ML20149D349

Nuclear Regulatory Commission Issuances for June 1993.Pages 419-515

ML20149D349
Person / Time
Issue date:	08/31/1993
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V37-N06, NUREG-750, NUREG-750-V37-N6, NUDOCS 9309210012
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t NUREG-0750 i Vol. 37 No. 6 .

Pages 419-515  !

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NUCLEAR REGULATORY

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1 Available from Supenntentendent of Documents I U.S. Government Printing Offico Post Office Box 37082 Washington, D.C. 20013-7082 l

A year's subscription consists of 12 softbound issues, I 4 indexes, and 2-4 hardbound editions for this publication.

j Singlo copies of this publication are available from National Technical Information Service, Springfield, VA 22161 a

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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 20555-0001 *

(301/492-8925) i wN

NUREG-0750 Vol. 37, No. 6 Pages 419-515 NUCLEAR REGULATORY COMMISSION ISSUANCES June 1993 This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judges (ALJ), the Directors' Decisions I

(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 have any independent legal significance.

U.S. NUCLEAR REGULATORY COMMISSION .

Prepared by the Division of Freedom of information and Publications Services Office of Administration ,

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301/492-8925)

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9 COMMISSIONERS ,

Ivan Se!in, Chairman Kenneth C. Rogers ,

James R. Curtiss Forrest J. Remick <

E. Gail de Planque I i

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B. Paul Cotter, Jr.. Chiof Administrative Judge, Atomic Safety and Licensing Board Panel i

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CONTENTS ,

- i Issuances of the Nuclear Regulatory Commission ONCOLOGY SERVICES CORPORATION Docket 30-31765-EA (Suspension Order) (Byproduct Material License No. 37-285404)l)

MEMORANDUM AND ORDER, CLI-93-13, June 4,1993, . 419 RANDALL C. OREM, D.O.

Docket 30-31758-EA (llyproduct Materials License j

No. 34-26201-01) i MEMORANDUM AND ORDER, CLI-93-14, June 4,1993. . 423 l

Issuances of the Atomic Safety and Licensing floards GEORGIA POWER COMPANY, er al (Vogtle Electric Generating Plant, Units 1 and 2)

Dockets 50-424-OLA-3,50-425-OLA-3 (ASLHP No. 93-671-01-OLA-3)

(Re: License Amendment; Transfer to Southern Nuclear) l MEMORANDUM AND ORDER, LDP-93-11, June 24,1993 . 469 ONCOLOGY SERVICES CORPORATION.

Docket 30-31765-EA (ASLHP No. 93-674-03-EA) (EA 93-006)

(Order Suspending Byproduct Material License No. 37-28540-01)

MEMORANDUM AND ORDER, LDP-93-10, June 23,1993 . 455 PACIFIC GAS AND ELECTRIC COMPANY  ;

i (Diablo Canyon Nuclear Power Plant, Units 1 and 2)

Docket 50-275-OLA-2,50-323-OLA-2 (ASLHP No. 92-669-03-OLA-2)

(Construction Period Recovery)(Facility Operating Licenses No. DPR-80, DPR-82)

PREllEARING CONFERENCE ORDER, LilP-93-9, June 17,1993. 433 t

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FI ORIDA POWER AND LIGIIT COMPANY. er al, (Tuikey Point Nuclear Generating Plant, Units 3 and 4)

Dockets 50-250, 50 251 DIRECTOR'S DECISION UNDIiR 10 C.F.R. 62.206, i DD-93-13, June 7.1993. 493  !

l TliXAS UTIIJrlES lil.liCTRIC COMPANY, et al. i

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(Comanche Peak Steam Electric Station, Units 1 and 2) ,

Dockets 50-445, 50 446 DIRECTOR'S DECISION UNDER 10 C.F.R. @ 2.206, .

DD-93-12. June 4,1993. 477 i

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Cite as 37 NRC 419 (1993) CLI-93-13 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

l van Selin, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick E. Gail de Planque in the Matter of Docket No. 30-31765-EA (Suspension Order)

(Byproduct Material License No. 37-28540-01)

ONCOLOGY SERVICES CORPORATION June 4,1993

'lhe Commission grants Oncology Services Corporation's petition for review of LilP-93-6,37 NRC 172 (1993), which granted in part the Nuclear Regulatory Commission Staff's motmn for detay of this enforcement proceeding. Ilowever, because it was likely that the stay would expire before the Commission could -

provide any relief, if warranted, to the Licen:see on the petition, the Commission took the unusual step of directing the Licensing floard to refer to the Commission any ruling granting an additional stay of the proceeding.

RULES Ol? PRACTICE: INTERLOCUTORY REVIEW Review of an interlocutory order will be granted if one of the criteria in 10 C.I' R. Q 2.786(g) is satisfied.

RULES OF PRACTICE: INTERI.OCUTORY REYlEW Satisfaction of one of the criteria in section 2.786(b)(4)is not mandatory in order to obtain interlocutory review. De Commission may consider the criteria 419

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i listed in section 2.786(b)(4) when reviewing interlocutory matters on the merits '

but when determining w hether to undertake such review, the standards in section 2.786(g) control the Conunission's determination.

MICMollANI)UM ANI) Olti)lsit ,

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'lhe Commission has before it a petition for inteslocutory resiew filed by Oncology Services Corporation (OSC or Licensee) pursuant to 10 C.F.R. ,

6 2.786. The Commission has also received OSC's supplement to the petition for review, which was filed on June 3,1993. In its petition, OSC iequests that the Commission review the Atomic Safety and Licensing floard's Memorandum  ;

and Order. LilP-93-6, which granted in pan the Nuclear Regulatory Commission l (NRC) Staff's motion for delay of this enforcement proceeding through June  ;

23,1993. 37 NRC 172 (1993). The proceeding stems from OSC's acquest for a hearing on the NRC Staff's January 20, 1993 order that suspended, on l

an immediately effective basis, OSC's license to use scaled sources containing . '

iridium-192 for human brachytherapy treatments at specified OSC facilities in Pennsylvania. Order Suspending License (lif fective immediately),58 Fed. Reg. i 6825 (Feb. 2,1993). Ibr the reasons stated below, the Commission grants ]

J interlocutory review, but postpones funher consideration of this matter until after the Licensing lloard resolves the Staf f's " Motion for Additional Delay of i Proceeding" that was filed on June 3,1993. 1 In its petition for interlocutory review, OSC claims that the Commission )

should review LilP-93-6 because the Licensing floard (1) erroneously consid.

ered the cifeet of this proceeding on the Commonwealth of Pennsylvania's crim-inal investigation as a factor in determining good cause for the stay and (2) incorrectly applied due process standards in determining whether to grant the stay of 120 days. OSC avers that the order threatens it with immediate and se-rious irreparable impact that cannot he alleviated through a petition for review of a final decision and that the order affects the proceeding in a pervasive and '

unusual manner. Therefore, OSC argues, the Commission should take interlocu-tory review to vacate or reverse the portions of the Licensing floard's order that are contrary to law and policy. Tbc Staf f opposes OSC's petition for review. In its supplement, OSC argues that in view of the United States Supreme Court's recent decision in United States Department ofJustice v. hmdano, 61 U.S LW.

4485 (U.S. May 25,1993), no basis exists for continuing the stay.

Questions certified or rulings referred to the Commission by a presiding officer will be reviewed if they meet either of the standards in 10 C.F.R.

5 2.786(g). liven in the absence of the presiding officer's referral or certification, the Commission will consider an aggrieved party's petition for review of an 420

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interlocutory order if one of the standards in section 2.786(g) is met. Sec i Safety Light Corp. (Illoomsburg Site Decontamination and License Renewal j Denials), CLI.92-13,36 NRC 79, R5 (1992). Although language in 'our decision 4

in Safety Light Corp. (Illoomsburg Site Decontamination), CLI.92-9,35 NRC 156, 158 (1992), can be read to the contrary,' satisfaction of one of the criteria in section 2.786(b)(4) is not mandatory in order to obtain interlocutory ,

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review The Commission may consider the criteria listed in section 2.786(b)(4) when reviewing interlocutory matters on the merits, but when determining l whether to undertake such review the standards in section 2.786(g)(ontrol our determination.

Under the circumstances here, we grant review pursuant to the first standard in section 2.78Mg). For purposes of determining whether interlocutory review is appropriate, when a licensee is subject to an inunediately effective suspension order, a licensee's due process interest in a prompt hearing is threatened by ,

a 120-day . stay of the proceeding. As a practical matter, review of the final Licensing Iloard order in this instance would provide no relief from the type of harm that conceivably could be suffered as a result of a 120 day stay imposed by an allegedly erroneous Licensing Board order.

We have taken a hard look at the matters raised by OSC's petition and sup-plement. Summary reversal of the Licensing Board's order is not warranted.

The Licensing IMard appears to have used the appropriate legal standards and ~

has provided a reasoned analysis to support its order. Typically our next step would be to set a schedule for filing of briefs by the parties. Sec 10 C.ER.

6 2.786(d). Ilowever, because the stay expires by its own terms on June 23, 1993, it is unlikely that after receiving briefs we could render a decision and provide any relief, if warranted, to the Licensee on its petition. Nevertheless, we recognize that some of these issues may be raised again in the context of Staff's motion for an additional delay, filed June 3,1993. Therefore, we take the unusual step of directing the Licensing lloard, if it grants Staff's motion for an additional delay, to refer that ruling to the Commission. The Commission will

'The bothnt ni cu 99 n unuica in , acicinonanon ihm ine Nec sigt a,a noi nwei ihr simuiaras m wcnon

? 7hMg) m wcking revww of a IxenunF Hamd i interbcutory enter 421

then set a schedule for the filing of briefs. We will consider whether to vacate 1.111'-9 3- 6 on rtounds of rnootness at that time. , ,

it is so ORDi'RiiD.

Ibr the Commission S AM Ulil, J. Cillt.K Secretary of the Commission 9 Dated at Rockville, Maryland.

this 4th day of Junc .1993.

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Cite as 37 NRC 423 (1993) CLI-93-14 ,

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• k UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION }

l COMMISSIONERS:

i l 1 Ivan Selin, Chairman Kenneth C. Rogers j James R. Curtiss Forrest J. Remick 4 E. Gail de Planque ]

I in the Matter of Docket No. 30-31758-EA (Byproduct Materials License No. 34-26201-01) ,

RANDALL C. OREM, D.O. June 4,1993 l l

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The Commission reviews a settlement agreement between the Licensee and the NRC Staff, which was approved by the Licensing Board in LBP-92-18,36 NRC 93 (1992). Although the Commission expresses reservations with respect to aspects of the agreement, the Commission determines to permit the agreement to take effect.1 he Commission also re-emphasizes the importance of applicants' and licensees' obligation to submit complete and accurate information and reiterates the Commission's longstanding interpretation of material information l under the Atomic Energy Act. Chairman Selin and Commissioner Curtiss disapprove the order in part.

ATOMIC ENERGY ACT: DUTIES OF LICENSEES / APPLICANTS The Commission is dependent on licensees and applicants for accurate in-formation to assist the Commission in carrying out its regulatory responsibilities and expects nothing less than full candor from licensees and applicants.

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ATOMIC ENERGY ACT: MATERIAL FALSE STATEMENT Under section 186a of the Atomic Energy Act and the Commission's im-plementing regulations, the materiality of information " depends upon whether information has a natural tendency or capability to influence a reasonable agency expert." Virginia Electric and I'ower Co. (North Anna Power Station, Units 1 and 2), CLI-76-22,4 NRC 480 (1976), aff'd,571 F.2d 1289 (4th Cir.1978). ,

ATOMIC ENERGY ACT: MATERIAL FALSE STATEMENT

'Ihe Commission need not rely on a false statement in order for it to be material. nor must the statement in fact induce the agency to grant an application.

ATOMIC ENERGY ACT: MATERI AL FALSE STATEMENT ,

The nature (e.g., physical attributes and capabilities) and the status of an applicant's proposed facility are material matters in a decision whether to grant a radioactive byproduct materials license.

ATOMIC ENERGY ACT: DUTIES OF LICENSEES / APPLICANTS Even if an applicant turns to a consultant to help prepare a license application, l the applicant remains responsible for the contents of the application.

i RULES OF PRACTICE: SETTLEMENT OF CONTESTED PROCEEDINGS Despite its reservations about aspects of a settlement agreement, the Commis-sion does not find the agreement to be, on balance, against the public interest. t MEMORANDUM AND ORDER I. INTRODUCTION

'Ihe Commission has under consideration the Atomic Safety and Licensing  :

Board's approval of a settlement agreement between the Nuclear Regulatory Commission (NRC) Staff and Dr. Randall C. Orem. Sec LBP-92-18,36 NRC 93 (1992). The Commission previously issued an order h which we asked the i NRC Staff to provide additional information regarding its reasons for entering  !

into a particular term of the agreement. CL1-92-15,36 NRC 251,252 (1992).

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i The Staff has responded to our order with an affidavit explaining the Staff's position. The Commission has also received a " Board Notification" from the

' Staff, docketed on March 29,1993, that transmits the publicly available portions of a report of the NRC's Office of Investigations on Dr. Orem and other individuals.' Upon consideration of these filings and the remaining record of the proceeding, the Commission has determined that it will not overturn the ,

settlement agreement. The Commission is providing, howeser, guidance on certain matters of regulatory policy.

IL llACKGROUND ,

The proceeding was initiated upon Dr. Orem's request for a hearmg on an order to revote Dr. Orem's byproduct materials license. See 56 Fed. Reg. 63,986  ;

(Dec. 6.1991). The order was signed by Hugh L. Thompson, Jr., the Deputy Executive Director for Nuclear Materials Safety, Safeguards, and Operations Support, on behalf of the NRC Staff. The Staff issued the order after discovering about a year after granting the license that the facility described in Dr. Orem's license application as the place of possession and use of radioactive material j had not been constructed and that the facility's address was that of his private residence. 56 Fed. Reg. 63,986 (Dec. 6,1991). Dr. Orem had indicated in the facility drawing attached to his license application that the facility was "being finished at this time." He Staff revoked the license on the basis that, had the NRC known that the proposed place of use of the byproduct material was a ,

i private residence without adequate provisions for the safe receipt, handling, and use of licensed material, a license would not have been issued. Id. at 63,987.

Dr. Orem requested a hearing on the order, but he and the Staff ultimately submitted a joint motion for approval of a settlement agreement, which the Licensing Board granted in LBP-92-18: Under the agreement, Dr. Orem i admitted no wrongdoing or violation of federal statutes and regulations. 36 NRC at 96. Dr. Orem has not contested the basic facts that the listed facility location was his personal residence and that the facility described in his application did not exist.

According to the settlement agreement, the NRC Staff has decided not to take any further action against Dr. Orem. In addition, paragraph 4 of the agreement contains the following stipulation:

IBoard Nouficauon 9L05. Memonmdum funn R M. nernero, Director. Onice of Nuclear Matenal Safety and Safeguar&,(NMsS). dated March 17,1MG Purmant to the Comnuuiun's surnrra of Pohry, investigancms, tuspections and Adphcatory Pmceedmgs. 49 i ed Reg. 3M02 (sept 13.1984). we directed the Staff on Apnl

- 20,1993, to provide the tonpubhc portka of the repon for our in ramera reuen Mthough we have examined this material we lurve not rehrd on it mr would it matenally change our decWon l

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The NRC staff aprecs that none of the facts amiciated with this procecJmg will be held against hirn in the event Dr. Orem subnuts another apphealion for a specific license on his own behalf or a license arrendtnent apphcation is subnutted to name Dr. Oretn as an authotir.ed user. If such apphcation is in compliance with the Atomic Energy Act and the -3 Commission's regulatians, such application dmil be granted l LDP-92-18, 36 NRC at 96. In order to understand the Staff's bases for -

l entering the settlement, particularly in view of Staff's position and supporting documentation in the record that Dr. Orem had submitted false statements in j his application, we asked the Staff in CLI.92-15 to explain the " Staff's reasons for agreeing not to pursue any further action against Dr. Orem, including its agreement not to hold the facts associated with this proceeding against Dr. Orem

-t in the event that he submits another application for a license." 36 NRC at 252.

i IIL STAFF'S BASES FOR SE1TLEMENT The Staff replied to the Commission's inquiry with an affidavit from Robert f' M. Bernero, the Director of NMSS. Mr. Bernero's affidavit affirms that the Staff initially sought revocation of the license because Dr. Orem's application contained false information concerning the status of his facility. Tiie affidavit j emphasizes that the " key point on which the Order was based was that the ,

proposed facility did not exist."2 Mr. Bernero states that at some unidentified -,

time after the order was issued, the materiality of the erroneous information was_

questioned. Although NMSS had originally concurred in the order, NMSS later concluded that a license could have been issued to Dr. Orem without the facility being complete. Affidavit at 3-4.

NMSS interprets 10 C.F.R. 5 30.33(a)(2), which provides that a license will j be issued if the applicant's " proposed equipment and facilities are adequate to protect health and minimite danger to life or property," as not requiring a completed facility before a license is granted as long as the licensee does ,

I not receive material prior to having "everything in place as specified in the i

application." Affidavit at 4. An NMSS policy directive attached to the affidavit states that the Staff encourages applicants to delay completion of facilities and 1 acquisition of equipment until after the Staff's review is completed. See NMSS l Policy and Guidance Directive FC 9241; Issuance of New Licenses for Material  !

-l 2 Afhdavit at 3. Mr Bernero quotes a letter dated IAccmber 19,1991. (mm Janes tiebermait Director of the Ofhee of I.nformnent, to Dr. Orem that states -

Tbc Order that was mued to revoke your hernse was not issued on the question of whetter you would be uung materiat at a later tme or at a residerwe. Tte Order wm issued because you indicated in the uppheation that the facihry desented m the apphcatmn wan "bemg hmshed at this tim ' wten in fact h wm learned through furtler inve$uration that die facility was newr staned and, further the location that you indicated in the appheanon was a location at which itere in no capabihty to receive and uw hcen6ed matenat. (

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Use Programs (Sept. 14,1992)(Exhibit 2 to the llernero Affidavit). The purpose '

of this interpretation is to prevent premature expenditure of resources by license ~

applicants before NRC's safety review of an application is completed.

Mr. Ilernero acknowledges that a residual question regarding Dr. Orem's l

integrity remained because of his indication that the facility was "being finished at this time," but NMSS could not conclude that "Dr. Orem deliberately made ,

inaccurate statements in the application to deceive the staff in order to obtain a -

license he would not otherwise obtain." Affidavit at 4-5. Staff saw no undue risk in allowing Dr. Orem to return to licensed activities, because any future j application would be subject to the general guidance memorandum attached to the affidavit.. The guidance memorandum pmvides general instructions to NMSS reviewers in handling applications for which facilities are not complete and prescribes limiting license conditions to prohibit acquisition of material prior to completion of facihties. j IV. MATERIAL INFORMATION UNDER Tile l l

ATOMIC ENERGY ACT Although we have chosen not to disturb the settlement agreement reached ,

between Dr. Orem and the Staff, the Commission is taking this opportunity j to underscore the importance that we place on the completeness and accuracy of information submitted by applicants and licensees and to reiterate our longstanding interpretation of the concept of " material" information under the Atomic Energy Act. We cannot overstate the importance of a licensee's or an applicant's duty to provide the Commission with accurate information. As we noted in commenting on the obligation of reactor licensees, ta order to fulfiU its regulatory obligations, NRC is dependent upon all of its licensees for accurate and timely information. Since licensees are directly in control of plant design, construction, operation, and maintenance, they are the first line of defense to ensure the safety of the public. NRC's role is one primarily of review and audit of ticensee activitics, recognizing that limited resources preclude In0 percent inspection.

l Petition for Emergency and Remedial Action. CL1-78-6,7 NRC 400,418 (l978). I These same principles are applicable to the regulation of radioactive ruaterials licensees, perhaps even inore so given the thousands of materials licenses for which the NRC is responsible. We expect no lesser standard of honesty from materials users: "Nothing less than candor is sufficient." Hamlin Testing laboratories Inc., 2 AEC 423,428 (1964), aff'd, 357 F.2d 632 (6th Cir,1966).

The Commission addressed the concept of materiality of statements and omissions of information in our decision in Virginia Electric and Power Co.

(North Anna Power Station, Units I and 2), CL1-76-22, 4 NRC 480 (1976)

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. ("VEPCO"), aff'd,571 R2d 1289 (4th Cir.1978). In VEPCO, the Commission interpreted the term " material false statement" as used in section IS6a of the Atomic Energy Act,42 U.S.C 5 2236(a). Although the Commission has since promulgated regulations as a primary means of enforcing the Commission's expectations regarding the accuracy of information submitted by applicants and licensees, these regulations do not diminish the basic concept of materiality ,

established in VEPCO.3 Under VEPCO, a statement is material if"a reasonable staff member should consider the information in question in doing his job",

i.e.,"[mlateriality depends upon whether information has a natural tendency or capability to influence a reasonable agency expert." 4 NRC at 486,491. This test is a common one for materiality and is comparable to the standard applied under the federal statute,18 U.S.C. 61001, that provides criminal sanctions for false statements made to agencies of the United States. See United States v.

Lueben, 838 R2d 751, 754 (5th Cir.1988); treinstock v. United States, 231 R2d 699, 701-02 & n.6 (D.C. Cir.1956); Virginia Electric and Power Co.

(North Anna Power Station Units I and 2), ALAB-324,3 NRC 347,358, aff'd, CL1-76-22,4 NRC 480,486 (1976). Moreover, the NRC need not rely on a false statement in order for it to be material. Whether a statement would have, in fact, induced the agency to grant an application has no bearing on materiality.'

Applying the standard to the circumstances before us, we conclude that the nature and status of the applicant's proposed facility are certainly material mat-ters in a decision whether to grant a radioactive byproduct materials license. The physical attributes and capabilities of the facility have an obvious relationship to the NRC's licensing decision. Commission regulations governing issuance of licenses for possession and use of radioactive byproduct material require a determination that the applicant's proposed facility is " adequate to protect health and minimize danger to life or property" before a license may be issued.10 C.ER. 6 30.33(aX2).

The status of the facility is also material. An applicant's statements about the status of a proposed facility may reveal or lead to questions concerning the technical qualifications of the applicant. Such statements may also affect the treatment given to a license application, because neither the Atomic Energy Act nor the Commission's regulations indicate that the NRC must issue a materials 3 Sec. e p.10 C.! R.130 9 0992), Completeness and Accuracy of Information. Final Rule and Statement of I%cy. 521-ed Reg 49 %2. 49.3M (Dec. 31.1987) d 5ce, e g., lae!*rn. 838 E2d at 754-5s (whether fahe staternents on kan asphennon and related docurrents actually affected approval of governnent loan is not an imer under 18 U.S C, i1001). United States v Iger 723 E2d 1359,1%2 Olth Or ). terr dened 469 U.S 828 0984)(although fahe prmnty dates on immigration apphcanons would not ime led te ermneous grammg of applicahon6. subnnumn of fahclaiods inNienced agency 3 treatmem of apehcatmm and was tScrchy mmenan. United Siares v Afc/nrmh. 655 E2d 80,8243 (5th Or_1981),

rett denied. 45$ U S. 948 0982)(rchance on fahe staterrents 'm documents related to federully Fucameed loan umwccuary for statenoots to be nuter al)

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t license to a person who is unlikely to be able to construct the required facilities or to undertake licensed activities for an extended period of time.

The NMSS guidance attached to Mr. Hernero's affidavit supports this analy-  !

sis. According to the guidance, the Staff reviewer should ascertain the status of the proposed facility and, if the applicant does not intend to complete the facil-ity and begin using material within a year, the reviewer should request that the ,

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applicant explain why a license is being sought at that time. NMSS Directive 1:C 92-(M, Enclosure 2, at 1. Even though license issuance is not precluded by the fact that facility construction has not begun, information about the status of j the facility certainly has a capability of influencing the agency's review.

V. COMMISSION DECISION ON Tile SE~lTI.EMENT AGREEMENT i

'the Commission has determined not to merturn the settlement agreement ,

reached between the Staff and Dr. Orem and approved by the Licensing Board.  !

However, we had concerns about some aspects of the agreement. Although the Staff had represented to the Licensing floard that a determination of willful i

misconduct or wrongdoing by Dr. Orem was beyond the scope of the instant proceeding,5 the Staff stated in the agreement, for reasons not readily apparent, e that it would forgo any further action against Dr. Orem and stipulated that the l facts associated with the proceeding would not be held against him in any future licensing action. The apacement contains no acknowledgment by Dr. Orem of his obligation to ensure that information he provides to the NRC is accurate and complete.

Despite our reservations, we do not find the agreement on balance to be contrary to the public interest. Inasmuch as the original order sought termination of a license granted to a person who did not have appropriate facilities for the ,

possession and use of radioactive material, this result is achieved under the agreement without further litigation. We note that the false statement appears i to have teen added gratuitously to the application by Dr. Orem's consultant.

Although Dr. Orem's reliance on a consultant does not excuse him fmm responsihihty for the contents of the application, the circumstances surrounding  ;

the submission of the false statement do not appear so severe as to wartant i Dr. Orem's disqualification from future licensing and, hence, disapproval of the settlement agreement. Once the license was issued. Dr. Orem apparently .

conducted hirnself consistently with the terms of the license and our regulations.  !

He seems to have recognized that he could not procure licensed material without having completed the facility described in his application. Considering all these j

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circumstances, we have decided to accede to the settlement agreement between j the NRC Staff and Dr. Orem.6  ;

We caution Dr. Orem, however, that we expect him, as well as all applicants  ;

and licensees, to adhere to the standards of accuracy and completeness of information under our regulations in any future dealings with the Commission. ,

Even if the applicant turns to a consultant to help prepare the license application, as was the case here, the applicant remains responsible for the contents of the l application.

In conclusion, we arc permitting the, settlement agreement approved by j the Licensing Board in LHP-92-18, 36 NRC 93 (1992), to take effect. The l proceeding is hereby terminated.

'Ite Chairman and Commissioner Curtiss approve this order in part and i i

disapprove it in part. 'The Chairman's and Commissioner Curtiss's dissenting i

views are attached. '

It is so ORDERED.

For the Commission ,

SAMUEL J. CHILK  !

Secretary of the Commission i Dated at Rockville, Maryland, $

this 4th day of June 1993. ,

L)lSSENTANG VIEWS OF CIIAIRMAN SELIN 1 would have disapproved the stipulation in the settlement agreement by w hich  ;

none of the facts associated with the proceeding would be held against Dr. Orem i in future licensing actions. Although I do not suggest that further enforcement ci action should be taken against Dr. Orem or that he should be disqualified from -i future licensing, I believe the stipulation ~is an unnecessary and inappropriate .{

concession for the proper resolution of this matter. l, i

'hmmuch as the aprectrent h tetween Dr orem and the NRC regulatory staff regmrting through the NRC's f.secutive Director for oper.nians. ttar agreenwnt las no effect on actions that may be brought as a result of ,

mvestigauons by the NRC*S indeprndent Insgresor General under the Program I rand Cail Renedes Act. 31 11 S C Il38ni er arq See fencrulh 10 CI.R Part 13 (1943).

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DISSENTING VIEWS OF COMMISSIONER CURTISS

• l Hased upon the facts of this case, it is clear, in my view, thit Dr. Orem willfully subm:tted material false information in his application for a byproduct materials license. While I agree that Dr. Orem's actions in this regard do not justify disqualifying him from all future licensing, I do not agree that those ,

actions should be wholly ignored if and when he again seeks authorization to engage in some NRC-licensed activity. Material false statements are extremely j

serious matters; they warrant strong action and a clear message that applicants who make them, whether on their own or on the advice of some consultant, i

should expect to have that false statement taken into account by the agency with regard to any future licensed activity concerning that individual. Accordingly, i l

1 would reject paragraph 4 of the settlement agreement (see Ll3P 92-18, 36 NRC 93 at 96)- where the Staff agrees to ignore the facts of this case in any {

i future licensing action involving Dr. Orem-- and remand the agreement to the '

1.icensing Board. While I realire that this would reopen the settlement quet* ion and possibly result in further litigation,I believe that the NRC must be free to take Dr. Orem's conduct in this case into account in any future licensing action that he may request.

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) Atomic Safety

! and Licensing Boards issuances 4

ATOMIC SAFETY AND LICENSING BOARD PANEL @

a B. Paul Cotter Jr.,* Chief Administrative Judge O noDert M. Lazo,* Deputy Chief Administrative Judge (Executive) W i Frederick J. Shon,* Deputy Chict Administrative Judge (Technical) f i O Members ~@

Dr George C Anderson James P Gleason* Dr. Kenneth A. McCollom Charles Bochhoefer* Dr. David L Hetrack Marshall E. Miller Peter B. Bloch* Ernest E. Hill Thomas S. Moore

• G Paul Bollwerk ill* Dr Frank F Hoopa Dr Peter A Morris ==

Glenn O Bnght Elizabeth B Johnson Thornas D. Murphy

• Dr A Dixon Calkhan Dr.' Walter H Jordan Dr Achard R. Panzek Dr James H Carpenter

• Dr Charkes N Kolber* Dr Harry Roin Dr Rchard F Cole

• Dr Thomas E Erleman Dr. Jony R Khne*

Dr Peter S Lam

• Lester S Rubenstein Dr David R Schink

.W Dr George A Ferguson Dr James C Lamb Ill Ivan W Smith

• i Dr Harry Forernan Dr Emmetn A Luebke Dr. George F Tidey .

Dr Richard F Foster Morton 8 Marguhes* Sheldon J Wotte

]

• Permanent panel members m

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I Cite as 37 NRC 433 (1993) LBP-93-9

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- UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1

l ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Charles Bechhoefer, Chairman Dr. Jerry R. Kilne Frederick J. Shon in the Matter of Docket Nos. 50-275-OLA-2 50-323-OLA-2 (ASLBP No. 92-669-03-OLA-2)

(Construction Period Recovery).

(Facility Operating Licenses No. DPR-80, DPR-82)

PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon NucIcar Power Plant. Units 1 and 2) June 17,1993 in a proceeding concerning the proposed extension of operating licenses to recover or recapture into those licenses the [seriod of construction of the reactors, the Licensing Iloard denies three late-filed contentions (although permitting certain aspects of those contentions to be litigated under a previously accepted contention), rules on various discovery motions, and sets schedules for the proceeding.

l(ULES OF PitACTICE: NONTIMEIN SUllMISSION OF CONTENTIONS in ruhng on late-tiled contentions a licensing board is required to determine whether the contention meets applicable contention requirements, as set forth 433 l

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f in 10 C.F.R. % 2.714(b) and (d), and, in addition, whether the proponent of the contention has satisfied the late-filed criteria set forth in 10 C.F.R. % 2.714(a)(1).

A licensing board need not address these considerations in any particular order,  ;

although both are required for admissibility of a late-filed contention.

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RULES OF PRACTICE: NONTIN1ELY SU1011SSION OF CONTENTIONS The late-filed factors are not equally weighted, nor do all have to be evaluated 3 i

favorably to the proponent of a late-filed contention for the contention to be admitted. Good cause for late filing has been described as the most ,ignificant,  ;

but all five must be considered. Absent a showing of good cause for late filing, a stronger showing must be made on the other factors. .

I NEPA: ENVIRON.\1 ENTAL ASSESS %1ENT l l

Prior to the Staff's issuance of an Environmental Assessment determining l l

whether an Environmental Impact Statement need be prepared, it is premature to entertain a contention calling for issuance of an EIS.

RULES OF PRACTICE: SilOW-CAUSE PROCEEDING (EXCLUSIVITV)

A decision under 10 C.F.R. @ 2.206 on a request for a show-cause order is no more than a decision of an NRC Division Director. It is not subject to appellate review at the behest of a party, either before the Commission or a Court of Appeals. It thus does not constitute an adjudicatory decision under section 189b j of the Atomic Energy Act of 1954, as amended,42 U.S.C. 9 2239(b), and would not even bar the petitioner from seeking relief before NRC in an adjudicatory forum, were one available.

RULES OF PRACTICE: CONTENTIONS 1

'Ihe bare pendency of an investigation does not reflect that there is a substantive problem, that there has been any violation, or that there ven exists an outstanding significant safety issue and, accordingly, cannot serve as valid bases for a contention.

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RULES OF PRACTICE: DISCOVERY (PRIVILEGED MNITER)

Reports prepared by the Institute for Nuclear Power Operations-(INPO) are not privileged in the traditional sense but, rather, are subject to nondisclosure under the Freedom of Information Act. Whether those reports may be released -l to a party in litigation (possibly subject to a protective order) depends on rneeting -

criteria spelled out in 10 C.ER. k 2.790lb)(4)-(6). j L

RULES OF PRACTICE: DISCOVERY ( AGAINST NRC STAFF)  :

Discovery against the NRC Staff is subject to different standards than would he applicable bctween other parties, 10 C.ER. f 2.720(h). Availability of r information in the NRC Public Document Room will bar discovery of the t

information.

TECIINICAL ISSUES DISCUSSED 6 Maintenance and surveillance programs, [

Rermo-Lag insulation.

r PREIIEARING CONFERENCE ORDER (Late-Filed Contentions and Discovery) >

Pending before us are three late-filed contentions submitted by the San Luis Obispo Mothers for Peace (MFP), an Intervenor in this proceeding.' Pacific Gas and Electric Company (Applicant or PG&E) and the NRC Staff each oppose ,

admission of all of these contentions.2 On May I l-12,1993, we held a prehearing .I conference at the Commission's office at Walnut Creek, California, to discuss these contentions, as well as outstanding discovery questions?

' San Imis obapo Mothen for Ivace Iate I ded Cr itention, dated March 12,1993. San Luis obispo Mothen for Itace Second LateTiled Contenuon, dated March 10.1993. San L.uis obispo Mothen for l'eace Third late hkd Cotuention. d.ited April 12.1993 The deadline for hlmg tinely contentions was set by this Ihxud as october 26.

1992. M1 P filed il priyewd ctmtenuons by that deinc. of which me ultimately found two to be accepiabk t.BP-91-1, 37 NkC 5 0993) The thr- ..ww c(mentiate before us were hkd subsequent to that deadhne and hence are " late-hied" 2PG117s Response to San Iis ot;spo Mothen for B ace Firu 1. air bled Conention dated A;wd 2.1991 PG&l"s Responw to MI P 5ccond I.aie Filed Crmtendon, iated Apnl 6.1993. NRC Staff's Regwmi.e to MIT i 11rst t.ateJikd Conten6on. dated Apnl R 1993; NRC Staft's Response to MfP Sected late-Fded Contention. l i

d.ued April 14,1993 PGAE's Respon'c to MfP Third Lateft.'ed Contention. dated Apnl27,1993 NRC Staff's Respone to Mi'P Tturd late-hied Contenuun. Ated May 4. l'A3 3 Tr. 407-%8 The crmferente was announced through our Not cc of Prehearmg Cimference. dated Apnl 21.

1493 0 8 I-ed Rer 26.177 t AP' 30.1991d 435 4

I For reasons set forth below, and confirming our ruling at the aforementioned  ;

prehearing conference (Tr. 485), we re denying all three of these contentions '

but permitting specified portions of two of them to be litigated in th'e context of already-admitted Contention 1. (There ro longer appears to be a genuine dispute '

over two significant portions of the o'her contention, by virtue of action taken by PG&E.) ,

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A. Standards .

6 in ruling on late-filed contentions, we are required to determine whether the l contention meets the generally applicable contention requirements; set forth in {

10 CER. % 2.714(b) and (d). CIhese requirements were described in detail in ,

earlier opinions in this proceeding *) In addition, howes er, we also must consider l whether the proponent of such a contention has satisfied the late-filed criteria.

involving a balance of the following factors:5 l i

of Good cause. if any, for failure to hie on time, j GO The availatnhty or other incans whereby the petuionct's mierest will be protected.

Oii) The extent io which the pctinoner's pamcipation may reasonably be expected to {

assist in developmg a wund record. j Ov) The extent to which the petitioner's interest will bc represented by existing parties.

(v) The extent to which the petitioner's participation will broaden the issues or delay the proecedmg

?

These five factors are not equally weighted - nor do all of them have to be  ;

evaluated favorably to the proponent of a late-filed contention in order for the l d

contention to be accepted. Good cause for late filing has been described as the most significant.' Absent good cause, a petitioner must make a stronger showing .

on the other factors in order to have a contention accepted.7 But the good.cause factor is not to be given controlling weight; all of them must be considered."

Indeed, in applying these factors, a licensing board has " broad discretion in the .;

cacumstances of individual cases."' '

in the circumstances of this case, we determined that we would first consider the validity and admissibility under 10 CER. 6 2.714 of the three contentions before us. Only if a contention warranted acceptance under those standards would we then consider the timeliness aspects - an inquiry that we in fact were never required to reach, t

1. LHP-92-27,36 NRC 1% 2%ni (1992), l.hP-93-1, 37 NkC i 1314 (1993)  !

8 1n C r.R 6 2 714 an i; ,

hlrar hart Sen scev le (wru Valley Repmcewng Planit CL1-754,1 NkC 273. 275 (1975K l 7Detrmr fehm Co. &nnco I ernu Aiunut Power Plant, Umt 21. AtAn 707,16 NRC 17% 17t:5 (1982) ,

"Dde her cv (Catawtm Nuclear sution Units I and 2), C1.I-83-19,17 NRC In41 (194%

' West Valies. upru,1 NRC at 275,

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l This approach was contrary to that advocated by the Applicant and Staff.

~ Relying on cases such as Tcus Utilitics Electric Co. (Comanene Peak Steam  !

Electric Station, Unit 2), CL1-93-4,37 NRC 156 (1993); Tc2as Utilitics Electric -l Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CL1-92-12,36 NRC 62,70 (1992); Roston Edison Co. (Pilgrim Nuclear Power Station), ALAB-816, .;

22 NRC 461 (1985), and fermi,16 NRC at 1765, they would have had us first ,

determine whether the contentions withstood the timeliness criteria and, only if .

so, have us consider their admissibility.  ;~

Under either approach, a late-filed contention would not be admitted if it failed to meet either the late-filed criteria or the admissibility criteria of section l 2.714. In the current context, however, the Intervenors, who lack extensive j funding, are not " sleeping on their rights" but, instead, are attempting to raise technically sophisticated issues with the assistance of outside technical l consultants. The Board therefore considers it to be in the public interest l and within its discretion to consider the seriousness of the asserted safety or  :

environmental problem before considering the late-tiled criteria, in order to avoid the possibility of overlooking a safety or environmentally signihcant matter for ,

purely procedural reasons.  ;

Cases cited in support of the opposite approach, such as Comanche Peak, j CL1-93-4 and CL1-92-12, and Fermi, ALAH-707, involved attempts to intervene j years (rather than days, weeks, or even months) late - indeed, following the j close of the entire record in a proceeding. At that stage, a more stringent application of timeliness factors might arguably be mandated, and we are

! inclined to read those decisions in that light. As for ALAU-816, that decision, although not involving excessive lateness, involved a failure of the petitioner even to address the late-filed factors. Ilere, there was no such complete failure.

In any event, those decisions do not necessarily provide authority for the position taken by the Applicant and Staff here. For, even in the circumstances where there was extreme untimeliness, the Commission (in Comanche FraA) and the Appeal Board (in Fermi) took a close look at the safety significance of the issues sought to be raised. And, in summarily denying the Pilgrim petitioner's claim for failure even to mention the late-filed factors, the Appeal Board noted both that the petitioner had participated in other NRC proceedings and, more significantly, that nothing in its petition suggested that a "possibly serious safety problem" might escape proper scrutiny.W With these standards in mind, we turn to the specilic proposed contentions before us.

e I[gIM 34apr,t NK at Wik 437 4

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! i B. Contention XI The first of the latea, > .antentions reads as follows: i i

XI. The San Luis ONspo Mothers far Peace cha!!cnges the Enuronmental Aneunrnt [EAJ l and Fmding of No S'fmhcant Irnpact (TAC NOS. M8@6 and MM0(U) inued Fchruary 3,1993. The NRC should te seguired to prepare an Environnrntal impact Statement (EISI. ,

i This contention was filed on March 12,1993. Although the EA issued on I February 3,1993, MFP advises that it did not receive its copy until February 12,1993,28 days prior to its filing the contentiers."

This contention had a timely filed predecessor - i.e., the former Contention XI. That earlier contention also sought the issuance of an EIS. We rejected it I solely because we considered it premature, inasmuch as the EA, in which the ]

j Staff deterimnes whether an EIS need be prepared, had not yet been released."

Thus, not wishing either to presume any particular Staff determination prior to its  ;

i actually being made or to require a party to do so, we determined that there was at least a possibility that the contention would become moot by virtue of Staff 1 action (see Tr. 205). Therefore, we did not rule on the bases of the contention l that was submitted but rejected it only on the ground of its prematurity.

In fact, the EA as issued determines that, in the Staff's view, an EIS is not warranted. The current contention (as well as the earlier version) challenges that i conclusion. I The EA is also the subject of two questions posed by the Board by our Memorandum and Order (Addendum to FES), dated March 19,1993 (unpub-lished). In particular, we noted that the EA sanctioned the various environmental conclusions reached in the 1973 EIS but neglected to reference, in its overall l l

conclusion, any of the changes noted in an Addendum issued by the Staff in

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May 1976." We asked (1) whether the existence of the Addendum invalidated in w hole or in part the conclusions reached in the EA and (2) wh' ether the omis-sion of reference to the Addendum from the EA's conclusion supports in some i degree MFP's charges conce rdng the adequacy of the methodology used to prepare the EA - i.e., was preparation of the existing EA merely a profonna exercise by the Staff?

All parties responded to the questions with similar positions." Based on references to the Addendum in connection with particular environmental findings

" sulf 4wuance of ttr EA was announced in tir TehralRyurer of rebruary 10. lW3 581-ed Reg 78W-7WB Tir Not ce set furth the enure enntents of the LA "1.F.P.nl upra. 37 NRC at 3M6 "Lc 41 red Reg 22.N5 durr 7,1976L mang that un May 28 19%. de Adderkm had been mued "NkC Staff Reyonw in Licenung Board's Questions, d.ned Apnl 1.199L Paunc Gas & Eleant Company's kcqwme to Mermrandum and owr ( AdJendam to ILSA daicd Arn! 2.1993. Imerwmv San Ims obispo M.ithers for Waec Responc to Menvramium and order ( Addendum to l'Es). dated Aprd 8. IW3 438 I

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I of the EA, none of the parties fauhed the EA for failing specifically to reference l the Addendum in the ultimate conclusion. On that basis, we will treat the EA as including the Addendum and will judge the contention's adequacy based on  ;

the challenges to the EA proffered by MIP." ]

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1. MI'l' l'mition MIT assigns six reasons or bases for showing that the proposed license extensions " pose a significant, previously unconsidered risk to the human ,

environment" and thereby for questioning the accuracy and adequacy of the {

conclusions reached in the EA. We will describe them seriatim.  ;

(a) The first of the bases - aging - is the most extensive. MFP claims  ;

that the environmental impacts considered as a basis for the Staff's conclusion ,

in the EA - i.e., a continuation of the types of impacts evaluated in 1973 or j 1976 by the EIS or its Addendum - are not based on fact inasmuch as, in I the EA, they fail to factor in newly discovered information on the methodology )

of aging, lack of technology to detect certain aging effects, as well as periods ,

of time during which the componems were being stored but not operated (and ]

hence allegedly not considered as undergoing aging.)

In other words, various plant components (several are explicitly listed) will  ;

age more rapidly than originally projected, leading to a greater likelihood or risk ]

of adverse impacts during the period of projected operation. The EA allegedly l 3

does not consider any aging effects in its calculation of projected environmental impacts. More particularly, the "1973 FES did not consider the full terrn of ,

degradation and aging effects to which the DCNPP would be subjected over the j 55-year lifetime that is now being proposed."'* Further, the risk of unforeseen l aging effects is said to be exacerbated by improper maintenance practices, as )

alleged in Contention L ,

(b) The second basis - population changes - asserts that increases in l population in the area of the plant have exceeded population changes predicted in the EIS (and assumed by the EA) and thus have upset some of the environmental conclusions of the ES based on population density or location (as in analyzing eficcts of offsite releases from postulated accidents). MFP also questions the EA's conclusion that population-center-distance standards of 10 C.F.R. Part 100 will remain satisfied throughout the extended license term (although MFP does not provide any explicit infonnation that would undercut the EA's conclusion).

"on Apnl 14,1991 PGal. en wed to sinLe cen.un matenal from MI P) respome that n regarded as extraneoun smucnal On Apni 26, tv9% MlP hled a reply reptmninp. why the nwtenal wm perturm to its reply As aimmnced at the prehearmg cont'erence fit $21-22). becauw we are not relying for .ny purpmc em the alleredly '

enmurom stalenents, and becauw of our ruhng denyms admiWon nf the contenhon to which the monenal related, there n no need for us to art on PGAIDs nution. and we dcchne to do so

" MM' t 2,se-filed Contennon, d.ned Wdi 12.19% at 8 439 s

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l (c) The third basis challenges the EA for failing to consider cumulative and chronic impact of low-level radiation on population surrounding the plant, including unpredictable unplanned releases of radiation such as have occurred

. on several named occasions in the past. MFP cites high rates oflung and breast cancer in San Luis Obispo County and asserts that the correlation between low- i level releases and cancer did not exist in 1973. MFP seeks an EIS to perform ,

this analysis.

(d.f) 'lhe fourth and fifth bases take issue, respectively, with perceived deficiencies in which the EA deals with high- and low-level waste. The sixth  !

and final basis challenges the cost benefit balance set forth in the EA, premised tuostly on differences of opinion on the dollar cost of the power to be produced and the EA's conclusion that, if the licenses are not extended beyond 2008.

PG&E would have to construct new baseload capacity. l To justify the late filing of this contention, MfP cites the release of the EA on February 3,1993,its receipt of the document on February 12, and our earlier i refusal to accept its EIS contention on grounds of prematurity. MFP adds that it proceeded as rapidly as it could in preparing its contention (given requirements to prepare discovery requests dming that period) and that the 28-day period was a reasonable time for it to have filed its contention.

2. Applicant and Staff Positions ,

The Applicant and Staff each claim that MFP has not demonstrated good ,

cause for late filing. They further assert that the contention fails to accord with NRC requirements for contentions. ,

With respect to lateness, the Applicant and Staf f each claim that the facts forming the basis for the EA's conclusion are founded on thote set forth in l the Applicant's Environmental Report and in no case include facts arising  ;

subsequent to the De< ember 10,1992 prehearing conference. They each point  ;

to the Commissioni le that requires environmental contentions to be initially .'

submitted on the 1 of the Applicant's Environmental Report, subject to modification if the mff review document differs significantly. 10 C.F.R.

@ 2.714(b)(2).

With regard to the substance of the contention, the Applicant claims that we l have already rejected the aging aspects of the contention based on our prior resolution of Contention IV, which we found inadmissible. Both the Applicant i and Staff claim that no grounds are asserted that would deem the instant bcensing ,

proposal to be a major federal action requiring preparation of an EIS.

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3. Board Analysis l In the view of MFP (see Tr. 413), by far the most significant allegations in  !

this contention are those concerning aging. In rejecting the initial Contention j IV, concerning aging, we pointed to the lack of a sufficient basis for admitting j this contention standing alone. We also noted that, to the extent ace-related degradation is subject to maintenance efficacy, the subject will be examined in  !

conjunction with Contention I, which we were accepting."

As we explained at the recent prehearing conference, all components are  ;

subject to aging. In order for a plant to be operable, it must utilize a  !

maintenance and surveillance system that will accurately and timely detect such j degradation, including degradation that occurs earlier than might otherwise have  !

heen expected, so that repair or replacement can be accommodated in a timely j fashion. See Tr. 413. MFP in its new contention has listed a number of j components that allegedly have prematurely aged."' _l With respect to age-related degradation, we inquired through our Memoran- j dum (Questions for Parties), dated April 16,1993 (unpublished), what objection l MFP (and other parties) would have to litigating the " aging" aspects of the first J late filed contention in conjunction with Contention 1. We referred to our sug-  ;

gestion in L11P-93-1 that the earlier " aging" contention (Contention IV) could j be litigated in that manner. j MFP offered no objection to our suggestion, although it expressed a desire j also to consider the " aging" matters as a reason for requiring an EIS. MFP j further commented that the " aging" contention was somewhat broader than w hat  !

would fit into the Surveillance and Maintenance Program conter. tion (Tr. 413).

The Applicant and Staff, however, both opposed the suggestion. The  ;

Applicant stressed the apparently broader scope of the aging allegations than  ;

what would reasonably fit into the Maintenance and Surveillance contention j together with the asserted lateness of the claim. The Staff took essentially the same position, although it stressed what it regarded as the lateness of the filing. ,

Taking into account the entire record on this contention, it is apparent to [

us that MFP has offered no valid bases for its claim that an EIS rather than {

an !!A should have been issued. It has not provided the " substantial and significant information" that we previously indicated would be requisite for an EIS contention. It has defined no impacts that were not covered in the FES ,

that will eventuate from the proposed license amendment. It acknowledged that  !

its aging allegations would ' result not in producing impacts different in kind [

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" MFP 1. ate I &d Contention, dated March 11 IW3 at 4 W t nP-9M, supra 37 Ni(C m % c 441 )

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from those previously reviewed (in particular, results of accidents) but only in j a potentially greater likelihood of occurrence of those impacts (Tr. 427).  !

Moreover, the population projections for the area cited by MFP are not sufficiently different from those projected in the lilS to provide a basis for the l claim that a new EIS is warranted. Funber, as we previously held, the high- [

level waste matters and cost. benefit matters raised by MFP are not litigable in , {

a proceeding of this sort.2" Finally, there are insufficient bases provided for the j low-level waste allegations.

Beyond that, the most significant of these matters for MFP - age-related '

1 degradation - to a great extent is litigable under Contention 1. although as a safety rather than an environmental matter, and we are permitting such litigation. l The lateness factors are not applicable - these matters always were litigable j under Contention 1. We therefore are rejecting the first late-filed contention j but are expressly reiterating that its aging allegations may be litigated to the  ;

extent they bear on the maintenance and surveillance programs covered by Contention 1. (We are modifying the discovery schedule to accommodate this further clarification of the scope of Contention L)  ;

C. Contention V l The second late-filed contention reads as follows:

V. The San t.uis Obispo Mothers for Peace contends that the mienm hre protecuan measures j m place at DCNPP to compensaie for the faulty hre barner marenal. Thermre! ag, are inadequate because the material itself ercates a fire hazard. The proped beense extension request shnuld therefore be demed until this situation is rewived

-I 4- This contention was filed on March 16, 1993. It supplements or expands upon a previous Contention V, also challenging certain uses of Thermo-Lag at J the Diablo Canyon facility. The initially filed Contention V sought to challenge .

both the permanent and interim use of Thermo-Lag. We rejected the contention insofar as it sought to raise a generic issue, based on lack of an adequate basis  ;

supporting such an issue.25 We accepted Contention V insofar as it sought to challenge the interim measures adopted to compensate for the reliance on Thermo-1,ag. Ilut we did not read the contention as a challenge to the adequacy .

i of the interim measures. On the bases submitted by MFP we ruled that the  ;

contention was limited to PG&E's implementation of the interim measures - ,

i.e., the " adequacy of the Applicant's adherence to interim measures."22 e.

41 m 29 30. A f II M as 21.

27Mcnorandum und orJer (Diwowry and neanng sdwdok st dated issuary % tm fuyubbshedt m 2 442 l

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As resubmitted, the contention clearly challenges the adequacy of the interim measures as well as the Applicant's implementation of those measures. Addi-tional bases are provided in support of such an expansion.

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1. MFP Position i

One of the primary thrusts of the newly formulated contention is that Thermo-  :

l Lag is combustible - that "the material itself creates a fire hazard." As MFP points out, it made a similar claim in filing its initial Thermo-Lag contention.

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l But we rejected the combustibility claim for lack of an adequate basis - in particular, a purported study that MFP conceded did not in fact exist. and newspaper accounts that appeared to misinterpret statements of certain NRC .

officials. (Certain information in NRC Bulletin 92-01, dated June 24,1992, was also referenced, but only in terms of the necessity for conspensatory measures.)3 ,

MFP now makes further claims with respect to the adequacy of fire watches to serve as an interim corrective action. It also cites what it claims are newly ,

discovered deficiencies with respect to the seismic aspects of Thermo. Lag, l ampacity derating requirements, voids, and the validity of hose stream tests.

Finally, it provides general data concerning the likelihood of fires in nuclear l power plants. ,

in support of these theses, MFP particularly cites NRC Information Notice  ;

92-82, dated December 15,1992. (That document was issued subsequent to the  ;

date of the first prehearing conference in this proceeding, where we considered the various contentions that previously had been filed, including Contention V.) l More important, MFP cites a Partial Director's Decision issued by the Director of NRC's Office of Nuclear Reactor Regulation (NRR) on February 1. 1993 24 j and statements made to Congress on March 3,1993, by the NRC Inspector General and by the Chairman of the Commission. (MFP further references an October 21.1992, NRR Memorandum indicating that further evaluations of .

i

-I Thermo-Lag by its manufacturer would be completed in 30-45 days.)

2. Applicant and Staff Positions l As in the previous contention. the Applicant and Staff each claim both that MFP lacks good cause for its late filing and that the contention, as filed, lacks adequate bases and hence does not comport with NRC contention standards.

Utlulieun 92-01 referenced tesis of Tirmw> lag iiubcaung that the nutenal wockt not provide the degree of hre protectwn reqmred, but did not augrest that tie nmiettal s'gelf was conibustible (other bant.cs inclwled in the c:nntentmn concertrJ faulty implementatum of the rompensatory measures and pmvided authonty for the implenentativo cl.um that v.c ctually adrmited )

24Traus Dnhnrs Uccrr'r Cu (Com.uiche Itak Steam IIlcctric statmn. Units 1 and 21. DD-9M 37 NHC 113 il W,1) 443 i

i

The Applicant adds that the adequacy of the interim measures has been resolved ')

generically by the Commission and, in any event, is unrelated to the proposed  !

license amendments at issue in this proceeding?  !

3. Board Analysis

• t

. At the outset, we reject out of hand the Applicant's claim that the February  !

I,1993 Partial Director's Decision could somehow operate to bar MFP's claim. l That decision is no more than a decision of an NRC Division Director on a  !

10 C.F.R. 6 2.206 claim. h is not subject to appellate review at the behest of {

a party, either before the Commission 'or a Court of Appeals, even for abuse  ;

of discretion. See HecUer v. Cheney, 470 U.S. 821 (1985); Arnow r NRC, 868 F.2d 223 (7th Cir.1989); Safe Energy Coalition of Afichigan n NRC, 866  ;

F.2d 1473 (D.C. Cir.1989). It thus does not constitute an adjudicatory decision under section 189b of the Atomic Energy Act of 1954, as amended,42 U.S.C.

6 2239t'b) and quite likely could not even bar the petitioner from seeking relief j before NRC in an adjudicatory forum, were one available? l Similarly, we reject PG&E's claim that the adequacy cf interim measures is l not related to the license amendments at issue in this proceeding. We deah with  :

this issue in LBP-93-1 and add only that it is far too late in the day to seek  ;

reconsideration of that decision. l Turning to the contention itself, we first note that its primary allegation is that Thermo-Lag itself creates a fire hazard - i.e., is combustible. We examined l each basis cited by MFP to determine whether any supported this claim. >

In that connection, our Memorandum (Questions for Parties), dated April 9 16,1993 (unpublithed), posed a question concerning a possible inconsistency {

between the Applicant's characterization of Thermo-Lag as " noncombustible" (under specified criteria) in its interim plan submission (concerning use of Thermo-Lag as a radiant energy shield inside the containment) and the Staff's j evaluation of the material as being " combustible" (using other criteria) in l Information Notice 92-82? We asked that parties be prepared to address this e t

inquiry at the prehearing conference.

j Ahhough not required to do so, the Applicant submitted a written response dated May 7,1993. It differentiated the use of Thermo-Lag as a radiant energy 'i shield inside the containment from its use as a fire barrier. PG&E further stated, ,

t 2'Padfr Uas & l}cinc Company's Reve.e to Sim 1.uis otero Wthen for IYam Scumd I. ate.f iled Contention, (lated Apnl 6.19u3. at 1-2. 28 29. 3437 i r

26Cf 10 CIElt Part $2. where denial of a secunn 2.216 pentam was cyhcitly male reurwaHe, Wuh such revwwabihty. the licensmg prouuons in quesuun were upleid Nmicar Iq/umuni.m Rcwurte 5mer v NRC, }

%9 I:.2d i169 (D C Car 1992)

UMif spenhcally cited infonn. mon Ntice 92 H2 f!keemtier !$.1992) for thin a'.pect of its combustihihty  ;

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l f however, that, as provided in its letter to the Staff dated April 30,1993, it

( has elected to replace Thermo-Lag radiant energy heat shields at, the Diablo l Canyon facility with shields of another manufacturer. llecause of that action.

l. time has overtaken this portion of the contention: the aspect of Thermo-Lag combustibility raised by MFP about which we had inquired. To that extent, we are treating that aspect of MFP's contention as no longer raising an issue ,

concerning which there is a genuine dispute.

The other aspect of the contention that has been overtaken by time is the alleged ampacity derating errors tesulting from reported miscalculations by the manufacturer of Thermo-Lag insulation. MFP claims that PG&E "has yet to i take steps" to address this issue other than through compensatory measures. As .

a result, according to MFP, a fire could result. Ilowever, at the prehearing  !

conference, in response to our explicit inquity, PG&E reported that. as of i April 16,1993, it had performed at least a preliminary recalculation and had  ;

determined that its margins were adequate (Tr. 450-51).2" Because the gist of  ;

this aspect of the contention was the asserted failure of PG&E to have performed _

any recalculation, there no longer appears to be a genuine dispute on MIVs .l ampacity claims."

l Furthermore, those two allegations appear to form the only genuine bases  ;

potentially suppoding MfFs claim that Thermo4n itself creates a fire hazard.

In terms of regulatory staudards, except where specifically required (as in the  ;

containment example noted above), there appears to be no general requirement or (for the Diablo Canyon facility) technical specification that Thermo-Lag (or ,

any other fire-barrier material) be noncombustible - only that it provide a fire barrier for a specified time period. Specifically, MFP's fire-watch claim states that Thermo-Lag failed the "NRC cold side temperature limit in 22 minutes and burned through in 46 minutes"(citing NRC Information Notice 92-55, July 27,  ;

1992). Ilowever, the cited Information Notice had nothing to do with Thermo- l Lag creating a fire hazard but, rather, referenced tests that measured its ability j to serve as a fire barrier to protect various components. ,

With regard to combustibility, apart from the claims for which a genuine 'l i

dispute no longer exists (see earlier discussion), MIFs further references to information Notice 92-82 (December 15, 1992) concern heat release of the j material but have nothing to do with flammability. They accordingly do not j stand for the proposition for which cited..

\

1. PG&r. referenced its leticr to the NRC staff dated April 16.1993. on June 9.1993, confirnung an offer made  !

at the inricaring wnference frr. 45n $1). IC&E pmvided the tjcensmg Hoard with cyics of m Arn i 16,1993 {

letter. mdicatmg that it had earher provuled copies to other partes NWe expren no www of the contention's vahday (apart from tunchuru considera mrn) at tir tmr it was (ded. i pnot so the Apphcant's perforniante of the recaktslatioriirl triestion Nm do we expreu any view of the adequary of He recakulatum effort No chum to the contrary is currendy before us. Cf Arnona ruhhc Senn e Co (Palo Verde Nudcar Generatmg Station. Umis 1. 2. and h Cl) 91-12. 'L4 NRC 144 0991) 445 L

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Similarly, MFP's " seismic" claims also do not support combustibility. Hey state that the material "may crack or crumble into powder material or fragments" and then hypothesize (without further basis) that the crumbled material "provides the potential scenario of loss of fire protection and fuel for the fire." No bases -

are cited for either of the claims - most particularly, the " fuel for the fire"  !

claim. Without such support, the contention cannot be accepted. , j With respect to " voids," MFP has offered no information demonstrating any l voids in %ermo Lag insulation used at Diablo Canyon. Although, as MFP l claims, voids arguably may contribute to the material's flammability, there is no i basis offered that would connect this claim to the Diablo Canyon facility. {

MFP next references the failure of Hermo-Lag to pass certain " hose stream" tests. As the Applicant points out," the tests are used as an indicator of the l potential for electrical faulting after suppression of a fire. They do not relate to l the flammability of the material or the validity of fire watches used as the heart of the interim corrective measures, ne test failures of Dermo-Lag, therefore, cannot validly found the contention before us? j Finally, MFP's references to investigations and to the frequency and signifi- ,

cance of fires at nuclear plants generally appear to have no specific relationship i to the Diablo Canyon facility. Indeed, the Commission has specifically held that the " bare pendency of an investigation" does not reflect that there is a sub- l stantive problem, that there has been any violation, or, indeed, that there even exists an outstanding significant safety issue. Ismisiana Powcr and Light Co.

(Waterford Steam Electric Station, Unit 3), CL1-86-1,23 NRC 1,5 (1986)? .I Dese claims, therefore, thus cannot serve as valid bases for this contention.

In conclusion, we have determined that two aspects of this contention are no longer in dispute because of action taken by PG&E and that there are no bases adequate to create a genuine issue with respect to the other allegations.

We thus are denying this contention without regard to its timeliness. In that connection, however, although aspects of the Hermo-Lag contention might not have survived a timeliness analysis, we note that the contention involves an issue that has been developing over several years. At the time that problems with Thermo-Lag first were revealed (or, in this case, at the time timely contentions could have been filed), there was considerable doubt as to whether an appropriate contention could have been formulated. At that time, sufficient tests had not "iC&F.'s Response to MFP Second Late-Fded Conientmn. dated Apnt 6.1993, at 31 33 mils compkunt ccmccriung the pimed subetuunn of other tests for hosc+tream seus relates to propowd wandards by winch Thermatag is to be judpd in tir future and tIrarly bears no irlahonstup to the use at Dublo Canytm of Therm +12g insulaimn Ulhis ruimg relaird to a monon 10 reopen a closed record. where a higter standard of relevamt or ugmhcance riant be saustied Nancitriess, we beheve the rubng refierb the bkcly teasoning of the Commmiuri m a situauon such ab u. prnent brre Tha is parhcularly so where, as here. ttw mmngathms m questum do not appear to be d rected at the thablo Canyon fuihty but rather (as the staff observes) at vainun practwo fohwed by tir namutacturer of 1 hrrneI.ag 446 G

o j

been performed to indicate whether there was a significant safety problem. *lhe Applicant (although not the Stalf) took the position that " Proposed Contention V addresses a current issue . . that is not safety significant."" The tests relied on by MFP in support of its original contention were inconclusive at best. Indeed, ,

MFP tried to submit an appropriate contention but, except for one limited issue. l did not succeed. .  ;

As MFP now points out, tests by the manufacturer were not scheduled to bc l completed prior to 30 to 45 days from October 20.1992? And the results of 1 the NIST test, although apparently provided to the NRC Staff on August 31, l' 1992, were not necessarily available to the pubhc on that date. He test was teleased as part of Information Notice 92-82, dated December 15, 1992.

Given these considerations, we cannot conclude that all aspects of MFP's contention would or should have been rejected on timeliness grounds i

D. Contention XII J The third late-filed contention reads as follows:

Xil- The San Luts Obtspo Mothers for Peace contends that dehciencies esist at the DCNPP wnh the enuronmental quahhcation of safety-related and non safety related elecincal cables (Okonite cables or other cables with bonded jackets). harthertnore, deficiencien exist in the adequacy of inaintenance and survedlance practices at DCNPP to venly that the actual operating environrnent of these cables we bounded by the environmental paraniclers used in quahiy the equipment. Ilecause these dehciencsch taake the plant more vulnerable to a sescre accident. Paci6c Gas and Electric Company's ("IGC') heense amendment request enast be denied This contention was formally filed on April 12, 1993, but on April 1 and 2,1993, MFP's technical advisors (MHil Technical Associates) forwarded undetlying data io the Staff. (The 130ard was served with these documents, either by MFP or the NRC Staff.) On April 14, 1993, the Staff responded to the technical advisors, and on April 16,1993, it prepared a lioard Notification

(#93-08) advising the lloard and parties of its response, and transmitting the response together with the incoming communication from Mill! Associates (the above-mentioned April 1-2, 1993 communications)?

" lows Resy.nw u, tenunnen suppkurm to svonan u. Intervene, d.ited Nmenkt IR. IW2. at 37

" Mi P sewed t. ate-bled Comentmn. dated Mauh 16. 199 1 Attashnwnt 4

" On Apel 28 199 t. rG&h hnmshed tle lioard and pames with a repon to ele Staff con $ rrnmg unble failures on May i IWL the staff furnshed the n.wd and pames wnh a furttre lumrd Nuhcum,n t#9WO tramnumnp copics nf an insperbon Report denhng,inser uha. with the rabic fadures 447

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1. MFP Position .;

- In submitting this contention, MFP first notes that there may be some overlap with Contention 1 (Maintenance and Surveillance). As written, the contention formally challenges both the Maintenance and Surveillance programs for cables and the environmental qualifkation program.

As bases, MFP cites four examples of failed cables (one 12-kV cable and three 4 kV cables). The most recent occurred on February 5,1993, and was the subject of the April 1-2, 1993 communications with the Staff; it resulted in an electrical fire. The earlier cable failures allegedly occurred in October 1989, May 1992, and October 1992. MFP cites these failures as the type of cable failure identified (generically) by the Staff in NRC Information Notice 92-i

81. " Potential Deficiency of Electrical Cables with 11onded llypalon Jackets." '

dated December 12,1992 (dealing with the failure of certain cables to meet Environmental Quahhcation standards). MFP also cites several internal Staff communications and an NRC memorandum to NUMARC relating to cables l I

with bonded Hypalon jackets.

MFP goes on to assert that the cable failures resulted from exposure to water and that the maintenance and surveillance system fails to detect whether the cables are being used in an environment for which they are qualified. .

i

2. Applicant and Staff Positions The Applicant and Staff treat this contention in essentially three parts. First, they claim that Environmental Qualification is irrelevant to the four cables in question, inasmuch as none of them are tequired to be environmentally qualified .

j (pursuant to standards set forth in 10 C.F.R. f 50.49). As set forth in an affidavit of the co-author of IN 92-81:

I 1he cables that failed at Diabk) Canyon are 12 LV and 4 kV power cables. These caMes have EPR insulation, shielding, and a neoprene jacket . . They do not have a bonded jacket.

The 12 LV cables that failed were severely degraded, apparently as a result of chemical attack The 4 LV cables were not degraded and may hase faded due to a inanufacturing l defect. The 12 LV cables are tot used in any safety-related apphcation at Diablo Canyrn. )

" i They are not required to be environmentally qualified .

PG&E and the Staff further claim that an environmental quahfication issue is untimely, without good cause, inasmuch as IN 9241 had been issued as far back as December 1992 (more than 4 months prior to the filing of the contention).

Finally, they claim that the failed-cabic questions are also untimely.

" Afhdant of Ann M Dummet. NkR. dated Apnl 21. IM. at ?,15 448 4

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

i n

3. Itoard Analysis it is clear that,' insofar as environmental qualification is concerned, this contention lacks any basis that would indicate that there is any such problem at Diablo Canyon. This portion of the contention must therefore he dismissed for l' lack of a viable basis. l As for the cable failures at Diablo Canyon, the prime question is whether the [

surveillance and maintenance system is adequate to detect any incipient failures.  !

At least some of the documentation submitted as part of the contention indicates l l '

that submerged cables are not within the current scope of the maintenance and surveillance programs. These questions are already litigable under Contention 1, so that a new, late-filed contention is not warran;cd. As we announced  ;

at the prehearing conference (Tr. 458), we are thus denying the contention  ;

but permitting the failed-cable questions at Diablo Canyon to be litigated under Contention 1. OVe reiterate that, in LBP-93-1, we specifically permitted l additional bases for Contention I to be identified.") l i

F., Conclusion on Contentions ,

We have examined all of the bases cited for the proposed contentions and find that, except for those portions of Contentions XI and XII already litigable under Contention 1, none warrant the admission of new contentions. In so holding, we reiterate that we are operating under the raised threshold for contentions enacted by the Commission in 1989.3*

F. Disem ery

1. Discorcry Requests from MFP to PG&E I

At the prehearing conference, we were faced with a number of discovery motions filed by MFP against PG&E - including motions for additional discovery, motions to compel discovery, motions for protective orders, and

'i motions to impose sanctions for discovery deficiencies. Because many of the motions were related in part to whether or not the new contentions were admitted, we suggested, after our ruling on the contentions, that MFP and PG&li attempt to resolve their differences and agree upon a revised schedule for l discovery (including further discovery on the enhanced portion of Contention 1).

With minor disagreements (which we resolved), they did so. We approved the following discovery schedule (sce Tr. 491-98):

I "37 NHC at 2fh71 .f MM id at 131r 458 )

449 l

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

Cahks 1

May 19,1993: MFP to file additional interrogatories on cable matters l (fous copies to be faxed to PG&E by May 21, 1993).

a

May 26,1993

PG&E to respond to earlier filed MFP interrogatories 1-7 on cable questions. ,

i. PG&E to respond to MFP additional interrogatories on cable matters within 7 days of receipt.

Therrno.ing May 16.1993: PG&E to respond to Interrogatories 23-30 in MFP third set of interrogatories (Re: Thermo-Lag).

May 26,1993: MFP inay inspect fire logs until the end of May 26.

Aging June 4,1993: MFP Interrogatories on component-specific aging issues to be faxed to PG&E. Interrogatories to include followup interrogatories, including particular locations of check valves in connection with Interrogatory No. 6 of MFP third set. (Tr. 492,498.)

Maintenance and Surveillance (Followup Discovery)

May 21,1993: MFP to provide by fax list of NCRs referenced in 1990-92 NCRs that may date back to 2 years prior to 1990.

PG&E to respond within 7 days of receipt of request.

May 26,1993: PG&E to provide specified NCRs and responses to spec-ified Action Requests (ARs), plus 1990-92 OSRG annual and quarterly reports to the extent relenmt to maintenance and surveillance.

May 26,1993: PG&E to provide copies of specified plant procedures.

May 26,1993: PG&E to provide further response to MFP Question 9.

second set of interrogatories.

l i

information from INI'O Documents .l MFP filed a motion to compel relating to its Interrogatories 12 and 13 of its i second set of interrogatories. Those interrogatories sought reports prepared by the Institute for Nuclear Power Operations (INPO) concerning " fire protection 'i and/or maintenance and surveillance programs or activities" (Interrogatory 12)

• and " fire protection und/or maintenance and surveillance programs or activities specifically at DCNPP"-(Interrogatory 13). PG&E objected to these requests l as overbroad and as seeking information that is " privileged and subject to non- i disclosure " citing Critical Mass I?nergy I'roject v. NRC, 975 F.2d 871 (D C. l Cir.1992), cert. denied, 61 U.S.LW. 3M7 (Mar. 22,1993).  ;

As justification for its Motion to Compel, MFP noted that "PG&ll does not- ,

cite any regulation or case that requires the Itoard to protect these documents i from disclosure."" MFP poes on to claim that the INPO documents are " relevant and useful because they provide the industry's own analysis of the effective- +

ness of safety programs."4" At the prehearing conference, MFP withdrew its i request for Interrogatory 12 information (general information) and information concetning the fire-protection progratn (a portion of Interrogatory 13). It limited i its request to infonration explicitly relevant to maintenance and surveillance at Diablo Canyon (Interrogatory 13) (Tr. 502), The information specifically relates to INPO's evaluation of the DCNPP maintenance and surveillance program and i is clearly relevant to Contention I. l In evaluating this claim of privilege, we note first that the information does not appear to be " privileged" in the traditional sense but, rather, only subject to nondisclosure under the Ficedom of Information Act (FOIA). According to the court decision relied upon, the information is of the type falling within FOIA exemption 4. Those standarJs are set forth in 10 C.F.R. 6 2.790 of the .

Conunission's Rules of Practice, and the exemption 4 criteria are spelled out in l 10 C.F.R. Q 2.790(a)(4). i

'lhe lloard heard arguments concerning whether the information should be released in litigation circumstances and, if so, whether it should be subject to a protective order. MFP was not able to demonstrate any particular need l for the document beyond that set forth in its motion, other than curiosity (Tr.  !

511). PG&li maintained that the information on which the INPO evaluations were formulated is all publicly available data, that MFP could reach its own l conclusions from those data, and that PG&E would not use INPO reports as part of its affirmative case (Tr. 503 04).

%m m cun,ciAned Apnl W., PM. m '.4. enpham supphnl

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As for reasons for the " privilege," PG&E referenced the " strong public policy interest in favor of self-critical, internal resiew and evaluation by licensees of potential problems " It adds that

, the confidentiality of INPO evaluations n crucial to the accuracy, value. and self critical nature of thew cvaluanons.

PG&E also claims that the information sought is ovesly broad.*

In making our determination as to w hether the information in question should or should not be released, we must take into account the factors spelled out in 10 C.F.R. { 2,790(b)(4)-(6). At the present time, the record is inadequate for us to make that determination. Accordingly, we invite parties to submit by affidavit information contemplated by those paragraphs. Such information would include that contemplated by 10 C F.R. s 2.790(b)(4) (concerning the nature of the information) and section 2.790(b)(5)(concerning the necessity of the information for the effectis e performance of this lloard's duties). In addition, we invite parties to discuss whether the provisions of 10 C.F.R.12.790(b)(6) require us to order release of the information subject to a protective order.

Such affidasits and briefs on the legal question should be submitted within 10 days of service of this Order. Pending our receipt and consideration of any such affidavits and brief, we are withholding any ruling on the requested discovery.

2. Discovery from PG&E to AIFP By June 21,1993. MFP is to provide certain specified additional answers to PG&E interrogatories fincluding identification of proposed witnesses) (Tr. 527, 537-38).

3. Discorcry from MFP to the Staff Discovery against the NRC Staff is subject to different standards than would be applicable between other parties. See 10 C.F.R. f 2.720(h). Under those standards, availability of information in the Public Document Room will bar discovery of that information. De Board declined to grant MFP's Motion to Compel, dated April 26,1993, against the NRC Staff (Tr. 559). The questions related to the reliability of fire-watch personnel, inspections of PG&E's fire-watch program prior to July 1991 (the Staff had provided information subsequent to that time), and the Staf f's position on certain contentions or issues. The Board was advised that there was no general information or studies on the reliability of UPGit'i Responw to Second set of wnten inwrropiorio and Requesu rar me Product #on of Documems filed by MFP. d.ned April 12. lW3, at 1415 452

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2 fire watches of which the Staff was aware, that inspections of PG&E's program were available in the public document room or through NUDOCS, and that the ,

Statf had not yet taken a position on the contentions or issues, bey 6nd that in  !

I .its briefs opposing admission of the contentions.

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G. Future Schedules .

July 2,1993: Filing of Motions for Summary Disposition pursuant to ,

10 C.F.R. $2.749. Responses to follow times specified

]

in 10 C.F.R. # 2.749.C I j Simultaneous filing of direct testimony on remaining

' Mid-September: ,

contentions. These dates could be advanced if parties

• i were to waive the filing of summary disposition motions.

! as informally discussed at the prehearing conference (Tr.

l 567).

October,1993: Target for hearing.

II. ()rder >

For the reasons stated, it is, this 17th day of June 1993 ORDERED:

g 1 1. The admittance of the three proposed late. filed contentions, dated March

! 12,1993 March 16,1993, and April 12,1993, respectively, is hereby denied.

2. Various discovery motions are decided as set forth in part F of this

)

j. Memorandum and Order, j 3. Affidavits and briefs with respect to INPO information may be filed not I later than 10 days following service of this Order. Our ruling on discovery requests involving INPO information is hereby d<ferred.

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i C'N hu d mh-ard tie prues that. if they were to forego the opportumty to flic ruotmus for nunmury dnpimine on all ht. urn. the trarmg daten couhi he adumeed PG&I dechned to accept that offer at the one, ahhoiq.h mdicuhng that it nuy sull do so Or %I. .C) j i

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4. The schedule outlined in part G of this Memorandum and Order is hereby

. confirmed, subject to niore precise ddincation at a later date. ,

Tile ATOMIC SAFETY AND LICENSING 130ARD Charles llechhoefer, Chairman

! ADMINISTRATIVE JUDGE l' i Dr. Jerry R. Kline j ADMINISTRATIVE JUDGE

i. '

! Frederick J. Shon i.

ADMINISTRATIVE JUDGE llethesda, Maryland, i June 17,1993 i i i

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I Cito as 37 NRC 455 (1993) LBP-93-10 .i f

f UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD f Before Administrative Judges: ,

I G. Paul Bollwerk, lit, Chairrnan  ;

Dr. Charles N. Kelber Dr. Peter S. Lam +

in the Matter of Docket No. 30-31765-EA l (ASLBP No. 93-674-03-EA)

(EA 93-006)

(Order Suspending ,

Byproduct Material  ;

License No. 37-28540-01)-  ;

ONCOLOGY SERVICES CORPORATION June 23,1993 ,

1 In response to an NRC Staff motion for an additional delav in conducting '

a license suspension proceeding, the Licensmg lioard orders discovery stayed for ninety days and, at the direction of the Commission, certifies the question i

whether the proceeding should be delayed further.

NUCLEAR REGULATORY COM511SSION (OR NRC):

SUPERVISORY AUTilORITY RULES OF PRACTICE: CERTIFICATION OF ISSUES TO Tile COMN11SSION; DISCRETIONARY INTERLOCUTORY REVIEW; INTERLOCUTORY APPEALS (DIRECTED CERTIFICATION, DISCRETIONARY REVIEW, REFERRAL OF RULING);

INTERI OCUTORY REVIEW (DIRECTED CERTIFICATION);

REFERRAL OF RULING Although a 1.icensing Board decision to delay a proceeding in light of ongoing NRC Staf f and state investigations is not appealable, ser 10 C.F.R. 5 2.730(f),

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L under the agency's longstanding rules and practice governing review of inter-locutory inatters that determination or, alternatively, the issues presented by that ruling could come before the Commission (1) by the lloard's discretionary re-ferral of that ruling to the Commission, see id. E62.730(f), 2.786(g); (2) by discretionary lloard certification of a question on any issues (decided or unde-cided) relating to that ruling or by the Commission's direction that the Board ,

certify a question to it relative to such issues, see id. g y 2.718(i),2.786(g); or (3) by the Commission taking review of that ruling or issues relating to that ruling in accordance with its plenary power to oyersee the conduct of agency adjudi-cations, see Public Service Co. of New Hampshire (Scabrook Station. Units I and 2), CL1-77-8,5 NRC 503,516-17 (1977).

ENFORCE 51ENT ACTIONS: STAY OF PROCEEDINGS The " good cause" provision of 10 C.F.R. ( 2.202(c)(2)(ii) mcorporates a balancing test described by the Supreme Court in United States v. Eight Thousand Eight Himdred and Fifty Dollars (58,850) in United States Currency, 461 U.S. 555, 564 (1983), as entailing "a weighing of four factors: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." See LDP-93-6,37 NRC 207,213-14 (1993).

ENFORCD1ENT ACTIONS: STAY OF PROCEEDINGS The first two delay factors - length of the delay and the reason for the delay

- are closely related. As the Court pointed out in 58.850, 461 U.S. at 565, short delays need less justification than long delays.

ENTORCD1ENT ACTIONS: STAY OF PROCEEDINGS The potentially deleterious impact of a civil adjudication on an ongoing  ;

investigation and any criminal prosecution that could follow has generally been recognized as a factor meriting serious consideration in determining whether l delay of the civil proceeding is appropriate. See 1.UP-93-6, 37 NRC at 214.

See also United States v. Premises Located at Route 13, 946 F.2d 749, 755 .

(lith Cir.1991); United States v. Forty-Seven llwusand Nine Hundred Eighty Dollars ($47,980) in Canadian Currency, 8M F.2d 1085,1089 (9th Cir.1986), l cert. denied,481 U.S.1072 (1987).

1 ENFORCDIENT ACTIONS: STAY OF PROCEEDINGS l To obtain an investigation related delay of an agency adjudication, besides l providing the Hoard with an adequate explanation of the reasons wby an ongoing I 456

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investigation will be impaired without a delay in the pnweeding, the Staff must  ;

L make a credible showing that it is attempting to complete its i,nvestigation ,

expeditiously. So long as that information is in hand,' the Board's duty to monitor any delay generally does not require that it engage in overseeing the l precise details of exactly how the Staff is employing its investigative resources and whether its efforts are meeting with success. .

ENFORCEMENT ACTIONS: STAY OF PROCEEDINGS A licensee's challenge to a Staff request to delay .a proceeding is not an appropriate forum for litigating the licensee's potential criminal liability vis-a- l vis an ongoing investigation. See LUP-93-6,37 NRC at 216.

FNFORCEMENT ACTIONS: STAY OF PROCEEDINGS Relative to the third delay factor - the licensee's assertion of its right to i a hearing - a licensee's protest about any delay in a proceeding puts this element on the licensee's side of the balance. Nonetheless, a licensee's failure to invote the 10 C.F.R. 6 2.202(c)(2)(i) procedure to challenge a suspension order's ,

immediate effectiveness, and thereby avail itself of an important opportunity to  !

avoid n significant portion of the harm asserted as the overriding ground for l denying a Staff delay request, renders the support this factor provides limited, f at best.

ENFORCEMENT ACTIONS: STAY OF PROCEEDINGS A Licensing Board has a general duty to monitor those Staff activities that are posited as a basis for delaying a proceeding to ensure that the Staff is proceeding '

l in good faith and to minimize the effects of any delay. See LUP-93-6,37 NRC at 220-21.

MEMORANDUM AND ORDER (Granting in Part NRC Staff Motion to Delay Proceeding,;

Requiring Submission of Staff Status Report; Certifying Question to the Commission)

Citing a "significant corporate management breakdown in the control of licensed activities, 58 Fed. Reg. 6825, 6826 (1993), on January 20, 1993, the NRC Staff suspended Oncology Services Corporation's (OSC) byproduct materials license as it authorizes the use of sealed-source iridium-192 for high

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dose radiation diDR) human brachytherapy treatments at six specified OSC facilities in Pennsylvania, In this proceeding, OSC challenges the validity of the Staff's order. Previously, in accordance with 10 C.F.R. 9 2.202(c)(2)(ii), ,

I we granted in part an NRC Staff request to delay this proceeding for 120 days by staying discovery for that period. See LUP-93-6,37 NRC 207 (1993). The f Staff now has submitted another motion asking that we delay the proceeding ,

for an additional 120-day period. See NRC Staff Motion for Additional Delay of Proceeding Oune 3,1993)[ hereinafter Staff Additional Delay Motion].

According to the Staff, this further delay period is necessary to permit the agency's Office of Investigations (01) and Office of the Inspector General (OlG) to conclude their ongoing investigations of OSC's activities under its  ;

license. A principal focus of their investigations is a November 1992 incident at OSC's Indiana (Pennsylvania) Regional Cancer Center (IRCC) in which an HDR brachytherapy patient was returned to her nursing home with a iridium- ,

l 192 source mistakenly lodged in her abdomen. .As it did previously, OSC opposes the Staff's request and demands that this proceeding go forward without additional delay. See Response of [OSC] to NRC Staff Motion for Additional Delay of Proceeding Gone 4,1993) Thereinafter OSC Additional Delay Motion Response].

For the reasons set forth below, we grant the Staff's request in part, staying discovery for a period of ninety days, In addition, we again require the Staff to report on the progress of the 01 and OlG investigations. Further,in conformity with the Commission's explicit directive, scc CLI-93-13, 37 NRC 419, 421 (1993), pursuant to 10 C.F.R. % 2.718(i) we certify to the Commission for its consideration the question whether this proceeding should be delayed further)

IIn CL1-93 Ii the Comnuwion wied u;wm the April 12.19930SC petioon for review and/or drened ceruficauon of LBP 94 Ahhough the Commimou 6d not rxplicidy state that it was actmg upcm that pomon of OsC's f:hng den 9msnated as a mntum for . directed ceruficatmn. it presumably granteJ that request because it cited 10 C.r.R.12 7h6(g) See '17 NRC at 471 The Commission,imwever, went on to declare that becuse so httle one remained umil the expiration of the 120-day delay period authnued by I DP-934 and because smular swues were hkely to be raned by a noard ruhng on the Staffs June 3.1993 ruonon for addinonal delay. in heu of reviewing LHP.93 6 it was duretmg that the Board

• refer that ruling to the Conmuwon." lJ Although our deciuon in LBP-9M wcmingly was not appeakble, ur 10 C F R 8 2.730(fK under the agency's hmestamhng rules and practice pverning review of mterlocutory smnters that determinauan or. alternatively. the inues presemed by that ruhng could come betare the Commission (1) by the lioard's discreconary referrat of that rulmg to the Commissmn, see d (( 2 730rf). 2 76Ng); (2) t'y escretionary Huard ceruhcanon of a quesuon on any hsues tder:M m un&cided) relaung to that ruhng or 11 die Commiumn's dirc+thn that the Bred cerury a quesunn to it relauve to such inues, see id %f 2 7th 2 7ENgl or C) by the Commission takmg seriew of tkit ruhng nr mues rebimg to that ruht>g m accordance with its plenary power in overux she conduct of agency adjuscatiems. see Pubhe Smue Co. el New flampshve (Seabetok station, timts I and 2). C1.17'14 5 NRC Sm. 51M7 (1977) Un&r dus procedral scheme we understand tte C1mimission's directive m CLI-9313 to be a ennmumd that. in accordance with muon 2 7tMit we certify to it the general question, addrewed m this nrnoran;bm and mden, of wterher this proceedmg should be delayed further.

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1. IIACl{ GROUND in Lilp.93-6, 37 NRC at 210-13, we provided an extensive description of the background of this proceeding up through the time of that March 23,1993  ;

determination, a nanative we will not repeat here. Thereafter, in accordance l with that decision, the Staff filed a status report on the ongoing 01 OlG, and , j Commonwealth of Pennsylvania investigations into the November 1992 alleged  !

1RCC misadministration incident and subsequent events at other OSC facilities. l In its May 5,1993 report, referencing the attached affidavit of Pennsylvania Chief Deputy Attorney General Lawrence N. Claus, the Staff indicated that although no decision had yet been reached by Commonwealth officials about whether to institute any criminal prosecutions relative to the IRCC incident, they '

anticipated making a determination on or before the June 23, 1993 date upon which the present 120-day discovery delay period expires. See NRC Staff Status Report on Investigations (May 5,1993) at 1-2 [ hereinafter Staff Status Report],

The Staff reponed that Pennsylvania officials thus envisioned that no additional delay of this proceeding would be necessary to accommodate their investigative process.

'Ihis was not the case with the 01 and OlG investigations. Referencing the attached affidavits of 01 Region 1 Field Office Director llarry R. Letts and OlG Assistant inspector General Leo J. Norton, the Stalf stated that 01 and other Staff offices were conducting interviews and were in the process of reviewing subpoenaed documents and that OlG had completed one investigative report ,

and was pursuing additional issues. Scc id. at 2. The Staff also declared that at I

that time it anticipated that these offices' investigations and their determinations about making referrals to the Department of Justice (DOJ) would be completed by September 1993 : Sec id, in its June 3,1993 motion for additional delay, the Staff now states that another 120 day delay period (i.e., until late October 1993) is necessary to complete the 01.and OlG investigations. Citing statements in the attached affidavits of Mr. Norton and Mr. Letts, the Staff contends that the additional time is needed because of the complexity and scope of the ongoing 01 and OlG i investigations and that permitting this proceeding, particularly discovery, to go forward pending the completion of the agency's investigations could result in the premature disclose of investigatise information that could adversely affect those investigations, as well as any possible Justice Department criminal investigation is afloded to in the stafr's nuen. we staft Mditiomd Delay Mounn at 7, up(m completmg strir mver,tigatmns 01 and olG cach will make a deternanatmu about alwther the resuus of us inquiry warant referral to the Jostice Depwtnrnt for pmible enman,d prowtuimn if a referral is rnade. under a memorandum of umlentandmg ktween NRC and tXV. the DeparuTrnt generally is m nonfy er agency withm 60 dan concerning its preliminary decienn about slether a referred mauer marrants enmmal mvesugauon or prowcuuan Sn $3 lcd Heg 50317. 50319 04M1 l

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t or prosecution based upon the agency's inquiries. See Staff Additional Delay t Motion at 6-7. '

In its next-day response, OSC contends that the Staff has failed to meet its

" good cause" burden under 10 C.F.R. 6 2.202(c)(2)(ii) so as to justify granting any additional delay in this proceeding. OSC challenges the sufficiency of I

the Staff's purported reasons for any additional delay, asserting that the Staff ,

has not met its burden of establishing there is any purpose for further agency investigations. See OSC Additional Delay Motion Response at 2-4. OSC also l

declares that the recent decision of the United States Supreme Court in United States Department of Justice v. Landano,124 L. lil. 2d 84 (1993), mandates that discovery go forward because the Staff has failed to demonstrate any

" implication of confidentiality" sufficient to entitle it to continue to deny OSC i access to witness statements currently being withheld. OSC Additional Delay Motion Response at 5. Additionally, OSC ruerates the claims of financial and l reputational prejudice it made in opposing the initial Staff delay request and [

asserts that these estabbsh the requisite harm to its interests that compels denial of the Stalf's additional delay request. See id. at 4-5. {.

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11. ANALYSIS l As we outlined in LBP-93-6,37 NRC at 213-14, the " good cause" provision  ;

of 10 C.F.R. 6 2.202(c)(2)(ii) incorporates a balancing test described by the Supreme Court in United States v. Eight l'housand Eight flundred and Fifty .

Dollars (58.850) in United States Currenn, 461 U.S. 555, 564 (1983), as entailing "a weighing of four factors: length of delay, the reason for the delay, i the defendant's assertion of his right, and prejudice to the defendant.". And, as we did previously, in making a determination about the propriety of the Staff's .:

new delay request, we consider each of these factors in turn. l' In LBP-93-6, 37 NRC at 214 (footnote omitted), we noted that "the first two factors -length of the delay and the reason for the delay - are closely related. [

As the Court pointed out in 58,850, [461 U.S. at 565,1 shott delays need less justification than long delays." As before, the delay sought by the Staff is of moderate duration, and its significance is enhanced by the fact that it comes on  !

the heels of the prior 120-day delay period. Moreover, the Staff's filing once again suggests that this may not be its last request. See supra note 2.

'ihe upshot of these circumstances is that the Staff once again must provide a reasonably compelling justification for the requested delay. As before, the i foundation upon which the Staf f anchors its petition is the potentially deleterious  !

impact of a civil adjudication on an ongoing investigation and any criminal l prosecution that could follow, a factor generally recognized as meriting serious consideration. See LBP-93-6,37 NRC at 214. See also United States v. I'remises i 460 8

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Located at Route /3,946 R2d 749,755 (l1th Cir.1991); United States v. Forty-Seven Thousand Nine Hundred Eighty Dollars ($47,930) in Canadian Currency.  ;

801 E2d 1085,1089 (9th Cir.1986), cert. denied, 481 U.S.1072 (1987). In l

'its previous motion, the Staff's assertions were based on the stated concerns of Commonwealth, 01, and OIG officials about the effect on their ongoing i investigations of (1) naming theretofore unidentified witnesses to some of the "

]

events constituting the basis for the January 20,1993 suspension order, and .

(2) disclosure of _ witness interview transcripts. particularly those conducted by  !

the Staff's Incident Investigation Team (IIT) shortly after the November 1992- f IRCC incident, and documentary information gathered by Staff investigators;  ;

See LHp-93-6, 37 NRC at 215. In its current motion, as a basis for delaying this proceeding further the Staff does not mention the first ground, but cor;tinues ],

to rely upon the injury to the ongoing agency investigative processes that will accrue with the release of witness interview transcripts and other documentary material collected during the course of the agency's investigations ' As is explained by 01 Region I Field Office Director Letts:

01 continues to twheve that the early rrlease of {llT] documents /transenpts would adversely impact the ongoing O! investigation. particularly, that portmn focusing on possible incom-plete and[/)or inaccurate htatements by cancer center personnel and corporate othcials. The releme of the documentdtranscripts obtained from the llT could adversely impact the inves-tigation because the premature release of information could jeopardize the integrity of the interviews yet to be conducted. and allow personnel an opportunity to tailor their testiirniny or statenents m subsequent interviews so as to explain previous statements in order to avoid l culpabihty or conform testimony with the testimony of others who have been interviewed l Furthermore, it is my concern that information obtained during the course of the OI investi-I gation conducted subsequent to the Staff's Order Suspendmg License could be prematurely released through civil discovery.

1 Staff AdJitional Delay Motion, Affidavit of Ilarry R. Letts at 4 [ hereinafter Letts Affidavit]. This, the Staff maintains, provides sufficient reason for the additional  ;

delay. I As explained in the statement of Mr. Letts, the Staff's asserted reasons for seeking an additional delay are well-grounded. In an ongoing inquiry, a relevant concern of investigators is that, to the degree possible, witnesses' statements are based upon their recollection of events rather than a desire to"get the story straight" relative to their prior statements or the statements of other witnesses.

This is a particulatly telling consideration when, as here, the primary witnesses are principals or employees of the same corporate entity. Moremer, as we declared previously, investigators "have a well-grounded concern that 'the scope l

other than as a factor exphenirig why the agency invesugahve proccu has not been completed, see St.dt Addsonal IWy hformn at 6 & n 3. the staff he not plaud any rehance on the ungumg Comnon*cahh invesngation as a baus for us aihuon.d delay request in awessireg us request. we do 1Acane 461 4

of the evidence being reviewed' not be revealed relative to any possible criminal proceedings." LilP-93-6,27 NRC at 215 (footnote omit ted)(quotin); NRC Staff Motion for Temporary Delay of Proceeding (Feb. 23, 1993), Declaration of Chief Deputy Attorney General Lawrence N. Clause,1; 10; id., Atlidasit of lien II. Ilayes at 3).

None of tne objections interposed by OSC cffectively counter these legitimate ,

Staff concerns. OSC first argues that the Staff has failed to provide a reason for continuing its inquiry, other than " investigational insatiety." OSC Additional Delay Motion Response at 4. According to, OSC, to justify any additional delay the Staff must demonstrate that "the documents and transcripts already in its possession have been either reviewed in t -ir entirety, understood, or concluded to evidence regulatory violations.'~ /d. at 3. We cannot agree.

To obtain an investigation-related delay of an agency adjudication, besides providmg the lloard with an adequate explanation of the reasons why an ongoing investigation will be impaired without a delay in the proceeding, the Staff must make a credible showing that it is attempting to complete its investigation expeditiously. So long as that information is in hand, the lloard's duty to monitor any delay, 3cc infra p. 465, generally does not require that it engage in overseeing the precise details of exactly how the Staff is employing its investigative resources and whether its efforts are meeting with success.*

IIere, the Staff has provided such information. In addition to explaining why further delay is necessary to the successful completion of the investigative process, ser sufira p. 461, it has provided a credible demonstration of why that process is not yet complete and when it might be finished. The affidavit of 01 Field Office Director Letts makes clear that between early March and late April, in response to subpoenas OSC provided the Staff with some i1,WO pages of documents that are under review and, not unexpectedly, that a followup document request is likely, which may yield several thousand pages more.. See Staf f Additional Delay Motion, I etts Affidavit at 2. Further, Mr. Letts declares that, although it already has conducted more than twenty-five interviews, in response to a Commonwealth tequest - the legitimacy of which OSC does not challenge -.- 01 has delayed conducting the twenty-five or more additional witness interviews needed to complete its investigation to avoid any adverse impact on the state's ongoing etiminal investigation. See id. at 3. lie concludes that, barring any further delays relative to document production or witnesses' interviews, the 01 investigation will not be completed until October 1993,3cc id. at 3-4, a date coinciding with that given by OlG Deputy Director Norton in his affidavit,3ee id., Affidavit of Leo J. Norton at 1-2, dAs we observed m 1.lW 94 37 NRC at 214 we do not musi&r a hcenwe shallenge in u Stalf requoi in & lay a piacced:ng an uptcynate forurn for htiratmg the brenscei potennal cnnumd hAhiy ds uw an onpomp ptvewpauon

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I In contrast to these explanations of why the investigative process is not ,

yet completed and when it might be finished, other than OSC's speculative suppestions, we have no information indicating that the Staff is " milling" or

" sitting on" any investigation so as to delay this proceeding unnecessarily in clear contravention of OSC's right to a timely hearing. We thus can give no credence to OSC's argument that a failure to finish these investigations warrants ,

denying in toto the Staff's further delay request.

Also unavailing is OSC's argument rooted in the Supreme Court's fondarm (

decision. At issue in that case was the evidentiary showing needed by the Federal Bureau of Investigation (FBI) to establish that a source is " conf dential" within i the meaning of Exemption 7(D; 4 the Freedom of Information Act (FOIA),

5 U.S.C. $ 552(b)(7)(D), so as to permit agency withholding of any record that "could reasonably be expected to disclose" the identity of or information provided by, a " confidential source." The Court held that yhile there is no ,

presumption that all sources supplying information to the FBI in the course of a .

I criminal investigation are " confidential," some narrowly defined circumstances can provide a basis for inferring confidentiality. See 124 L. Ed. 2d at ()6-98. j These might include situations when an informant is paid or when the character l of the crime at issue and the source's relation to the crime support a reasonable inference that the source cooperated with an implied assurance of confidentiality.

See id. at 98-99. Accordmg to OSC, because the Staff has not established any

" implication of confidentiality" relative to the witness statements gathered during the agency's investigations, under the londano decision the Staff now has no basis for withholding those statements from discovery and, as a consequence, asking that this proceeding be delayed further. OSC Additional Delay Motion Response at 5.

Although the Staff has not sought to provide us with an explanation of its position concerning this recent and, according to OSC, dispositise authority, based on our own analysis we conclude that the Landano case is inapposite here. Even putting aside the generally recognized precept that the "FOI A is not a substitute for discovery or a Sasis for enlarging discovery rights," Hale v. United States Department of Justice, 973 F.2d 894,898 n.5 (10th Cir.1992), petition for cert. filed. No. 92-7433 (U.S. Jan. 28,1993), application of the Courti interpretation of Exemption 7(D) in Lmdano does not aid OSC regarding the question whether the Staff has provided an adequate reason for delaying the conduct of this proceeding.

De issue here is not whether the statements the witnesses provided to agency investigators were intended by those witnesses to be confidential. Indeed, because a number of them were given by OSC's own employees, for present 463 1

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I purposes we will assume they were not.$ A' central reason for which the Staff seeks to delay this proceeding, and thereby prevent access to those witness statements at present, is to protect the overall investigative process froni being j tainted in the manner outlined by 01 Field Office Director letts in his affidavit, quoted above. See supra p. 461. Therefore, source confidentiality, w hich is the ,

linchpin of the landano decision, is irrelevant in this instance. That case thus does not affect our determination that, under the 58,850 balancing test, the Staff has provided compelling reasons for a further delay of this proceeding.  ;

Of course, this does not end the matter, because we still must assess the third and fourth balancing factors. As we indicated in LBP-93-6, 37 NRC at 216, the third clement - the licensee's invocation of its hearing right - does rest 1 on OSC's side of the balance. Nonetheless, for the reasons we alluded to in our earlier decision, see id. at 216 & n.9, under the circumstances here OSC is not necessarily entitled to all the benefit this factor might'otherwise engender. l By failing to invoke the 10 C.F.R.- 6 2.202(c)(2)(i) procedure described in the Staff's January 20 order to challenge its immediate effectiveness, OSC allowed the order to remain operative. OSC thereby failed to avail itself of an important opportunity to avoid a significant portion of the harm it now asserts is the overriding ground for denying the Staff's delay request. Consequently, although this factor weighs in for OSC, the support it provides is, at best, limited.

Looking to the fina'i factor - injury to the licensee - it appears that the harm underscored by OSC has changed from that highlighted in its earlier j i

filings. As we noted in our previous determination,in evoking this factor OSC placed great significance on the purported harm that would be imposed upon its potential patients who would not be able to obtain_ needed HDR treatments at ,

OSC facilities, particularly its Pittsburgh and IIarrisburg centers. See LBP 93 6,  !

37 NRC at 216-17. We found OSC's assertions about this harm unpersuasive i based on the Staff's showing that it had established and was administering fairly [

a procedure to permit OSC to provide patient treatment on a case-by-case basis  ;

at those facilities. See id. at 217-20. In its additional delay motion, the Staff now asserts that this purported injury has been eliminated because OSC has been granted broad permission to conduct HDR treatments at these two facilities. Sec -l Staff Additional Delay Motion at 9-10. Apparently in recognition of this fact, OSC now makes no mendon of this " patient need upon which it previously placed such stress. Instead, referencing its filings in response to the previous j Staff motion OSC contends they establish injury 'to its financial welfare and j 4

reputation that is sufficiently compelling to outweigh any asserted Staff basis for further delay. Sec OSC Additional Delay Motion Response at 3-4. .

.I of course,in tie f ace of an K)lA requen for thou statenrnis. Or sta!! nwy seek to egaNish otterwise. Cf Stari Ad&uonal Delay IWmon at 7 n.4 l

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As is reflected in a June 3,1993 letter from the Regional Administrator of NRC Region I to OSC, see Junt 9,1993 Letter from M. 2'obler to (Licensing ,

. Board] (first attachment), the Staff has permitted OSC to resume HDR patient treatments at its Pittsburgh and liarrisburg facilities without submitting individ-  ;

ual patient requests. This action effectively nullifies OSC's prior concerns about ,

" patient need" and the inequity of the earher case by-case approach. Further, as , i we indicated in our prior decision OSC's claims in its previous filings about {

professional reputation and financial harm are too conclusory to be convincing. '

See LI3P-93-6, 37 NRC at 216-17. OSC, thus has faded to provide any per-suasive evidence that the additional delay will harm its interests, or the public interest generally. i in sum, in balancing the four relevant factors we again find that a limited l' period of additional delay will not harm OSC's interests. Further, OSC's invocation of its right to a prompt hearing, standing alone, does not provide '

an adequate counterweight to the Staff's persuasive showing regarding the harm that allowing this administrative proceeding to go forward without restriction -l could inflict on the ongoing agency investigations and any resulting federal criminal prosecutions. As we noted previously, the passage of time continues, j albeit slowly, to shift the balance in OSC's favor. Sec id. at 220. Nonetheless, .;

with OSC's continued failure to present any particularized showing of harm to ,

its interests, we are unable to conclude that the balance has yet swung in its  !

favor.

]

Ill. FURTilER PROCEEDINGS BEFORE Tile HOARD ,

As we also noted previously, see id. at 220-21, the lloard has a general duty l 1

to monitor those Staff activities that are posited as a basis for delay to ensure l that the Staff is proceeding in good faith and to minimiz.e the effects of any delay. As before, in exercising this responsibility we grant the StafPs delay ]

request only as it encompasses discovery and any portion of the adjudicatory l process that can proceed only after discovery is completed. j in discharging this responsibility, we also conclude that it is appropriate to grant only a portion of the delay period the Staf f requests. As the cumulative period of delay lengthens, the Board's obligation to monitor the progress of i 1

the investigation necessarily escalates. This is especially so when, as here, an

• ln our decinon on de hnt Stafr delay requnt we also brought up the iwuc of & lay-related harm to oSC*s interests resulung imm fa&d wimeu nemories or unavailable witnesws or docunrms and fiumd that factar did not provide any nigmfacant support for oSC's posmon Scr I, lip-93-6, 37 NRC at 220 n St. Once again. osC has not raiard thal matter before us he ttunt as il may, in the abwnce of any partmulanzed showing by OSC regardmp prot &ms with parucular witneues or dorunrntt we canm>t conclude that, in and of itself, the pauage of time from the November 1942 IRCC met &:nt to either the prewnt nmment bewn monttu) or t!n expiraimn of the delay prnod we provide wah thin order On nxmth9 will proshwe nigmfwant harm to osC.

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investigation appears to be reaching its culmination. Moscover, there is some indication that the potential " whipsaw" effect of simultaneous federal and state proceedings about which we previously expressed concern,3ce LBP-934, 37 ,

NRC at 221-22, might be having an impact upon the completion of the agency investigations.' Given these circumstances, a measure of heightened scrutiny on our part is warranted. Accordingly, we approve the Staf f's delay request, but ,

l only for ninety days rather than the requested 120 days.

Additionally, in carrying out our monitoring responsibilities, we again will l require that forty days frorn the date of this memorandum and order the Staf f l provide us with a status report, accompanied by supporting affidavits, regarding the ongoing agency investigations. As before, the Stalf should indicate when 01 and OlG anticipate making a referral, if any, of their investigative findings to the Justice Department for possible criminal prosecution. Further, although the Staff apparently no longer relies upon the Commonwealth's investigation / prosecution activities as a direct basis for delaying this proceeding, 3cc Supra note 3, if it anticipates that the Commonweahh's efforts may be relevant to any further delay request, the Staff should advise us of the status of these activities as well.

j Also, in line with our previous delay order, the Staff continues to be responsible for advising the Hoard promptly of any criminal indictment or information filed against OSC or any of its employees or agents relative to the November 1992 IRCC incident or any of the other matters that are the basis of the Staff's January 20 suspension order.

6 Finally, as we required in our previous determination, to obtain a delay of this proceeding beyond this added ninety-day period, twenty days before the l expiration of that period the Staff' must file a further request with the lloard.

In its motion, the Staff should indicate the specific period of additional delay  ;

sought and describe, with supporting af fidavits and documentation, the specific t reasons why " good cause" exists for the delay."

t For the foregoing reasons, it is, this twenty-third day of June 1993, OR- l DERED that: r i

7As (ksntwd above, aer aupra p. 499, in na May tW3 stain repon the staff mttenled that she 01 and olG mvesugatmns ami any crmmmi referral deternsnatmns were to b= compicird by september IWA Now we are told thew adirmen will not he cornpir edr unni October Srv M The only apparent esplanatmn for the f,lippage is a request. the date of which is imi revealnt, from comnwnwealth of t aah to defer additmnal agency witnras inteniews pending tir complctmn of their mvestipuve proces Scr Staff Ad&tional Delay Motion, tens Affatavit at 3

'In thn trymd, the Starr is seminded or our earhrt udnnmuon "that as the loveraill penod or delay lengthens.

the remons 11 muu previde m support of a delay reyucst must be increaungly speci6c and detaded." l BP 9M, i

37 NRC at 221 The type or alklavit supphed by olG in support of Staff's June 3 & lay request whwh fads to '

provide any details utmut why its invesupuion is mnmipletr so that more ome is treded or why nh mvestgation '

would be nunpromned if thn proceeding is allowed to go farmard, is nat hkely to be given any eight by the Boani in rem hmg a dechwn about any additwnal & lay 4M e t

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1. The June 3,1993 motion of the Staf f to delay this proceeding for a period of 120 days is granted in part in that all discovery in this proceeding is stayed for a period of ninety days, up through and including 7isesday, September 21, 1993, provided, however, that if the Staff files a request for additional delay in accordance with 14 below, discovery will continue to be stayed pending further order of the lloard. .

2. The Staff should notify the 130ard immediately when it becomes aware that a state or federal criminal indictment or information has been filed against OSC or any of its employees or agents relative to the November 1992 IRCC incident or any of the other matters that form the basis for the Staff's January 20,1993 suspension order.

3. On or before Monday, August 2,1993, the Staf f should file a report, with supporting affidavits, describing:

A. 'lhe status of any O! or OlG investigations relating to the matters set forth as the basis for the January 20,1993 suspension order, including an estimate of (i) when 01 and OlG anticipate their investigations will be completed and any referral of their investigative findings will be made to the Department of Justice for possible criminal prosecution, or (ii) if a referral has been made, when the Justice Department will reach c determination relative to the referral, and

13. The status of the Commonweahh's investigative / prosecutorial activi-ties relative to the November 1992 IRCC incident, if the Staff antic-irates that those activities will be relevant to any further Staff delay request.

4. A Staff request for an additional delay of any aspect of this proceeding beyond Tuesday, September 21,1993, must be filed on or before Wednesday, September /, 1993. In its motion the Staff must describe in detail, with supporting affidavits and documentation, why " good cause" exists for the delay, including an exposition of the specific reasons why the Board's failure to grant the additional period of delay sought will prejudice any ongoing federal or state investigation or criminal prosecution. OSC will have ten days within which to respond to the Staff's request. Both the Staff's motion and OSC's response should be served on the Board's members and opposing counsel by a method (e.g., express mail) that ensures delivery by the next business day.

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5, in confortnity with the Conunission's directive, .we CL193-13,37 NRC at 421, pursuant to 10 C.F.R. % 2.718(i) we certify to the Commission the ,

question whetlier this proceeding should be delayed further?

Tilli ATOMIC SAlliTY AND L

LICENSING llOARD ,

G. Paul llollwerk,111, Chair man j ADMINISTRATIVl! J UDGli ,

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Charles N. Kelber ADMINISTRN11VE JUDGE 1 i

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l Peter S, l.am ADMINISTR ATIVE JUDGli l

1 r llethesda, Maryland June 23,1993 I I

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'Copws of tha nwnvirumlam and order are brmg gwvad to OSC and Staff camel by f.icumile transmmmn thm 41 air l

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1 Cite as 37 NRC 469 (1993) - LBP-93-11 t

UNITED STATES OF AMERICA j NUCLEAR REGULATORY COMMISSION i

ATOMIC SAFETY AND LICENSING BOARD - f F

Before Administrative Judges: l i

Peter B. Bloch, Chair ,

Dr. James H. Carpenter l Thomas D. Murphy  !

i in the Matter of Docket Nos. 50-424-OLA-3 50-425-OLA-3 (ASLBP No. 93-671-01-OLA-3) {

(Re: License Amendment; i Transfer to Southern ,

Nuclear) t GEORGIA POWER COMPANY, et af.

(Vogtle Electric Generating Plant, Units 1 and 2) June 24,1993 i

The Licensing Board determined that Six Tapes, which were cornpiled at  !

the direction of an attorney from 277 taped conversations, were not entitled to be protected from discovery because they are either attorney work product or {

subject to attorney-client privilege.

RULES OF PRACTICE: NITORNEY WORK PRODUCT .;

(ATTORNEY-CLIENT PRIVILEGE) -

r The Licensing Board applied NRC's discovery rules regarding the work ,

product doctrine, as set out in 10 C.F.R. $ 2.740G)(2). It went through each -!

of the criteria of the rule and systematically determined that there were seseral  !

reasons that the Six Tapes were not privileged. The Board also reviewed case-  ;

law precedents relevant to the interpretation of the regulatory entena.

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MEMORANDUM AND ORDER i (Order so Mr. Moshaugh to itelease Six Tapes) ,

in our June 1,1993 Memorandum and Order, "Information and Brief i Concerning Protective Order" (unpublished), we requested further information  !

concerning whether or not to uphold Mr. Mosbaugh's claim of privilege for ,

"Six Tapes." He claim is that the Six Tapes, which are copies of portions of 277 recordings of conversations, are protected by the attorney-client and work product privileges because their disclosure wouldJeveal the legal theories and strategies of Mr. Mosbaugh's attorney, who allegedly directed their preparation.  ;

Af ter receiving the filings of the parties, we have determined that these tapes i are not protected either by the work product privilege or the attorney-client  ;

privilege and that they should be released promptly to the Applicant.  :

I We are concerned about what we consider undue intransigence to discovery on the part of Mr. Mosbaugh, particularly with respect to his discovery responses that do not involve the Six Tapes. We are charged with compiling a full orderly, and complete record. In the interest of justice, we want all the unprivileged facts ,

on the table. In this administrative proceeding, there is little room for surprise tactics. The Board will not condonc questionable tactics and practices similar ]

to those that Administrative Law Judge Bernard J. Gilday, Jr., complained of in  !

prior litigation between these parties.' i lf Mr. Mosbaugh has the goods, he should lay them on the table. We intend to address this issue in more detail in a Memorandum and Order dealing with Applicant's Motion to Cornpel of June 17, 1993. Ilowever, we note that Mr. Mosbaugh's apparent lack of openness and fair play may be inhibiting Applicant's efforts to institute negotiations that could shortcut the discovery process and save everyone unnecessary expense in litigating every discovery detail.: We urge Mr. Mosbaugh to actively seek full and fair disclosure by all parties and to engage in negotiations to accomplish that end.

1. FACTS: INCLUDING APPARENT INCONSISTENCY In our June 1 Memorandum, we described the Six Tapes as follows:

On May 14,1993 Allen Mosbaugh filed a rnotion that contained a Request for a Protectne Order with respect to six tape recordmgs (Sit Tapes) allegedly made in preparation l

I Georgia Power Company Respome to lntervenor'n Request for a Protectwe Orden. M.ty27.1993. f:ah 4. or&r of Judge B J Ghy Jr Afn3baugh 6. Gergia A'wer Ca. Inol Cec No W LRA38 CComplacaurs acuum raN" SCDOU5 QuCMmm not Duly dtmul hih (Rif FThillWP6 and 70alk DUt aha about the gudhl) Of NW ffChhiQHCh wfuth have tren employed If. carly on, any armblance of opermen and f.nr play had teren ntatmed substanual effoit, capeme and tinr. on ste part of many, mmld hu<c been saved ")

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'I of brigation pendmg before the U.S. Department of Labor. Georgia Power, in a May 27 Response to that kequest. has alleged that the Six Tapes are not privileged based on its understandmg of how they were "repared and on its understandmg that tic Six Tapes were not kept conhdential but were voluntarily shared with others.

This description was derived from Mr, Mosbaugh's representation that:

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• These recordings constitute counsel's work product and are predicated on attorney-chent ,

cnmmumcations A total of six (6) such tape recordmgs were made in preparation of htiganon ,

pendmg before the U.S Department of Latwr. The recordmgs were also utihred by counselto

• ble a pcotion with the Chairman of the U.S. Nuclear Regulatory Comnussion on September 3

11,1990 l- In response to our request for further information, however, Mr. Mosbaugh's  !

He now attorney, Mr. Michael D. Kohn, significantly changed his position. .

Males; '

The method I chose to employ to propeily represent Mr. Mosbaugh during legal proceedmgs  ;

before the NRC and. subsequently, before the DOL was as followr After ducussions ;l with my chent, wherein he would identify a sequence of events, Mr. Mosbaugh was instructed by counsel to make excerpts of relevant taped conversations. Mr. Mosbaugh made excerpted segments from the original recordings and produced six tape recordings of excerpted comersatmns (hereinafter "Six 'Iarcs").

. The excerpted segments of the six tapes represent portions of 277 origmal tape recordmgs lof conversations between Mr. Mosbaugh and others, some aflegedly covering practices of Georgia .lbwer at the Vogtle Electric Generatmg Plant], which after consulting ,

uith Mr. Mosbaugh about the facts of the case, I deemed were sigruficant and necessary to prepare for Mr. Mosbaugh's litigation?

in September 1990, Mr. Mosbaugh gave his original tape recordings to NRC-01.5 On July 29,1992, the Six Tapes were released to a member of the staff of the U.S. Ilouse of Representatives Subcommittee on Oversight and Investigations ,

of the Committee on Energy and Commerce "on a confidential and privileged  !

basis."6 Furthermore, there is another governmental entity with which the tapes may have been shared.7 Interrenor states that it'"may call" Allen Mosbaugh as a witness.$ The Board notes that this language api, ears to be as defmitive as Intervenor ever gets. The 3 Allen Mosbaur.h4 Respons.c to the Ibard's Apnl 21, 1993 Schedulmg Order und Raprst for a Protective order. May 14.1993 (Mowbaugh Imual Resr***)

d inicrvenor3 luformsm and Bnef Conectning Monon far Prterive Order, June 9. iW3 Oscrvenori Protective Order Brier). T.6 1 Afbd.mt of Midul D Kohn at 2 iKohn Affidant)

• Kolm Affidava at 3

• M at 4.

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$i nicrvenas's Resymse to the Fast Request ter thunems tiy Georgia power Company Untenenari Response to Iirst Requesth June 2, IM at R 471 i

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j Board expects Mr. Mosbaugh to be a witness, as his case likely will rise or fall on his direct testimony, on authentication of the audio tapes made by him, and j on some contemporaneous documentation alleged to exist.  :

The Six Tapes were made by Allen Mosbaugh? The Six Tapes were excerped l from 277 original audio recordings,76 of which are still in the possession of the j NRC Office of Investigations.'"'lhe Six Tapes were considered by Mr. Kohn to ,

be "significant and necessary to prepare for Mr. Mosbaugh's litigation.""

Although Intervenor has argued that discovery of its tapes would compromise l

an ongoing investigation by the NRC,'2 the Staff has not asserted such a privilege and has denied that other parties have the right to claim such a privilege on the Staff's behalf."

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I IL APPLICAHLE LAW  :

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The NRC's discovery rules regarding the work product doctrine are set out j in 10 C.F.R. s 2.740(b)(2), which provides:

(2) Trul prgwanort marcrmi.t A pany may obtain discovery of documents and sanphic things otherwise discoverable under paragraph (bMI) of this section and prepared in anticipation of or for the hearmg by or for another party's represerdative (inchiding his utiorney, consultant. surety, indemnitor, insurer, or stgent) only upon a unwing that the party seeking discovery has substantial need of the materials m the preparation of this case and that he is unable without undue hardship to obtain the substantial equivalent of the rnaterials by other means. In ordering discovery of such materials when the required showing has been made. the presidmg ofhccr shall protect against disclosure of the mental impressions, conclusions. opimons. or legal theories of an attorney or other representative of a party concerning the proceeding.

These rules are adapted from Rule 26(b)(3) of the Federal Rules of Civil Procedure, Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-196,7 AEC 457,460 (1974), which is itself a derivation of the Supreme Comt's decision in flickman v. Taylor, 329 U.S. 495 (1947). See Advisory Committee Note to 1970 Amendments to Fed. R. Cir, P.,48 F.lLD. 459,499 (1970).

• 1nterven#s Respm,c to lint Requeu M l.

• Intervenues Protectne onkr lirtci at 1 Kohn Afhdmt ut 2,13 H

Kolm Afhdavit at 2.13.

12Intervenor's Infarnanon and linel ai 47.

U staff trtter in 1 Jeu of a lhef futic provuled by the 1.icensing hardi. June 21 1991 l

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IIL APPLICATION OF TIIE REGULATORY PROVISIONS A. Prepared in Anticipation of the IIcaring The Six Tapes were not prepared in anticipation of this hearing. Furthermore, a section 2.206 petition, for which it was prepared, is not a hearing - it is a request for government action. Nor is there any precedent cited for a privilege that covers documents prepared for the purpose of inducing prosecution or an agency enforcement action, as occurred in this case.

That the Six Tapes became relevant to the Department of Labor litigati'n or to this case is incidental to their preparation. This later use of previously compiled information does not retroactively create a privilege. We find that these tapes were not prepared in anticipation of a hearing.

II. Ily a Party's Agent It is Interrenor's claim that Mr. Mosbaugh was acting as an agent for his attorney in the way in uhich he assembled the Six Tapes. Since clients often find it necessary to conserve expenses by doing tasks at their attorney's suggestion, this is plausible. On the other hand, this is a claim that requires some specificity concerning the detailed directions give n to Mr. Mosbaugh.

Ihen after submitting an additional affidavit at the Iloard's request, all Intervenor has done is to suggest that he gave general directions about what was important and what was not. In this proceeding, counsel for Mr. Mosbaugh also has specified what is imponant and what is not through the contentions, bases, and answers to interrogatories filed by him. We have no reason to believe that the directions given to Mr. Mosbaugh were any more than the current specification of charges in this case. To that extent, the directions are already public and nothing will be lost through disclosure of the tapes.

In the absence of further specificity, we resolve doubts about the nature of the directions given to Mr. Mosbaugh against the assertion of privilege. We are not persuaded that he was acting as an agent of his attorney. United States v. 22.80 Acres oflimd, l01 F.R.D. 20,22 (N.D. Cal.1985). See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LIIP-82-82,16 NRC 1144, 1158 (1982) ("[tlhe attorney-client privilege does not protect against discovery of underlying facts from their source, merely because those facts have been communicated to an attorney").

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C. Substantial Need Licensee has a substantial need to discover the Six Tapes. They represent Intervenor's view of what is important among 277 audio tapes made by him.

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Since he was present at the conversations, his view of what is important is l l

crucial Furthermore, he is likely to be influenced in his testimony by his familiarity with the Six Tapes, and the process of preparing them and of j subsequently listening to them is an important part of how his testimony has ,

been shaped for trial. l This inaterial is most helpful to understanding the importance of his testi-- ,  :

mony, including what he has focused on and what he has chosen to omit. As material that has influenced testimony of a key witness, it should be made avail-able to the other party. In a criminal case,, disclosure of this material might not l i

be inade until trial. Ilowever, civil cases and administrative proceedings oper-ate on principles of full and early disclosure, and there is every reason to make available now what would become available later. United States v. Noble 422 ,

U.S 225,239 (1975)(holding that it was appropriate to rule that an investigator could testify only if his investigative report, which even included statements by ,

the defendant, would then be required to be provided to the prosecution).

The 277 tapes, including the 76 in the possession of the NRC, would not be a substitute for these summary tapes. It is the Six Tapes that will fully inform the Applicant of the basis for the contentions that it is facing. Fairness and efficiency both require that the Applicant have this information. We find that

• Applicant has a substantial need to obtain it.

D. Unable Without Substantial liardship to Obtain the Substantial Equivalent We find that Applicant would confront a substantial hardship in taking 277 audio tapes and, without having been present while the tapes were made, extract ,

important information from those tapes. Hence, the Six Tapes are important in avoiding substantial hardship. Furthermore, for reasons discussed in the just-preceding Section C, above, the 277 tapes are not the substantial equivalent of  ;

the Six Tapes, i

F. Protecting Against Unnecessary Disclosure We are aware of our obligation to protect against unnecessary disclosure of the thought processes of Interrenor's attorney in the process of denying the privilege asserted for the Six Tapes. However, none of these processes is alleged to be directly disclosed in the tapes. 'Ihe tapes are pure evidence, without any '

thought processes. There is no need to delete anything in order to protect the attorney's thought processes. It is indeed likely that the collection of evidence could have resulted from differing thought processes and that the attorney's 474 9 -

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legal theories or thought processes will be no more evident after the tapes have ,

been released than they are already as a result of statements in our record.

I'. Waiver of 1*rivilege In addition to our conclusion that the Six Tapes are not privileged, we also ,

conclude that any prisilege that might have attached was waived when they were provided to the Nuclear Regulatory Commission for a section 2.206 proceeding and for an investigation, and privilege was also waived by presenting the tapes to Congress. Documents that are privileged are private. They are not disclosed.

Westinghouse Electric Co?p. v. Republic of the Philippines. 951 F.2d 1414, 1427-30 (3d Cir.1991) (Westinghouse was held to have lost any claim to privilege for documents disclosed to the Securities and Exchange Commission and the Department of Justice in order to cooperate with them in ongoing investigations.)"  ;

in this case, Mr. Mosbaugh's disclosures were freer than those of West-inghouse, which may have felt some pressure to clear its name from ongoing i investigations. When Mr. Mosbaugh made the Six Tapes available to the Office  ;

of Investigation of the Nuclear Regulatory Commission and to a congressional  :

committee, he waived any claim of privilege. It does not matter that these re-cipients would keep the alleged " work product" confidential. The act of sharing with them belies the need to keep private the work that was done. The work l was not kept private and no longer has a claim to privilege.

G. Conclusion of 1,aw He Six Tapes must be released promptly. They are not privileged. Were j they privileged, the privilege would have been waived.

IV. ORDEll For all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 24th day of June 1993, ORDERiiD that:

M sce aho Sna#oy Corp 6 Gra.>.142 r2 R D W,269 (D Del 199h (hol&ng that tirre is nn imptwd waiver or pnydere when a party puis protected inroe niation at ime t y making it trievar t to tic ene) 475 4

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f The Six Tapes discussed above shall be served in this case by close of business j

.-July 1.1993. -l THE ATOMIC SAMiTY AND l LICENSING llOARD i.

James il Carpenter ADMINISTRATIVE JUDGE i

Thomas D. Murphy .;

ADMINISTRATIVE JUDGE l Peter B. Illoch, Chair ADMINISTRATIVE JUDGE Bethesda. Maryland s

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. Decisions Under 10 CFR 2.206 l

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Cite as 37 NRC 477 (1993) DD-93-12 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Thomas E. Murley, Director in the Matter of Docket Nos. 50-445 50-446 TEXAS UTILITIES ELECTRIC COMPANY, et al.  ;

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(Comanche Peak Steam Electric Station, Units 1 and 2) June 4,1993 On Jane 11,1992, the National Whistleblower Center and its clients, Messrs.  ;

Joseph J. Macktal and S.M.A. Nasan (Petitioners) submitted a letter to the U.S.

Nuclear Regulatory Commission (NRC) alleging new evidence of restrictise settlement agreements entered into by the Texas Utilities Electric Company (Licensee) regarding its Comanche Peak Steam Electric Station, Units 1 and 2 (CPSES). The letter was referred to the Office of Nuc! car Reactor Regulation for the preparation of a response and was considered as a petition pursuant to 10 CF.R. 6 2.206. Additional letters were submitted by Petitioners on October 6 and November 19,1992, and were considered as supplements to the original Petition.

The Petition alleged that certain settlement agreements entered into by the Licensee and certain former co-owners of CPSES contained restrictive language in violation of section 211 of the Energy Reorganization Act (ERA) and 10 C.F.R. 6 50.7. In addition, Petitioners alleged that the settlement agreements have resulted in the suppression ofinformation associated with the safe operation of CPSES and that the Licensee's response to the Petition dated October 16, 1992, contained incorrect and misleading information to the point of being materially false.

On the basis of this information, the Petitioners asked the NRC to suspend the license to operate CPSES Unit I and the permit to construct CPSES Unit 2.

The Petitioners also asked the NRC to take immediate actions, specifically that 477 1

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(1) a licensing board be established to allow public scrutiny into the Licensee's  ;

alleged practice of paying " hush money"; (2) the NRC notify the Licensee and the former co-owners that no settlement agreement can preclude employees or ,

others from providing information to persons involved in proceedings before the 9 NRC: (3) copies of the settlement agreements be made public and provided to '

Petitioners' counsel; and (4) the NRC notify the counsel for one of the former .

co-owners that he and others are free to disclose safety-related information about ,

CPSES to others.

f He relief sought has been granted in part and denied in part by the Director of the Office of Nuclear Reactor Regulation. Petitioners sought that the NRC ,

notify the Licensee and the former co-owners that no settlement agreement can  !

preclude individuals and organizations from bringing safety information to the  ;

NRC. His was done. The Petitioners also sought that copies of the settlement j agreements with the three former co-owners be made public. This was done. .

Finally, the Petitioners requested that the counsel for one of the former co-owners be notified that he is free to disclose safety information to the NRC.  ;

De NRC has caused this to happen. ,

ne other relief sought by Petitioners has been denied. The Director [

determined that the facts in this matter did not warrant the institution of proceedings. Parties are encouraged to settle their disputes. Public policy only demands that a clear avenue be available to individuals and entities to bring safety concerns to the NRC.

DIRECTOR'S DECISION UNDER 10 C.F.R. s 2,206 L INTRODUCTION On June 11,1992, the National Whistleblower Center and its clients, Messrs. ,

Joseph J. Macktal and S.hLA. Hasan (Petitioners) filed with the Chairman of the U.S. Nuclear Regulatory Commission (NRC or Commission) a letter alleging new evidence of restrictive settlement agreements entered into by the Texas  :!

Utilities Electric Company (Licensee or TU Electric) regarding its Comanche l Peak Steam Electric Station, Units 1 and 2 (CPSES). The letter is being considered as a Petition pursuant to 10 C.F.R. Q 2.206 and was referred to my  !

office for preparation of a response.

He Petition alleged the discovery of new evidence of a continuing practice by the Licensee to pay " hush money" to keep significant information about-CPSES from the Petitioners and the NRC. Specifically, the Petition refers to a January 30,1990 settlement agreement between the Licensee and the Tex- l La Electric Cooperative of Texas, Inc. (Tex-La), one of the three former 478

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'1 co-owners of CPSES, that allegedly contains restnetive language in violation of section 210 of the Energy Reorganization Act (42 U.S.C. s 5851(a)) and 10 C.F.R. 6 50.7.' Petitioners futther alleged that the three former cozowners of the CPSES conducted extensive and widespread investigations of TU Electric's l-management integrity and competence to operate the plant and that TU Electric attempted, through restrictive provisions in the settlement agreements it entered

• into with the former co-owners, to keep such information from the Petitioners other parties to the CPSES licensing proceedings, and the NRC.

On the basis of this information, the Petitioners requested (1) that orders be issued suspending the Licensce's authority to operate CPSES Unit I and to j construct Unit 2; and (2) that the expiration date of the construction permit to  ;

construct Unit 2 not be extended. Petitioners also requested that the NRC take l

immediate actions, specifically that (1) a licensing board be established to allow '

public scrutiny into the Licensee's alleged practice of paying " hush money"; (2) the NRC notify the Licensee and former co-owners that no settlement agreement can preclude employees, attorneys, agents, consultants, or others from providing information to persons who are, or intend to be, involved in proceedings or l

petitions before the NRC; (3) copies of the Licensee's agreements with former l co-owners be made public and provided to Petitioners' counsel; and (4) the NRC l

l notify the counsel for Tex-La that he and others are free to disclose safety-related  :

information about CPSES to anyone who is currently a party to any ongoing or future contemplated licensing proceedings related to CPSES. j In a letter of August 26,1992, I acknowledged receipt of the Petition and l

1 declined to take any immediate actions.1 informed the Petitioners that the NRC Staff (Staff) had reviewed settlement agreements between the Licensee and Tex-La, dated March 23,1989, and January 30,1990, and had determined that they  ;

l did not appear to violate the provisions of section 21I of the ERA or 10 C.F.R. j 6 50.7. Ilowever, I noted that a fuller analysis of the provisions of the settlement l agreements to address the points raised in the Petition would be contained in my j l decision under 10 C.F.R. 6 2.206. In that letter, I also informed Petitioners that )

the NRC had issued an Order dated July 28,1992 (unpubhshed), extending the l l

latest construction completion date for CPSES Unit 2. The Staff evaluated the  !

l Licensee's application of February 3,1992, for an amendment to the construction i l- '

permit extending the construction completion date and concluded, in accordance l with 10 C.F.R. 6 50.55(b), that good cause had been shown for the delay and i

l that the requested extension was for a reasonable period of time.2 i i

I $cction 210 of the Lvergy Reorganization Act (ERA)in na section 211 of the LRA by virme of revisions Henceforth in its in act:ordance with the Errrgy Pohey Act of 1992. fW ! No 486.106 Stat. 2776. # 2402.

Deciuon. dus statute win be referred to as section 2!! or the ERA.

2 The reiter sought by 1%tioners with regard to the construct on permit outuanihng for CPsES Unit 2 wten  ;

he Commission dismissed tic pmceedmg regarding the CPSLS i the Peution was hied has tren rendered neot (Continwd) f i

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As a result of the review conducted by the Staff, certain of the requested '

actions were granted. Specifically, the Staff notified TU Electrie and the former co-owners that no settlement agreement can preclude individuals and organizations from bringing safety information to the NRC, copies of the I settlement agreements have been made public,) and the counsel of Tex-La has been notified (by Tex-La) that he is free to disclose safety information to the -

i NRC. The remaining relief requested has been denied. The basis for my Decision follows. l I

1 II. HACKGROUND l In addition to the issues raised in the Petition, additional submittals were

i. made by both the Petitioners and the Licensee. To support the Staff's review of the Petition, TU Electric and the former co-owners were required to submit l documentation. A summary of this correspondence follows.  ;

In a letter of August 6,1992, TU Electric responded to the Petition. l l The Licensee stated that the Petition contained no new information, that the 1 agreement with Tex-La did not violate 10 C.F.R. f 50.7(f) or section 211 of the ERA, and that the agreement was consistent with the public interest.  !

The Licensee also stated that the agreement explicitly accommodated section ,

211, and that the agreement was not subject to 10 C.F.R. 950.7(f) because '

it was not an agreement affecting the compensation, terms, conditions, and i

[

l privileges of employment. TU Electric claimed that the agreement did not prohibit individuals, on their own behalf, from providing information to the l NRC, requesting the NRC to take action, or appearing as a witness in an NRC proceeding. The Licensee also took issue with Petitioners' position that prohibitions against assisting third persons violated regulations. l i in a letter of October 6,1992, Petitioners responded to the Licensee's let- (

!. ter of August 6,1992. This filing is being considered as a supplement to l the Petition. Petitioners took issue with the Licensee's response and reiterated  !

i the view that the Tex-La settlement agreement (the only agreement Petitioners had available to them at the time) contained a blanket prohibition precluding -t Tex-La employees, attorneys, and agents from assisting in ariy manner what-  ;

soever in activities related to the NRC licensing of CPSES and prohibited any  !

Unit 2 construction permit anendment on March 30,1993 See Ctj 9310. 37 NkC 192 (1493). An operating ,

bcense was issued by tir NRC for CPSES Unit 2 on I chruary 2.1993 3

Copics of the speenrnts between tir t.icensee and the three forner co owners are available for inspection at de Comnussion's Pubbe Documern Room, The Gelman !!uildmg. 2120 t. street, NW, Washmgton. DC 20555.

and at The University of Texas at Arkngton IJhrury. Governnent PubhcanonvMaps 701 Smith Cooper. P.O.

nox 19497. Arbngton. TX 7f419. Although Ittnioners' rounsel requested that he te served with ccpies of these agrecrrrnts, placerrent of Orw docunents m the NRC pubhc doccurnt roorm gives the public ready access to dem

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Tex-1.a employee, attorney, and agent from assisting the current intervenors at CPSES. In addition, Petitioners stated that the agreements had resuhed in the -)

suppression of information associated with the safe operation of CPSES. There-fore, Petitioners argued, the Tex-La agreement violated section 50.7, the ERA, and other important public policies.

In a letter of October 16,1992, supplemented by a letter of October 29,1992, , q ~

the Licensee responded to Petitioners' letter of October 6,1992. The Licensee restated its previous position and argued that there was nothing improper about a conuncreial party, such as Tex-La, promising not to bring an action before the ,

NRC in exchange for settlement of a lawsuit. The Licensee stated that accepting the Petitioners' argument would essentially prohibit any settlement involving a l j

nuclear plant, and that such an outcome was inconsistent with public policy and the Commission's policy in favor of settlement of NRC proceedings.

On November 19, 1992, Petitioners responded to the TU Electric letter of l October 16, 1992. This response is also considered to be a supplement to the original Petition. Petitioners took issue with Licensee positions and alleged that ,

the TU Electric letter of October 16.1992, contained incorrect and misleading i information, including some statements that Petitioners considered "misleadir.g i

to the point of being materially false."

b order to complete its evaluation of the settlement agreements entered into between the Licensee and the former co-owners, the Staff requested in a letter of ,

September 15,1992, that the Licensee provide the Staff with copies of settlement agreements entered into between the Licensee and the other former co-owners of CPSES. The Licensee responded on September 21,1992, and submitted copies j of agreetnents entered into between the Licensee md Brazos Electric Power Cooperative, Inc. (Brazos) on July 5,1988, a A betwea the Licensee and Texas Municipal Power Agency (TMPA) on February 12,19d.

As a result of its evaluation of the three settlement ,'greements, the Staff - .

determined that none of the provisions of these agreements violated section 211 of the ERA or NRC regulations. Ilowever, the Staff did determine that each agreement contained a number of provisions that were restrictive and also contained language that could have a chilling effect.' This position was stated in the Staff's letters of January 12,1993. to TU Electric, Tex-La, TMPA, and i Brazos. Each company was notified that it should take actions to ensure that all individuals and organizations that could be affected by the restrictive and chilling provisions in the agreements clearly understand that those provisions, if interpreted to preclude individuals or organizations from providing information ,

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' Tic provisions are restricove as to ste enuties bound by de mettknent agreenents, Le., de pardes to the agreenents and individuals acung on be%1f of dse partwa to de agreenents The agreenrnts are not restncuve vrgardmg individuah who act on der own behir. h n in thin sense that de terrn *restnetive"is used duoughout dua Decision. ,

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I to the NRC, are void and unenforceable, and that anyone may, at any time, bring safety information to the NRC or assist third parties to do so if the individual or organization so chooses liach company was asked to inform the NRC of the actions taken or to be taken to ensure that individuals and organi/ations do not l believe that they are precluded from coming to the NRC with safety concerns.

TU Electric responded in a letter of February 11,1993. He Licensee stated .

l that it had advised each of the former co owners that the subjxt provisions of l the settlement agreements were not intended to prohibit the former co-owners, .;

their employees, or representatives from communicating salety concerns to the l NRC, and that it would not attempt to impose or enforce any provision so as  !

to prohibit the communication of safety coricerns to the NRC. De Licensee's ~ ,

letters to the former co-owners stated thr.t TU Electric continued to believe j that the settlement agreements, including the provisions cited by the Staff, are consistent with official Commission policy in that the agreements state that the minority owners (and those acting on their behalf) are free to comply with section 211 of the ERA. 'IU Electric also reminded each former co-owner that {

j it had made affirmative representations and warranties that it did not know of any violation, actual or alleged, of section 211 that had not been previously disclosed to TU Electric in writing. He Licensee stated that it was thus clearly 1 the intention of TU lilectric to ensure that all safety concerns had been or would ,

be made known to the NRC.

In its response of February 9,1993, TMPA represented that it and TU ,

Electric are the only parties bound by the TMPA agreement and that TMPA  ;

had obtained the written assurance of TO Electric that TU Electric does not interpret the agreement to prohibit TMPA, its employees, or its representatives  !

from communicating safety concerns to the NRC. B1PA further stated that it .l does not interpret the agreement to contain any such provision. Finally, BiPA i represented that it is unaware of any individual or organization connected with j it who has interpreted the language of its February 12, 1988, agreement with TU Electric to deprive the NRC of safety information with respect to CPSES.

In its response of February 10, 1993, firaros represented that it had never  ;

read any of the provisions of its July 5,1988 agreement with TU Electric as l prohibiting the communication of safety information to the NRC and that Hranis ,

t had taken no actions to stifle any individuals or organi7.ations in such regard. '

With regard to the experts and consultants working for Brazos on the Comanche Peak matter, on July 6,1988, they were informed that an agreement with . .

TU Electric had been reached, that Ilratos would no longer be requiring their f t

professional services, and that they were directed to immediately cease work on any projects undertaken at the direction of attorneys representing 13raios. In '

addition, lira 70s has given its Comanche Peak litigation attorneys a copy of the NRC letter of January 12,1993, and a copy of a letter TU Electric sent to Brazos on February 3,1993, wherein TU Electric advises liraios that no provisions of I

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i the Brazos agreement were intended to prohibit the former co-owners, their employees, or their representatives from communicating safety concerns to the l NRC, and that TU Electric would not attempt to impose or enforce any such }

provision. l In its response of February 10,1993, Tex.La represented that, by letters of j March 28,1989, an attorney then with the law firm of lleron, Durchette, Ruckert

& Rothwell notified the consultants who had assisted Tex-La in the litigation between Tex-La and TU Electric that they were asked not to oppose, or assist l l any third party in opposing, TU Electric in connection with any matters relating .,

to CPSES. %e letters did not, eith::r explicitly or in.plicitly, communicate to the  !

recipients that they were prohibited from taking safety concerns to the NRC. In ]

letters of February 10,1993. Tex-La notified the same consultants who received the March 28,1989 letters, that the NRC had taken the position that section 9.2(d) of the Tex-La agreement was potentially restrictive because it could be  !

interpreted to prohibit individuals from taking safety concerns to the NRC. Tex-La informed these individuals that the settlement agreement was not intended to  ;

restrict Tex-La consultants from taking safety concerns to the NRC. Finally, in a letter of February 10,1993, Tex-La notified its counsel. William II. Burchette, ,

that the settlement agreement should not be interpreted to restrict the submittal -l of safety concerns to the NRC.5 ]

l 111, DISCUSSION De Staff has identified five allegations raised by the original petition and its supplements that require resolution. The allegations are that (1) the settlement agreements between TU Electric and Tex-La, Brazos, and TMPA violate section 211 of the ERA and 10 C.F.R. 6 503; (2) the settlement agreements are inconsistent with Commission policy; (3) the settlement agreements resulted in information associated with the safe operation of CPSES being withheld from the NRC; (4) by virtue of the settlement agreements, TU Electric has engaged in a practice of paying " hush money" to keep significant infortnation from the NRC; and (5) TU Electric has submitted inaccurate or material false statements to the NRC in its October 16,1992 response to this Petition. nese issues are addressed below.

8Petnamers nubnuted a lener from Mr Durchette, d.urd May 20.1992, m sugywt of simir lYutmn 483 j

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l A. Petitioners' Allegation 'Ihat Settlement Agreements Violate Section  ;

' i 211 of the Energy Reorganir.ation Act and 10 C.F.R. 5 50.7 Petitioners alleged that the settlement agreements between the Licensee and j l the former co-owners violated section 211 of the ERA and 10 CER. 650.7 l in that they contained restrictive language.' The Staff addressed this issue in

• l its January 12,1993 letters to TU Electric, Tex-La, TMPA, and Braros. As  !

noted therein, the Staff determined that the subject settlement agreements did  !

not violate either section 211 or section 50.7. The basis for this deterraination l  !

is repeated below, The settlement agreements are not within the scope of either section 211 ,

of the ERA or section 50.7 of NRC regulations. Section 211 of the ERA provides pmtection for employees uho bring information of regulatory concern to the NRC. Section 50.7 of the NRC regulations prohibits discrimination -

against employees as a result of bringing safety concerns to the NRC. The ,

settlement agreements are not within the scope of either of these provisions because these agreements do not preclude employees acting on their own behalf fmm bringing safety concerns to the NRC. These agreements only apply to the i corporate entities and not to individual employees acting on their own behalf. l The agreements do not contain provisions that restrict an employee or former employce. Indeed, the language of the agreements indicates that the agreements are limited to the named parties acting for themselves and on behalf of any person or entity, private or governmental, claiming by, through, or under a named party, including insurers, agents, servants, employees, officers, directors, consultants, attorneys, and representatives. Such language indicates that the agreements apply to employees who act on behalf of the named parties and not to employees who act on their own behalf.

He agreements are not within the scope of section 50.7 for another reason.

Specifically, section 50.7(f) states that no agreements affecting the compensa-tion, terms, conditions, and privileges of employment, including an agreement to settle a complaint by an employee with the Department of Labor (DOL) pur-suant to the ERA, may contain any provision that would prohibit, restrict, or otherwise discourage an employee from participating in a protected activity that includes, but is not limited to, providing information to the NRC on potential violations or on other matters within NRC regulatory responsibilities. None of the settlement agreements between the Licensee and the three former co-owners is an agreement of the type d2 scribed by the regulation..'Ihey are, in essence,

'iYtinoners' argue that section 211 of tir I.k A statuurity protects Itu6oners' 'nghts" to unbridied acrew to wimesses as weH as tie "right" to run assntance imm employen of the fornrr co. owners to preiwe groutms and to in 6 ate proceedmFs with regard to CPSLs umkr str Atomic Energy Act of 1954. as unended it6 tion at 2. The NRC does mM share this espansive vrw of section 211. That statute was skarly hmited to providing a perunal senrdy for whistleblowers it created no ancihry "riptus" such as those cLunrd by Petitioners an running to them.

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agreements between corporate entities (to buy and sell portions of ownership of CPSliS) and are not agreements affecting the compensation, terms, conditions, and privileges of employment. Accordingly, Petitioners' claims regarding the violation of federal statute or Commission regulations are without merit. '

11. Petitioners' Allegation That the Settlement Agreements Are Inconsistent with Commission Policy {

The NRC has expressed a policy that looks unfavorably upon any restrictions ,

i on the free flow of information to the NRC. Sec Preserving the Free Flow of information to the Commission, 55 Fed. Reg. 10,397 (1990). Although the ,

agreements do not fall within the scope of citber section 21i of the ERA or  !

section 50.7 of NRC regulations, the NRC has stated that, "no restrictions on I bringing information to the Commission should be allowed." /d. at 10,402. ,

To the extent that any of the provisions of the settlement agreements would preclude organizations or individuals from bringing information of regulatory concern to the NRC, those provisions would be inconsistent with the above- i stated policy and would be without force and effect, at least insofar as they )

relate to communications with the NRC, j The Staff has completed its review of the settlement agreements and de- l termined that they are restrictive with regard to organizations.7 in addition, .j although the agreements do not explicitly preclude individuals from bringing information to the NRC, the Staff is concerned that the settlement agreements j contain language that could have a " chilling effect," i.e., individuals could in- l terpret the agreements as prohibiting them from bringing, or assisting others in bringing, information to the NRC.

All three agreements contain a similar structure and similar, although not identical, language. A review of one of the agreements, the Tex-La agreement, i reveals the types of provisions they all contairi.'

The covenant not to sue on the part of Tex-La, at page c.6 of the Tex-12 agreement and at page 5 of Exhibit M to the Tex-La agreement, contains language whereby Tex-La is restricted from directly or indirectly opposing, challenging, or contesting any aspect of CPSES including its planning, design, licensing, and construction. Other restrictive language appears at pages 47 and 48 of the Tex-La agreement and at page 7 of Exhibit M to the Tex-La agreement.

7 Tlw provtsions are resuiettve as to the entmes bmmd by de artilement avernrnts it., the parues to tir aptecnrnis and mdmduah acting on behalf of the patto la or agreenents The apcenrnts are not resenctive regardmg individuah who act on thcu own behalf h is in this sene that the term 'rcstnctive"is owd disourhout this trenion "Three Tex-la apeenenti esist The apernent of March 23,1989. was amended by speenwnts of December 71,19M9. and January 30,19W T1e three npcenents do not differ in any material respect with regard to die inues ramed in de frenion. h is de January 30.1940 apernem that de NRC staff dacusses in thn Ikenkin 485 i J

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According to those terms, Tex-La shall in no event use any information obtained {

by it or its attorneys in any manner adverse to the Licensee. The restrictive nature of this provision is amplified by other terms of the Tex-La agreement which _ ,

permit Tex-La to respond only to specific discovery requests and permit Tex-La  ;

to tell the truth under oath in response to a specific request. Additional restrictise language appears at page 61 of the Tex-La agreement. There Tex-La agrees not ,

to oppose, or assist any third party in opposing, a position being advocated ,

by the Licensee.' Such restrictive provisions are inconsistent with Commission  !

policy. These provisions, however, do not explicitly prohibit individuals, acting ,

on their own behalf, from bringing safety concerns to the NRC. 1 The NRC is also concerned that the language of the restrictive provisions .

could have a potential chilling effect on some individuals. In addition, language with a potential chilling effect appears on' pages 49 and 50 of the Tex-La  !

l agreement. Tex-La agrees that it will encourage its attorneys and consultants not j to oppose, or assist any third party in opposing, the Licensee in connection with any matters relating to CPSES '" The Tex-La agreement, although it does not I explicitly restrict the rights of individuals acting on their own behalf, does not make it clear that safety concerns may be brought to the attention of the NRC without restriction. Rather, the Tex-La agreement contains broad and sweeping 'l language that could discourage some individuals from bringing safety concerns '{ =

to the NRC.

%e NRC recognizes a need for the settlement of disputesc Scc Statement j of Policy on Conduct of Licensing Proceedings, CL1-81-8,13 NRC 452,456 l (1981), and 10 C.F.R.16 2.203, 2.205, and 2.759. Settlement contemplates

the need for language in settlement agreements to preclude endless litigation. ,

j llowever, any provisions in settlement agreements limiting litigation must be  ;

i carefully written to ensure that a clear avenue remains open for individuals and l l organizations to bring safety concerns to the NRC, or to assist others in doing so, should they so wish. A balance must be struck in settlement agreements l I

I l between the need to bring an end to disputes involving the parties and the need I

to ensure that a clear avenue remains available to bring safety information to the NRC. The agreements at issue here do not strike a proper balance between these ]

l competing interests. The agreements contain language restricting the former P minority co-owners with regard to providing information to the NRC that would  !

(

l be adverse to the Licensee. To this extent, the Petitioners

• allegation that the

' Sirrular, dmugh not i&nutal, language in found in de oder two agreements tetween de Ikenwe and itraron and the txensee and TMPA. los purposes or dus Dechinn. H is not necessary to suminani.e these cuentially repchthe gmision

• Peutionern attzhed w tte Petism.i a letter of May20,1992, to Mr R Micky Dow from William H lintdrite, i

Esq. as evidence of de restrieuwe nature of the Teola agreenent. h would appear that Mr Burctwne is i teferencmg the language on page 49 or lir Ten-la agreenent in his rnpome. Mr. Hurdette concluden diat tie h predaded trorn assisung or coopennung m any way wdh any third pany in opposing TU I,lectne in coturction wnh tir hcensing of CPSI.s 486 l

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settlement agreements are inconsistent with Commission policy is correct. In j

. addition, although the agreements do not explicitly restrict indivi, duals acting on their own behalf, the language in the agreements is broad and sweeping in nature and could lead individuals to conclude that they are restricted from providing information to the NRC which would be adverse to the Licensee. The agreements thus have a potential chilling effect. .

Therefore, the Staff took actions to ensure that TU Electric, Brazos, Tex-La, and TMPA did not consider the agreements to restrict the right of organizations I

and individuals to bring safety concerns to the NRC. The representations made by 'IV Electric and the former co-owners in their responses to the January 12,  :

1 1993 letters from the Staff provide reasonable assurance that the Licensee and former co-owners did not intend the agreements to prevent safety concerns from being brought to the NRC. In addition, I am satisfled that all parties to the settlement agreements in question now understand that there must be a clear avenue available for anyone at any time to bring safety concerns to the NRC.

In the case of Mr. Burchette, upon whose letter of May 20,1992, Petitioners in part rely, he too has been informed by Tex-La that he may bring safety concerns to the NRC if he so chooses."

I consider the responses to my letters of January 12,1993, to be sufficient to resolve any potential concerns or doubts about the effect of certain language contained in the three settlement agreements at issue. The Commission itself has reviewed this very issue in its consideration of a motion for a stay of the issuance of the full-power license for CPSES Unit 2 and has reached the same conclusion. See Texas Utilitics Elecfric Co. (Comanche Peak Steam Electric Station, Unit .2), CLI-93-11,37 NRC 251,259 (1993).

C. Petitioners' Allegation That the Settlement Agreements Resulted in Information Associated with the Safe Operation of CPSES Being Withheld from the NRC Petitioners allege that the settlement agreements have resulted in information associated with the safe operation of CPSES being withheld from the NRC.

With regard to the three former co-owners, the settlement agreements contain language restricting them from providing information to the NRC. liowever, I UWhile the responws of TU Dectric.TMPA Druzos, and Ten-La all nmke clear that the seidenent agreenrnts were never intended to preclude any entity or individual from bnnging safety infurm.nion to tir NRC if that enury or individual wished to do so, the respones do not address wtrther ttr actilenrnt agreenrnts preclude such entities or individuah from asusung third pames m their bnnging of safety information to the NRC. The NRC sees no neaningful distinction here. An entity or individual may htmg safety concerns directly to tir NRC ar may amst a third puny in dmng so. A clear avenue must le avaitaide to bring safety concerns to de NRC whether that avenue is direct ur indnect. As i stated in my letters of January 12.1993, is TU Dectnc. TMPA, nrams. -

and Tex l.a, anyone nmy, at any time, bnng safety information to the twRC. or assist tMrd parties m twinging such I

d information to the NRC, if the individual or organizanon so chouws.

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am satisfied from the responses of the three former co-owners that they did not interpret the agreements as preventing them from raising safety concerns to the NRC and the Licensee has never asserted to the former co-owners that the agreements prevent them from raising safety concerns. He Commission itself has reviewed this very issue in its consideration of a motion for a stay of the issuance of the full-power license for CPSES Unit 2 and has reached the same ~

conclusion. See Comanche Peak, CLI-93-11,37 NRC at 259.

Because of the restrictive and potentially chilling nature of these agreements, however, the actions taken by TU Electric and the former co-owners cannot ensure that there are no instances where information associated with the safe operation of CPSES has been withheld from the NRC as a result of these agreements. Even in such a situation, the Staff has determined that in this case a significant threat to the public health and safety does not exist. The Staff made this determination on the basis of the limited involvement of the former co-owners in the design, construction, maintenance, and operation of CPSES, and the programs that both the Licensee and the NRC have in place to ensure that the plant was designed and constructed safely, and can be maintained and operated safely. The basis for this determination is given below.

TU Electric has been the entity responsible for the design, construction,

, maintenance, and operation of CPSES.This was true even when Brazos, B1PA, and Tex 42 had an interest in the facility. The safety evaluations for the amendments adding Brazos and TMPAu and Tex-La'3 to the construction permits for CPSES noted that TU Electric (formerly TUGCO) retained exclusive responsibility for the design, construction, operation and maintenance of the plant. IIence, the involvement of the former co-owners was indirect. Herefore, even if the formcr co-owners' en.ployees considered the settlement agreements to be restrictive, it is unlikely that a significant number of personnel with direct knowledge of CPSES would have been affected.

De NRC also has an allegation management program to facilitate a review and possible validation of conceras ofimpropriety or inadequacy associated with NRC-regulated activities identified by a variety of sources.110 wever, because there are no guarantecs that allegers will find problems and bring them to the NRC, the NRC has not designed its program for ensuring adequate protection on an assumption that allegers will reveal safety deficiencies. Although allegations have led to the early identification of safety-significant deficiencies, the Staff does not include its allegation management program in its bases for ensuring adequate protection of the public health and safety. Rather, the NRC relies on "Brwon aix! TMPA were added to the construction pernuts im CPSI.S Urut 1 (CPPR 126) and Unit 2 ff.TPR-127) by Anwminent 3 to each permit See NRC f ruer of tecember 13.1979.

"TexLi was added to the comtmenon permits for CPSLS Unn 1 (CPPR 126) and Unn 2 (CitR-127) by Anendnrnt 4 to each perrmt. See NPC terter of September 30.1981.

488 e ,_ <- , . , y

adequate protection of the public health and safety. Rather, the NRC relies en its inspections of licensee programs, policies, and f acilities to ensure that such protection exists.

To this end, the Staf f has conducted extensive inspections of CPSES to ensure that the facility was constructed safely and can be operated safely.

Since 1973, the NRC has per formed more than 150.000 ducct inspection hours, ,

approximately half of which were completed since inception of the Conective Action Program (CAP) in early 1987. The findings of these inspections are documented in more than 500 inspection reports. 'lhese inspections offer a reasonable assurance that CPSES was constructed safely and can be operated safely.

In parallel with the NRC's allegation management program, as part of its policies for treating employee concerns, the Licensee has established a mechanism for individuals to bring a broad range of issues to its attention.

This is the TU Electric SAIElliAM Program. The sal'ETHAM Program is -

not a regulatory requirement, it does, however, have a nexus to the Licensee's commitment to safety and, therefore, its success is of interest to the NRC. A recent NRC review of the Licensee's SAFETEAM Pmgram concluded tinat the pmgram provides an avenue for employees with safety concerns to present these concerns to management and gives plant management a mechanism for the early identification of issues that could affect the safety of the plant.

Finally, TU Electric implemented a f ar ranging CAP for CPSES The CAP is a comprehensive program that vahdated both the design and hardware at CPSliS, including resolution of specific Comanche Peak Response Team (CPRT) and external issues. 1he design v;didation portion of the CAP identified the design-related licensing requirements and commitments. These requirements and commitments formed the bases for the design validation effort and were j assembled in design-basis documents. The hardware validation portion of j the CAP was implemented by the Post Construction liardware Validation Program (PCHVP). The purpose of the PCIIVp was to demonstrate that as-huik j systems, structures, and components were in compliance with the installation l specifications (validated design), or to identify modifications that were necessary 1 to bring the hardware into compliance with the validated design. The NRC

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has regularly reviewed the CAP and has found that the program resuhs in the j effective identification and correction of problems at CPSES. The findings of i NRC reviews are documented in over 100 inspection reports and in NUREG- j 0797, " Safety Evaluation Report Related to the Operation of Comanche Peak Steam Electric Station, Units 1 and 2."

in summary, despite the restrictive prmisions regarding parties to the agree-ments .and the potentially chilling nature of the settlement agreements, on the ba<,is of TU Electric's and former co-owners' statements that the agreements  ;

were not intended or interpreted to restrict information from the NRC, the limited  ;

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1 involvement of the former co-owners, the allegation management and inspection  !

programs of the NRC, and the Licensee's SAFi?IIIAM and CAP Programs, the l

Staff has a reasonable assurance that no significant safety issues have been left unresolved. The Commission reached a similar conclusion s ih regard to this l issue in its Memorandum and Order of April 6,1993. CL1-93-II,37 NRC at  !

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4 D. Petitioners

• Allegation That, by Virtue of the Settlement Agreements. -]

TU Electric IIas Engaged in a Practice of Paying "llush Money" to Keep Significant Information from NRC  ;

Petitioners alleged that TU Electric has, by virtue of the settlement agree- l ments, engaged in a continuing practice of paying " hush money" to keep sig-  !

nificant informaiion from the NRC, Petitioners cite as evidence the TU Electric settlement agreemeat with Tex-La. It is clear that the primary purpose of the agreements was to effect the transfer of ownership interests from the former ,

co-owners to TU Electric. Although the Staff found that portions of the TU i Electric-former co-owner settlement agreements are restrictive regarding par- J ties to the agrectnent and could cause a chilling effect, it does not appear that i TU Electric,11razos, Tex-La, or TMPA intended them to be. In any event, the  :

4 agreements do not rise to the level of " hush money." l Petitioners failed to establish that TU Electric has engaged in a " continuing practice" of paying " hush money" for the purpose of withholding evidence from j the NRC. Therefore, the Staff finds that the Petitioners' allegation is without merit.

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E. Petitioners' Allegation That TU Electric Submitted inatcurate or l Material l'aise Statements to the NRC in a Response to This Petition l Petitioners alleged in their November 19, 1992 supplement to the petition that the TU Electric response of October 16, 1992, contained " incorrect and misleading information" and a statement " misleading to the point of being materially fab.e." November 19,1992 Supplement at 1,3. Although the Staff, as noted above in Section 111.11, has differed with TU Electric on the interpretation of Commission policy and the nature of portions of the settlement agreements, the Staff does not agree that TU Electric intended to provide misleading or material false information to the NRC in its October 16, 1992 response to the Petition and its supplements. Rather TLI Electric is offering a plausible interpretation of documents that are at best extremely complex, and at worst obfuscatory. '!herefore, the Staff finds that the Petitioners' allegation is without merit.

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IE CONCl.USION l

The institution of proceedings pursuant to 10 C.F.R. % 2.202, as requested by i i

Petitioners, is appropriate only where substantial health and safety issues have been raised. See Consolidated Edimn Co. of New Park (Indian Point, Units 1, .

2, and 3), CLI 75-8, 2 NRC 173,175 (1975), and Washington Public rower , i Supply System (WPPSS Nuclear Project No. 2), DD-84-7,19 NRC 899,923 l (1984). The facts in this matter do not warrant the institution of proceedings. l A clear avenue must be available at all times to ensure that individuals and organizations may bring safety information to the NRC either directly or j through third parties. This is particularly so when settlement agreements are  !

involved. The Staff determined that the settlement agreements did not violate j

.t section 211 of the ERA or 10 C.F.R. 6 50.7. The Staff also determined that the settlement agreements were restrictive as to the former co-owners who are I parties to the agreements. In addition, the Staff determined that the co-owner settlement agreements could have a chilling effect. However, there are other 3 considerations that mitigate the Staff's concerns on this issue. The actions taken l by the NRC Staff in this matter and the representations made in the responses provide the Staff with reasonable assurance that the Licensee and former co-owners did not intend the settlement agreements to restrict organizations and  ;

individuals including employees and contractors of the former co-owners from -l 1

bringing safety concerns to the NRC. I am also satisfied that the parties to the agreements in question did not interpret the agreements as preventing them from raising safety concerns and now understand that a clear avenue must be f available to all to bring safety concerns to the NRC, Finally, given the indirect involvement of the former co-owners in the design, construction, maintenance, l j

and operation of CPSES, and the programs that both the NRC and Licensee '

have in place to identify and correct safety concerns, the Staff has reasonable assurance that no significant safety issues have been left unresolved with regard to CPSES.  !

Certain relief sought by Petitioners has been granted in this matter. Petitioners i sought that the NRC notify TU Electric and the former co-owners that no  !

settlement agreement can preclude individuals and organizations from bringing i I

safety information to the NRC. This has been done. Petitioners also sought that copics of the three settlement agreements be made public. This has been done. ,

Finally, Petitioners requested that counst" for Tex La be notified that he is free {

to disclose safety information to the NRC. A NRC has caused this to happen. ,

The other iclief sought by Petitioners has 'cen denied.1he facts in this  ;

matter do not warrant the institution of procce3 ngs. Parties are encouraged to a

settle their disputes. Public policy only demands that a clear avenue be available to individuals and entities to bring safety concet s to the NRC. l 1

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A copy of this Decision will be filed with the Secretary of the Commission _

for the Commission's review in accordance with 10 C.F.R. s 2.206{c). j FOR TIIE NUCLEAR l REGULATORY COMMISSION  ;

+  !

i Thomas E. Murley, Director Office of Nuclear Reactor {

Regulation i Dated at Rockville, Maryland. ,

this 4th day of June 1993. ,

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Cite as 37 NRC 493 (1993) DD-93-13 -

UNITED STATES OF AMERICA I NUCLEAR REGULATORY COMMISSION  ;

OFFICE OF NUCLEAR REACTOR REGULATION Dr. Thomas E. Murley, Director ,

I Docket Nos. 50-250  ;

in the Matter of 50-251 FLORIDA POWER AND LIGHT ,

COMPANY, et al.

(Turkey Point Nuclear Generating '

Plant, Units 3 and 4) June 7,1993 t

The Director, Office of Nuclear Reactor Regulation, denies a Petition filed by l Mr. Regino R. Diaz.Robainas requesting that the Nuclear Regulatory Commis- l sion not permit Florida Power and Light Company to resume operating Turkey Point Nuclear Generating Plant' Units 3 and 4 after ilurricane Andrew until  !

the concerns raised in the Petition are addressed. As basis for the request, i

the Petitioner alleges deficiencies in the areas of compliance with emergency procedures. evacuation mechanisms and offsite power and communication sys-  !

tems, reliability and margin of safety of emergency diesel generators, radiation i

monitoring, security, interim fire protection, compliance with plant Technical Specification requirements, Technical Specification and design basis adequacy, i

licensee staffing and economics of reconstruction, and co-existence of nuclear and fossu umts. I i

l OPERATING LICENSE: PROPOSED CII ANGES -  ;

DOCUMENTATION 3 Pursuant to 10 C.F.R. s 50.59, licensees must determine, and document in safety evaluations, whether a proposed change to the facility as described in the ,

safety ana!ysis report can be made without prior NRC approval or must be made by license amendment.

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TECIINICAL SPECIFICATIONS: DEPARTURE DURING AN EMERGENCY When a plant is in an Unusual Event or other emergency condition,10 C.F.R.

5 50.54(x) allows a licensee to take reasonable action that departs from a license condition or a technical specification when this action is immediately needed to protect the public health and safety and no action consistent with the license conditions and technical specifications that can provide adequate or equivalent protection is immediately apparent.

TECIINICAL SPECIFICATIONS: DEPARTURE DURING AN EMERGENCY Section 50.54(y) requires that the licensee's action permitted by 10 C.F.R 5 50.54(x) shall be approved, as a minimum, by a licensed senior operator prior to taking the action.

DIItECTOIt'S DECISION UNDElt 10 C.F.II. W 2.206

1. INTRODUCTION -!

On October 15, 1992, Mr. Regino R. Diaz-Robainas (Petitioner) filed a Petition, pursuant to section 2.206 of Title 10 of the Code of FederalRegulations (10 C.F.R. s 2.206), and alleged a number of deficiencies with the restart of the Turkey Point nuclear units after Hurricane Andrew. On October 21,1992, the Petitioner filed an addendum to the Petition. 'Ihe Petitioner requested that the U.S. Nuclear Regulatory Commission (NRC or the Staff) not permit the Florida Power and Light Company (FPL or Licensee) to resume operating Turkey Point Nuclear Generating Plant Units 3 and 4 until the concerns raised in the Petition were addressed. The Petition and its adde'ndum (hereinafter referred to as the Petition) were referred to the Office of Nuclear Reactor Regulation (NRR) for action in accordance with section 2.206.

In a letter of October 23,1992, to the Petitioner, the Director acknowledged receiving the Petition and informed the Petitioner that the issues raised in the Petition were not of sufficient safety significance to warrant action by the NRC to preclude restart of the Turkey Point nuclear units. The Director based this determination on NRC inspections and evaluations of the Licensee's restart activities. In its October 23,1992 letter, the Staff indicated that it was documenting NRC inspection activities at the Turkey Point facility in inspection reports which, upon completion, would be made available to the Petitioner and that it would issue detailed responses to the specific issues raised in the Petition 494

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I within a reasonable time. The Staff has completed its review of the issues and has reached final conclusions which are discussed herein. ,

II. IIACKGROUND Turkey Point, situated on the shore of Biscayne llay approximately 25 miles south of Miami, Florida, is the site of four electric generation units that are i owned and operated by FPL. Turkey Point Units I and 2 are fired by oil or l gas, and Units 3 and 4 are pressurized-water nuclear units. Tropical storms pass through the area about once every 2 years, and hurricane-force winds are i experienced about once every 7 years.

On August 24,1992. Class 4 Hurricane Andrew hit south Florida. The  !

eye of the storm passed slightly north of the Turkey Point site and caused damage at the site and throughout the 10-mile emergency planning zone (EPZ) - ,i around the plant. The storm damage included loss of offsite power, loss of l communications, loss of access by road, and damage to the fire protection  ;

and security systems, the material warehouse, and the smoke stacks for the j fossil fuel units. When the hurricane warning was issued for southern Florida,  ;

FPL declared an " Unusual Event" and brought the units to " hot shutdown" in l accordance with its Emergency Plan Implementing Procedures (EPIPs). On August 24,1992, at 9:16 a.m., the Licensee upgraded the event classification to an " Alert" because of degradation of the fire protection system after the hurricane hit the site. The Licensee remained in the Alert status until August 30.1992.

Upon completing storm damage repairs, FPL restarted Unit 4 on September l i

28,1992. On October L 1992, FPL voluntarily shut down Unit 4 after being informed by the NRC that the Federal Emergency Management Agency (FEMA) had not completed the post-hurricane reverification of the adequacy of the offsite emergency planning facilities and equipment located within the 10-mile EPZ i around the site. FPL suspended operation of the unit until FEMA completed the re-assessment. After FEMA reaffirmed the adequacy of offsite emergency preparedness, on October 25, 1992, FPL resumed operating Unit 4. Upon restarting Unit 4, FPL began its previously scheduled Cycle 13 refueling outage for Unit 3 and repaired the storm damage to this unit. On December 1,1992, FPL brought Unit 3 to power operation.

The Petitioner alleged deficiencies with the restart of Turkey Point Unit 4 after

> llurricane Andrew. The alleged deficiencies are related to the following broad areas: emergency procedures; evacuation mechanisms and offsite power and communications systems; reliability and margin of safety of emergency diesel generators; radiation monitoring; security; interim fire protection; violation of plant Technical Specification (TS) requirements and missed surveillances: TS 495 a

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and design basis adequacy; Licensee staffing and economics of reconstruction; [

and co-existence of nuclear and fossil units.

The Staff has reviewed the Petition, 'and the review results ar'e discussed ,

below. On the basis of its review, the Staff has concluded that the issues raised in the Petition are not of sufficient safety significance to warrant action by the [

NRC to preclude continued operation of the nuclear units. , ,

-b 111. DISCUSSION Emergency Procedures j t

%c Petitioner alleged that the Licensee violated its emergency procedure, ,

EPIP-20106, which requires plant shutdown to Mode 4 within 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> of the l projected onset of sustained hurricanc-force winds (over 73 inph) at the site.

The Petitioner expressed concern that Unit 4 did not reach Mode 4 until 4:05 ,

a.m. on August 24, 1992, and should have been shut down before 3:50 a.m.

based on the 5:50 a.m. storm arrival time recorded at the National Hurricane  ;

Center in Coral Gables.

The Licensee's procedures require the units to be in at least Mode 4 (hot  !

shu'down) 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> before the emjected arrival of hurricanc-force winds. He  ;

hurricane was projected to arrive at early to mid-day on August 24,1992. The ,

Licensec could not accurately determine the exact time that hurricane-force l winds arrived m me site beca.se the meteorological towers that measure wind  !

speed were damaged. The last creclible wind speed measured was approximately 70 mph at 4:50 a.m. on August 24. Estimating 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> to achieve hot shutdown,  ;

the Licensee began shutting down the Unit 3 reactor at 6:00 p.m. on August 23, and began shutting down the Unit 4 n: actor at 8:05 p.m. on August 23,1992, to comply with its procedural requirements. On August 24, Unit 3 entered Mode 4 at 3:12 a.m. and Unit 4 entered Mode 4 at 4:05 a.m. The reactors were in hot shutdown when hurricane-force winds arrived at Turkey Point, although the hurricane winds arrived earlier than had been projected when the Licensee began the shutdown. This early arrival had no safety consequence since the Licensee had elected to maintain both units in the hot-shutdown mode to ensure that two methods of cooling were always available: use of the residual heat removal (RHR) system or, on loss of all alternating current (AC), use of the steam-powered auxiliary feedwater pumps with steam from the steain generators.

Although, in the final hours, immediately before landfall, the hurricane inten-sified and accelerated and hurricane-force winds arrived earlier than projected, the Licensee complied with its procedures by shutting down the plant 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> before the pmjected arrival of the storm.

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Evacuation Mechanisms and Offsite Power and Communication Systems As a sesult of storm damage the Petitioner expressed concern about the design adequacy of critical communication and offsite power systems. The Petitioner I stated:  ;

• l Oincal cosmnunication and evacuation mechanisms wcTc completely unavailable during hurricanc Andrew for a hignificant penod of time during which the umts were still in hot 3 shutdown or requiring the operation of critical coohng equipment w ithout of fsite power. Tlie burden of proof hes in demonstrating that this absence of safety wn!! no tonger occur during future events.

F Itecognizing that communication and evacuation capabihties could be severe- l ly limited or interrupted immediately after the hurricane, the Licensee took .i extensive precautionary measures and, before the arrival of the hurricane, brought the nuclear plants to Mode 4 (l hot shutdown) in accordance with its 'I liPIPs. Also, before the hurricane, Dade and Monroe Counties issued an evacuation order to the population in the area. including the 10-mile EPZ. During the hurricane, the nuclear units were in hot shutdown and the nuclear safety- (

related portions of the units were not damaged. The Staf f finds these emergency I preparedness measures to be adequate.  ;

Before 1lurricane Andrew, the Licensee's communication capabilities in- (

cluded telephone or telephone line-controlled systems, . cellular telephone, and  ;

radio communication systems. The telephone systems either used Southern Bell 1 Company's overhead copper wire or the Licensee's corporate fiber-optic sys-  !

tem. Radio communication and cellular telephone systems used antennas that ,

were installed on top of the plant support buildings. Sustained hurricanc-force '

l winds damaged Southern Bell Company's overhead communication transmis-sion lines, antennas, and transmitters. These offsite communication systems were not designed to withstand the event. The communication systems that  ;

used the Southern Bell aerial copper wire along Palm Drive, the main road to j l

and from the plant, failed as a result of fallen trees and missiles generated by high-velocity winds. _

To improve the reliability of the communication systems, Southern Bell aerial copper wire lines have been replaced by a buried fiber-optic cable along Palm Drive. The Licensee has installed two new high-frequency radio systems for communications between the plant and offsite locations and procured new antennas designed to withstand winds in excess of 322 kilometers per hour (200 mph). Spare portable antennas also are available on site to ensure prompt replacement, if needed. These improvements should adequately reduce the potential for a loss of the offsite communications capability in the future.

The storm also damaged power transmissmn lines and switchyard equipment, which resulted in loss of offsite power. The nuclear safety systems at the Tbrkey 497 I

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i Point plant are designed to operate without offsite power. Ibur emergency diesel ')!

generators (EDGs) (two for each unit) are designed to receive an automatic stan ,

signal immediately on sensing a loss of load from the offsite power supply _j buses. Only one EDG is required to supply emergency power for each unit. If necessary, the four EDGs can be cross-tied to supply emergency power to either l unit. The EDGs are designated as scismic Class / Category I and designed so their ,

j integrity is not impaired by the safe shutdown earthquake, or by the design-basis l wind storm or floods. None of the safety-related EDGs were damaged by the  :

storm because they are housed in seismic Category I steel-reinforced concrete

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structures. The EDGs and their safety-related electrical buses remained operable throughout the hurricane and recovery and functioned reliably to supply power ,

for adequate coohng functions when the offsite power was unavailable.

r Reliability and Margin of Safety for the Emergency Diesel Generators The Petitioner alleged that the margin of safety for the EDGs was reduced because of clogging of the intake canal cooling water that supphed cooling water ,

to the EDGs and the unavailability of the black start diesel generators (BSDG) as a backup to the EDGs due to oil surrounding the BSDGs. As the basis for his allegation, the Petitioner quoted from the August 24,1992 NRC transcript of events at Turkey Point following the hurricane:

Licensee noted that this Black Start Diesel which can be used as beulup if EDGs fail is moperable at this time due to a hw of oil surroundmg the Diesel followmg an oil tant  ;

rupture, . A lot of grass is in the intaAc structurc and Licensee has to clean the strains  ;

every hour to prevent them from clogging up (supphes cooling water to EDGs).

l De Petitioner further stated that the abolition of EDG component cooling ,

functions is nonconservative and reduces the margins of safety for EDGs and BSDGs that are required during loss of offsite power. j De statement in the August 24,1992 NRC transcript of events that the intake structure canal " supplies cooling water to EDGs" is incorrect and may be due l to a transcription error or misstatement. The safety-related EDGs, as well as .l the non-safety-related BSDGs, have closed cooling water radiator systems and i do not depend on any outside water source for cooling. Therefore, clogging of the intake canal cooling water by debris did not affect the ability of the EDGs to function.

The hurricane ruptured a fossil unit oil tank and, as a result, the BSDG control i and relay panels were covered with fuel oil. This condition did not render the  :

BSDGs inoperable. After the hurricane, moisture intrusion in the non-safety- i related breaker cabinets prompted ITL to declare the BSDGs inoperable. ne l BSDGs are non-safety-related diesel generators and are provided as an additional i

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defense-in-depth to supply AC power through non-safety-related buses to various j non-safety-related loads. Thus, inoperability of the non-safety-related IISDGs -

did not reduce the margin of safety for the EDGs. On August 27," 1992, ITL i restored the BSDGs to service. [

Expressing his concern regarding reliability of diesels, the Petitioner asserted l

< that failures in both units' redundant diesels " calls into doubt not just the overall ,

reliability of the diesels, but also specific aspects of systemlat]ic vulnerability such as weaknesses of the ground detection and isolation mechanisms. . l The EDGs at Turkey Point are designed to receive an automatic start signal- i immediately on sensing a loss of load from the offsite power supply buses. {

Once the diesel motor and generator e running at the proper speed, the' l load sequencer automatically sequences the various safety-related loads to the .l generator. The EDGs and sequencers worked as designed, in preparing for the {

storm, the Licensee tested the EDGs and verified that all fuel tanks were full [

before the storm arrived. Fuel oil can be transferred between fuel oil storage tanks as required. The available fuel exceeded TS requirements. On August 26, .

I 1992, shipments of diesel fuel began arriving by tanker once the road to the  ;

plant was open.

At !!:57 a.m. on August 24,1992, the 4A EDG power to the 4-kV bus l was lost for approximately 3 minutes because the output breaker inadvertently opened when operators were attempting to isolate an electrical system ground. l Upon opening breaker 4D23-5 (emergency load sequencer 4C23A), power to the l 4A sequencer was interrupted, resulting in the 4A EDG output breaker opening. *

'Ihis eyev as due to a procedural problem. Procedure O-ONOP-003.10, "125 VDC System - Location of Grounds," assumes that normal AC and DC power h available. As a corrective action, a cautionary note was added to the procedure l i

reminding personnel that there may be off-normal plant conditions (i.e., EDG operating and supplying power) when certain equipment should not be de- ,

energized. At 7 05 a.m. on August 27,1992, the 3A EDG tripped because of a lockout that occurred while the 3B EDG remained in operation. Loads were transferred to the 311 EDG. At 9:38 a.m., the 3A EDG was restored to 3 its safety bus The cause of the 3A EDG lockout could not be determined and did not recur. A single EDG can supply power to all the nuclear safety-related i equipment necessary for a single unit during such an event. None of the safety- l related EDGs suffered any damage from either the storm or the resultant fossil i

unit oil spill. Except as noted above, the EDGs and their safety-related electrical buses remained operable throughout the hurricane and recovery.

Radiation Monitoring

'Ihe Petitioner alleged that sufficient information refarding monitored radi-ation/enntamination/ exposure from August 24, 1992, does not exist. The Pe-499 I

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titioner questioned whether there was any radioactive release, or any kind of venting that may have resulted in such release and whether the NRC had enough reliably recorded data to determine radioactive releases to the environment. Re-ferring to an NRC summary of a September 10, 1992 meeting between the Licensee and the NRC, which includes a discussion of " Radiation Monitoring Stack-Instrumentation and Minor Stack Foundation Damage," the Petitioner is ,

concerned that radiological assessment teams were not sent out until 8:01 a.m.

on August 24, 1992, and that radiological exposure may have been either not monitorable, or inadequately monitorable for a significant time period.

'lhe Licensee maintains a program to monitor radiation, both onsite and in the environs. In accordance with the TS, the Licensee monitors radiation off site using direct radiation monitors: thermoluminescent dosimeters (TLDs) and air samplers. Onsite radiation is also monitored by 1LDs and area radiation moni-tors (ARM). The storm destroyed four air sampling stations and several TLDs surrounding the plant. During and immediately after the storm,18 of the 30 environmental TLDs remained available to monitor direct radiation levels and detected no abnormal radiation levels.1he NRC also had 37 co-located envi-ronmental 1LDs, of which 18 were damaged. The remaining 19 'llDs were functional. Approximately 52 of 761LDs located within the Licensce's radi-ologically controlled area (RCA) and protected area boundaries also continued monitoring for any relea<,es from the plant. All results were within normal levels for TLDs, and the Licensee noted no changes to radiation dose rates ci-ther inside or outside the RCA. The Licensee conducted special surveillances inunediately after the storm and continued routine contamination surveillance programs. 'Ihese surveillances did not show any abnormal contaminations.

Within a few days after the storm, the NRC Staff performed radiation surveys (on and off the site) with a portable meter and found no readings above background levels. About a month after the storm, the NRC Staff reviewed the Licensee's special and routine radiation protection surveillances conducted during the storm and during recovery efforts. During an onsite inspection conducted from September 26 to October 1,1992, the Staff compiled details of the Licensee's Radiation Protection (RP) program activities cad analyicd data on the monitored radiation, contamination, and exposures. The Staff documented this information in Inspection Report (IR) 50-250,50-251/92-21, dated November 9,1992. The inspection results are summarized below.

The Licensee analyzed the data from the ARMS and those TLDs recovered  !

after the storm. The data did not indicate any unexpected exposures. The Licensee reviewed the dose rates for selected ARMS for the period from 0 00 hours0 days <br />0 hours <br />0 weeks <br />0 months <br /> on August 23 through 12:00 noon on August 24, 1992. 'lhe Licensee's records of dose rates for ARMS located in selected areas were I

as follows: U.3/4 containment refueling floor, approximately 5 millirem per hour (mrem /hr); U-3 containment personnel hatch,1-1.5 mrem /hr; U-3/4 spent 500 g

fuel pit buildings and transfer canals,0.5-8 mrem /hr; and Auxiliary Building, 0.1-0.5 mrem /hr. The Licensee compared the ARM data collected during or i immediately after the storm with data collected before the storm and found no ,

significant changes in the' measured radiation va!ues. He TLDs maintained at  !

selected locations in the RCA and protected area perimeter reported exposure  ;

rate values from 8 to 37 microrem per hour-(prem/hr), which was similar ,

j to data for TLDs positioned at each monitoring-location during the second  ;

quarter of 1992. The Licensee collected and processed at least one TLD from  ;

each directional sector except for the NNW directional sector. Preliminary  !

results were similar to previous values, with a maximum exposure rate of 7.9 rem /hr. The Licensee reestablished all required and supplemental TLDs by

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September 14, 1992. During tours of the environmental monitoring stations on September 26-29, 1992, the inspector verified, by direct observation, the  ;

location of the Radiological Environmental Monitoring Pmgram direct radiation _

monitors (TLDs) as described in the Licensee's records for approximately 30% i of the Licensee's current TLD network. The Licensee established all sample .l stations within several hundred feet of the original locations of these stations.

He inspector also verified the location of Licensee and .NRC TLDs at two separate sample locations.

NRC inspectors reviewed selected chemistry records and held discussions with cognizant Licensee representatives. The inspectors found that, before declaring the monitors operable, the Licensee established continuous sampling of the main stack effluents with grab samples collected and analyzed every

12. hours. Each week, the Licensee analyzed samples for particulates, iodine, and tritium in accordance with the operability requirements of TS 3.3.3.6 and found no abnormal or elevated gaseous efiluent concentrations. The Licensee's records for selected noble gas, iodine, and particulate amdyses of main stack grab samples collected "oefore August 24,1992, indicated that the only noble gas and iodine species found were xenon-133 (Xe-133) and iodine-131 (1-131), with concentrations ranging from 7 E-8 to 1.1 E-6 microcuries per cubic centimeter (pCi/cc) and 7.8 E-14 to 1.5 E-13 pCi/ce, respectively. The Licensee found no radionuclides in the particulate sample analyses.

De hurricane damaged the main stack radiation monitor and the duct from the Radioactive Waste Building to the main stack. During the inspection, NRC representatives verified that before and immediately after the hurricane arrived, the Radioactive Waste Building fan was secured, thus preventing any exhaust from entering the damaged ductwork leading to the main plant stack. To verify the absence of releases from the Radioactive Waste Building, the Licensee began

, continuously sampling the Radioactive Waste Building gaseous effluent pathway j on September 5,1992. The Licensee collected and analyzed grab samples every l 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />. Each week, the Licensee also collected and analyzed samples for iodine. particulates, and tritium. The iodine and tritium concentrations were 501 1

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less than the Licensee's cr.alytical detection limits, and the concentrations of r total isotopes in the grab samples ranged from 1.6 E-7 to 2.5 E-6 pCi/ce. On September 19,1992, the Licensee discontinued this supplemental sa'mpling after  ;

repairing the ductwork leading to the main plant vent.- t 1he inspection team reviewed the analyses conducted for both the main stack and Radioactive Waste Building gaseous effluent samples and found that all ,

radionuclide concentrations were less than the detection limits specified in TS- ,

Table 4.11.2. Further, the worst-case minimum dispersion value at the site boundary,5.8 E-7 pCi/cc as listed in the Licensee's Offsite Dose Calculation Manual of June 25,1991, indicated that the radionuclide concentrations would be significantly below the limits in 10 C.F.R. Part 20, Appendix B, Table 2, col. l 1 of 3 E-7 pCi/cc for Xe-133 and 1 E-10 pCi/cc for 1-131, as required by 10 C.F.R. $ 20.106.

The storm rendered inoperable four of the five air sampling stations required by TS. As allowed by TS Table 3.12.-1, Notation 1, the initial hazardous environmental conditions and the lack of an electrical power source for the l sampling equipment required the Licensee to delay resuming routine airborne pathway monitoring until September 9,1992, when limited monitoring was established using three sampling stations that were returned to service. By September 19, 1992, the Licensee had reestablished five air sampling stations and returned them to operation.- The Licensee reestablished three of the four damaged air sampling stations within several hundred feet of their original locations. Each remained in its original directional sector. However, sample location T-57 in the NW directional sector was not usable. Therefore, the Licensee selected an alternate location, west-8. The Licensee previously established a supplemental air sampler at this location.

He NRC noted no abnormal radionuclide concentrations in gaseous effluents while reviewing selected chemistry records and discussing radiation levels with the Licensee's cognizant representatives. The inspection findings indicated that (1) the sampling frequency for compensatory gaseous effluent samples collected and analyzed for both the main stack and radwaste building effluents met the TS requirements and (2) all radionuclide concentrations were less than the detection limits specified in TS Table 4.11.2.

I The inspectors also reviewed the Licensee's actions for other sampling matrices. During tours of the environs surrounding the Turkey Point site, NRC inspectors verified access to all sampling locations. he Licensee's records i ndicated that on September 9,1992, it had also collected both broadleaf and we samples to meet the surveillance requirements of the TS radiological environmental raonitoring program (REMP). The Licensee has contracts with the State of Florida to conduct the REMP. All results were within expected ranges, and the Staff found no other concerns with the implementation of the REMP program.

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Security

%e Petitioner expressed concern that during the storm, automatic security systems were compromised and inquired concerning alleged criminal or neg-ligent security infringements at Wrkey Point; Specifically, on the basis of a newspaper article in the Palm Brach Post reporting stolen cables from an FPL compound that was damaged by the storm and the sale of 1544 pounds of wire to a metal recycling center (scrap metal yard) and a complaint along the same ,

lines to the NRC by a former crane operator, the Petitioner questioned whether j the health or safety of his community was compromised by selling possible con- J taminated or radioactive materials to scrap yards so that they may eventually be l recycled into consumer products.

The Licensee's security systems consist of an initial protected-area barrier with associated intrusion detection and assessment equipment. Additional '

barriers and associated alarms protect the vital equipment, Security officers assess each contingency and respond accordingly. This equipment is not required to withstand hurricane-force winds because the Licensee has provided ,

for compensatory measures in the event of equipment failure. At the perimeter, j

the hurricane caused damage to several barriers, microwaves, cameras, and the site access building. Some vital-area alarms also briefly failed, but the vital-area barriers remained intact. f in anticipation of severe weather conditions, on August 24,1992, before the storm, the Licensee suspended certain security safeguards in accordance with  ;

its Physical Security Plan. After locking and securing all access control points, the Licensee evacuated all security personnel to shelters in Class I buildings,  ;

which are constructed to withstand hurricanc-force winds. The security systems, however, were not deactivated. After the storm, upon determination by a  ;

damage and safety evaluation team that other personnel could depart shelters, l the Licensec deployed security officers to assess damage, to conduct checks of the protected and vital areas, and to secure the site. During these searches of  !

the protected and vital areas, the Licensee found no indications that outsiders had penetrated the site during the storm, On August 24,1992, after the storm.

the security department deployed personnel and reestablished material access j controls along with alarm response and implemented compensatory measures j for the failed equipment in the protected area.

On September 22,1992, the Licensee restored the regular security program with some compensatory measures still in place. On September 23-25, 1992,  ;

Region 11 safeguards inspectors reviewed the security measures and found them l acceptable, j Expressing concern regarding removal of contaminated / radioactive material from the site, the Petitioner refers to an earlier complaint made in 1991 by  ;

a former crane operator, Mr. Gene liutchinson. NRC Region II inspectors l 1

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. performed an onsite inspection during July 8-12, 1991, and reviewed the j Licensee's RP program for removing material from the RCA. The inspection determined that the scrap material was removed from noncontaminated systems ,

and that, at that time the material was surveyed, the material was free of  ;

measurable contamination. The Licensee took corrective actions relating to removal of material from RCA. The Staff documented its findings and acceptance ,

t of the Licensee corrective actions in Inspection Report (IR) 50-250,50-251/91-i 26, dated August 16,1991. This report is available in the local public document '

room. By letter dated January 29,1992, the NRC Staff forwarded IR 50-250.50~

251/91-26 to Mr. Gene liutchinson and informed him that his allegation was i

not substantiated.

With respect to the Palm Beach Post report on the stolen material, the  !'

alleged stolen cable material was the backup material for transmission lines.

This material was not located at the Turkey Point site and was not under the  ;

plant security jurisdiction. &

Interim Fire Protection The Petitioner alleged several deficiencies in the interim fire protection system. The Petitioner alleged that the interim fire protection system violated 3 plant TS 6 3.7.8.1," Fire Water Supply and Distribution System," requirements.

Additionally, the Petitioner alleged that the design of the Unit 4 interim fire protection system reduced the margin of safety for fire protection due to several t design deficiencies. The alleged design deficiencies include: lack of automatic j i

level control for the fire water supply tank, procurement of electric fire pumps by an unclear specification and procurement process, use of a non-safety-related j fire water source due to clogging of the intake canal, use of unreliable screen '

wash pumps and vulnerable temporary diesel pumps due to their location with unassured power supplies and breaker coordination problems, and reduction of fire water flow due to a 6-inch hose connection. The Petitioner also claimed that the location of the temporary diesel pumps in buildings that were destroyed by the hurricane demonstrated the vulnerability of the pumps.

'Ihc hurricane winds caused the service water system high. water storage tank  ;

to collapse, which caused damage to the fire protection system. Specifically, the raw water tank (RWT) I and its appurtenances, the county water supply line to RWT 11 the casing and controller for the electne-powered fire pump, the )

jockey system pressure pumps and portions of the fire protection system piping and piping supports, and certain power cables associated with the pumps, were damaged.

After the hurricane, the Licensee fully restored the fire protection system to its design configuration by November 8,1992. Until the fire protection system was restored, the Licensee implemented an interim fire protection configuration 504

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to Support Unit 4 Startup" and satisfactorily demonstrated compliance with ,

j Appendix R to 10 C.F.R. Part 50 and TS requirements. 'Ihe Staff reviewed the Licensee's safety evaluation and found it acceptable for restarting Unit 4. ,

l' l l On October 14, 1992, the Staff issued a summary of the September 22, 1992 I meeting' that documented its acceptance of this safety evaluation, which was l' presented to the Staff at the meeting. This meeting summary was attached to  !

the October 23,1992 acknowledgment letter to the Petitioner. .

Before FPL restarted Unit 4, the NRC Staff inspected and verified the i

Licensee's implementation of the interim tire protection system configuration, l: j l which is documented in Inspection Report 50-250,50-251/92-23 dated Rtober 29,1992.

7he interim fire protection water supply system did not violate the TS I

l s 3.7.8.1, " Fire Water Supply and Distribution System," as discussed below. '

The limiting condition for operation (LCO) in TS 3.7.8.1 requires that the fire water supply and distribution system shall be operable with: I

a. At least two fire suppression pumps, one electric-driven and one diesel-driven, with their discharges aligned to the fire suppression j i

header;

b. Two separate water supplies, each with a minimum contained volume of 1,135,623 liters (300,00() gallons); and

c. An OPERABLE flow path capable of taking suction from the RWT I and RWT 11 and transferring the water through distribution piping with OPERABLE sectionalizing control or isolation valves to the ymd  ;

hydrant curb valves, the last valve ahead of the water flow alarm '[

device on each sprinkler or hose standpipe, and the last vahe ahead of the deluge valve on each deluge or spray system required to be OPERABLE according to TS 3.7.8.2, 3.7.8.3, and 3.7.8.4.

Action statement (a), associated with TS 3.7.8.1, requires that, with one pump and/or one water supply inoperable, the inoperable equipment must be restored  !

to OPERABLE status within 7 days or an alternate backup pump or supply must i

be provided. Action statement (b), associated with TS 3.7.8.1, requires that with the fire water supply and distribution system otherwise inoperable, a backup fire water capability should be established within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />. "Ihese action statements l

apply to both units simultaneously.

Only one of the required two water supplies was available in the interim fire protection water supply system configuration. To be consistent with the action statement (a), the Licensee used the screen wash system as the alternate  ;

backup supply for the fire protection water supply. The Licensee, by hydraulic calculations, verified in its safety evaluation that the worst-case system demand r

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l with adequate hose stream could be supplied. The Staff found the screen wash .{

l-j: system acceptable as an alternate water supply system for the fire protection water supply system / In addition, to meet the requirements of section IILA in l Appendix R to 10 C.F.R Part 50, the Licensee previously used the screen wash  !

pump system as an alternate fire protection water supply, use of which was  ;

approved by the Staff in a letter of March 21,1984. , j Use of the screen wash system for fire protection reduced the volume of water available for manual hose streams from 2839 liters per minute (750 gpm) to 1893 liters per minute (500 ppm) with tl.Te largest fixed fire water suppression i

system in operation. The volume of 1893 liters per minute (500 ppm) met the '

NRC's minimum guidelines for manual hose stream volume and was more than an adequate flow for manual hose streams for use by the fire brigade if a fire  ;

activated the largest fixed fire water suppression system. Reducing from 2839 liters per minute (750 ppm) to 1893 liters per minute (500 ppm) for manual hose stream capacity when the screen wash system was used as the primary fire protection water supply did not significantly reduce the effectiveness of the y manual hose stream at the Turkey Point Nuclear Plant. This flow reduction is within the current NRC guidelines.

Manual level control, used in the interim fire protection configuration instead of automatic level control for controlling level in the fire water tank, did not reduce the margin of safety for fire protection. RWT 11 was the existing water supply for the electric- and diesel-driven fire pumps in the interim configuration. l The volume of the tank was 2,839,059 liters (750,000 gallons). The tank automatically . maintained a minimum level of 1,135,623 liters (300,000 gallons) of water dedicated for fire protection. The service water system, which also drew off the RWT, had its intake nozzles high on the tank wall in a manner equivalent ,

to standpipes to prevent service water draw from the dedicated inventory of the fire suppression system. The minimum volume of water required by NRC '

guidelines for fire protection water supply at nuclear power plants is 1,135,623 liters (300,000 gallons). This amount of water is the largest expected design demand of any fire suppression system, with 1893 liters per minute (500 ppm) for manual hose streams for a minimum of 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br />. The Licensee maintained the RWT level by visual inspections, as required by the Turkey Point administrative controls.

The interim fire protection water supply configuration following the hurricane included a new electrically driven fire pump with flow and pressure character-istics similar to the electrically driven fire pump damaged in the hurricane. De Licensee stated that it installed the new pump in accordance with National Fire Protection Association (NFPA) Standard 20, " Standard for the Installation of Centrifugal Fire Pumps." This is a nationally recognized standard for installing fire pumps and is the minimum acceptance standard for installing fire pumps allowed by NRC Fire Protection Guidelines.

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b To ensure that a fire protection water supply was readily available after the t loss of offsite power and the failure of both the electric- and diesel-driven fire pumps, the Licensee evaluated the power supplies to the screen wash pumps. '

~the Licensee modified the interim configuration to correct the breaker fuse coordination to ensure that all power paths to the screen wash pumps were  ;

maintained for normal and emergency conditions and demonstrated that these , ,

pumps had a reliable source of power under all conditions.

'lhe interim configuration also included a backup supply from three temporary diesel pumps. *lhe hurricane damaged the central receiving and health physics buildings, as alleged. Ilowever, the onsite temporary diesel pumps were not s located in the central receiving or the health physics buildings but were tied down near the auxiliary building. They were not damaged and were available i for fire fighting immediately after the storm. Therefore, the Petitioner's concern l as to the vulnerability of the pumps is unfounded. l' 1he Licensee also brought portable diesel pumps to the site to improve its fire-fighting capebility. The fire-fighting capability after the hurricane was as follows:

• First 83 hour9.606481e-4 days <br />0.0231 hours <br />1.372354e-4 weeks <br />3.15815e-5 months <br />s: portable fire extinguishers and portable diesel fire l pumps with hoses.

• August 27, 1992: screen wash pump and fire header meeting TS 3.7.8.1 placed in service in addition to the above.

= August 28,1992: diesel fire pump and RWT 11 in service in addition to the above.

• September 26,1992: electric fire pump in service in addition to the above before Unit 4 restart.

= November 8,1992: fire protection system restored to original design basis.

The Petitioner also stated that the interim fire protection configuration repre-sents a significant change to the plant and, as a result, alleged that the Licensee's implementation of the change by a safety evaluation rather than a license amend-ment process violates the requirements of section 50.59. Additionally, the Pe-titioner alleged that the Licensee's safety evaluation is inadequate in that it did 4 l

not include specific surveillance and other testing requirements.

The Licensee did not violate section 50.59 requirements. Whenever a  ;

I proposed change, test, or experiment involves a change in the TS incorporated in the license or an unreviewed safety question, section 50.59 requires all licensees to first obtair, the Commission's approval. Licensees must determine, and document in safety evaluations, whether a proposed change can be made without prior NRC approval or must be made by license amendment. Accordingly, the Licensee's safety evaluations were not a circumvention of the process, but were j a necessary and essential part of the process to satisfy the regulation.  !

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'To verify the changes to the fire protection system, as discussed in the  ;

responses to other issues, FPL prepared a safety evaluation report pursuant l to section 50.59 in which it documented its evaluation of the interim fire l protection system configuration for compliance with the licensing and design - i basis requirements. The Licensee determined which system configuration I requirements, including surveillance and functional testing requirements, were . ,

needed before it could restart Unit 4. The Licensee's safety evaluation did not identify any change to the TS or the presence of any unreviewed safety question.

Therefore, the plant changes did not require prior NRC approval. In addition,' l the Staff reviewed the Licensee's safety evaluation and found the changes to he j consistent with the plant TS and to not involve an unreviewed safety question  ;

and, therefore, to be acceptabic. .

TS Violations and Missed Sur eillances I

The Petitioner alleged several operational deficiencies during and after the hurricane. The alleged deficiencies include certain TS violations, failure to perform required surveillances and startup tests, and erroneous actuation of the overpressure mitigation system (OMS). Specifically, the Petitioner alleged that the 1.icensee "used ' lack of lighting in Containment & support personnel on site' as excuses" and did not depressurire and vent the reactor coolant system as required by TS 3.4.9.3, missed two tests relating to venting of the emergency core cooling system (ECCS), and did not run the standby feedwater t- pumps on September 29,1992,- and erroneously actuated the overpressure mhigation system (OMS). The Petitioner questioned the reliability of the OMS and contended that these deficiencies constitute serious reduction in the margin of safety for the reactor coolant system. The Petitioner also stated that it is not clear what the NRC position is with regard to the Licensee's implementation of required TSs and LCOs during crises and alleged that failure to follow TS resulted in a dangerous reduction in the margin of safety.

Turkey Point TS 3.4.9.3," Overpressure Mitigating Systems," " Limiting Con-dition of Operation," specifies that, when the reactor coolant system (RCS) av-erage temperature falls below 135'C (275 F), the high-pressure safety injection (IIPSI) flow paths are to he isolated and require two operable power-operated relief valves (PORVs) or provision for adequate depressurizing and venting of the RCS. These requirements reduce the possibility for a low-temperature over-pressurization (LTOP) condition of the RCS when it is in a cold and water-solid condition by isolating IIPSI to prevent injection into a water-solid RCS, by preventing the start of an idle reactor coolant pump when the difference be-tween the RCS and steam generator temperatures is more than 10'C (50 F) and by providing an adequate vent path. He Turkey Point units and many other pressurized-water reactor (PWR) plants also rely on autornatic venting through 508 4

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PORVs to protect against an i TOP. The TS for these plants specify setpoints for

'l the PORVs and also specify the minimum RCS vent size. These requirements -

are designed to prevent mass and heat input transients more severe than those i assumed in the iTOP protection analyses. j To verify that the PORVs are operable, the Licensee should perform surveil- '

l lance procedure 3/4-OSP-041.4, " OMS Nitrogen Ih.ckup Leak and Functional ,

i Test" and check the pressure in the nitrogen bottle to verify that the PORV will open on a test signal. 'Ihe nitrogen bottle is a backup supply to the instrument air system which normally operates the PORV.

During August 24-25, 1992, after the Turkey Point units were brought to ,

a hot shutdown, the Licensee, under the provisions of 10 CER. 6 50.54(x), j decided not to enter the containment and not to hook up the equipment required  ;

to perform the necessary OMS surveillance test procedure. The Licensee took this action because the normal lighting in the containment was not available 1 due to low of offsite power, and portable lighting would have been required to  !

perform this surveillance. Entry into containment without the normal lighting l carried too high a risk of potential human error and injuries that could result in ,

an undesirable plant transient. At the time, the safety uportance of the OMS i was substantially reduced from its design basis because the unit was not in a l water solid condition during or following the hurricane. Also, the !! PSI flow I path to the RCS was isolated, as required by the TS under such conditions. 'Ihe Licensee successfully accomplished the control-room portion of testing the OMS  :

(i.e., cycling of the PORVs within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> of the shutdown of the units) using normal instrument air. "Ihe nitrogen portion of the OMS was tested and declared operational by September 7.1992, when stable offsite power was restored and ,

i normal lighting was available inside containment. 'lhe instrument air system remained operational throughout the entire event.

Regarding the Petitioner's allegation that the Licensee used " lack of lighting in Containment & support personnel on site as excuses" and its " subjective" ]

implementation of required technical specifications and LCOs during crises, the j NRC requires each licensee to conduct TS surveillances during normal operation.

llowever, when a plant is in an Unusual Event or other emergency condition, j section 50.54(x) allows a licensee to take reasonable action that departs froen a heense condition or a technical specification (contained in a hcense issued u:ider this piut)in an emergency when thk action is snunediately needed to protect the public health and safety and no action consistent with the license f conditions and technical specihcations that can provide adequate or equivalent protection is inanediaiely apparent

'Ihc Licensee is expected to exercise good judgment and minimize possible upset situations where feasible. Further.10 CER. % 50.54(y) requires that the j

" Licensee's action permitted by paragraph (x) of this [10 C.F.R. t 50.54j section j i

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shall be approved, as a minimum, by a licensed senior operator prior to taking the action. The Licensee actions to depart from the TS-required surveillance tests were not a failure, but rather conscious emergency decision and actions consistent with the provisions of section 50.54(x). The NRC Staff reviewed the Licensee's actions taken during the emergency condition to depart from the TS surveillance noted above and determined that they were immediately needed to ,

protect the public health and safety and no other adequate or equivalent action consistent with license conditions or TS was immediately apparent. The NRC Staff also found the Licensee's actions appropriate on the basis that, as required by section 50.54(y), the departure from TS was approved by a licensed senior reactor operator prior to implementation, the Licensee provided notifications to the NRC as required by 10 C.F.R. 650.72, and the Licensee took necessary actions to recover from the departure from TS as soon as practicable following the hurricane (i.e., departed from TS only to the extent necessary). The NRC Staff evaluation of this event is documented in IR 50-250,50 251/92-20 dated November 20,1992.

On October 5,1992, with Unit 4 in cold shutdown, the Licensee was performing the OMS nitrogen backup leak and functional test. The test requires preparation of the primary coolant loop such as to allow opening of the PORVs without depressurization of the RCS. The test is accomplished by introducing a simulated high-pressure signal to the primary coolant loop instrumentation being tested and verifying that the loop instrumentation operates 'as designed.

In performing the test, Licensee personnel erroneously proceeded to apply the simulated high-pressure signal to a backup instrurnentation loop instead of the primary loop under test. The backup is a parallel loop that is identical in operation and configuration to the primary loop. Since the backup loop was not prepared for the test, application of the te.st pressure resulted in a brief opening of the PORV and a slight depressurization of the RCS, approximately 82.74 kilopascal (12 psig). The incorrect simulated high RCS pressure signal also inadvertently caused a suction valve in the RHR system to close. This resulted in a brief loss of RHR cooling and a less than 1*C (1 F) increase in the RCS temperature. After the event, the PORV was closed. Additionally, the RHR system was returned to normal operation in a timely manner. No high system pressure actually occurred as a result of the inadvertent actuation of the PORV, and the OMS and RHR system functioned as expected. With the plant in cold shutdown at approximately 2413 kilopascal (350 psig), a spurious safety injection (SI) would not have occurred because, by procedure, the IIPSI flo,v path was isolated. The Licensee successfully completed the test and has implemented appropriate corrective actions to prevent recurrence of inadvertent actuation of OMS. The NRC Staff evaluated the deficiencies discussed above and documented its evaluations in IR 50-250,50-251/92-24. As noted in the inspe.ction report, this resulted in a noncited violation, in accordance with 510 i.e

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l NRC enforcement policy, for the Licensce's failure to follow procedures, which resulted in the inadvertent opening of a PORV.

The tests that the Petitioner contends were not completed are related to the -j venting of the ECCS and the rur,ning of the non-safety-related standby feedwater j pumps in the recirculation mode. The Turkey Point TSs require that each ECCS j component and flow path and the standby feedwater pumps be demonstrated ,

i to be operable at least monthly while the units are in Modes 1,2, or 3. On September 29, 1992, with Unit 4 in Mode 2, the Licensee discovered that,-

contrary to these TS requirements. ECCS pump and piping venting and the j standby feedwater pump operability demonstration had not been performed prior to entry into Mode 3. ECCS venting had been last performed on August 7,1992, and standby feedwater pump operability had been L : demonstrated on August  !

5,1992.  ;

in response to the discovery of these missed surveillances, the Licensee  ;

satisfactorily completed them promptly and demonstrated that both the ECCS and the non-safety-related standby feedwater pumps were operable. Further, j the Licensee returned Unit 4 to Mode 3 and satisfactorily verified that all j f

other required surveillances had been performed. During this time the normal feedwater and safety-related auxiliary feedwater remained available. In addition. l ECCS pump and piping venting (high head safety injection pump readiness test) showed no evidence of air when venting the piping or pump casing. The Licensee also walked down the RHR and safety injection systems to verify valve I alignment. Prior to entry into Mode 4, cooling of the RCS was provided by an RilR pump which ran normally. It is important to note that there was no reactor trip, nor was there an inability to cool the pumary system under any required ,

condition as a result of these missed surveillances, as alleged. l The Licensee attributed the cause of this event to personnel error, in that the surveillance due dates were improperly changed in the computer, and has implemented corrective measures to require supervisory review and approval of  ;

all changes to surveillance dates in the computer. The NRC Staff reviewed the j Licensee's event analyses and actions and determined that the missed surveil- ]

lances did not result in any health and safety concern and that the Licensee's corrective actions were satisfactory. In accordance with NRC enforcement pol-icy, however, this resulted in a noncited violation for the Licensee's failure to perform TS-required surveillances within the specified time frames. The NRC Staff evaluation is documented in IR 50-250.50-251/92-20.

TS and Design liasis Adequacy The Petitioner has raised several issues regarding plant TS adequacy and design bases. Specifically, the Petitioner claimed that the Turkey Point nuclear units performed poorly during the storm, and that there were post-hurricane l

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operational deficiencies including certain violations of TS, and questioned the adequacy of the Turkey Point design bases and TS and whether they should be

- reevaluated to ensure maintenance of an adequate margin of safety As discussed in detail in this Director's Decision, the Turkey Point nuclear unita functioned well and withstood the hurricane wind forces. Although the storm caused significant onsite and offsite damage, it did not damage the nuclear ,

safety related portions of Units 3 and 4, which could pose a radiological hazard to the public if they failed. These safety-related systems were designed to withstand hurricane-force winds. All emergency systems functioned as designed and the EDGs operated in a reliable manner and supplied adequate power to critical cooling functions throughout the period when the offsite power was not available. Ilefore the storm arrived, the Licensee, in accordance with its emergency planning procedures, brought the units to the hot shutdown mode, and the units remained in a stable condition throughout.

During the storm, the Licensec departed from TS requirements relating to OMS surveillances, fire watch, and AC electrical power sources. These depar-tures from TS surveillances were not a failure, but rather conscious and prudent emergency licensee actions consistent with the provisions of section 50.54(x).

Ihr a full discussion of this issue, see "TS Violations and Missed Surveillances,"

wpra. Further, the startup problems identified by the Petitioner were related to human errors that have subsequently been evaluated and corrective actions taken.

Ilowever, these problems did not reduce any margins of safety.

To minimize any future damage of the types experienced during llurricane Andrew, the 1,icensee has implemented several design enhancements. Specif-ically, the design enhancements include: (1) elimination of the service-water high-water storage tank that caused damage to the fire protection system, (2) attachment of 'lLL)s to the warning siren poles, which will better withstand hurricane-force winds and enable recovery of the TLDs after a hurricane, (3) replacement of the communications systems that relied on the Southern Bell aerial copper wire with a buried fiber-optic cable along Palm Drive, and (4) installation of two new high-frequency radio systems for communications be-tween the plant and offsite locations. In addition, the Licensee has procmed new antennas, designed to withstand winds above 200 mph, to improve system reliability. Spare portable antennas also are available on site to ensure prompt replacement, if needed.

The Staff's inspection of the Licensee's emergency preparations and actions before, during, and after the storm revealed that they were prudent and consistent with the regulations and did not identify any reduction in the margin of safety in the design of safety-related systems. Therefore, the Staff concludes that the plant design bases and TS, and Licensee's design enhancements, are adequate.

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i Licensee Staffing and Economics of Reconstruction 1

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'Ihe Petitioner questioned whether the Licensee had adequate. staffing to perform necessary onsite and offsite' support activities during the storm. The Petitioner also asserted that " insufficient workers under overworked and rushed conditions led to the accident of a worker, operating a crane, falling inside  ;

radioactive water in the Reactor cavity." In addition, the Petitioner contended ,

that economics of reconstruction of the nuclear units to " reliably prevent or ~!

'I mitigate an accident of unpredictable magnitude" and need for development of alternate energy sources must be evaluated.

"the conditions in the area after the storm required the Licensee to limit ,

support personnel at the site. The Licensee limited the number of onsite {

personnel (volunteers) to approximately 150. The Licensee considered this j staffing level, which included two complete operating crews, adequate to shut down both units and to maintain them in a safe shutdown condition. After the j hurricane, Licensee personnel were available in sufficient numbers to accomplish j

the cleanup and repair efforts that made it possible for Unit 4 to be ready for startup by September 28,1992. j On October 9,1992, a maintenance technician was giving directional assis- l I

tance to a crane operator when he lost his footing and slipped into the Unit 3 reactor cavity approximately up to his waist. This event resulted from human error and was reviewed for preventive corrective action. The event occurred after the Licensee had voluntarily shut down Unit 4 on October 1,1992, and no rush or haste was involved.

De Petitioner's contention regarding economics of reconstruction is not within the scope of the NRC's responsibilities.

Coexistence of Nuclear and Fossil Units On the basis of the llurricane Andrew experience, including damage to the fossil unit stacks and the rupture of oil tanks, the Petitioner questioned whether such events on the fossil side, or the non-safety side of the nuclear units, could adversely affect the containment structures or any nuclear safety-related systems and whether they have been evaluated.

Class I structures, systems, and equipment, which could pose radiological hazards if they failed, are designed to withstand earthquakes, and other severe natural phenomena, and failure as a result of interaction with other nonsafety structures, systems, and components without any loss of function.

If the fossil unit stacks had failed, potential existed for debris from these stacks impacting certain safety-related systems such as the EDG buildings, the EDG oil tank, and the switchgear building. However, due to redundancies and physical separation of these safety related equipment and structmes, it is not 513 i

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expected that the falling of fossil stacks could adversely affect the safe operation of the plant. The hurricane caused severe damage to the Unit I stack, which ~

posed a personnel safety concern. The Licensee responded by removing the stack, using controlled demolition techniques. Before the stack was demolished, the Staff reviewed the Licensee's evaluation'and safety precautions and found them to be acceptable. The Unit 2 stack sustained only minor damage. The . ,

Licensee performed a detailed inspection and analysis of the stack to verify its structural integrity. The Licensee concluded that the stack, in its existing condition, has adequate margin to failure and, therefore, can withstand its original design wind load without adversely interacting with the nuclear units.

ne Staff resiewed the Licensee's analyses and found them acceptable for restart of the nuclear units. The Licensee agreed to the Staff's recommendation to periodically perform surveillance on the Unit 2 stack until it is reinforced, to ensure that it has not degraded. Ily April 1993, the Licensee completed the modifications and reinforcements to the Unit 2 stack and erected a new Unit I stack.

Failure of sections of fossil units did not endanger the nuclear units. The puncture of the oil tank created a cleanup problem for both the fossil and nuclear units but did not create a safety problem.

IV. CONCLUSION Ibr the reasons discussed above, the NRC concludes that Turkey Point Units 3 and 4 are being operated in accordance with applicable regulations and do not endanger the health and safety of the public. The institution of proceedings pursuant to 10 C.F.R. 6 2.202 is appropriate only if substantial health and safety issues have been raised (sce Consolidated Edison Co. ofNew Park (Indian Point Units 1,2, and 3), CL1-75-8,2 NRC 173,175 (1975); Washington Public Powcr Supply System (WPPSS Nuclear Project No. 2) DD-84-7,19 NRC 899, 924 (1984). This is the standard that has been applied to the concerns raised by Pe-titioner to determine if enforcement action is warranted. Therefore, any further action on the issues addressed in this Director's Decision and the Petitioner's request for action pursuant to section 2.206 is denied. As provided in 10 C.F.R. 514

r 52.206fc), a copy of this Director's Decision will be filed with the Secretary for the Commission to review. ,

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FOR Tile NUCLEAR REGULATORY COMMISSION Thomas E. Murley, Director ,

Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 7th day of June 1993.  ;

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