Wilmington facility. I find that such is not the case. NRC  ;

      ,                                                                                                                             inspection activities at the GE Wilmington facility continue to be conducted with acceptable results regarding discrimination issues. The Regional Administrator,                              I Region II, has reviewed and found acceptabic the actions taken by GE to 4

YT;{ {l.: - y ?.J' 334

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i rl l minimiac any potential chilling effects on current employees." Employees at .

i GE Wilmington continue to come forward to the NRC with perceived safety concerns.n In addition, an NRC inspectio'n (Report No. 70-1113/88-05) was l I

conducted March 28-30, 1988, and did not fmd evidence of a chilling effect ' and found that employees feel comfortable reporting safety concerns through the variety of methods availaMe at the GE Wilmington facility. J

                            '                                                                                                                                                                                                                        h
                                                                                                                                                                                                                                                     %1 Imposition of a License Condition                                                                                                                                        H     1 The seconc' type of enforcement action that Petitioner requests is that the NRC                                                                                     h

1 impose a license condition upon GE requiring the Licensec to fully compensate Mrs. English for her losses. The Petitioner argues that the NRC has a " duty to act" since the Department of Labor has acted and has failed to provide any remedy to Mrs. English. ,

                               .                                                 In $ 210 of the Energy Reorganization Act, Congress has explicitly given to DOL the authority and responsibility to provide the traditional, labor-related remedies such as compensation for individual losses as requested by Mrs. En-glish, while reservirig to the NRC its authority under the Atomic Energy Act to
                         ,'                                                 take enforcement action against its licensees for violations of NRC requirements.

J; i '.. This statutory system has been implemented through a Memorandum of Under-I f;7 standing between the two agencies. Set 47 Fed. Reg. 54,585 (Dec. 3,1982). , f, fjl{Q

            q                                   ,'.                       "thus, tne NRC does not have the authority to order individual compensation as                                                                   ,
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b , e, * . requested by Mrs. English,u and consequent'y, this request by the Petitioner is . e i: wy ,s,,j., de m.e d. y l ' i h , k* , AdditionalIssues of Wrongdoing by GE Alleged by Petitioner in ller ,[

  ' ' % J K ., 3 . i - t' December 13,1984 Petition 4
                  *dO i ,

As indicated above, the Director of the Office of Inspection and Enforcement p) hk[%M.w h c .. - .PF s ,? 2.0 :;5;k ( deferred consideration of tertain other issues of alleged wrongdoing by the

                                                                                                                                                                                                                                   , W M,      c.

i Licensee pending completion of review of these matters by 01. DD-E j,y

 ,- (', pQ. M l ,S ,f; M '                                                   11, supra, 24 NRC at 332. 01 has now completed its Irview of these                                                                                                 d I'. f 9W kU Ns,                 , h')

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UTwe other mdmd.:als employed at the GL Mimirgtun facibty. John C.14was and Joy Malpens rded ownplamia wuh Dol that they had been subjected to ducnmmataan tiy GE. In o letter dated August 30,198s. to Miuan

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o Rather, the IX)L Ares Dmtor in Pale 2gh.Nonh camtma. stated that an umistagalmn found that GE had not , , (p

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i l I its cover letter are attached (not published). As thc NOV and cover letter show, no further enforcement action for this violation is new warranted. Additionally, criminal prosecution of SMUD managrs associated with the I 1985 radioactive relcar s was considered by the U.S. Attor.,ey's Office (which ' is part of the U.S. Department of Justice) in Sacramento. The U.S. Attorney found the evidence insufficient to establish that plant managers acted criminally j by intentionally viole. ting federal regulations, and discontinued the criminal  ! proceedings. Nevertheless, SMUD has removed its managers responsible for the liquid releases from their management positions, including the plant manager. < Following the plant shutdown in December 1985, improvements to the Rancho Seco liquid waste systems were made a prerequisite to plant restart. Before  ! authorizing plant restart in March 1988, the NRC ascertained that plant liquid waste systems could support plant operations while satisfying regulatory limits on releases of radionuclides to the environment. This evaluauon is summarized in NUREG-1286, Supp.1, 5 4.3. Following the 1988 restart, radioactive liquid waste systems have continued to receive extremely close scrutiny by the NRC technical staff, and there is no indication that existing technical or managerial concems associated with liquid radioactive waste are sufficient to warrant consideration of plant shutdown. During plant restart, radioactive water was discharged several times inside the containment building. The Petitioner cites cxamples of discharges inside containment in an apparent attempt to show that SMUD's program to control liquid radioactive effluents is inadequate. In containment discharges are rela-tively common in nuclear power plants, and the specific occurrences at Rancho Seco are not indicative of programmatic deficiencies or incompetence on the part of the operators. The containment building is a watertight structure that is designed to collect radioactive discharges. Radioactive liquids collected in the containment are eventually processed by the plant liquid radioactive waste sys-tem, which is now functioning properly within regulatory limits. Accordingly, such releases inside containment da not constitute a hazard to the environment.

2. Pressuri:er Support Lug Indications NRC Inspection Report 50-312/87-03 included findings related to the Rancho Seco Inservice Inspection Program. One of these findings, based on the inspector's review of ultrasonic test records, was left unresolved. In particular, following the record review, the inspector t ould not ascertain whether variations in the ultrasonic inspections indicated that potential faults in pressurizer support lugs were increasing in size or, if the fauP.s had existed since fabrication, why they had not been detected earlier.

The Licensec examined this matter with the help of independent contructor specialists and responded to the unresolved item by letter dated October 20, I 341 '

                                                                                                                                           't t

t k s 6

l i 1987. NRC inspectors reexamined the issuc and closed out the unresolved i item in Inspection Report 88-05, dated May 10, 1988. It was concluded that the variations contained in the ultrasonic test records were cApcCled variat ons resulting from the accuracy of the ultrasonic measuring technique. He variations that were identified by the first inspector were not indicative of unacceptabic faults in the pressurizer support lugs or of faults that were increasing in size, nor do these variations indicate any embrittlement of the lugs.

3. Pipe Wall Thinning i Pipe wall thinning at all noclear plants became an issue of great concem after a feedwater pipe at the Surry nuclear plant in Virginia failed catastrophically in 1987 because of an apparent combination of corrosion and erosion. NRC issued Bulletin 87-01 to obtain data in order to assess the adequacy of industry monitoring programs design.4 to predict pipe deterioration. Nuclear plants, in-cluding Rancho Seco, responded to th: NRC bull: tin and submitted descriptions of their pipe monitoring programs.

The NRC randomly selected ten plants in order to evaluate the effectiveness of the monitoring programs Rancho Seco was one of the ten plants selected. An NRC team evaluated the effectiveness of the pipe wall deterioration monitoring program at Rancho Seco on September 28-29, 1988. The NRC inspection team did not detect any pipe wall thinning that had any safety significance and concluded that the pipe wall thicknesses at Rancho Seco were adequate. Additionally, the team made recommendations for improving the Rancho Seco monitoring progam by adding consistency to the monitoring procedure to enable meaningful comparison of accumulated data, thus providing the basis for predicting pipe deterioration trends in the future. In sum, SMUD has an adequate program to detect pipe wall thinning at Rancho Seco, and the NRC has not found any evidence of unacceptable thinning. Accordingly, there are no existing concerns about pipe wall thinning at Rancho Seco that would warrant plant closure. I i l 4 Inability of Rancho Seco to Shut Down Inability to shut down a nuclear plant is an extremely serious matter. This situation has never existed at Rancho Seco. The allegation that SMUD could not shut down Rancho Seco is apparently based on a headline that appeared in the Sacramento Bee newspaper on April 26,1988. The story indicated that SMUD chose to delay shutting down the reactor for convenience while making a repair. At no time did SMUD lose the ability to shut down Rancho Seco, nor does the story so indicate. It is evident that the story does not allege a safety-significant 342 1 i 1 1 1

l event and does not give a basis for petitioning to shut down a nuclear power I station. CONCLUSION On the basis of allegations set forth in the petition, the Petitioner requested that Rancho Seco be shut down. The Petitioncr's allegations relating to radiox-  ; i Live liquid effluents have already been addressed by the NRC, and the identified deficiencies have been corrected such that SMUD's current program for con-trolling radioactive liquid effluents does not adversely affect safe operations at Rancho Seco. Moreover, the NRC has already taken enforcement action for the violations SMUD committed by releasing radioactive liquid efiluents. A Staff evaluation has concluded that the other allegations raised by the Petitioner are not substantiated or do not raise any threat to public health and safety. l The institution of proceedings pursuant to 10 C.F.R. Q 2.206 is appropriate l where substantial health and safety l';sucs have been raised. See Consolidated Edison Co. of New York (Indian Point, Units I, 2, and 3), CLI-75 8, 2 NRC 173,175 (1975), and Washington Public Power Supply System (WPPSS Nuclear Project No. 2), DD-84-7,19 NRC 899,923 (1984). 'Ihese are the standards -

                          +

that I have applied to the concerns raised by the Petitioner in this Decision to

                       ,                                      determine whether enforcement action is warranted.

Ibr the reasons discussed above, I conclude that no substantial health and safety issues have been raised by the Petitioner that warrant the initiation of a

                               ,,,                            procccding to consider shutdown of Rancho Seco. Accordingly, the Petitioner's            j[ '          ,
                       }-                                     request for action pursuant to 10 C.F.R. Q 2.206 is denied. As provided in 10          .J
                            ,                                 C.F.R. Q 2.206(c), a copy of this Decision will be filed with the Secretary of the
         ,1, 4

Commission for the Commission's review. , O, , O , ,

             'D                    -

FOR TIIE NUCLEAR .

             ~ J.i MW mi.J,1,                                                                                          REGULATORY COMMISSION                           Y.-

Orph&NMW! M Wa* '

                                                                                                                                                              ^j,
          ),h/hh Thomas E. Murley, Director                        . N/-
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Office of Nuclear Reactor '

             ,v, h,W 0                                                                                     Regulation
                                                                                                                                                                  ,s g g,&. p,                     ">

Dated at Rockville, Maryland, dhih@M.h,' Wi% this 21st day of Man;h 1989.

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                                 ~

(The Attachments have been omitted from this publication but can be found in <*. f[h,h. . the NRC Public Document Room,2120 L Street, NW, Washington, DC 20555.) $,s' ;jg

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