ML20203M498
| ML20203M498 | |
| Person / Time | |
|---|---|
| Issue date: | 04/30/1986 |
| From: | NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V23-N02, NUREG-750, NUREG-750-V23-N2, NUDOCS 8605010547 | |
| Download: ML20203M498 (78) | |
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{{#Wiki_filter:__ NUREG-0750 Vol. 23, No. 2 Pages 49-111 1 NUCLEAR REGULATORY
- COMMISSION ISSUANCES February 1986 ysREGyg i ! %gb#glV.y r,, s j '
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I ( I 1 1 l Available from l Superintendent of Documents U.S. Government Printing Office Post Office Box 37082 Washington, D.C. 20013-7082 8 A year's subscription consists of.12 softbound issues. 4 indexes, and 4 hardbou.id editions for this publication. Single copies of this publication are available from National Technical Information Service, Springfield, VA 22161 t II i Errors in this publication may be reported to the Division of Technical Information and Document Control. Office of Administration. U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 (301/492-8925) or (301/492-7566)
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. 4 NUREG-0750 Vol. 23, No. 2 Pages 49-111 NUCLEAR REGULATORY s COMMISSION ISSUANCES February 1986 e ... -
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Boards (ALAB), the Atomic Safety and Ucensing Boards (LBP), the Administrative Law Judge (ALJ), the Directors' Decisions (DD), and
' .7' the Denials of Petitions for Rufemaking (DPRM).
i The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinicns or to have any indepen-dent legal significance. O.S. NUCLEAR REGULATORY COMMISSION % 4 s Prepared by the Division of Technical information and Document Control, I Office of Administration, U.S. Nuclear Regulatory Commission, Washington, D.C. 20566 ( (301/492-8925) t l I . . . _ . . . _ _ _ . _ _ . . _ . .
CONTENTS Issuances of the Nuclear Regulatory Commission INQUIRY INTO THREE MILE ISLAND UNIT 2 LEAK RATE DATA FALSIFICATION Docket LRP MEMORANDUM AND ORDER, CLI 86-3, February 13, 1986 . . . . . . . . . . . . . . . 51 METROPOLITAN EDISON COMPANY, et al. (Three Mile Island Nuclear Station, Unit 1) Docket 50-289 (Restart) ORDER, CLI-86-2, February 6,1986 . . . ..... . . . . . . . 49 Issuances of the Atomic Safety and Licensing Appeal Boards CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al. (Perry Nuclear Power Plant, Units I and 2) Dockets 50-440-OL, 50-441-OL MEMORANDUM AND ORDER, 7; AL AB-831, February 27,1986 . . ... ... . . . . . 62
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>; * . ,V Docket 50-382-OL M '. s 55 NOTICE, ALAB-829, February 5,1986. . . .. . . . . . 55
- m. W h{%.d Q &. % ;?i::qs;j PHILADELPHIA ELECTRIC COMPANY (Limerick Generating Station, Units I and 2)
Dockets 50-352-OL, 50-353-OL MEMORANDUM AND ORDER, ALAB-830, February 7,1986 .. . . . . . . . . 59 Issuances of the Atomic Safety and Licensing Boards COMMONWEAL'TH EDISON COMPANY (Zion Station, Units I and 2) Dockets 50-295-OLA, 50-304-OLA (ASLBP No. 84 500-06-LA)
! MEMORANDUM AND ORDER DISMISSING PROCEEDING, LBP-86-6, February 19, 19 86. . . . . . . ... .... . . ..... 92 i
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l 40USTON LIGHTING AND POWER COMPANY, et al. (South Texas Project, Units I and 2) Dockets STN 50-498-OL, STN 50-499-OL (ASLBP No. 79-421-07-OL) MEMORANDUM AND ORDER, LBP 86-5, February 14, 1986. . .. .... .. .. . . 89 KERR-McGEE CllEMICAL CORPORATION ' (West Chicago Rare Earths Facility) Docket 40-2061-ML (ASLBP No. 83-495-01-M L) MEMORANDUM AND ORDER, LBP-86-4, February 10, 1986. . ... . 75 PHILADELPlilA ELECTRIC COMPANY
- (Limerick Generating Station, Units I and 2)
Dockets 50-352-OL, 50-353-OL ( ASLBP No. 81-465-07-OL) FIFTH PARTIAL INITIAL DECISION, LBP-86-3, February 4,1986. . .. 69 Issuance of Director's Decision
. UNION ELECTRIC COMPANY (Callaway Plant, Unit 1) 03:. Docket 50-483
... DIRECTOR'S DECISION UNDER 10 C.F.R. 2.206,
((~, DD-86-2, February 10, 1986 . . ... .. .. .. . 97
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. . 1 l Cite as 23 NRC 49 (1986) C L1 86'-2 '
l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS: Nunzio J. Palladino, Chairman Thomas M. Roberts James K. Asseletine Frederick M. Bemthal Lando W. Zech, Jr. In the Matter of Docket No. 50-289 (Restart)
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(Three Mile Island Nuclear y ., y 3 ; 4
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- - - The Commission decides that review of ALAB-826, 22 NRC 893 (1985), is unwarranted. The Commission reaches no judgment on whether the Licensing Board statement regarding INPO's compliance with its own criteria is correct.
ORDER ) The Nuclear Regulatory Commission has decided that review of ALAB-826,22 NRC 893 (1985) is unwarranted. Although the Commis-sion is not taking review, comment on one issue is appropriate. In its decision on the adequacy of Licensees' training program, the Licensing Board concluded that the INPO Accreditation Board failed to comply with its own criteria in evaluating the TMI-I training program, and that INPO's accreditation of the TMI-l training program was, there-fore, inaccurate. LBP 85-15,21 NRC 1409,1508 (1985).
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4 The Licensing Board's statement is not a necessary element ofits deci-sion rationale. The deficiencies perceived by the Board in INPO's accred-itation program do not require further consideration because the Board l
- ? .- -- had adequate alternative grounds for concluding that Licensees' training 4 , ,
program is adequate. Therefore, the Commission reaches no judgment p. whether that Licensing Board statement on INPO is correct, and does
,' not believe that the issue needs to be resolved within the context of the
- - , TMI-l restart proceeding.
With the issuance of this Order, the Three Mile Island Unit I restart
- . 4 administrative proceeding comes to a close. ,
For the Commission 4 Samuel J. Chilk Secretary of the Commission y Dated at Washington, D.C., this 6th day of February 1986.
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Cite as 23 NRC 51 (1986) CLI 86-3 l l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION j COMMISSIONERS: I 1 Nunzio J. Palladino, Chairman Thomas M. Roberts James K. Asselstine Frederick M. Bemthal ; Lando W. Zech, Jr. l In the Matter of Docket No. LRP INQUIRY INTO THREE MILE ISLAND UNIT 2 LEAK RATE DATA --_a..7__ 42. , g_ . , i FALSIFICATION February 13,1986 i 3.. ,- _ ,,: , - :;
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5: - ,- < J 'f The Commission denies a request to modify the December 18,1985
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't - Notice of Hearing on leak rate falsifications at TMI-2. .
R $ 7;$h S! k_. .? ~ ?. $ % Q l l MEMORANDUM AND ORDER On January 14, 1986, various former employees of Metropolitan Edison Company "who will be involved in this proceeding" (" Petition-c
. ers") filed a motion requesting that the Commission make several L modifications to its December 18, 1985 Notice of Hearing on leak rate falsifications at TMI 2, CLI 85-18,22 NRC 877 (1985). ~
Before turning to Petitioners' specific requests, the Commission wishes to make it clear that this proceeding is discretionary; it is not being conducted because the law requires it. The proceeding will be used as an information base for decisions on whether enforcement or other licensing action should be initiated. It will not be used to deprive any individual of any statutory hearing rights he or she may have if 1
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Y i (; formal enforcement or licensing action is initiated. With this as back-ground, we will address each request in turn.
- l. Petitioners first request that the order be revised to refer to "al-e leged" leak rate falsifications. This request is denied. Information devel-oped in fe~deral court proceedings and investigations by GPU Nuclear c and the NRC support the proposition that some falsification ofleak rate data occurred at TMI-2. However, the Commission has not prejudged this issue and the Presiding Board may reach a contrary conclusion if additional evidence is developed and the record so dictates.
- 2. Petitioners next request that the Commission make clear that the information developed in this hearing will not be used to deny, suspend, or revoke an operator's license without prior notice and the opportunity for an adjudicatory hearing. The introductory paragraph of this Order ex-plains the purpose of this proceeding and makes clear that individuals will not be deprived of statutory hearing rights. Accordingly, unless the public health, safety, or interest requires otherwise, the Commission will not condition, suspend, or revoke an operator's license without prior notice and opportunity for hearing. Denial of an initial or renewal application would also give Petitioners a right to a hearing.
,- . . , 1 3. Petitioners also request that the Commission expand the scope of the hearing to include whether the requirements for reactor coolant
; e v .R system ("RCS") unidentified leakage in Technical Specification 3.4.6.2 (T . ; N . '
were reasonably promulgated, whether they had safety significance, and Wr y'; 4 - 4 , whether anyone knew of a method in 1978-1979 that would have pro-duced a reasonably accurate measure of unidentified leakage from the V!?g. 'J b,, .g,,t %$@ .'.fi@Jhgh?.]n
, y2ph RCS. The focus of this hearing relates to whether Metropolitan Edison Company employees followed requirements, not whether the require-ments were properly imposed. Accordingly, the request is denied, except to the extent Petitioners' issues are already within the scope of the hearing under CLI-85-18 (see, for example, 22 NRC at 880, 1 B.2(b)).
- 4. Finally, Petitioners request that the Commission grant the Presid-ing Board the authority to permit discovery and cross-examination of witnesses. This request is denied. The Commission continues to believe the procedures set forth in CLI-85-18 should be sufficient to develop an adequate record. As we noted in that Order,if the Presidinji Board deter-mines that use of additional procedures is warranted, it may request au-thorization from the Comniission to use such procedures.
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Commissioner Asselstine disapproved this Order. It is so ORDERED. For the Commission
- SAMUEL J. CHILK Secretary of the Commission Dated at Washington, D.C.,
this 13th day of February 1986. m. i
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- 6) ' Chairman Palladino and Commismoner Bernthat were absen' for the amrmation or thes item. Had they
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; Atomic Safety and j Licensing Appeal i Boards issuances I
i l ATOMIC SAFETY AND LICENSING APPEAL PANEL
' Alan S. Rosenthal, Cheirman
! Dr. W. Reed Johnson Thomas S. Moore Christine N. Kohl Gary J. Edles Dr. Reginald L Gotchy
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! Howard A.Wilber
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emme m -.. . -.---- w -- - + . - .* w .=-en--. - - Cite as 23 NRC 55 (1986) ALAB-829 ) l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL 80ARD Administrative Judges: Christine N. Kohl, Chairman Dr. W. Reed Johnson Howard A. Wilber In the Matter of Docket No. 50 382-OL LOUISlANA POWER & LIGHT COMPANY * (Waterford Steam Electric
,+l , , .. Station, Unit 3) February 5,1988
( _: .L- ., n . F9-:.7llfyjgg'js The Appeal Board directs that an order it had entered earlier in this [5'kfh5hk. ' " proceeding be published in the NRC Issuances. That order directed the NRC staff and the Commission's Office ofInvestigations (OI) to provide the Board with information gathered in certain 01 investigations, which had been described in several Board notifications as potentially relevant to two motions then pending before the Board. BOARD NOTIFICATION: RESPONSIBILITIES OF STAFF As a general rule, the NRC staff has a responsibility to disclose to ad-judicatory boards and the parties all information that is potentially rele-I vant and material to a pending adjudication. 49 Fed. Reg. 36,032 (1984). SS
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l NUCLEAR REGULATORY COMMISSION: POLICY STATEMENT ON INVESTIGATIONS, INSPECTIONS, AND ADJUDICATORY PROCEEDINGS In the event of a conflict between the board notification responsibility and the need to protect investigative material from premature public dis-
. closure, Commission policy authorizes adjudicatory boards to conduct a preliminary ex parte, in camera inspection of the material at issue. Of course, information presented to a board ex parte cannot serve as the basis for an adjudicatory decision. The authority for deciding if and when disclosure of the disputed information will occur is retained by the Commission. 49 Fed. Reg. at 36,033-34.
NOTICE For the sake of completeness in our published decisions, the attached order (dated December 19,1984, and previously unpublished) will now g . ', . ,
. be reported in the NRC Issuances.
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. ; b C. Jean Shoemaker
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; ATTACHMENT TO ALAB 829 l'
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges: Christine N. Kohl, Chairman Dr. W. Reed Johnson Howard A.Wilber in the Matter of Docket No. 50-382-OL LOUISIANA POWER & LIGHT
, , ,, COMPANY (Waterford Steam Electric
.. ,q[ rs Station, Unit 3) December 19,1984
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4.- , '-, NIkkhd;M$ chm,f,' '[djg ORDER Pending before us are two motions to reopen the record, filed in this proceeding by Joint Intervenors. One concerns the adequacy of the con-j crete basemat on which the Waterford facility rests, and the other seeks to raise three new contentions relating to quality assurance, the integrity of applicant's management, and the adequacy of the NRC stafrs inspec-tion and investigation efforts in connection with the plant. See . ALAB-786,20 NRC 1087 (1984); ALAB-792,20 NRC 1585 (1984). h-Within the last several weeks we have received two Board Notifica-
- tions from the staff informing us that the Commission's Office of in-
- vestigations (OI) has recently initiated two new investigations that as- !
sertedly have some bearing on matters raised by both motions to I reopen. Board Notification Nos. BN-84-184 (Dec. 5, 1984) and l BN-84-187 (Dec.13,1984). These investigations are in addition to nine j others under way since early 1984. See NUREG-0787, Supplement No. ; i 7, Safety Evaluation Report (Sept.1984), at 2,15. Because of the subject
! matter involved, neither the staff nor 01 has provided us or the parties 1
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I with any details of these investigations. We have been advised, however, that 01 is prepared to brief us on each of its ongoing investigations in an ex parte, in camera session. BN-84-187, supra.
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The Commission has a policy and procedures for handling conflicts be-tween the agency's need to protect investigative material from premature public disclosure, on the one hand, and, on the other, the duty of all par-ties (including the NRC staff) to disclose to adjudicatory boards and par-ties information that may be relevant and material to a pending proceed-
; ing. See 49 Fed. Reg. 36,032 (1984).' The present situation compels us to invoke those procedures. The staff has acknowledged the relevance of information obtained during two of the eleven OI investigations, and it is fair to assume, at least at this point, that some or all of the other nine investigations are related to management integrity or quality assurance.
We therefore direct both the staff and 01, as pertinent, to provide us with information gathered in these investigations that is potentially rele-vant and material to the two motions pending before us, as well as a writ-
- ten " explanation of the basis of [their] concern about disclosure. /d. at 36,034. The staff and OI should also indicate what, if any, information might be disclosed to the parties under a suitable protective order. The staff and 01 should submit this material to us, in camera, by January 14, 1985. After we have reviewed the written submissions, we may request
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further information to be presented orally during an in camera hearing.2 Subsequent to our review of all the information submitted and in accord-
- ,- ~. ; ;,.' ance with Commission policy, we will notify the staff and 01 of our
~$ views concerning the need for disclosure. Ibid.
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FOR THE APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board 1 The Commission's policy emphasizes the general rule that all potentially relevant and materialinfor. mation should be disclosed to the beards and parties. It nonetheless recognizes that conflicts are inevita. ble and that a means to resolve them is necessary. It therefore has determined that preliminary ex parte. in camera inspection of the material at issue. by the board, is the most effective way of deshng with the problem. The Commission policy also stresses that informatson presented to a board en parte cannot serve as the basis for an adjudicatory decision. Finally, the Commission itself has retamed the authority for deciding if and when disclosure of the disputed mformation with occur. 49 Fed. Res. at 36.033 34. 2Under the Pohey statement. a verbaum transcript of any in camera proceeding will be made. Id. at 36.034. 3Because of is not a party to this proceeding, we are requesting the Commission's secretary to serve the Director of of with a copy of this order. i
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1 1 1 Cite as 23 NRC 59 (1986) ALAB-830 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges: Christine N. Kohl, Chairman Gary J. Edles Dr. Reginald L Gotchy In the Matter of Docket Nos. 50-352 0L 50 353 OL PHILADELPHIA ELECTRIC COMPANY (Limerick Generating Station, Units 1 and 2) February 7, ig86 ek ,fh' ,,t . E ~ '_ 9: ',.t j'{N. In this operating license proceeding, the Appeal Board dismisses inter-venor's contention dealing with medical arrangements for the treatment of individuals contaminated and injured onsite, per the stipulation of the parties. The Board also vacates the Licensing Board decision that, despite I the stipulation, contained findings of fact and conclusions oflaw on this matter. LICENSING BOARDS: DELEGATED AUTHORITY
,' Except for significant safety, environmental, and security issues raised sua sponte pursuant to 10 C.F.R. l 2.760a, the Commission regulations
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! do not authorize boards in operating license proceedings to " decide" matters not in controversy.
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I i i l LICENSING BOARDS: DISMISSAL OF PROCEEDINGS
; Once previously contested issues are no longer in dispute, whether before or after the hearing, the proceeding should be dismissed. Portland General Electric Co. (Trojan Nuclear Plant), ALAB-796, 21 NRC 4, 5 (1985).
MEMORANDUM AND ORDER
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In ALAB-819,22 NRC 681,711-16 (1985), we reversed and remand. ed a limited part of the Licensing Board's second partial initial decision insofar as it concerned intervenor Limerick Ecology Action's (LEA) contention VIII-12(a). Specifically, we found that there were not ade-quate backep medical arrangements for the treatment ofindividuals con-taminated and injured onsite. Under the auspices of the Licensing Board, the involved parties (applicant Philadelphia Electric Company (PECo), LEA, the Commonwealth of Pennsylvaria, and the NRC staff) acted in accordance with our remand and reached an agreement on the X , resolution of this issue. This agreement is embodied in a stipulation, s_ signed by all four parties, permitting the Licensing Board to " enter an
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9 appropriate order dismissing LEA's contention [VIII-12(a)) for lack of controversy." See Stipulation at 3, attached to letter to Licensing Board from A.P. Hodgdon (January 17, 1986). M dan- The Licensing Board, however, has issued a " partial initial decision"
'~" .."' n" with findings of fact and conclusions of law on this matter. See LBP.
86-3, 23 NRC 69 (1986). But under the Commission's regulations, a board in an operating license proceeding is not authorized to " decide" matters not in controversy.10 C.F.R. { 2.760a.' Thus, the Board should have simply entered an order dismissing the contention, as all the parties stipulated. See Portland General Electric Co. (Trojan Nuclear Plant), ALAB-796,21 NRC 4,5 (1985). i I section 2.760s does authorize boards to raise sua sponte sistisficant safety environmental. and security issues. but that provision is not invoked in the circurnstances here. 60 i
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d a._ __ ' - m_ u _ _ . . ~ . .... -- .. -- , Accordingly, LEA contention Vill-12(a) is dismissed per the stipula-tion of the parties, and LBP-86-3 is vacated. It is so ORDERED. FOR THE APPEAL BOARD l C. Jean Shoemaker Secretary to the Appeal Board Mr. Edles did not participate in this memorandum and order. ie
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i F ( 1 : I ! Cite as 23 NRC 62 (1986) ALAB 831 f l
. UNITED STATES OF AMERICA
> NUCLEAR REGULATORY COMMISSION l
ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges: 1 l Alan S. Rosenthal, Chairman ( Dr. W. Reed Johneon Howard A.Wilber in the Matter of Docket Nos. 50-440 OL 50-441 -OL
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, ,, CLEVELAND ELECTRIC ILLUMINATING 3.. COMPANY, et al.
(Perry Nuclear Power Plant, Units 1 and 2) February 27,1986
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The Appeal Board denies in part and dismisses in part, without preju- : dice, an intervenor's motion to reopen the record for the purpose of per-mitting the submission of new contentions. RULES OF PRACTICE: REOPENING OF PROCEEDINGS When seeking to reopen an evidentiary record to consider new evi-dence, a movant must satisfy a tripartite test: (1) is the motion timely; (2) does it address a significant safety or environmental issue; and (3) might a different result have been reached had the newly proffered mate-rial been considered initially. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB-598,11 NRC 876, 879 (1980), cited with approval in Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI 85-2,21 NRC 282,285 n.3 (1985). 5
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s a-.-----..... . _ _ , _ _ __ 4-l l OPERATING LICENSE: CRITERIA Each operating nuclear power plant is required to have a fire protec-tion plan that satisfies General Design Criterion 3 in Appendix A to 10 C.F.R. Part 50. See 10 C.F.R. 50.48(a). OPERATING LICENSES: TECHNICAL SPECIFICATIONS (SCOPE) Operating license technical specifications are meant to be limited in scope to "those items that are directly related to maintaining the integri-ty of the physical barriers designed to contain radioactivity." 33 Fed. Reg. I8,610 (1968). OPERATING LICENSES: TECHNICAL SPECIFICATIONS (SCOPE) The Atomic Energy Act and the regulations which implement it con-template that technical specifications are to be reserved for those matters as to which the imposition of rigid conditions or limitations upon reactor operation is deemed necessary to obviate the possibility of an abnormal situation or event giving rise to an immediate threat to the public health and safety. Portland General Electric Co. (Trojan Nuclear Plant), ALAB-
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531,9 NRC 263,271-74 (1979).
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hh /;&- E #'/} f RULES OF PRACTICE: REOPENING OF PROCEEDINGS Mere allegations are not enough to satisfy the standard for reopening an evidentiary record. Pacific Gas and Electric Co. (Diablo Canyon Nucle-ar Power Plant, Units 1 and 2), CLI 81-5,13 NRC 361,363 (1981). RULES OF PRACTICE: ADMISSIBILITY OF CONTENTIONS Among the 10 C.F.R. 2.714(a)(1) factors that determine the accept-ability of late contentions, a particularly important one is the extent to which the participation of the contention's submitter "may reasonably
. j be expected to assist in developing a sound record."
l APPEARANCES Susan L. Hlatt. Mentor, Ohio, for the intervenor, Ohio Citizens for Re-
; sponsible Energy.
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u - -. -. .. - - . 2 I l, j Jay E. Silberg and Harry H. Glasspiegel, Washington, D.C., for the ap-plicants, Cieveland Electric illuminating Company, et al. Colleen P. Woodhead for the Nuclear Regulatory Commission staff, 4
' - + MEMORANDUM AND ORDER s This operating license proceeding involving the Perry nuclear facility is currently before us on appeals by intervenors Ohio Citizens for Re-sponsible Energy (OCRE) and Sunflower Alliance from the Licensing Board's concluding partial initial decision.' OCRE has now moved to reopen the record for the purpose of permitting its submission of new contentions. These contentions relate to two matters that were not the subject of prior Licensing Board consideration: (1) the deletion of ele-ments of the applicants' fire protection program from the facility's j technical specifications; and (2) the applicants' request that they be per-mitted to operate the facility for protracted periods at 70% of rated .e '
4~
- power with only one of two primary coolant recirculation loops operable.2
~ ' '
1 OCRE maintains that it has satisfied the well-established tripartite test
, f.,c.'=,.P~
governing the reopening of an evidentiary record to consider new
,H , , ,
evidence: e . s. ay.m
. D .g . Q-G - ,fC (1) is the motion timely? (2) Does it address significant safety (or environmental) 9,;hN..ivdk.y-; ie ff,[.";
issucs? 07 Miths a different result have been reached had the newly proffered material been considered initially?3 I See LBP 8$.35,22 NRC $14 (198$). 2 Motion to Reppen the Record and to submit New Comentions (December 12.198$) (" Motion"). on February 3,1986, oCRE filed a second motion to reopen the record, based upon the earthquake that occurred in the vicinity of the Perry facility a few days earher. That motion remains under consider. stion and will be decided in a subsequent order. 3Part/Ir Gas and Drrrrar Co. (Diablo Canyon Nuclear Power Plant. Units I and 2), Al AB.398, ll NRC 816,819 (1980). curd eth amrovalw Metropohron Edison Co. (Three Meie Island Nuclear station. Unit 1). CLI 8$ 2. 21 NRC 282,285 n.3 (198$1 The Commission's use of this test has received judicial approval. There Afdr Island Alerr, Inc. e. NRC,111 F.2d 120,132 (3d Cir.198$1. peraen for rrrr. filed sub sons. Aansodt e. NRC 54 U s L.w. 3463 (U.s. Dec.18.1985) (No. 851095), cwing San Luts oeiwo Aforhers for Peace e. NRC,1$1 F.2d i181. I3I618 (0 C. Cir. I9841, recared in part and reh's en ianc s I granord on other grounits,160 F 2d 1320 (l98$1. Because its motion seeks to inject new issues into the proceeding, oCRE also addressed the rive fac. tors set forth in 10 C.F R. 2.714(a)(1), which control the acceptance or rejection of late reled conten-tions. ser DuAr Powr Co. (Catawba Nuclear station, Units I and 21, CLI 8319,11 NRC 1041 (1983). _r As will later appear, however, it is unnecessary for us to consider here the sufficiency of oCRE's show-int on those factors. i 64
,7%
1
.l (
e
l l In opposing the motion, however, both the applicants and the NRC stalT insist that the test has not been met because the matters on which reopening is sought lack safety significance.'
'. For the reasons that follow, the motion is denied in pttt and dismissed in part.
A. Fire Protection Each operating nuclear power plant is required to have a fire protec-tion plan (i.e., program) that satisfies General Design Criterion 3 in Ap-pendix A to 10 C.F.R. Part 50.5 OCRE does not dispute that the Perry facility has such a program. Nor does it challenge the adequacy of any particular provision of the program. Rather, OCRE seeks to reopen the record to litigate what is essentially a legal question having nuhing to do with the quality of the fire protection arrangements for Perry: whether Commission regulations require that all elements of a facility's fire pro-tection program be incorporated in the technical speci0 cations for that
, facility. The question arises here because, in a November 29,1985 letter
~ to the lead applicant, the staff agreed that some of the Perry fire protec-tion program elements could be deleted from the technical specifications and, "in lieu thereof," documented in the Final Safety Analysis Report
" ; (FSAR).* According to OCRE, this consent violated the provisions of
' ' - y'
. 1
~
. - .y 10 C.F.R. 50.36(c)(2) with respect to the required content of technical 9 '; '[' j, f 5.r ,
specifications.7 P 97 . & Alf ; .
+ The short answer is that OCRE's interpretation of section 50.36(c)(2) dNkyg&:f4G w.s i M 6 @ N I;, is wide of the mark. Not only does the section make no specific reference to fire protection programs, but, more important, the Statement of Con-sideration accompanying its revision in 1968 contains a clear indication of a Commission purpose to limit the scope of operating license technical specifications to "those items that are directly releed to maintaining the ;
1 i I 4See Apphcants' Answer to oCRE Monon to Reopen the Record and to submit New Contenuons
. (December 30.1985); NRC stas Response to Monon to Reopen the Record Filed by ohio Cinzens for l i
Responsible Erergy Hanuary 2.1986) (-stafr Response"). The apphcants. but not the stafr. also argue that the monon was untimely. Intervenor sunnower Athance did not respond to the motion.
*, ]
8 See 10 C.F R. 50 44(a).
. 6See letter from Waher R. Butler to Munay E. Edelman, reproduced as. Attachment 3 to oCPE's motion. The letter went on to state that tie admimstranve control elements of the rire protection pro. l gram were to be retamed in the technis 8al specificanons. l
?Monon at 12. secuon 50.36(c) prowdes that techmcal spectrecanons are to mclude items in several enumerated catesones. For its part. subi.ecuon (2) is concerned with one of
- hose categories- hminns conditions for operanon. It esplains that such conditions are the lowest runctional capabihty or performance levels of equipment required for safe opera.
l tion of the facihty. When a hmsung condinon for operauon of a nuclear reactor is not met. the hcenset shall shut down the reactor or folios any remedial action permitted by the techmcal 3 specificanon until the condition can be met. .
+
65 i l
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- .s" t integrity of the ' physical barriers designed to contain radioactivity."8 Manifestly, a fire protection program is not such an item.'
We need only add that, even were the application of section ! . 50.36(c)(2) to fire protection programs a closer question, we would still j
- be disinclined to reopen the record on that question. For, in all esents, j
OCRE has failed to demonstrate that the exclusion of certain portions of i . the Perry fire protection program from the technical specifications has serious safety implications. Nor could it. The staff informs us that, con-sistent with a recommendation of the NRC Chairman, it has imposed an actual license condition. requiring Unit I of the Perry facility to comply with its fire protection program.88 Thus, there is no room for any claim that the enforceability of the applicants' commitment to carrying.out the I program has been impaired by the transfer of portions of it from the
- technical specifications to the FS AR."
t j B. Single Loop Operation The other contentions that OCRE would inject into the proceeding at this late date are rooted in the applicants' request that they be permitted i
, j to operate the Perry facility at up to 70% of rated thermal power with only one of the two primary coolant recirculation loops operable. In 4
4
, OCRE's view, significant safety problems will attend upon a grant of the request.
j
- , - The staff, however, tells us that it has not as yet " evaluated the re-
,. m quest, nor reached a conclusion on its merits."82 The staff further notes
) mg j s- " w/$ that in no event will any low power license that may be issued for Perry
)- r s
s 33 Fed. Reg. 18.610 (1 % 8). See, in this connection Porrhad General Orcire Co. (Trojan Nuclear Plant), ALAB.531,9 NRC 263,27174 (1979) ( as best we can discern it, the contemplation of both the (Atomic Energy l Act and the (Commission] regulations is that techmcal specifications are to be re. served for those matters as to which the imposition of rigid conditions or limitations upon reactor opera. tion is deemed necessary to obviate the possibdity of an abnormal situation or event giving rise to an im. mediate threat to the pubhc health and safety").
'It is worthy of passing note that, in a subsequent discussion of certain proposed changes to its regula.
tions pertaining to technical spectrications for nuclear power reactors, the Commission stressed the dis. t nction between functions considered of "immediate importance to safety" and *lolther functions, such as those associated with the mitigation of the efrects of natural or man-made phenomena (rires, flood.s. earthquakes, etc.)." 47 Fed. Reg. 13,369,13,371 (1982). 18 statr Response. He l is of isttle moment here that, as the staff's response observes (M), fire protection requirements
, I have been mcluded in the technical specificanons of other operstmg heenses. For it does not follow from that fact that such mclusion is re%uired by Commission regulation. Cf. Lost Ishmf Lighting Co.
(shoreham Nuclear Power station. Unit 1), ALAB 824,22 NRC 776. 781 (1985). 12 stair Response at 8. i h'
- 66 i
6 9 d ______..____._____._________________.___m___._________-_.__
m.__ - l l l permit single loop operation (i.e., should the applicants' request be granted, only the full power license will be affected).'3 Clearly, should the stafT eventually turn down the applicants' re-quest," OCRE's concerns respecting single loop operation will be totally academic. This being so, no good reason appears for deciding, in advance of stafT action on the request, whether the record should be reopened to ventilate those concerns - i.e., for rendering what would be essentially an advisory opinion on the merits of OCRE's contentions embodying the concerns. Accordingly, we dismiss those contentions at thisjuncture, without prejudice to their possible renewal if and wiien the staff allows single loop operation.88
- Motion denied, in part, and dismissed, in part, without prejudice.
It is so ORDERED. FOR THE APPEAL BOARD
~
. C. Jean Shoemaker Secretary to the V.[
. .. . ] Appeal Board i $. .
, ;g , s [
, 3 "QL Q } , , ^ :2' jW l 14 at 8 9. Because. as of this entms, Perry has not received even a fuel loading authonzation, the
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A s 3 1 %Ni M # N'
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, possible issuance of a full-power license is not imminent and thus the stasis not under severe time pres-sure to act upon the request Indeed. m response to a telephone inquiry, counsel ror the sta# advised the Secretary to this Board that it will likely be several more months before a decision is reached. Ac.
cordmg to counsel, the stas will require additional information from the apphcants, at least some of which will not be available until after the apphcants receive a low. power license for Perry. ' l I411 is by no means certain that the request will be honored. some smilar requests have been granted and others demed. /d. at 9 n 8. 15 Despite the facts that the stair has not as yet decided whether to allow smgle loop operatiott and may g deny the apphcants' request, the oCRE motion apparently prompted the staf to consider the precise concerns set forth in the monon. Each of these concerns is addressed in a Joint amdavit of two members of the branch m the omce of Nuclear Reactor Regulation responsible for the review of boihng water reactor systems. which was attached to the staN's response to oCRE's monon. Those reviewers conclud-ed that none of oCRE's concerns raises a signincant safety issue. Jomt Amdsvit of Laurence E. Phillips and George Thomas Concernmg smgle Loop operation Contenuons Raised by -oCRE* (December
, 24.1985).
, q Although we need not now appraise the reasons assagied in the amdavit for that conclusion, one 3
thms is clear there is nothing now before us that would bring those reasons into question. In the event that the staN should ultimately approve smgle loop operanon, any attempt by oCRE to challenge that approval perforce will have to explasi why the sta# analysis is wrong (i.e., why such operation does pose a signiricant safety threat). Mere allegations to that efect will not be enough to ne'tsfy the saandard for j reopenmg an evidentiary record. Pers/Ir Gas and Orctric Co. (Diablo Canyon Nuclear Power Plant.
, Units I and 2), CLI.815.13 NRC 361,363 (1981). Nor, absent a concrete demonstranon of probable
, stan error, would oCRE stand much chance of survivmg a belancing of the Gwe section 2.714(a)(l) late.
. ness factors that determme the acceptability of eleventh. hour contenuons. ser note 3, supre. This is be.
cause a perucularly important factor is the entent to which the perucipeuon of the contention's submitter "may reasonably be expected to assist in developing a sound record " 4 67 1 3
- k 8 's
s I s
?
't .
Opinion of Dr. Johnson, dissenting in part: OCRE's motion to reopen sets forth objections to several specific as.
^
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pects of applicants' request for single loop operation at 70% power. On the basis ofinformation contained in the responses to the motion by the applicants and staff, the Perry FSAR, and the applicants' FSAR Amend.
. ment 22,' it is entirely possible to conclude that there is no safety signifi-cance to the issues raised- by OCRE. I believe we should deny the second portion of OCRE's motion on its merits now, without regard to
- the staft's ultimate resolution of applicants' request.
i
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v: t e, s % $,. W.; 3 Attachmeat (F5AR Appendit l$F. "PNPP single Loop operat.an Analyss") to a letter from Murray R. EJe?rran to Harold R. Denion (November 20,1985). 1 68 l
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t e
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1 l l Atomic Safety 1
. and Licensing ,
Boards issuances , ATOMIC SAFETY AND LICENSING BOARD PANEL (f
- B. Paul Cotter, ' Chairman Robert M. Lazo, 'Vice Chairman (becutive)
Frederick J. Shon, 'Vice Chairman (Technical) Q i l
. ..- Members O
O j Dr. George C. Anderson Jarnce P. Gleason Dr. Unde W. Uttle ) Cheries Bechhoefer* Andrew C. Go* dhope Dr. Emrneth A. Luebke' l , Peter B. Bloch' Herbert Grossman' Dr. Kennth A. McCollom I m
,t.
Lawrence Brenner' Glenn O. Bright' Dr. Cadet H. Hand, Jr. Jerry Harbour
- Morton B. Margulies' Gary L. Milhollin 2
',jpy W' .!.,74 M.., 7 ,N"iGN, Dr. A. Dixon Callihan James H. Carpenter
- Dr. David L Hetrick Emeet E. Hill Marehell E. Miller Dr. Peter A. Morris
- Hugh K. Clark Dr. Frank F. Hooper Dr. Oscar H. Paris' 2 i Dr. Richard F. Cole' Dr. Frederick R. Cowan Helen F. Hoyt*
Dizabeth B. Johnson Dr. Paul W. Purdom Dr. David R. Schink y l' Dr. Michael A. Duggan Dr. George A. Ferguson Dr. Walter H. Jordan
. 9es L. Kelley*
Ivan W. Smith
- Dr. Martin J. Steindler O
! j Dr. Harry Foreman Richard F. Foster Jerry R. Kline* Dr. Quentin J. Stober J ! ; Dr. James C. Lamb Ill Seymour Wenner J John H Frye til' Gustave A. Linenberger' Sheldon J. Wolfe' i i l 3 l I I i t
- Permanent panelmembers ,
d j- l 1 I 1 J l l
- - - . _ - .-.. . _ - - . _ _ _ _ . . - - - _ _ -_ .-_-_ _ . . . ~ . - - . . . . - _ . .
_ . . - . - . . - - . - . - . . . . . . . - . . ~ . - - - - . - - Cite as 23 NRC 69 (1986) LBP-86-3 i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Sofore Administrative Judges: Helen F. Hoyt, Chairperson j Dr. Richard F. Cole Dr. Jerry Harbour in the Matter of Docket Nos. 50-352-OL
~
50-353-OL (ASLBP No. 81 465 07-OL)
,, PHILADELPHIA ELECTRIC COMPANY ,, b" ',p' ,- ,
(Limerick Generating Station, l , Units 1 and 2) Febraary 4,1986
.> - tse ,
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ppg-peM. '.., rg.;u:d.
;, ', f in this Partial Initial Decision, the Licensing Board finds that the Licensee's onsite emergency plans demonstrate that adequate provisions have been made for medical services for contaminated _ injured individu-l als, and concludes that the issue remanded by the Atomic Safety and j Licensing Appeal Board has been resobed.
I FIFTH PARTIAL INITIAL DECISION (On Remand from Atomie Safety and Licensing Appeal Board to Consider Alternative Options for Additional Backup Medical
; Services for Onsite Contaminated Injured Persons)
I. INTRODUCTION 1 i This Fifth Partial Initial Decision (PID) issued by this Atomic Safety and Licensing Board (" Licensing Board" or " Board") is in response to a 69 i I i i s + f
o .
.u - _ . - _ &_.; %_._._.. _ _ . . ..a_
1 reversal and remand' from the Atomic Safety a'rtd'.Licensina, Appeal Board (ASLAB) contained in ALAB 819, 22 NRC 681, 715 n.47 (1985). The remand required further proceeding 3 to consider alternative l - options for additional backup medical services for onsite contaminated i injured persons. The issue of whether Licensec's onsite emergency l plans provided adequate arrangements for medical services for contami-
! nated injured individuals had been raised by intereenor Limerick Ecolo-
~'
i - " gy Action, Inc. (LEA) in its Contention Vill-12(a) admitted by the
- Board on June 17,1983.
In accordance with the ASLAB remand requirement of further action l consistent with its ALAB-819, the Board issued an Order (unpublished) establishing procedures for resolution of the remanded issue on October l 28,1985. The Board also required in its Order that the nineteen hospitals i referred to in its Second PID and by the ASLAB2 be plotted on a map of
~
the area with the distances of each hospital from the Limerick Generat-1 ing Station noted. l " Licensee's Proposal for Resolution of Remanded Issue Regarding Licensee's Medical Arrangements for Contaminated injured Onsite Per-sonnel" was submitted on November 18,1985. The Licensee represent-l
! , ed that it had pursued available options with regard to a second backup
' "2 N d^l T,
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hospital for onsite personnel who might be contaminated and injured in 7 ' y. d, ',:?
+
6: -jf
, ,, the event of an accident at Limerick. As a result of its review of area hospitals, Licensee determined that the Montgomery Hospital in Norris-4
. V, p b2 ,
town, Pennsylvania, is its choice. Licensee also cited an affidavit submit-
, f , (; ted by Dr. Linneman in connection with a contention raised by the in-Mi@gy 5,
.. mates at the State Correctional Institution at Graterford in which the Montgomery Hospital had been evaluated as suitable for treating radia-
^
I tion exposure cases as well as radioactively contaminated and injured ! persons. Attached to the proposal was a map of the area showing twenty l hospitals (including Pottstown Memorial Medical Center) and the dis-tance from the Limerick Generating Station. In addition, a copy of an , 1 agreement with Montgomery Hospital was attached in which the Hospital *
- i. stated its agreement to provide hospital treatment for victims. i i " LEA Response to Licensee's Proposal for Resolution of Remanded t
issue Regarding Licensee's Medical Arrangements for Contaminated in-jured Onsite Personnel," dated November 27,1985, opposed the Licen-see's proposal and requested an opportunity to conduct discovery and to participate in an adjudicatory hearing. l i I The Atomic safety and Licenung Appeal Board reversed and ren$anded in part this Board's 1984 ' second Partialinitial Dectuon (LBP 84 31,20 NRC 446). I 2ALA8 819, mera. 22 NRC at 713.. i . 70 wi k
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, - - . , ,-n.- r . . , , , . . . , , - y . . . _ _.v_.~ _ e , -. < p m . . . _ .
t . _. _ _ _ _ . __ _ _ ._a._... . - j In " Commonwealth of PennsylvaniaYs Comments on Licensee's
, Proposal to Use Montgomery Hospital as a Backup Facility to Treat Con-i taminated Injured Onsite Personnel," dated December 2,1985, the b l Commonwealth concluded that the Licensee's submissions established f Montgomery Hospital as an appropriate facility, outside the EPZ and
- 8 suitable for treatment of contaminated injured onsite personnel. f "NRC Staff Response to Licensee's Proposal for Resolution of Re-i manded Issue Regarding Licensee's Medical Arrangements for Contami-nated injured Onsite Personnel," dated December 12, 1985, rei iewed the issues in the ALAB 819 remand, the Licensee's proposal, tl e Com-
, monwealth of Pennsylvania's response and the LEA objections to the
/ Licensee's proposed resolution and comments. The Staff concluded that l l the Board should grant LEA's request for a hearing on whether the i backup arrangements made by the Licensee for treatment of contaminat- ,
) ed injured onsite personnel are adequate, or in the alternative treat the
( Applicant's Proposed Resolution of November 18,1985, as a motion for I , summary disposition of the remanded issue. On December 18, 1985, the Board conducted a telephone conference call with the four parties 2 (Tr. 21,090116) in which the parties were
. provided with an opportunity to state concerns. The parties agreed to at-
]' tempt to meet the terms of the ALAB-819 remand by stipulation among
.. the interested parties.
2
'Ul[.. [ .gff.a .
By letter to counsel for LEA, Charles Elliott, a copy of Decontamina-M kG .h . ~, tion and Treatment of the Radioactively Contaminated Patient at Montgom-x NR. . f p f. n .Jy cry Hospital, Procedure No. M 1 18, Revision 0 (December 1985) was h b kNi hf,(..[dNhyp served on the parties by Licensee. By letter dated January 17, 1986, NRC StalT transmitted a stipulation
~
reached by the parties
- in which it was agreed that there was "a lack of controversy" in regard to LEA's contention remaining after
- 1. Licensee entered into an agreement with Montgomery Hospi-
! tal, Norristown, Pennsylvania for the hospital to provide hospi-tal treatment for Limerick Generating Station onsite contami-i nated injured persons, and for Philadelphia Electric Co. to pro-vide specialized training equipment, and procedures for treat-l - E ment of contaminated injured persons; 4 . t 3 Troy B. Conner, Jr / Robert M. Rader for Philadelphia Electnc Co.: Charles W. Elhots for LEA: Zori G. Ferkin for Commonwealth or Pennsylvania; and Joseph Rutbers/ stephen L. Levin for NRC stafr. 8 j I Charles W. Elhoit (1/14/86); Zori G. Ferkin for Commonwealth of Pennsylvania (1/16/86); Trop 8. Conner. Jr., for Licensee (1/17/86); and Joseph Rutbers for NRC stafr (1/17/86). l 71 ! ,r i 1
- - i e 'N.
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s *
- - -i - . - . . . . - .- . . - ., - - - -.- . y~. - ,, . . .- --- . . . .,-..,-%.. -...m..
- 2. Licensee's counsel provided intervenor LEA's counsel with the draft procedures, a list of specialized equipment for use at
- Montgomery Hospital, and a plan ofinstruction for the hospital emergency department physicians and nurses;
- 3. LEA counsel conferred with Montgomery Hospital administra-4 tor who confirmed that the Montgomery Hospital and Licensee
. are in the process ofimplementing the provisions of the agree-ment reached by Montgomery Hospital and Licensee on Nuvember 15, 1985;
- 4. LEA finds that there are now arrangements for a reasonable option addressed to the concerns raised by LEA Contention VIII-12(a); and
- 5. LEA's concerns stated by its Contention Vill 12(a) are no longer in controversy between LEA and the Licensee.
II. FINDINGS OF FACT
- LEA Contention VIII-12(a) as filed by the intervenor on June 17, 1983, states as follows:
, e c.c,e n,
-t. ;4* r ,#
The on-site plans fail to demonstrate that adequate arrangements have been made. 7s ', or will be made, for medical services for contaminated injured individuals on-site.
+ as required by 10 C.F.R.150.47(b)( 2) and (12),in that:
' 'A '6-(a) While medical services and facilities are described in sections 5.3.2.I-5.3.2.5 of the Plan. it has not been demonstrated that these services and facilities are ade.
;.- ;U 95[ ' quate for the potential number of persons contaminated by the spectrum of credible accident scenarios for which planning is required, including some coremelt se.
quences (see NUREG-0396). The plans contain an agreement with Pottstown Niemorial llospital. a facility only two miles from the site, to provide emergency treatment to contaminated patients. In a general emergency, the hospital will be re. quired to evacuate its own patients, which will preclude acceptance and treatment of radiation victims coming from the site. The status of medical support from the Hospital of University of Pennsylvania is unclear as well (see contention Vill-9(b), above). These are the only two hospitals listed in the Plan as available for medical services to on-site contaminated victims. See NUREG.0654. Criteria B.9 and L.I. The Board finds:
- 1. Adequate arrangements have been made for designated Montgom-ery llospital for treatment of contaminated injured onsite persons as re.
quired by 10 C.F.R. l 50.47(b) by an agreement entered into by Mont-gomery llospital, Norristown, Pennsylvania, on November 15, 1985, and reaffirmed by Vincent S. Boyer, Senior Vice President, Philadelphia Electric Co., in an Affidavit dated January 2,1986. See also Tr. 21,110-111. l < 72 l__ . . _ __.._ . _ _ . _ . _ _ _ . . _ _ _ . . . . _ 1 h
,e a . _.
! l l l
; 2. The Montgomery Hospital, Norristown, Pennsylvania (Montgom-ery County), is located 14.5 miles from the Limerick Generating Station, 1
{ just outside the EPZ (Map and Hospitals Listed in Risk County Plans of Licensee's Proposal for Resolution of Remanded issue, November 15, h 1985, and Tr. 21,094), and hence, not subject to evacuation. l 3. Licensee has provided Decontamination and Treatment of the Radio-I L actively Contaminated Patient at Montgomery Hospital, Procedure No. M l-18 Revision 0 (December 1985), which establishes the basic proce-dures, a list of medical supplies and equipment and a training outline for the handling and treatment of radioactively contaminated and injured in- ) dividuals who may be admitted by Montgomery Hospital. (Letter with 3 attachment, Licensee to Charles Elliott, Esq., dated December 23, e 1985.) See also Stipulation at 2.
- 4. LEA Counsel Elliott has conferred with Montgomery Hospital I
and confirms that Montgomery Hospital and Licensee are in the process of implementing the provisions of the November 15, 1985 agreement l reaffirmed by Licensee's Senior Vice President Boyer in an Affidavit dated January 2,1986. (See also Stipulation of the parties accepted by l LEA's Elliott on January 14, 1986.) i
~ *-
l-_
>/
t .
.; . y j, [ III. CONCLUSIONS OF LAW
,; ~ , n 3 ;; c . <. ,
yy ,,G. G in reaching this decision, the Board has considered all pleadings filed
.Qj.s . . . . /t f, {g. 6.?W'@
';, by the parties; the conference call with the four interested parties on YnNM'NM/M,Wh hs.k[M '
December 18,1985; and the Stipulation entered into by the interested parties. Based on a review of that record, the foregoing Findings of Fact which are supported by reliable, probative and substantial evidence, the Board, with respect to the issue in controversy remanded to the Board ' by ASLAB in ALAB-819, reaches the following conclusion pursuant to 10 C.F.R. ( 2.760a: The Licensee's onsite emergency plans demonstrate that adequate ar.
; rangements have been made for medical services for onsite contaminat-ed injured individuals and that the plans meet the requirement of 10 <
C.F.R. I 50.47(b)(2) and (12) as well as NUREG-%54 Criteria B.9 and 4 . L.I and provide reasonable assurance that adequate medical arrange-ments for contaminated injured individuals on site can and will be taken { in the event of a radiological emergency. < i 7
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l i j 73 j 1 l 4 k
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IV. ORDER in accordance with the provisions of the ASLAB in ALAB 819, the re-
. quirements of that remand have been met and the Board by this Order transmits its Findings of Fact and Conclusions of Law to the ASLAB for further action as deemed appropriate.
IT IS SO ORDERED. THE ATOMIC SAFETY AND LICENSING BOARD Helen F. Hoyt, Chairperson ADMINISTR ATIVE JUDGE Richard F. Cole ADMINISTR ATIVE JUDGE
.,_ . - g . .-
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. -s. ,.
- , c ..
.> Jerry Harbour c
s
; ADMINISTRATIVE JUDGE 4
S. Dated at Bethesda, Maryland, this 4th day of February 1986. I 1 { 74 i m.* - - . + - ,e, ,w..er. -- .. ., , ,w. .ayg .
,_ _ , _ . . . . . . . . . . . . . . . . . . . . .. .. A 4.ar -s -
i Cite as 23 NRC 75 (1986) LBP 88 4 t [ UNITED STATES OF AMERICA 1 NUCLEAR REGULATORY COMMISSION I ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: I John H Frye,Ill, Chairman Dr James H. Carpenter Dr Peter A. Morris
.I 4
In the Matter of Docket No. 40-2061 ML (ASLBP No. 83-495 01 ML) KERR McGEE CHEMICAL
, CORPORATION
' .{
(West Chicago Rare Earths 1 .> , ,.. ,
.: Facility) February 10,1986 c,; , ' ' ~ .
c- . c. (. ~ . o ' * ~ '. ,' The Licensing Board grants motions by Kerr-McGee and NRC Staff
. _ _ _ _ _ to dismiss the People of the State of Illinois Contention AG 1 for their failure to comply with earlier board discovery rulings (LBP-85-38, 22 NRC 604 (1985), and LBP 85-46,22 NRC 830 (1985)). The Board also
, denies the People's motion for an extension of time to comply with their discovery obligations as the decision to impose the sanction renders that request moot.
RULES OF PRACTICE: SANCTIONS In determining whether to impose a sanction, and what that sanction l should be, licensing boards are guided by NRC regulation 10 C.F.R. i I 2.707, the Commission's Statement of Policy on Conduct of Licensing l Proceedings. CLI 818,13 NRC 452 (1981), and NRC cases containing ' other Boards' rulings on requests for sanctions. Su Commonwealth Edison Co. (Byron Nuclear Power Station, Units I and 2), ALAB-678, ! 75
- . - . . . , . - - - . . . . - . - . . . ~ ,
k l 6 IS NRC 1400 (1982); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP 83 20A,17 NRC 586 (1983); Duke Power Co. (Catawba Nucl:ar Station, Units I and 2), LBP-83-29A,17 NRC 1121 (1983);. Northern States Power Co. (Tyrone Energy Park, Unit 1), LBP 77-37,5 NRC 1298 (1977). RULES OF PRACTICE: SANCTIONS The NRC Statement of Policy on Conduct of Licensing Proceedings, CLI-818,13 NRC 452,454 (1981) puts participants in NRC proceed-ings on notice that they must meet their obligations or sanctions may be + imposed. In selecting a proper sanction to impose on parties who disre-gard their obligations, a board must consider specific factors: 1 the relative importance of the unmet obligation, its potential for harm to other par. ties or the orderly conduct of the proceeding, whether its occurrence is an isolated l inctdent or a part of a pattern of behavior, the importance of the safety or environ-mental concerns raised by the party, and all of the circumstances. Id.
. c ,, -
. .. .. 73
* ~"~
Q , RULES OF PRACTICE: RESPONSIBILITIES OF PARTIES:
*[-
DISCOVERY Parties have a responsibility to respond to discovery to enable other 4 ,
'- m'- -
A parties to gain an understanding of the bases of their contentions in order to properly prepare their own cases, and because thorough discov-ery minimizes the possibility for surprise at hearing, focusses testimony and cross-examination, and leads to a fully developed record. RULES OF PRACTICE: SANCTIONS Of the several factors considered in imposing a sanction, those ad-dressing the relative importance of the unmet obligations and potential harm to other parties or to the orderly conduct of the proceeding may be heavily weighted, as discovery is crucial to the conduct of a fair proceed-ing. RULES OF PRACTICE: DISCOVERY I A party may not delay in answering interrogatories even if such delay will not alTect the timing of the proceeding in its later stages. 76
....-.m_... . .m. .- --*-e.* ***dh'**h"-* - - -
A.. . . , RULES OF PRACTICE: SANCTIONS A Licensing Board may be justified in imposing sanctions on a party
. for failure to meet discovery obligations because discovery provides the other parties to the proceeding with factual information undergirding the
; admitted contentions. Public Serske Co. of New Hampshire (Seabrook
- Station, Units I and 2), LBP-83-20A,17 NRC 586 (1983): Duke Power l Co. (Catawba Nuclear Station, Units I and 2), LBP-83 29A,17 NRC 1121 (1983).
RULES OF PRACTICE: LATE FILED CONTENTIONS; SANCTIONS
- l If a party upon whom sanctions have been imposed files new or revised contentions out of time, the sanction will be considered in eval-
, uating whether the petitioner sponsoring the contention can be expected to assist in developing the record. See 10 C.F.R. l 2.714(a)(1)(i v);
Duke Power Co. (Catawba Nuclear Station, Units I and 2), CLI 83-19, 17 NRC 1041 (1983). 4 c, - . MEMORANDUM AND CRDER (Ruling on Kerr-McGee's Request for Sanctions and the People's s . '. J r c . Motion for an Extension of Time)
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Last June, Kerr McGee filed a motion to compel answers to interroga-tories from the Peopic of the State of Illinois (People). In LBP 85 38, 22 NRC 604 (1985), issued following a prehearing conference of September 11, we granted the bulk of Kerr McGee's requests for relief. Despite that ruling, this dispute continues. We now must rule on Kerr-McGee's request for sanctions against the People and the People's motion for an extension of time to June I to comply with portions of LBP 85 38. BACKGROUND t We begin with a discussiod of the events following the issuance of
, LBP 85-38 on September 26. On November 14, 1985, we denied on the merits an untimely motion from the People to stay this proceeding (LBP 85 46,22 NRC 830). The People's motion sought to delay until this Spring any need to comply with LBP 85 38. In denying the motion, 77
r s
,' we provided the People with an additional 3-week period to comply with earlier discovery orders.
In the same order we denied Kerr McGee's motion for sanctions against the People for failure to comply with our discovery orders. The denial was without prejudice to the motion's resubmission if compliance
. was not forthcoming.
On December 5, the People Gled responses to some of Kerr-McGee's discovery requests, an untimely motion to reconsider LBP 85-38, and a
> request for an extension of time to January 15, 1986, to supplement their response to Kerr McGee's Interrogatory 35, document their claims of privilege, and provide the amdavits of the directors of the Illinois Department of Nuclear Safety (IDNS) and Environmental Protection Agency (IEPA). We granted the request for an extension of time on December 10 and denied as untimely the motion to reconsider on December 19.8 On January 15, the People Gled two short afndavits and moved for a further extension of time to June I to Gle the remaining
~ '
material. The People cited the federal court litigation brought by.Kerr-McGee to enjoin the People's action in state court,2 preparation for the
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state court trial, and illness of counsel in support of the motion. Kerr.
~,'C, fQ McGee vigorously opposes this motion. Staff also opposes.
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On December 12, Kerr McGee renewed its motion for sanctions. S, ~ ! Kerr McGee maintains that the interrogatory answers provided by the
" People on December 5 do little more than restate previous answers and N
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objections. Consequently, Kerr McGee asserts that the People should be dismissed as a party or, at a minimum, their Contention AG-1 should be dismissed. The People's December 27 response states that
"[w]hile the People will not dignify with an extended response the un-supported allegations of which Kerr McGee's motion entirely con-sists . . . ." they nonetheless oppose it.
In its response to Kerr McGee's motion, Staff assumes that Kerr-McGee can support its assertions that the People's December 5 re-sponses are for the most part nothing more than a repetition of their original objections and that the People have not indicated which agency Gles were searched in response to document requests. On the basis of that assumption, Staff concludes that we should issue an order to show cause why Contention AG 1 should not be dismissed. In reaching that conclusion, Staff has analyzed a number of cases in which sanctions were imposed for failure to comply with discovery i
'; ' The latter motion, pursuant to 10 C F R.12.752(c). should have been riled no later than october 7
; 1985.
2 The state court proceeding seeks an injunction requiring the removal r4 the thorium mill tailinss here j in question trom the west Chicago site. 4 78
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i' l* \ I j orders. Staff's pleading addressed each of the factors to be considered in
; imposing sanctions, which are identined in the Commission's Statement
{ of Policy on Conduct of Licensing Proceedings, CLI 8l 8,13 NRC 452 i (1981). We Gnd StalTs analysis to be most helpful, and, with some I modification, follow its recommendation. 3 1 f. t STATUS OF COMPLIANCE WITH LBP-85-38 e q The Board is persuaded that the People have not met their obligation g with respect to the earlier orders on discovery. A review of LBP 85-382
, and the subsequent responses submitted by the State in an effort to A comply, confirms Kerr McGee's allegation that there are an unaccepta-I ble number of interrogatories not properly answered. We note that re.
,f '
sponses were provided for interrogatories 4,26,27,64(c),640),64(q),
. '. v 65(e)..and 65(q) in the People's December 5 filing. The Board finds these responses adequate. However, a greater number of interrogatories are either answered unsatisfactorily (52,105(a),105(c),105(d),106,
~
; 107 114); not answered at all (8, 9(a), 9(b), 9(e), 9(0, 20(c), 20(e),
. ., . 20(f), 20(g), 20(h), *103(b),103(c),103(d),103(e),109(b),109(c),
109(d), ll3(a), ll3(b), ll3(c), ll3(d)); or objected to for the reasons
'e 6 d '. initially stated in the People's opposition to Kerr McGee's motion to i . l.
' 7 M;[cgy/W- compel, or on a basis different than that originally asserted (7, 8,12,13,
, y!.,p W W 14,15, 16, 17,18, 28, 44, 50, 54, 56, 63, 64(e), 64(f), 64(h), 64(i),
fMJ rM 64(k), 64(l), 64(o), 64(p), 65(h), 65(i), 650), 65(l), 65(m), 93, 94, Ec@$M..M', i.~., p 7.,.,.,,hg/4'Ffjh. A n$!.#f95, 96, 98, 99, 100, 101, 102, 117). Moreover, the majority of the interrogatories which remain to be an-i swered concern matters which are basic to an understanding of the Peo-l ple's positions on their contentions. For example, interrogatories 7, 8,
- 9,12, and 20 enquired after details of the People's position on alternate
, sites; 93 96 and 99102 enquired after the People's position on specific matters covered in the FES; and 52,105107, and 114 enquired after
] details of the People's position on compliance of Kerr McGee's disposal ! .. plan with the Uranium Mill Tailings and Radiation Control Act and ap-
, . plicable EPA and NRC regulations.
i Kerr McGee also cited the inadequacy of the People's document pro- ! duction in its motion to compel, but accepted the People's response that i all responsive unprivileged documents had been produced. In LBP. 85 38, we directed the People to indicate " precisely which files of which
) 3 ' The Board round a few errors and typographneal errors in our order on pose 32 (22 NRC at 626).
64(g) and 65(g) should read 64(q) and 65(q) Amdavits have been filed by the People in response to these interrogatones. I ' j . 79 i
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agencies were searched for each document reouest and when they were searched." (22 NRC at 624.) In a letter to the Board of December 5, counsel for the People indicated which individuals were asked to search
~
- their files and the approximate time of the searches. The letter does not indicate which of these individuals' files were searched or whether these individuals' files are the official agency files as opposed to personal files maintained by agency employees. In this respert it fails to fully comply with our order. We weigh this failure in considering sanctions.'-
4 CONSIDERATION OF SANCTIONS In making a determination whether to impose a sanctiqn. and wh t that sanction should be, we are guided by NRC regulation '10 C.F.R.. 5 2.707, the Commission Statement of Policy 5 and NRC cases containing~ other Boards' rulings on requests for sanctions. Section 2.707 states On failure of a pstty . . to comply with any discovery order entered by the preski-ing omccr pursuant to { 2.740, the . presiding officer may make such orders in j(, regard to the failure as are just . .iFootnote omitted ) .
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-(gy y:
.,. W Y.T ( ,
- It empowers a Licensing Board to sanction a party for the kind ofinfrac-
' tions Kerr-McGee alleges. The Statement o/ Policy further specifies the
'7 Commission's intent to have licensing boards take an active role in v .? ,: . :;
managing discovery so as to ensure efficient conduct of the proceeding.
' _ e p., ,
, - CLI-81-8, supra.13 N'RC at 456. The issuance of the Statement of Policy '
put parties to NRC proceedings on notice that they may not disregard their obligations with impunity: - When a participant fails to meet its obligations, a boa-d should consider the imposi-tion of sanctions against the oiTending party. A spectrum of unctions from minor to 4 A subissue in the document production dispute is the question of which Illinois agencies are to be f considered parties who must respond to document requests. This was decided adversely to Kerr-McGee in L8P-851,28 NRC 11 (1985), where we held that, because the People's pet-feon to intervene was I filed at the request of the Illinois Department of Nuclear safety (IDNs) and on the Attorney General's motion, the IDNs is the only state agency which is a party. We noted the availability of subpoenas J which could be directed to other agencies. Kerr.McGee did not seek reconside-ation of that ruling. I Nonetheless, in its motion to compel Oled in the Kress Circ 4 proceeding, it agam raised this issue, it was addressed at the september 11. 1985, preheanns conference (see Tr. 'i3N57). we indicated that, were we to rule in Kerr McGee's rivor in Arcs: Cicek. we would reverse thP-851 entered in West ' I Chicato (see Tr. 339L This issue is now moot so far as Kress Ciert is cone:rned. In LBP-85-48,22 I i NRC 843 (1985), we dismissed the People's only contentions admitted in that proceedmg. Consequent. ly, document production in Kress Creek is unnecessary. Because Kerr McGee did not file a timely l motion for reconsideration of LBP-85.I, we will not reconsider that rulins. we note, however, that the People have produced documents not only from the Attorney General's ofrice and its client, the Illinois Department of Nuclear safety, but from the Illinois Environmental Protection Agency and the lilirois
) water and Geological surveys.
5 CLi-81 8, supra. I I 80 i s a.
'*' * * - *'M gm ,h-e6,m e -m e.uukowe e +.eem g. , , , ,
4
v _. . , _ . . ._ _ _ - . _ - _ - . . ~ _ _ _ - - - - - . . J l ~s F t severe is available to the boards to assist in the management of proceedings. For example, the boards could warn the ofrending party that such conduct will not be i tolerated in the future. refuse to consider a filing by the offending party, deny the
-3' i right to cross-examine or present evidence, dismiss one of more of the party's con-1 tentions, impose appropriate sanctions on counsel for a party, or, in severe cases,
) dismiss the party from the proceedmg.
I m . ,
~ ~ j Id. at 454.
The factors designated in the Policy Statement which we must consider [ in selecting a proper response to the People's unwillingness to discharge
. their discovery obligations are:
I J the relative importance of the unmet obligation, its potential for harm to other par. ties or the orderly ccnduct of the proceedicit, whether its occurrence is an isolated I( incident or a part of a pattern of behavior, the importance of the safety or environ.
, L mental mncerns raised by the party, and all or the circumstances.
-.9; id.
~
- 1. Relative importance of the Unmet Obligation and Potential Harm to Other Parties or Orderly Conduct of the Proceeding
. . . . . . . All parties have a responsibility to respond to discovery so that their opponents may gain an understanding of the bases of their contentions
" O 1:_
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in order to properly prepare their own case. This process minimizes the M.id # [N,Q " .'[9.; possibility for surprise at hearing, focusses the testimony and cross- ' 4 %w..s[dhjp x O Q M.m # q D. 7@c/.. !% examination, and leads to a fully developed record. We heavily weigh tyr this factor; it is crucial to the conduct of a fair proceeding. The People's recalcitrance results in an inadequate understanding of their case that prejudices Kerr-McGee and Staff. See Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-678,15 NRC 1400,1417 (1982); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83 20A,17 NRC 586,590 (1983); Duke Power Co. (Cataw-ba Nuclear Station, Units 1 and 2), LBP-83-29A,17 NRC 1121, i123 (1983); Northern States Power Co. (Tyrone Energy Park, Unit 1),
. ? L3P-77-37,5 NRC 1298,1301 (1977).
The potential harm stemming from the People asserting allegations but not producing answers to questions concerning those allegations is manifest. For example, it in1 pedes Kerr-McGee from fully preparing its case to rebut the People's C6ntention AG-2 that the company "has not
, demonstrated that its decommissioning plan will protect public health and safety, will comply with all applicable state law, and will meet the re-quirements of the Atomic Energy Act . . and regulations thereun-81 l
9-p-.= -e.m q .ys..
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. e. .,,?.
der.. "6 Similarly the People's failure to respond to certain of Kerr-
, McGee's interrogatories related to the People's Contention AG 1, which alleges that the StalTs FES is deficient, conceals their position on NEPA issues.'
The People argue in their January 15 motion for an extension of time that little harm can result to the parties or the public interest by deferring _ their obligation to respond. The StafTs draft supplement to the FES is now scheduled for September 1986. As the People point out, this docu-ment may well prompt revised or additional contentions, and, if admit-ted, discovery on those contentions would be necessary. Thus the People argue that deferring their obligation to respond would not delay the conclusion of this proceeding. However, a review of the interrogatories in question reveals that the
,~ majority of them ask for information which is basic to an understanding
- , of the People's position in this proceeding. We agree with the proposi-
, , , tion put forward by counsel for Kerr-McGee at the September 11 pre-Js. , Uf
. %' , hearing conference (see Tr. 324-28) that, having raised these important
. w .' ' T.
issues, the Pcop!: have an obligation to participate meaningfully in their 3
]IT; NhpM; resolution. Obfuscation of the People's position on these issues is a sub-
,fg'g g $ stantial impediment to their resolution. The fact that a delay in answer-
'"'x ,
mg these interrogatories may not delay the timing of the ultimate resolu-tion of this proceeding does not furnish good reason why Kerr-McGee should not be advised of the People's position now. The People raised the issues; Kerr-McGee is entitled to know where the People stand on them now. We are guided by Seabrook. LBP 83-20A, supra, which presents facts similar to those presented here. The Board in Seabrook had admitted in-tervenor HBACC and accepted three ofits contentions into the proceed-ing. Applicants and Staff filed interrogatories a few months thereafter. When answers were not forthcoming within a relatively short period of time,8 Applicants and Staff each moved for an order to compel HBACC to answer the interrogatories. Staff requested that as an alternative remedy, the Board dismiss HBACC's contentions. The Board granted the motion to compel but denied the motion for sanctions. The Seabrook 6 Interrogatones 50. 52,54,56.133.105107,109. and 113 all reiste to Ao.2 and were ordered to be answered. The People's December 5 rahns contained objections to interrogatones 50. 54, and $6. No re. sponses have yet been provided ror interrogatones 103,109, and 113. 7 Interrogatones 7,17,18. 93 96, and 98100 involve issues relevant to that contention. The People's Further Responses and Motion ror Reconsideration set rorth objections to these questions so that they, too, remain unanswered.
- 8 Applicants submitted their first set or interrogatones on December 8,1982, and moved for an order to compel answers on January 14. 1983. staff filed its interrogatories November 10, 1982. and moved ror an order to compel answers or alternatively to dismiss llB ACC's three contentions February 4.1983.
=
82
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b, a
- 9. p- s m~ y .- .e -
n.. ; . .._ -..___ i i Board clearly stated that failure to comply with the order compelling an-swers would result in the dismissal of the contentions.17 NRC at 588. Thus, the intervenor in Seabrook was notiGed in advance that sanctions would ensue for noncompliance. In response HBACC Gled a pleading ad-mitting its lack of expertise in NRC proceedings and its intention to par-ticipate in the hearing only through cross-examination of Applicants' and Staff's experts. Applicants responded with a motion to dismiss l HBACC's contentions and the intervenor group as a party for failure to
! meet discovery obligations.'
? The Seabrock Board's analysis in support of its decision to dismiss from the proceeding HBACC and its contentions emphasized the estab-lished rule that an intervenor may not simply submit en acceptable con-
, tention and do nothing further to pursue its case or to enlighten the
} other parties about its position on various issues. The Board found that an intervenor must reveal the evidence in support ofits contentions, to
. the extent not privileged or otherwise protected. Although the Commis-
+
sion's Policy Statement is oriented toward imposing sanctions in response to tactics causing delay in a proceeding, here delay seems to' have been a secondary consideration in comparison to the signiGcance attached to
- . the need to provide other parties with the factual information undergird-
, ing contentions. The Seabrook Board, as well as the Catawba Board in a
, , :.,c.. , subsequent Memorandum and Order ruling on a motion for sanctions'8
!~ :vi -
both found justincation for imposing sanctions in the failure of the ac-
-d -; N ,.. , cused party to meet its discovery obligations thereby making it virtually J' i
< 2.1 i. impossible for the opposing parties to prepare for hearing on those con-M f%.pg,[ /Q.M@ = 'hp' m.
Q, tentions.
~ ~
The Policy Statement also expresses the Commission's concern that Boards not allow parties to disrupt the orderly conduct of the proceeding by tactics leading to delay or by other means calculated to distract the Board from the issues set for litigation. To promote the efMcient progress of this proceeding and after careful consideration, we ruled in LBP-85-38 that the People had not met their discovery obligations. Rather than complying with LBP-85-38, the People have submitted various mo-tions and responses which have the effect of continuing to conceal their position. Such conduct disrupts this proceeding. The Board has a responsibility to require all parties to comply with our orders. If we were to allow one party to selectively ignore NRC regula-
' HBACC did provide a response to the interrogatories but Applicants argued at the prehearing confer.
ence that "they had ' received no discovery whatsoever as to the nature of the evidence that [HBACC) intends to offer in support of its contentions. nor of the points of fact or law that (HB ACC) intends to urge in support thereof. * " 17 NRC at $88. 18 LBP-83-29 A, supra. 83
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i tions or our rulings, this proceeding would be reduced to an exercise of chaotic mismanagement.
- 2. Pattern n. IsolatedIncident The motion for sanctions against the People is but a recent event in the history of this dispute. As recited in the Background, this is not the first time we must address these disagreements. In the Summer months
~
' of 1985, the parties found themselves unable to resolve the dispute with-out Board guidance. Kerr-McGee and the People each submitted mo-l tions to compel the other to respond to certain of their propounded ques-l tions." We carefully evaluated these pleadings and convened a prehear-
- - ing conference on September 11 to provide the parties with an oppor-tunity to articulate their positions. We ruled from the bench in order to avoid delay and to provide the greatest time for the parties to cure the
- s deficiencies in those interrogatory answers where each motion to compel 7 -
~
had been granted, and explained our decision in LBP-85-38 issued 2
. v .n, sgg gg p , weeks later. However, instead of filing the responses we ordered or a
." " gp g gy timely motion for reconsideration, the People filed an untimely motion
' / W " M W 9 7 %p f;7 to stay the proceeding. Although we were urged to deny this motion as
- . . . . m; f, untimely, we considered it on the merits and, in denying it, provided
'%5fE@@i:d.g ffp'4'ig
@MQ g.5, W J.My' the People an additional 3 weeks to comply with our discovery order.
~
We also denied without prejudice a Motion for Sanctions filed by Kerr-1 McGee. We admonished the Psople to discharge their discovery obliga-tions, and warned that otherwise we would consider imposing sanc-tions.'2 The People's latest submission includes a letter indicating which files ! were searched and when the search was conducted, a motion to reconsid-er our September 26 Order and further answers to Kerr-McGee's '
.* second set of interrogatories. The motion to reconsider was denied be-m , -
1 cause it presented an extreme case of untimeliness without any attempt to show good cause. Additionally, the requests for guidance contained in l the motion-for reconsideration are, in many cases, challenges to our rul-ings or expressions of disagreement with our decisions. Interposing fur-ther objections to interrogatories already ruled answerable is not proper at this point in the process. When we ruled initially, we did so after tl Kerr-McGee's Motion to Compel Answers to Interrogatones and Production or Documents, June 21. 1985; People's Motion to Compel Certain Discovery Responses, hme 28.1985. Motion by Kerr-McGee Chemical Corporation to Compel Production or Documents and Answers to Interrogatones by the State l or lilinois. July 3.1985. Src also People's Answer to Motion to Compel. August 8.1985; Kerr-McGee Chemical Corporation's Response to state's Motion to Compel Certain Discovery Responses. August 8, 1985. I2 LBP-85-46. supnr. f l M 4
. / -
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., - - - - , - - , = - - - - , . . - - t t - e - - . - - - . ~ , .- - , ,
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1 giving careful consideration to each matter brought to our attention by the parties. It is no longer permissible to voice objections as the People have done in their motion for reconsideration and in the further answers recently filed. The Appeal Board stated in Byron, ALAB-678, supra,15 NRC at 1414, that when a Board grants a motion to compel, the party to whom it is directed has no option but to answer the interrogatories or file for a protective order. Doing neither is not an alternative course of action. Despite its tardiness, we reviewed the People's motion for reconsider-ation along with the further answers to interrogatories. In this review, we critically evaluated our rulings on the arguments advanced by the People and Kerr McGee with respect to the motion to compel. That review leaves us convinced that our rulings in LBP-85-38 were not only correct, but clear and unambiguous. The People's motion and further objections seek out areas where the basis for a ruling was not articulated cr an argument not specifically addressed. Our rulings consume thirty printed pages in the NRC Issuances. We did not spell out each and every ruling in detail. To do so would needlessly state the obvious. The People's charge that we have not addressed their arguments or adequate-ly explained our rulings is unfounded, and, we fear, designed to divert attention from the principal issues presented. Plainly, the People have y; - ' CRC utilized their filings following the issuance of LBP-85-38 to continue to f y' X.' conceal their positions on the basic issues raised by their intervention. -j. _ [ %.dyj J"N Their most recent motion for an extension of time to June I to file fur-
- - ther answers is but another example of this efTort. Equally plainly, the
$g.gMM.g}1pgAf]1My pm.9 m ,, @ interrogatories in question could have been adequately answered with less effort than has been expended in avoiding the answers. The foregoing makes clear that the People's behavior constitutes a pat-tern within the meaning of the Commission's Policy Statement. The dis-tinction between a single instance of noncompliance, or even a few in-stances of varying factual circumstances and the continued resistance to Board orders, as seen here, is precisely that which the Commission in-tended Boards to consider when determining whether a pattern exists sufficient to support the imposition of a sanction.
- 3. Importance of the Safety or Environmentalissues Reised by the Party The safety and environmental issues raised by the People are of great importance to the citizens of West Chicago and may be of substantial precedential importance for future disposal plans elsewhere. We must determine whether the disposal plan proposed by Kerr-McGee for the 85
~ ~ . . _ _ _ _
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mill tailings produced at its West Chicago facility adequately protects the health of the residents in the surrounding suburban area and accounts for the possible detriment to the environment. The NRC Staff evaluated some of these concerns in the draft and final environmental impact state-ments (FES).'3 The People successfully challenged the Staff's conclusion in the FES approving storage of the mill tailings in an engineered cell at the West Chicago site for a period of at least 5 years on the basis that it amounted to an illegal segmentation of a proposed federal action.l* Among the issues which Staffis to consider is permanent disposal of the mill tailings on site as proposed by Kerr-McGee and at alternative sites.is These are important issues to the local citizens, the resolution of which may have implications for future disposal plans elsewhere. However, after raising these basic and important issues and causing their thorough evaluation in a supplement to the FES, the People now conceal their position. Such conduct invites the inference that the People have nothing of importance to add. Thus this factor must be weighed against the People.
. .. 4. Consideration ofAll the Circumstances in sum, we find that the People's unmet obligation is of great weight
'C1 '
J '.v: :'l and potential harm to the other parties and the orderly conduct of the J. ! 2-; proceeding, and is part of a pattern of conduct. While the issues raised - 3 '. ff..' ? , by the People are of great importance, the People's recalcitrance leads to the inference that they do not have anything ofimportance to contribute N5;/Mh. Md8h,h.{N. kb
.hD.i r - u -
to the resolution of these issues. Thus, on balance, we conclude that sanctions are appropriate. SANCTION Kerr-McGee has urged that the People be dismissed as a party or, al-ternatively, that their Contention AG-1 be dismissed. Staff concurs that Contention AG-1 should be dismissed. We decline to dismiss the People from this proceeding. We agree with Staff that that sanction is too severe in the circumstances presented 13See NUREG-0904 " Environmental statement Related to the Decommissioning or the Rare Earths Facility, west Cheago. Illinois." May 1982 and May 1983. 14LBP-84-42,20 NRC 1296.1331 (1984). 15/d. , 86 4 r p .
.-l
. _, _ . . _ _ . . .. w .. u .. _
l l 1 here. However, we will dismiss Contention AG-1. In taking this action, we recognize that Contention AG-1 presents many issues which will be addressed in the Staff's supplement to the FES. To this extent it is fair to say that the People have already prevailed on Contention AG-1 and that its dismissal may not be an efTective sanction. Nonetheless this sanction has teeth. The People have pointed out that
~
the draft supplement to the FES may well prompt new or revised conten-tions. These contentions will be admitted only if they qualify under the late-filing criteria set out at 10 C.F.R. f 2.714(a)(1)(i-v). Duke Power Co. (Catawba Nuclear Station, Units I and 2), CLI-83-19,17 NRC 1041 (1983). The third factor set out in { 2.714(a)(1) requires a ruling on the extent to which the participation of the petitioner sponsoring the late-filed contention may reasonably be expected to assist in developing a sound record. Our evaluation of this criterion must necessarily take into e account the People's participation in the proceeding thus far. While we
, recognize that the People may be able to provide substantial technical expertise and offer qualified expert witnesses to support their position, considerations which ordinarily would facilitate a favorable finding on
.; ~ r. 3 -
this factor, our discretion is not limited to this consideration alone. Vir-ginia Electric and Power Co. (North Anna Power Station, Units I and 2),
, d...' ~_ .h.. Q . . ..M ALAB-342,4 NRC 98,107 (1976). The People's record of noncompli-
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/ y ,4 .' .{ ance as it presently stands might well overcome the favorable implica-q:::Q w ' n' g M-j i + tions of their ability to provide technical expertise and perhaps result in
}iGh $' .1. 5 Nd'MJfM h q fd W-M h v. N fk this factor weighing heavily against them. Conversely, if the People cure the default occasioning the sanction, they would enhance their case for admitting new or revised contentions. So long as their default continues, tne value of their further participation is subject to question. THE JANUARY 15 MOTION FOR AN EXTENSION OF TIME Our decision to impose a sanction for the People's failure to respond to discovery as ordered in LBP-85-38 moots the People's motion for an r.
~
extension of time. Many of the arguments made by the People in support of that motion have been addressed in our ruling on sanctions. Nonethe-less, we wish to note the People's assertion in that motion that the infor-l' staff also recommended that we issue an order to show cause why Contention AG.I should not be dismissed, pointing out thr.t we rollowed that course in Kress Circ 4. We do not believe that course is necessary here. In Kirss Carrt we acted sua spoert, no monon ror sanctions having been filed. In con. trast, here such a monon has been filed and answered. We see no beneGt to yet another round orfilings on this issue. 87 i s
, ).
r
4 mation gained from Kerr McGee's witnesses during depositions taken over the last several months may necessitate that they revise or supple-ment their contentions. We agree with Staff that the People have an obli-gation to do this promptly. (See StalT's Response of February 4,1986, at 6.) To further delay the submission of new or revised contentions based on information presently at hand would greatly diminish the probability that such contentions would be accepted, particularly in light of the sanction entered herein. . ORDER In consideration of the foregoing, it is, this 10th day of February 1986, ORDERED:
- 1. Kerr-McGee's motion for sanctions is granted insofar as it seeks dismissal of Contention AG-1;
- 2. Contention AG-1 is dismissed; and
- 3. The People's January 15,1986, motion for an extension of time is denied as moot..
THE ATOMIC SAFETY AND
} .-';';.. g : .,
* LICENSING BOARD
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.g I'r. James H. Carpenter Mkids/:k.khhNkkihf$f OMINISTRATIVE JUDGE
} Dr. Peter A. Morris ADMINISTRATIVE JUDGE John H Frye,Ill ADMINISTRATIVE JUDGE Bethesda, Maryland February 10,1986 88 .
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l 1 Cite as 23 NRC 89 (1986) LBP 88-5 l l l UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION l 1 ATOMIC SAFETY AND LICENSING BOARD j Before Administrative Judges: 1 Charles Bechhoefer, Chairman Dr. James C. Lamb i Frederick J. Shon 1 In the Matter of Docket Nos. STN 50-498-OL STN 50 499 OL (ASLBP No. 79-421 07-OL) j s, , HOUSTON LIGHTING AND
,. . +'
- 3. POWER COMPANY, et !.
U ' .N . ' (South Texas Project, wpp,
- e. :- Q[' .yp
.r Units 1 and 2) February 14,1988
, . . . k ,, > . s.k dh_h_h..h,.h$.D..~$_'kk.h,mh,$,.h(h,y The Licensing Board grants an intervenor's motion to withdraw one of its contentions. Since the contention involved a previously unresolved generic safety issue, the Board examined the Staff's resolution of that issue and determined that such resolution represented a plausible method for dealing with the issue.
. LICENSING BOARD: CONSIDERATION OF GENERIC SAFETY ISSUES A licensing board in an operating license proceeding must examine unresolved generic safety issues, even when they become uncontested, to determine whether the Stafi's resolution of the issue is " plausible."
89 k ,
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TECHNICAL ISSUE DISCUSSED Overpressurization. MEMORANDUM AND ORDER (Permitting Withdrawal of CCANP Contention 3) On January 17, 1986, CCANP, the intervenor in this operating license proceeding, filed a motion to withdraw its Contention 3. That contention concerned overpressurization of Westinghouse reactors (such as those used at the South Texas Project). The Applicants support the withdrawal motion and the StatT offers no objection. When the contention was originally accepted in 1979, overpressuriza-tion of Westinghouse reactors represented an unresolved generic safety issue. At the same time, we pointed to a new report on this subject (NUREG-0224, " Final Report on Reactor Vessel Pressure Transient Protection for Pressurized Water Reactors," September 1978), to which
. no party or petitioner had drawn our attention, which purported to resolve the generic issue. LBP-79-10, 9 NRC 439, 449-51 (1979). In
,.4 their response to the withdrawal motion, the Applicants advise that, as
;- stated in NUREG-0224, Task Action Plan (TAP) A-26 was designed to
-5: , develop acceptance criteria for overpressurization protection systems for
. .>. .. low-temperature events, and was completed by the StalTs adoption of d y N d S j /: . $ / 9 5 h' U c Branch Technical Position (BTP) RSB 5-2, "Overpressurization Protec-tion of Pressurized Water Reactors While Operating at Low Tempera-tures." In NRC's " Unresolved Safety Issues Summary" (NUREG-0606, August 16,1985, at 8), the overpressurization issue (A-26) is included among the generic issues for which technical resolution is complete. The Applicants further advise that BTP RSB 5-2 has been incorporated into the NRC Standard Review Plan (NUREG-0800, Rev. 0 Ouly 1981), at 5.2.2-7) and that STP is committed to comply with BTP RSB 5-2.
We have examined BTP RSB 5-2, as incorporated into the Standard Review Plan; and, while not exploring its substance in any detail, we find that it represents a " plausible" method for resolving the over-pressurization problem. See Virginia Electric and Power Co. (North Anna Power Station, Units I and 2), ALAB-491, 8 NRC 245, 248-49 n.7 (1978); Louisiana Power and Light Co. (Waterford Steam Electric Sta-tion, Unit 3), ALAB-732,17 NRC 1076,1110-13 (1983); Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), LBP-79-6,9 NRC 291, 311 (1979). Since the Applicants have com-90 O
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-. - - - . . .. . - . . - . . - - . - - - - ~ . -- . . .
mitted to follow that methodology, we find no basis for further explora-tion of whether additionallimitations on operation of STP to account for overpressurization should be imposed. We accordingly grant CCANP's
' motion to withdraw Contention 3 and dismiss that contention.
IT IS SO ORDERED. FOR THE ATOMIC SAFETY AND LICENSING BOARD Charles Bechhoefer, Chairman ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland, this 14th day of February 1986. i a M
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Cite as 23 NRC 92 (1986) L8P 86-6
- UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Robert M. Lazo, Chairman Oscar H. Paris Frederick J. Shon in the Matter of Docket Nos. 50-295-OLA 50-304-OLA
... (ASLBP No. 84-500 06-LA)
COMMONWEALTH EDISON COMPANY 2 j,
- l' (Zion Station, Units 1 and 2) Febidary 19,1986 c r. ,- . . ,;. - ~j i
. ft$W.T@'. t - 7pidj@jV The Licensing Board denies petitioner's petition to intervene and dis-misses the proceeding. MEMORANDUM AND ORDER DISMISSING PROCEEDING The Board has reviewed its docket in this proceeding and notes that I on November 13, 1985, Samuel J. Chilk, Secretary of the Commission, informed Dr. Zinovy V= Reytblatt that the Commission had declined any review of Director's Decision DD-85-10, 22 NRC 143 (1985), in which the Director of the Office of Nuclear Reactor Regulation denied Dr. Reytblatt's petition pursuant to 10 C.F.R. f 2.206 concerning con-tainment leak rate tests performed for all light water reactors. There being no other matter outstanding it is now appropriate to ter-minate this proceeding. 92 l m . 1
. . - . . - - ... - - --. .-- - ~ - . - - - - .
BACKGROUND On January 12, 1984, the NRC published in the Federal Register (49 Fed. Reg.1584) a Notice of Consideration of issuance of Amendments to the Operating Licenses for the Zion Station, Units I and 2, and an Op-portunity for Prior Hearing. The proposed amendments would revise the provisions in the Zion Technical Specifications regarding the acceptance criteria for containment leakage tests. On February 13, 1984, a timely petition to intervene and request for hearing was filed by Citizens Against Nuclear Power (CANP). The petition asserted that " substantial numbers" of CANP members live within ten miles of the Zion facility
, and that the health and safety of CANP members ~would be directly threatened by the proposed am^endments increasing the allowable co'n-tainment leak rate, and specified three specific aspects of the subject matter of the proceeding as to which CANP proposed to intervene.
By letter dated February 28, 1984, from Dennis Farrar, Director of Nuclear Licensing for Commonwealth Edison Company (Licensee) to Harold Denton, Director of NRC's Office of Nuclear Reactor Regula-tion, the Licensee formally requested permission to withdraw its applica-
-_ L c . .c. *. _ tion for the license amendments at issue in this proceeding.
In its March 5,1984 response to the CANP petition the NRC Staff
,, !. s -. made note of Licensee's February 28th letter and suggested that the 'y., . r jj:q . /)i. Licensing Board hold CANP's request for a hearing in abeyance pending s.TU T * %.e q ~ b Staff action on Licensee's request to withdraw its application for license d-C f J amendments. Thereafter, Counsel for the NRC StafT informed the %,@yh?$MW4.W!WT4' / M h l( M ? Board by letter dated April 27,1984, that the Director of the NRC's Di-vision of Licensing had on April 18,1984, granted Licensee's request to withdraw its amendment application and accordingly, CANP's petition should be denied.
On June 5,1984, CANP submitted to the Commission a Petition for Emergency Relief (Petition). The Petition contended that the Licensee's document " Zion Unit 1 Reactor Containment Building Integrated Leak Rate Test Report," dated April 24,1981, revealed that repeated efforts were made to obtain a satisfactory verification test to validate the per-formance and reliability of the basic test performed on March 12, 1981, at Zion Nuclear Power Station Unit 1. The Affidavit of Dr: Zinovy V. Reytblatt, attached to the Petition, contended that these repeated elTorts to obtain a satisfactory verification test demonstrated that the basic test had been deficient. Consequently, it was alleged that the American Na-tional Standards Institute ANSI N45.4-1972 specified in Appendix J to 10 C.F.R. Part 50 was not met and, accordingly, Zion Nuclear Power Sta-tion Unit I was not in compliance with the Commission's regulations 93 _ . _ . - . . . _ . _ . . . ..~., S* i
f __.-~_.2. _ .m. w m .:.; _. _ _ . . regarding containment leak rate testing. Based on the above allegation, the Petition requested the following relief: (1) that the NRC act im-mediately to remove the threat posed by this situation; (2) that the NRC immediately order Licensee to perform a scientiGcally valid Con-tainment Integrated Leak Rate Test on Zion Power Station Unit 1; (3) that the NRC supervise and review this test, and certify both that this test is scientifically valid and performed in accordance with ANSI N45.4-1972; (4) that a copy of all documents containing actual test data, test logs, calculations, graphs, etc., collec~ted by Licensee or the NRC in the course of this test or its review, be provided on a timely basis to he . Petitioner; and (5) that if (1) through (4) are not or cannot be accom-plished, that Zion Nuclear Power Station Unit 1 operating license be suspended. As a result of the Petition, the NRC Region III OfGce investigated the various allegations contained in the Petition. The regional inspectors per-formed a special in.=pection of the 1981 and 1983 Containment Integrat-ed Leak Rate Tests (CILRT) performed for the Zion Nuclear Power Sta-tion Unit 1. The inspection identified discrepancies in the above-mentioned
~
CILRTs and, on July 19, 1984, the Region til Office notified Licensee that Zion Nuclear Power Station Unit I was not in compliance with Ap-n ,
, q . pendix J to 10 C.F.R. Part 50 and the Zion Nuclear Power Station Unit I 4 O;.
b - Technical Specifications. A copy of the Region's notincation was sent to w -i y i CANP as an enclosure to the Director's letter dated July 30,1984, ac-
; - - g .,[- ~ c knowledging receipt of the Petition. The Inspection Reports document-MN:d$WhEdi@d$.M. f E ;,Qh ing the Region 111 Office's inspection Gndings (50-295/84-11 and 50-305/84-11) were also sent to CANP, along with twenty-seven other documents in NRC's possession relevant to the CILRTs performed at Zion Nuclear Power Station Unit 1, by letter dated September 27,1984.
Upon notiGcation by the Region III OfGce, Licensee voluntarily shut down Zion Nuclear Power Station Unit I and performed a valid CILRT, portions of which were witnessed by Region 111 inspectors. The results of that inspection are also contained in Inspection Reports 50-295/84-11 and 50-304/84-11. The CILRT showed Zion Nuclear Power Station Unit I containment integrity. Consequently, Zion Nuclear Power Station Unit I containment has been demonstrated to be in compliance with Commission regulations in 10 C.F.R. Part 50, Appendix J. The Director's Decision under 10 C.F.R. f 2.206 (DD-85-2,21 NRC 270) was issued on January 23, 1985. CANP's Petition was granted in part and denied in part. 94 e p -
l __ . . - - . .. . - l l l l To the extent that the Petition sought immediate NRC action to remove any threat posed by unacceptable CILRTs at Zion Nuclear Power Station Unit 1, such actions were taken and the relief requested by the Petition was granted. To the extent that the Petition sought NRC review of the CILRT conducted at Zion Unit I and copies of all docu-ments in the possession of the NRC regarding that CILRT, those por-tions of the Petition were also granted. l The remainder of the Petition was denied. It was not necessary for the l NRC to issue an order in this matter, because Licensee agreed to take l remedial measures similer to those requested upon notification that the I plant did not comply with Appendix J. l The Director's Decision (DD-85-2) became the final r.gency action on ) March 29,1985, when the time provided for Commission review ex- I pired. ' Meanwhile, by letters dated March 6 and March 8,1985 (Petition),
, Dr. Reytblatt requested an immediate postponement of containment leak rate tests for all light-water reactors and debugging and revalidation of certain computer software used in determining leak rates. The Petition further alleged that the Zion Unit I containment leak rate test performed in July 1984 was in error and, therefore, the Petitioner concluded that .
s the Zion Unit I leak rates were in excess of regulatory limits.
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The Director's Decision Under 10 C.F.R. { 2.206 (DD-85-10) was 1 ' ~-
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=U issued on July 3,1985. CANP's Petition was denied and the Director's
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. : S Decision became the final agency action on November 8,1985, when W .t Js. . . . .lcYt'. *
'y/4 the time provided for Commission review expired.
$hYY5$&Ul$':$5fbbh)hhk ORDER For the foregoing reasons and in consideration of the entire record in this matter, it is, this 19th day of February 1986, ORDERED:
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1
- l. The Petition to Intervene filed by Citizens Against Nuclear Power is denied, and
- 2. This operating license amendment proceeding is dismissed.
1 FOR THE ATOMIC SAFETY AND LICENSING BOARD Robert M. Lazo, Chairman ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland, this 19th day of February 1986. a t J'$
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l 1 1 I Cite as 23 NRC 97 (1986) DD 86-2 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OFINSPECTION AND ENFORCEMENT James M. Taylor, Director in the Matter of Docket No. 50-483 (10 C.F.R. I 2.206) e UNION ELECTRIC COMPANY . (Callaway Plant, Unit 1) February 10,1986
~ - The Director of the Office ofInspection and Enforcement denies a pe-
; q. ,;,s j., tition filed by Alan S. Nemes on behalf of the Missouri Coalition for the
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.'.. .-;"- . Environment and Kay Drey. The petition requested action with respect
'i. 6 ' . 2g aS.,,yJ,pa,. hQ to the Callaway Plant Unit 1, based upon issues concerning the certifica-i jy . ,
- s. tion and qualification of quality assurance inspectors to conduct inspec-
?I'hbfE ,hkffh$bfkh5, tions at the Callaway facility. ATOMIC ENERGY ACT: SAFETY FINDINGS The granting of an NRC operating license does not hinge upon a demonstration of error-free construction. Rather, what is required is simply a finding of reasonable assurance that, as built, the facility can and will be operated without endangering the public health and safety. RULES OF PRACTICE: SECTION 2.206 PETITIONS Section 2.206(a) requires petitioners to set forth the facts that consti-tute the basis for their request. 97 w asmo - y-em.+=e-*m es--= ===www.w. = =
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TECHNICAL ISSUE DISCUSSED: QUALIFICATION OF INSPECTION PERSONNEL The requirements of Regulatory Guides 1.8 and 1.58 for qualification ofinspection personnel are discussed. RULES OF PRACTICE: SHOW-CAUSE PROCEEDING Not every violation compels the suspension or revocation of an operat-ing license. Such action could be appropriate if there has been a perva-sive breakdown of quality assurance. TECHNICAL ISSUE DISCUSSED: QUALITY ASSURANCE PROGRAM Acceptability of the licensee's quality assurance program under 10 C.F.R. Part 50, Appendix B, is discussed. i s.. DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206
- y. q 7- b INTRODUCTION i
.g .q On March 27,1985, Alan S. Nemes, Esq., on behalf of the Missouri
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3 tdid / d d :.<l M - @ k^ / F s;;j h g Coalition for the Environment and Kay Drey (" Petitioners") filed a Peti-
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tion with the Directors of the Office of Nuclear Reactor Regulation and the Office of Inspection and Enforcement requesting that an order be - issued to the Union Electric Company (Licensee) to show cause why License No. NPF-30, issued on October 18,1984, authorizing full-power operation for the Callaway Plant Unit 1, should not be suspended or revoked pending a full investigation of the " violations oflaw" described in the Petition, and why other actions requested in the Petition should not be taken.' The issues raised in the Petition concern the certification l l
\
3 In addition to undertaking a rull investigation of the issues raised in the Petition, the Petitioners re-quest that the Nuclear Regulatory Commission: (a) undertake an mdependent mvestigation of all quahty assurance and quahty control personnel l during construction and operation of the Callaway Plant to determme whether such personnel have met and contmue to meet the presenbed quahfications for their level of responsibility; (b) conduct an audit or all testmg and inspections undertaken by unquahfied quahty control , personnel; ' (c) independently inspect all work mspected or reviewed by unqualified personnel; and (d) implement other actions and remedies deemed appropriate. l 98 - I
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and use of unqualified personnel to conduct quality assurance inspec-tions at the Callaway Plant, which the Petitioners contend cast doubt on the adequacy of the inspection process and the actual safety of the plant. In addition, Petitioners contend that the Licensee's' failure to identify these problems, which had existed for at least 4 years, demonstrates that the Licensee violated its " legal obligation to monitor safety inspections continually at the plant and to provide inspectors with direct access to levels of management sufficient to assure prompt reaction to safety viola-tions." Three newspaper articles 2 concerning the Licensee's investigation (" prompted by internal complaints") into the qualifications of quality control inspectors, review of completed work orders, and communication problems within the quality control department provide the factual basis for the Petition. On May 10,1985, I acknowledged receipt of the Petition and indicated to the Petitioners that, as provided by 10 C.F.R. { 2.206 of the Commis-sion's regulations, appropriate action would be taken within a reasonable i time. In accordance with my request, the Licensee responded to the Peti-a tion in a submittal dated June 6,1985. The Petitioners responded to the Licensee's submittal on July 5,1985, and at that time renewed their re-4 - quest for the NRC to suspend the operating license for the Callaway ( , , Plant pending an investigation of the matters raised in the Petition. The l, W : 7 $ .-/ --.
. 1 .' ' , 1 '. ' '
Licensee filed a supplemental response on August 2,1985. I have now completed my evaluation of the Petition, as supplemented, and the
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kh- N[ 2' Licensee's responses. For the reasons set forth in the discussion below, MM5@,.MsEM[% the Peddoners' mquest for action is denied. oiscussios The Petitioners allege that during both the construction and operation-i al phases of the Callaway Plant, the Licensee permitted an "undeter-mined number" of quality control inspectors to conduct inspections and testing for which they were unqualified by Nuclear Regulatory Commis-sion (NRC) requirements, Union Electric Company's policy, and indus-try standards. The Petitioners note that the Licensee admitted to the improper certification of some of these inspectors, and subsequently decertified these inspectors. According to the Petitioners, the disqualifi-cation of these inspectors casts doubt upon the validity of "at least 12,000" work inspections conducted throughout the plant. Furthermore, 2 UE Targets Ungualfed Plant inspectors. Columbia Daily Tnbune. Mar.1.1985, at i; Yearaent Wort. ers' R(It Revealed in UE Sqfety Assurance Problems, Cotumbia Dady Tn6une. Mar. 8. l985, at \; UE Identprs Ungus4fard /nspecmrs. St. t.ouis Post Dispatch. Mar. 26.1985, 99 i e l
- e a,
. m._ _ ___. . .m ._ a.m _a the Petitioners allege that although quality inspectors repeatedly regis-tered complaints to supervisors about unqualified inspectors, the Licen-j see failed to identify the lack of qualification of quality control personnel over an extended period of time. Furthermore, according to the Petition-i ers, quality control management instituted procedures to discourage access to higher levels of management. Petitioners charge that these ac-tions by the Licensee constitute a failure to comply with those aspects of ,
10 C.F.R. Part 50, Appendix B, concerning: (1) the proper training of quality assurance personnel; (2) verification that the quality assurance program is functioning effectively in accordance with Nuclear Regulatory Commission ' i regulations;
- 0) organizational freedom to identify quality assurance problems and to initiate and implement solutions; and (4) access by QA personnel to levels of management necessary to j effectively provide quality assurance at the Callaway Plant.
I The information relied on by the Petitioners involved an operations j quality assurance program problem which the Licensee was investigating. j The Petitioners, however, raise the possibility that similar problems j = with respect to inspector certification may have possibly occurred during : construction of the Callaway Plant. j . ..c m 2 .. h.
; ? , , "% _ .q.yS q b }M in considering this allegation, it is important to recognize that the con-
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- struction and preoperational testing quality assurance program was a dif-l 4
.. L ,.. . 2 ferent program from that which is now being implemented for facility op- ;
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'- ddMS:UMS$i.M/ V-% ' eration. The construction quality assurance program developed by the Licensee was based on the Standardized Nuclear Unit Power Plant System (SNUPPS) quality assurance program. The program was imple-mented by the prime construction contractor, Daniel International l Corporation (" Constructor"), using the Constructor's personnel with oversight and audit by the Licensee. The Constructor used the ASME i Code-required quality assurance manual and interfacing procedures, l documents that were approved by the Licensee. The preoperational test-
- ing program was managed and implemented by Licensee personnel
] under the controls ofits construction quality assurance program. In con-1 trast, the operations quality assurance program was developed and is ; being implemented by the Licensee.2 Given these differences between quality assurance program welopment and implementation during con-struction and operation of the Callaway Plant, there is no reason to i I; I 3 The opersuons quality assurance program has been apphed to systems since 1983 as they were turned over to Umon Electne Nuclear operanons.
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, o assume that quality assurance deficiencies such as the inspector qualifica-tion problem discovered under the operations quality assurance program occurred when the construction and preoperational testing quality assur-ance program was being implemented. In all events, the construction and preoperational testing quality assurance program at Callaway was in-spected a number of times by the Nuclear Regulatory Commission, and
,_ at no time during these inspections did it appear that the program was being implemented other than in a satisfactory manner. See, e.g., Inspec-tion Report 50-483/82-03 (Region III special construction team assess-ment inspection report) dated June 15,1982, at 5,1 A ("the overall QA program at the Callaway Plant is functioning in a satisfactory manner").
The issue of quality assurance was fully litigated in the operating license proceeding, resulting in the determination that there was no general breakdown in quality assurance and that there was reasonable assurance the Callaway Plant could be operated safely. See LBP-82-109, 16 NRC 1826 (1982), affd. ALAB-740,18 NRC 343 (1983). As the Appeal Board noted, in evaluating contentions similar to these raised by the Petitioners, the granting of an NRC operating license does not hinge upon a demonstration of error-free construction, nor do the Atomic l Energy Act of 1954, as amended, and the Commission's regulations
, , mandate such a result. Rather, what is required is simply a finding of rea-
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; sonable assurance that, as built, the facility can and will be operated ~f - ,- without endangering the public health and cafety. See ALAB-740, j- - i' 7 C supra,18 NRC at 346. That standard was met at Callaway.
k;Ne $$h$s# 4 M,ww4.gfy .t.% QJ.i of . Q Section 2.206(a) of 10 C.F.R. requires Petitioners to set forth the facts that constitute the basis for their request. The Petition provides no facts that support the assertion that there could have been an inspector qualification problem during construction of the Callaway Plant. Absent such facts, and in view of the finding that the construction quality assur-ance program at Callaway was found to have functioned in a satisfactory manner, there is no basis to take the action requested by Petitioners with regard to the construction of the Callaway Plant. The Petitioners' allegations concerning operations quality assurance focus on the discovery at Callaway of the questionable certification of quality assurance inspection personnel in early 1985, as described in the newspaper articles attached to the Petition. Using this info'rmation as a factual basis for their Petition, Petitioners assert that the Licensee violat- ; ed not only regulations and their Final Safety Analysis Report commit- ' ments regarding inspector qualifications, but possibly regulations
- per- l taining to: 1 410 C.F R. Part 50, Appendices A and B.
101
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(1) ensuring conformance of materials and systems to specifica-tions; (2) ensuring accurate inspection of materials and systems; (3) identifying and correcting defective material and equipment; (4) documenting tests and inspections;
- (5) providing sufficient organizational freedom of persons and or-
- ganizations performing quality assurance functions or providing direct access of such personn91 to levels of management as may be necessary to identify quality problems, initiate, recom-mend, or provide solutions, and to verify implementation of i solutions;
! (6) verifying the proper functioning of the quality assurer.ce pro-gram by auditing; (7) assuring testing of structures, systems, and components impor-
" tant to safety to quality standards commensurate with the im-portance of the safety function to be performed; an.d (8) establishing a quality assurance program to provide adequate assurance that structures, systems, and components important to safety will satisfactorily perform their safety functions.
; '7'. .
;;i , 7.
>A These arguments seek to bring the adequacy of the Licensee's entire op-j s
. .. - 'O erations quality assurance program into question.
1 y. f :@;7;[l. '[ -
~D'3 The Commission was aware of inspector certification problems at Cal-i 9. , S E N .ji laway prior to submission of the Petition. During the periods January 20 , ,...O.
N through March 9,1985, and March 10 through May 27,1985, the Nucle-
*MNM.'G;jfG~ " N^M' " .Qj4 ar Regulatory Commission's resident inspector at Callaway conducted routine unannounced safety inspections, including followup on an allega-
~
' ' ~ tion he received on February 5,1985, concerning the Licensee's failure 3 to follow procedures for certification-of-Level 111 quality control inspec , j tors. The inspector's inquiries into the allegation included examination
- of the problem covered in the newspaper articles and the Licensee's in-vestigation of the problem and its corrective action, and are documented in inspection Reports 50-483/85002 (DRP) dated April 1,1985, and 50-483/85012 (DRP) dated October 3,1985. As will be discussed iq/ra,
- these inspection reports document two violations of 10 C.F.R. Part 50, Appendix B requirements related to inspector certification which have 1
' - been corrected by the Licensee. It is necessary, however, to address the
} Petitioners' major concerns to determine whether, takeit individually or
- j as a whole, they constitute a pervasive breakdown in the Licensee's op-
> crations quality assurance program which would warrant granting the
! relief requested by the Petitioners. ,
j 102 f i a m+== d k.
. . . _ _ _ . _ _ _ . . . . . . _ . . - - . _ _ - - - _ - - - - ~ .
Improper Certification of Quality Assurance Personnel The Petitioners state that NRC regulations and the Licensee's
" policy" mandated that quality control persennel be "certiGed as meet-ing specific training, educational and technical standards in order to insure [ sic] competent and accurate safety inspections and testing."
They further argue that the Licensee has permitted some number of
.. quality control inspectors, including several individuals in supervisory capacities, during both construction and operation of the Callaway Plant, to conduct inspections and testing for which they were not qualified by Nuclear Regulatory Commission requirements, Licensee policy, and in-dustry standards.
For operation of the Callaway Plant, the Licensee is committed 5 to Regulatory Guide 1.58 Rev.1 (September 1980) for Licensee quality control personnel or contracted quality control personnel performing in-spection, examination, and testing activities at the plant. For other per-sonnel performing inspection, examination, and testing activities, the Licensee is committed 6 to Regulatory Guide 1.8, Proposed Rev. 2 (February 1979). The following exceptions to these regulatory guides
. were taken by the Licensee, reviewed by the Staff, and found to be
^ ' '
, acceptable:
(1) Where quality control personnel do not meet the education
'i. ,& ,gG pf;,.
Q. ( j . and experience recommendations of ANSI N45.2.6-1978 as en-
,"g.g
, Tlp&,. {d ,.e dorsed by Regulatory Guide 1.58, Rev.1, the Licensee will s .. ;; g i ' + ? f m s demonstrate by documented results of written examination
' ' and evaluation of actual work proficiency that such personnel
-- Ih have comparable competence.'
(2) Personnel responsible for directing or supervising safety-related preoperational and startup tests and for review and appreval of safety-related preoperational and startup test procedures or re-sults will meet Regulatory Guide 1.8, Proposed Rev. 2, and ANSI /ANS-3.1-1978 but will not be certified.8 The Staff position in Regulatory Guide 1.58, Rev.1, states that an ac-
, ceptable way of complying with Commission requirements with regard to the qualification ofinspection, examination, and testing personnel is by implementing, with some additional provisions, the requirements of ANSI N45.2.6-1978 and American Society for Nondestructive Testing 5 sNUPPs.C Final %fety Analysis Report at 3 A.18.
- Id. at 3 A.I.
714. at 3A.18. 8 /J. at 3A.I. It should be noted that neither Regulatory Guide 1.8. Proposed Rev. 2, nor ANst/ANs.3.1 1978 require certification or inspection, examination, and testing Mrsonnel or their supervisors. 103 1
,~
I 4 _. _w . . Recommended Practice No. SNT-TC-1 A (1975), the latter applying to nondestructive testing inspectors. One additional provision of Regulatory Guide 1.58, Rev. I, which is pertinent to this discussion relates to the education and experience recommendations of ANSI N45.2.6-1978. Po-sition C.6 of the guide indicates, in part, that a commitment to follow Regulatory Guide 1.58, Rev.1, indicates that the recommendations provided in f 3.5 of ANSI N45.2.6-1978 will be followed unless accept-3 able alternatives are provided to the Commission. Consequently, the Licensee's commitment, including its exception to Regulatory Guide 1.58, Rev.1, described above, would permit deviation from the educa-
- tion and experience recommendations of ANSI N45.2.6-1978. Such de-viations would be expected to be adequately documented per the Licen-see's commitment.' It should be noted that ANSI N45.2.6 contains no requirement for qualification and certification ofindividuals who only su-pervise inspection, examination, and testing. (An exception to this is that qualification of personnel involved in directing or supervising safety-
- related preoperational and startup tests and reviewing and approving safety-related preoperational and startup procedures or results should be
- in accordance with Regulatory Guide 1.8.) Neither Regulatory Guide
. _ _ _ _ , . -w .
1.8 nor the national standard it endorses, however, contain formal cer-f, tification requirements for these individuals. From the foregoing discus-
, b .1;; N w 3;.-4 sion, it is clear that not all quality control personnel must be certified.
l
.Mi .-f 5 The Licensee's review identified twenty-two inspectors with question-l' - ' IF . '
o-N.- able certifications. Only seven of these inspectors were employed by the
;.y ,
Licensee at the time of the review and were initially decertified. The
-l. 4 . W .. m d @ R Q Q seven inspectors were found to have questionable ." broad" certifications, i
but they were qualified and capable of performing the inspection activi-
- ties assigned. These individuals were qualified and could have been re-certified as Level II inspectors in " specific" areas based on their experi-ence and education. The Licensee recertified one Level 11 civil inspector
, for limited inspection, but chose to maintain broad-scope certifications for other inspection areas. As such, it was unable to recertify the other six inspectors." A Licensee evaluation team examined all activities which involved in-spections performed by individuals with questionable certifications and determined that the inspections performed were within the capabilities
- of the inspectors. The team concluded that the inspections performed by l 'sNUPPs-C Final Safety Analysis Report at 3A.18.
j 18 See Pomuon C.I or Regulatory Guide 1.58. Rev. I (September 1980L
! H See Inspecuon Repor 50-483/85012 (DRP). daled october 3.1985, f 5. at 15.
l.' l ~104 i
~~"
_~- _ . . .
e the questionably certified individuals presented no significant impact on plant components, system function, or quality.u Based on the Nuclear Regulatory Commission inspector's inquiries and his review and oversight of the Licensee's evaluation, it appears that there is reasonable assurance that prior maintenance and inspection activities were adequately performed." As documented in Inspection Report 50-483/85012 (DRP), two viola-tions were identified involving certiGcation of quality control inspectors at Callaway. One violation involved the Licensee's failure to adhere to
, the requirement of a quality control procedure in that the plant manag-er's signature was obtained on the letters of certincation for three assist-ant quality control supervisors rather than the signature of the certiGed Level til inspector as prescribed in the procedure. This violation "was identiGed and corrected by the Licensee. In accordance with the Nuclear Regulatory Commission's policy to encourage licensee initiative in self-identiGeation and correction of problems and since this violation met all the criteria of 10 C.F.R. Part 2, Appendix C, a citation was not issued for this failure to comply with a procedural requirement. The second vio-lation concerned the failure of the Licensee's quality control program and procedures for operations to provide adequate quantitative or qual-itative acceptance criteria relative to the qualiGeation and certification of ; .] w ~ .. , ' y t. quality control inspectors, which resulted in certification of some inspec-M'te 1 fr ' - .
tors in areas where their qualineations were questionable. NRC Region Shs.: j E
.9 "%t 6 A..Q n.gg III issued a Severity Level IV Notice of Violation for the Licensee's vio-lation of the 10 C.F.R. Part 50, Appendix B, Criterion V requirement kh~ . , j p , .7MN[$hbhbg'f that procedures have appropriate quantitative or qualitative acceptance J '
criteria. The Licensee's corrective action with regard to these violations included (a) developing qualitative and quantitative acceptance criteria and revising applicable procedures appropriately; (b) identifying all past and present operations inspectors, reevaluating their qualifications to l the newly developed acceptance criteria, and identifying those inspectors having questionable qualifications, i.e., those inspectors whose qualinca-tions did not measure up to the new acceptance criteria; (c) reviewing all operations inspection and maintenance work orders to identify those involving questionably qualified inspectors; (d) evaluating the inspection activities performed by questionably qualified inspectors to determine the safety significance of those inspections and to verify that the work performed was within the capability of the inspectors, and reinspecting, by audit, several of the more complex inspections; and (c) revoking or I2 Id. at l6. I U Id. at i8. 105
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limiting the certilication ofinspectors not qualiGed according to the new criteria. The violations in themselves do not represent a pervasive breakdown of the quality assurance program such that enforcement action beyond a Notice of Violation is appropriate. Not every violation compels the sus-pension or revocation of an operating license. Such action could be ap-propriate if there has been a pervasive breakdown of quality assurance. See ALAB-740, supra, I8 NRC at 346. See also Washington Public Power Supply System (WPPSS Nuclear Project No. 2), DD 84-7,19 NRC 899,
' ' 905 06 (1984); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units I and 2), DD 83-13,18 NRC 721,722 (1983). However, in this instance, the violations were identified by the Licensee and were given prompt high-level attention. Timely and adequate action has been taken to correct the violation and to prevent recurrence. No further action is appropriate.
~
Breakdown of the Quality Assurance Audit Program l The Petitioners state that 10 C.F.R. Part 50, Appendix B, rcquires the
'in; r, >
, , :.a ',b.3 Licensee to carry out a comprehensive system of planned, periodic audits to verify compliance with all aspects of the quality assurance pro-9 ..e.. ( .I% '.
;.f."2. >r, ]i .c4 Q >g"2 ff.t; a gram and to determine the effectiveness of the program <>n an ongoing
;i s basis. They argue that the Licensee's failure for at least 4 years to identi-y ws --', .c( 1 J ' '-? M fy the inspector qualification problem redects deficiencias in the verifica-C.,df7 tion and auditing programs and a violatiorrof the legal responsibility to NMON '.
#*YWMN.g 1 verify proper functioning of the quality assurance program.
Part 50, Appendix B, requires licensees to institute a comprehensive system of planned and periodic audits and to regularly review the status and adequacy of the quality assurance program. The Licensee is commit-ted's to Regulatory Guide 1.33, Rev. 2 (February 1978) which endorses with additional provisions ANSI N18.7-1976/ANS-3.2. Section 4.5 of ANSI NI8.7-1976 requires that an_ audit of all safety-related functions be completed within 2-year intervaisi* and that, as a minimum, audits are to verify compliance with and efTective implementation of procedures, regulations, license provisions, programs for training, retraining, qualifi-cation and performance of operating stalis, as well as other areas. Fur-14 Inspecion Report 50 483/85012 (DRP). dated october 3.1985. IS sNUPPs.C Final safety Analysis Report at 3A-6. 16 $,c, son 6 of plant Technical Specirications also requires auditing or activities required by the opera. '
- tans quality assurance program in order to meet 10 C.F R. Part 50. Appendia B requirements at least once per 24 months. ANSI N18.71976 requires auditmg or some pro 5 ram areas at an meressed frequen.
cy none or which are pertinent to this discussion. + ). 106 I i as I
_ . . . _ _ _ . _ . . - . _ __ . ~ _ . _ _ . _ . _ . - ther, the Licensee is committed'7 to Regulatory Guide 1.144, Rev.1 (September 1980), which endorses- ANSI /ASME M45.2.12-1977. ANSI / ASME N45.2.12-1977 specifies in part'8 that the objectives of the audit program include determining that a quality assurance program has been developed in accordance with specified requirements and vdrifying by examination and evaluation that the quality assurance progrim has been implemented. Section 17.2.18 of the SNUPPS-C Final Safety Analysis Report states that the Licensee's audit system includes the performance of;iudits and surveillances (surveillances other than those required by plant technical 4 specifications) by the Quality Assurance Department. It permits per- , formance of surveillances by other than Quality Assurance Department personnel and requires no unique personnel qualifications and certifica . tion except that individuals performing surveillances be familiar with the area being surveyed and the applicable implementing procedures on sur-veillances. Auditors, however, are qualified in 1.ccordance with Regula-tory Guide 1.146 (August 1980)." Further, the Final Safety Analysis Report indicates that through investigation, the audit program will deter-mine the adequacy of and adherence to established p:ocedures, instruc-y tions, and licensing requirements and effectiveness ofimplementation.
, The Licensee's commitme.ntsM to Regulatory Guides 1.33,1.144, and
' ~ F '.
J .. g , . , w 1.14,6 and its description of its audit program to meet the requirements _.' ,' f% , t 5, of Criterion XVIII of 10 C.F.R. Part 50, Appendix B, were reviewed by 3..' hg9.d*~Np the Nuclear Regulatory Commission StafT and found to be acceptable
, dd$ Y d M' d W 4 prior to the issuance of the operating license.
Jf@9WAMMiff(5ht$yh,p The Licensee began implementing the quality control portions of the operations quality assurance program in 1981, and full implementation of the program began on January 1,1984,162 days prior to fuel loading. In the Nuclear Regulatory Commission Staff's view, full implementation of the program marked the beginning of the 2-year audit interval within which all safety-related functions must be audited. During the Nuclear j Regulatory Commission's inquiries into the allegation received from a Licensee employee on procedures not followed in the certification of ; Level III quality control inspectors, however, past and current quality '; assurance audits and surveillances relating to inspector qualifications and certifications were reviewed to evaluate previously identified deli-ciencies and to assess the Licensee's corrective action. These inquiries ; l 17See SNUPPs.C Final safety Analysis Report at 3A.29. Is See ANSI /AsME N45.2.121977. (( 3.2.1 and 3.2.2. N See sNUPPs-C Final Safety Analysis Report at 3A.32. M /d. at 3 A-6. 3A.29. and 3A 32. 107 1
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i revealed that the Licerisee was evaluating its compliance with and effec-tiveness in meeting requirements relating to inspector qualifications and certifications during the 1981 to 1985 time frame.2' The results of the Nuclear Regulatory Commission's inquiries into this matter show that the problem with inspector certifications was p identiGed, investigated, and corrected by the Licensee while executing
- i. . ,z the licensed commitments on quality assurance program audits within a the prescribed time frame. There is no evidence provided by the Peti-y', !
tioners or otherwise discovered that indicates that the Licensee's pro-grammatic audits are not adequate.
~ Adequate Freedom The Petitioners allege that despite numerous complaints to supervisors by quality control inspectors concerning inadequate training of quality control personnel, Licensee management did not act upon tnese com-plaints for an extended period of time and undertook an audit only after
~
a disgruntled inspector took the matter directly to the Quality Assurance Department. The Petitioners claim that this is contrary to Criterion I of 10 C.F.R. Part 50, Appendix B, which requires that persons and organi-c,. -
.C
. f. u . , y zations performing quality assurance functions have sufHeient authority
.n., 4 f.' .
. , - 4 ., and organizational freedom to identify quality problems, to initiate, q-: y 1- A r .
G; 2%.,q ,r ,. . - w< . , ,* ,p: . es < 4
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}"i< e. ,y
. [/ + '
'h ; ,
21 The followmg Licensee audit and surveillance reports were reviewed dunns the inspector's mquines
$_ f/p.l.?%y/ t h.djMg; .F' m this matter-(a) Quahry Assuroner Audar Report No. OQA-0000 (Aprd-May 1981) - identsGed an item relatsve to the absence of quahty control ceruncauon letters and tramms records in the quahty assur-ance record Gles. This audit did not identify any procedural de6ciencies relauwe to mspector quahficahon and cerurmation. Review or the Quality Assurance Department's followup or the response to this audit rmding on records indicated that acceptable acuon had been taken.
(b) Quainy Assuramt Surnedhrace Report No. 8201 02 flanuary 1982) - meluded a review of the quahty control training program and the certificanon of quahty control inspectors. The surveil. lance idenuGed some cert Gcanon records deGciencies, but did noi identify any procedural denciencies. Review of the correcuve acDon taken by the Licensee revealed that although the records deficiencies were corrected, the cause of the deficiencies was not addressed. (Note that Cntenon XVill of 10 C.F R. Part 50. Appendia 8. requires determmation and correcuon of the cause of sism/lcasr condinons adverse to quahty to prevent recurrence.) (c) Quahry Assurance Aude Report No. 48309-4 (Seprember 1983) - meluded an evaluauon of the ANSI N45.2.6 capabihty level of mspectors in the Trsi Program surveillance Group which provided quahty control inspecuons dunns preoperanonal tesung. The audit determmed that the inspectors' quahncations were acceptable.
' (d) Quahry Assurance Aude Report No. AD548407D (August 1984) - meluded an evaluauon of the quahGcations of quality control's nondestrucuve exammauon mspectors and idenuned no discrepancies.
' (e) Quahry Assurance Surwdlance Reports. Nos. 8502094 and 8502098 (February and March 1985)
- encompassed a wmplete review of the quahncanons and ceruncation of all past and present f
, operanons quahty controlinspectors prompted by an alleganon received by the Quahiy Assur.
, ance Department from a Licensee employee that procedures were not followed in the cerunca.
! tion of Level III quahty control mspectors. The Licensee's correcove acuan is desenbed supra.
1 i
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. -. - . - . - . . . . . -- .. . . . . . - ~ .
recommend, or provide solutions, and to verify implementation of solu-tions. The Licensee has committed 22 to providing sufficient organizational freedom to ensure proper identification and resolution of safety prob-lems. The Nuclear Regulatory Commission's review of the Licensee's
- 1 commitment, organizational structure, and reporting arrangements
- found no conditions which might prevent or hinder freedom of Licensee
- employees to identify quality assurance problems and to initiate and implement solutions.
During the followup inquiries on the allegation, the inspector held in-terviews with Licensee inspectors and quality assurance personnel regarding the issues raised by the Petitioners. These inquiries revealed the following: (1) Licensee inaction for an extended period of time on numerous complaints by quality control inspectors concerning inadequate training could not be substantiated. The inspector found that all Licensee inspectors interviewed indicated that they had re-ceived adequate-to-very-good training.23 (2) Complaints to quality control management about improper cer-
- tification of inspectors could not be substantiated. However, it was substantiated that concerns were raised to the Quality Assurance Department regarding certifiersion of assistant quali-
,a ty control supervisors in late January 1985 which did prompt
'.,g',, g T-
.. an investigation of those concerns. Licensee corrective action included decertification ofimproperly certified personnel.
~
L" . t y '-
' SlDt J ~d,'.
,1 No violations of Criterion I of 10 C.F.R. Part 50, Appendix B, were
.$:f 2
, ' , . . .'.y. n . j $1%
found in this area. E*hf Y k lkh$ . Access to Management The Petitioners allege that a memorandum issued by the quality con-trol supervisor in March 1984 discourages access to higher levels of management and reveals that the Licensee does not provide sufficient organizational freedom or direct access to ensure proper identification and solution of safety problems. The Petitioners claim that this is also contrary to Criterion I of 10 C.F.R. Part 50, Appendix B, wh'ich requires that irrespective of organizational structure, the individuals assigned the responsibility for assuring effective execution of any portion of the quali-22 SNUPPs-C Final safety Analysis Report. l 17.2.1. at 17.2-3. 23 Inspection Report 50-483/85012 (DRP) dated october 3,1985, at 6. 109 i .
1 ,
- _ _ m_
i l ty assurance program shall have direct access to levels of management i as may be necessary to perform this function. l The Licensee has committed 2' to providing sufficient organizational I freedom to ensure proper identification and resolution of safety prob-
! lems. The Nuclear Regulatory Commission has reviewed the Licensee's d commitment, organizational structure, and reporting arrangements and found no conditions which might prevent or hinder direct access to such levels of management as may be neces,sary to perform the function of assuring effective execution of any portion of the quality assurance program.
During followup inquiries on the allegation, the inspector held inter-E views with Licensee inspectors regarding this issue. It was not substan-
- - tiated that the quality control supervisor's March 4,1984 memorandum on effective communication was viewed by inspectors as a method to dis-courage access to higher levels of management. The inspectors inter-viewed expressed support of the memorandum's subject and related dis-cussions, and did not view the memorandum as a discouragement to contact upper management, the Quality Assurance Department, or the Nuclear Regulatory Commission.25 CONCLUSION M" g fy?. f;.. :. ' - l, J [ In sum, upon examination of the arguments raised by the Petitioners, 1
i Q/.wa ;.,a ;J4 I find that although there were some quality assurance program deficien-cies, these defidiencies did not amount to a pervasive breakdown in the
@ M"-k
. W U-m! d}j[h $) N[fM@d operations quality assurance program. Deficiencies in a single area of a 4 ][$$ " f7[.'
, licensee's quality assurance program do not necessarily indicate a perva-sive breakdown of the entire program. See ALAB-740, supra,18 NRC NUshMYNh' bsdh.hid
' "~
at 346. While the Commission expects licensees to pay meticulous atten-tion to detail and achieve a high standard of compliance with NRC re-quirements, errors may occur in either facility construction or operation. Isolated deficiencies in a licensee's program, however, do not necessarily undermine the program to such an extent as to give rise to a significant safety concern necessitating escalated enforcement action. See Philadel-
- phia Electric Co. (Limerick Generating Statio'n, Units I and 2),
DD-85-ll,22 NRC 149,161 & nn. 7 & 8 (1985). Furthermore, the Peti-tioners provide no facts that support the assertion that the adequacy of 24 sNUPPs-C Final Safety Analysis Report, { 17.2.1, at 17.2 3. l l 25 src inspect on Report 50-483/85012 (DRP) dated october 3,1985, at 6. l 110
.t i
_ _ . - _ . _ . . _ 1 l o
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. ~ . -
A the Licensee's entire operations quality assurance program is questiona-ble, nor does the information developed independently by the NRC in-
~ , .
spection program support such an assertion. Absent such facts, there is
'l '
no basis to take the action requested by the Petitioners. O. . For the reasons discussed above, none of the issues identified by the r~ , . Petitioners in their filing or in their additional views warrant the initia-tion of show-cat'se proceedings. Additional inspection and investigatory
'J ^
effort beyond that described in this Decision is not warranted. Accord-
'~
ingly, Petitioners' request for action pursuant to { 2.206 is denied. As provided in 10 C.F.R. f 2.206(c), a copy of this Decision will be filed
~
1
~ ~ ~
. with the Secretary for the Commission's review.
James M. Taylor, Director
- . Office ofInspection and Enforcement
~, Dated at Bethesda, Maryland,
..f, ' ,7 .,., this 10th day of February 1986.
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