ML20079H621

Nuclear Regulatory Commission Issuances for June 1991.Pages 461-619

ML20079H621
Person / Time
Issue date:	08/31/1991
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V33-N06, NUREG-750, NUREG-750-V33-N6, NUDOCS 9110110237
Download: ML20079H621 (168)

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l NUREG-0750 Vol. 03, No 6 i

Pages 461-619 i

NUCLEAR: REGULATORY

COMMISSION ISSUANCES) l l

Jun'e: 1991 l

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... A year's subscription consists of 12 softbound issues,

- 4 indexos, and 2-4 hardbound editions for this pubhcation, Single copics of this publication are available from National Technical.

Information Service, Springfield, VA 22161 Errors in thic publication may be reported.to the

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NUREG-0750 Vol. 33. No. 6 Pages 461-619 NUCLEAR REGULATORY COMMISSION ISSUANCES June 1991 This report includes the issuances roccivod during the specified period from the Commission (CLI), the Atomic Safety and Licensing Appeal j

l Boards (ALAB), the Atomic Safety and Licensing Boards (LDP), the Ad-ministrativo Law Judges (ALJ) the Directors' Decisions (DD). and tho

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Denials of Petitions for Rulomaking (DPRM).

The summarios and headnotes procoding the opinions reported heroin are not to be deemod a part of thoso opinions or have any indopondent l

legal significance.

. U.S.' NUCLEAR REGULATORY COMMISSION 1

l Prepared by the Division of Freedom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Cornmission

- Washington DC 20555 (30*i/492-8925) 1 i

-COMMISSIONERS Kenneth M. Carr, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick Christine N Kohl, Chairman, Atomic Safety and Licensing Appeal Panel B. Paul Cotter, Chief Administrative Judge, Atomic Safety and Licensing Doard Panel s

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CONTENTS Issuances of the Nuclear Regulatory Commission LONO ISt.AND 1.lGilTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

Docket 50-322 MEMORANDUM AND ORDER, CLI.918, June 12,1991......... 461 RICilARD E. DOW Dockets 50 445. 50-446 MEMORANDUM AND GRDER, CLI-919, June 20,1991........ 473 Issuances of the Atomic Safety and Liceming Appeal lloards CAROLINA POWER AND LIGilT COMPANY

. (ll.B. Robinson, Unit 2)

Docket 50061 (Operating License Amendment)

ORDER, ALAll-948, J une 11,1931........................... 4 81 CAROLINA POWER AND LIOllT COMPANY

. (Shearon llatris Nuclear Power Plant, Units 1,2,3, and 4)

Dockets 50-400, 50-401, 50-402, 50-403 (Coa 3truction Itrmit)

ORDER, ALAB-94 8. J une 11,1991,.....................,.. 481 FLORIDA POWER AND LIGIIT COMPANY (St. Lucie Nuclear Power Plant, Unit 2)

Docket 50-389 (Construction Permit)

ORDER, ALAB-94 8, June 11,1991........................... 481 FLORIDA POWER AND LIGIIT COMPANY

('Ibrkey Point Nuclear Generating Plant. Units 3 and 4)

Dockets 50-250 OLA-4. 50-251-OLA-4 (Pressurefremperature 1.imits)

DECISION, ALAll 950, June 24,1991....................... 492 R.ORIDA POWER AND LIOllT COMPANY

- (Turkey Point Nuclear Generating Plant. Units 3 and 4)

Dockets 50-250-OLA-5,50-251-OLA 5 (Technicel Spesifications Replacement)

DECISION, ALAB-952. June 28.1991......................... 521 ill i

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- KANSAS GAS AND ELEC1RIC COMPANY and

- KANSAS CITY POWER AND LIOllT COMPANY (Wolf Creek Generating Station, Unit 1)

Docket STN 50-482 (Construction Permit)

- ORDER, ALAB 94 8, June 11,1991............................ 4 81

- PUBLIC SERVICE COMPANY OF NEW llAMPSillRE, ci al.

(Scabrook Station, Units I and 2)

Dockets 50 443,50-444 (Construction Permit)

ORDER, ALAB 948, June ll, 1991,.......................... 481 i

PUBLIC SERVICE COMPANY OF NEW llAMPSillRE, et al.

(Seabrook Station, Units 1 and 2)

Dockets 50-443 0L 1,50-444-OL 1 (Emerger cy Planning Issues)

MEMORANDUM AND ORDER, ALAD.949, June 2?.1991

.... 484 VIRGINIA ELECTRIC AND POWER COMPANY (North Anna Power Station, Units 1 and 2)

Dockets 50-338,50-339 (Operating License)

ORDER, ALAB.943, June 11,1991............................ 481 WRANULER LABORATORIES, LARSEN LABORATORIES, ORION CilEMICAL COMPANY, and JOllN. P. LARSEN Docket 9999004 (General License Authority of 10 C.F.R. Q 40.22)

DECISION, ALAB-951, June 25,1991........................ 505 Issuances of the Atomic Safety and Licensing Iloards F6WELL GEOT11CilNICAL ENGINEERING, LTD.

(Thomas E. Murmy, Radiographer)

Docket 030-30870-OM (ASLBP No. 91-629-01-OM)

(Byproduct Material License)

' INITIAL DECISION, LBP.91 29, June 25,1991........,........ 561 LONO ISLAND LIGilTING COMPANY l

(Shorcham Nuclear Power Station, Unit 1)

Docket 50-322-OLA.2 (ASLDP No. 91-63103-OLA-2)

(Possession-Only License)

MEMORANDUM AND ORDER, LBP-91-26, June 13,1991....... 537 IV i

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Docket 40-672 MLA (ASLBP No. 91639-02 MLA)(License Renewal)

(Source Material License No. SMll-179)

MEMORANDUM AND ORDER, l.BP-9127, June 18,1991....... 548 PUBLIC SERVICE COMPANY OF NEW llAMPSillRE. et al.

(Sc&took Station, Unit 1).

Docket 50-443 OLA (ASLDP No. 91640-09 OLA)

MEMORANDUM AND ORDER. LDP-9128, June 18,1991....... 557 TULSA GAMMA RAY, INC.

Docket 30-12319-CivP (ASLDP No. 904184)3 CivP)(EA 89 223)

(Material License No. 3517178 01)

MEMORANDUM, LDP 91-25, June 13,1991.........,.......... 535 issuance of Denial of Petition for Rulemaking NUCLEAR CONTROL INSTITUTE, et at Docket PRM 73 9 DENIAL OF PETITION IOR RUI.EMAKING.

DPRM.91 2. J une 5, 1991................................... 5 87 l -

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Cito as 33 NRC 401 (1991)

CU 918 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Kenneth M. Carr, airman Kenneth C. Rogwrs James R. Curtiss Forrest J. Remick in the Matter of Dockst No. 50 322 LONG ISLAND LIGHTING COMDANY (Shoreham Nuclear Power Station, Unit 1)

June 12,1991 The Commission considers INiitioners' " stay" mntion as n anotion to rxon-sider two earlier holdings; and to hold furthcr Shoretuun related proceedings in alryance. The Commission declines to reconsider its deelsloru in CLI 90-8 and CLI-912; it further denies Petitioners' requests for the NRC Staff to cease review of pending matten and to hold all future Sho;eham proceedings in abeyance. The Commission thercoy approves the Staff's recommendation

- to issue a "possessionenly" license for Shoreham, sub}:ct '.o an administrailve stay.

RULES OF PRACTICE: STAY OF AGENCY ACTION (CRITERIA)

The NRC's " stay" criteria found at 10 C.F.R. 92.788(c) arc designed for those situations in which parties before the Commission seck to " stay" the effectiveness of a decision that has already occurred, pending some additional event - generally, further appeal within the NRC's adjudicatory system.

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l itULES OF PRACTICE: l'ORN1 Ol' NIO llON in considering a petitioner's filing, the Commission will look at the nature of the pleading before it, not ta the fashion in which it is styled.

h0LES OF PR ACTICE: LIN11TS ON PARTICIPATION A party that has not attempted to intenene under 10 C.F.R. 5 2.714(a)(1), or to participate under 10 C.F.R. 5 2.715(c), may only proceed under the amicus provisions of 10 C.F.R. Q 2.715(d).

RULES OF PRACTICE: STAY OF AGENCY ACTION (CRITEltlA) in circumstances where a petitioner's pleading, when viewed correctly, is not a " stay request" as that term is properly defmed, reliance on 10 C.F.R. 6 2.788(e) is inappropriate, and analysis of the (niditional four " stay criteria" is unnecessary.

RULES OF PRACTICE: REQUESTS TG llOLD CON 1511SSION ACTION IN AllEYANCE RULES OF PRACTICE: STAY OF AGENCY ACTION (NATURE OF REQUEST)

Where a pleading requests the Commission not to take action in the future, that request is properly cotwidered as a "hiotion to lloid in Abeyance," not as a "htolion for Stay."

RULES OF PRACTICE: STAY OF AGENCY ACTION (LENGTil OF REQUEST)

Whete a petitioner's request is not properly filed under 10 C.F.R. 6 2.788(c),

the Commission will not reach the question of whether petitioner's entire original pleading should have been stricken as being in excess of the 10-page limit provided in 10 C.F.R. 5 2.788(d).

RULES OF PRACTICE: STANDING TO PARTICIPATE

%c party that will receive a nuclear plant in a sale is a party to the proceeding to transfer the license.

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RULES OF PitACTICE: MOTIONS (REPLIES TO RESI'ONSES)

Under the Commission's regulations at 10 C.F.R. 52.730, a ptrty has no right to file a reply to the responses to their motions. Such a reply is permitted only at the discretion of tre,,. Secretary or the Assistant Secretary.

RULES OF PRACTICE: NIOTIONS (REPLIES TO RESPONSES)

In exercising its discretion to permit a party to file a reply pleading, the Com-mission empha;izes that the number of pages filed by respondents is irrelevant to that decision, Movants are expected to anticipate potential argumen'; and lengthy responses and to frame their opening pleadings accordingly.

NRC: SCOPE OF AUTilORITY In its cr.rlier decisions in which it found that NEPA only requires the NRC to consider alternative methods of decommissioning, the Commission reiterates that that portion of the decision was based upon the nature of the action in question, not on the likelihood of the action occurring.

OFFl(%L NOTICE OF FACTS Lacking a basis to look behind a licensee's statement, the Commission must accept that licensee's declaration at face value.

DECONthilSSIONING: HIGltT TO DECONINilSSION FACILITY A licensee is capable of deciding to decommission a nuclear fxility at any time in the operating life of the plant.

RULES OF PRACTICE: REQUESTS TO 1101.D COhlhllSSION ACTION IN AllEYANCE If a decision on a pleading before a trihanal other than the NRC will have no impact on the NRC proceeding, there is no reason for the NRC to hold its proceeding in abeyance.

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l OPERATING LICENSE AN1ENDNIENTS: NO SIGNIFICANT IIA 7.AllDS CONSIDEllATION A license amendment may be issued as immediately effective when the Staff makes a findi"g that the amendment involves "in significant hatards considerations."

OPEllATING LICENSEt Ah1ENDN1ENTS (IN151EDI ATF.I,Y UiTECTIVE)

An "immediately effective" amendment changing a lleense to a " posse 1sion-only" license may bc issued without prejudice to Peutioners' rights in the license amendment proceeding before the Licensing fkiard.

NRC: SUPERYlSOllY AUTilOltlTY b permit the orderly processing by the Court of Appeals of an anticipated request to stay any NRC netion, the Commission has the discretion to issue an administrative stay of the effectiveness of that action in order to allo v tyderly judicial review.

MEMORANDUM AND ORDER 1,

INTRODUCTION This matter is before toc Commission on a pleadmg by the Shortham-Wading River Central School District (" School District") and the Scientists and Enginecra for Secure Energy ("SE2") (jointly " Petitioners") styled as a " Joint hiotion to Stay or Vacate License issuance and Other hialters." Drielly stated, the Joint hiotion requests the Commission (1) lo sefrain from issuing a " possession-only" license or " POL" for the Shoreham facility; (2) stay further proceedings by the Atomic Safety and Licensing Board (" Licensing Board"); and (3) stay further NRC Staff review of other pending applications for related amendments to the Shoreham license, while awaiting the outcome of pending litigation before the New York Court of Appeals regarding the Shoreham fxility.

We have received responses from the NRC Staff, the Long Istarul Lighting Compmy (*LILCO"), the Long Island Power Atithority ("LIPA"), tmd hiano ht. Cuomo, Governor of the State of New York (collectively " respondents").

We have entered an order granting Governor Cuomo's unopposed motion to file his response as an amicus pleading under 10 C.F.R. 5 2.715(d). LIPA, while 464

not officially a p;uty to any adjudicatory proceeding currently pending before the Commission, has declined to file its response as an amicux, asserting diat it has a right to tile as a participant because it alleges that it "will ic" a pany to several of the proceedings that the Ittitioners wish to have stayed, in ieply to the four resgenses filed by the Staff, Lit.CO, I.lPA, and Governor Cuomo, the lttilioners have filed a motion for leave to file a " reply" pleading, res1undmg to various arguments raised by LILCO, LIPA, Governor Cuomo, and the Staff.

The Staft' and LlLCO have responded in opposition to the motion for leave to file the " reply."

After due consideration, we have determined that the Peutioners' pleading does not properly wnstitute a " stay" n40 tion as that term is defined in o r regulations. Instead, Ittilioners' pleading is more properly considered as (1) a motion for reconsideration of two earlier decisions, and (2) a motion to hold in abeyance current and possibly future proceedings dealing with Shoreham.

We hase then decided as a niatter of discretmn la consider LIPA's response as an amicus pleading in response to the first nwtion and as a party to the second motion. In addition, we have decided to consider the 1tthioners'"seply,"

'nirning finally to the main issue before us, we hwe denied the motion for reconsideration and we have also denied the motion to told all other Shoreham.

related proceedings in abeyance.

11. PitEVIOUS COMMISSION PROCI'EDINGS This Order is simply the latest in a long line of Comraission orders dealing with the Petitioners' attempts to block the sale and possible decommissioning of the Shoreham facility. Petitioners' basic argument is that the Nationa! linvi.

ronmental Policy Act ("NEPA") requires the NRC to publish an Environmental Impact Statement ("EIS") considering " resumed operation" of Shoreham as an alterrntive to decommissioning. Petitioners further allege that this NEPA duty must be disctiarged immediately because of preliminary activities by the NRC

Staff, We have disagreed with Petitioners' hasic NEPA theory.

E.g., CL190-8, 32 NRC 201 (1990), ag'd on reconsideration, CL1912, 33 NRC 61 (1991). Moreover, we issued further guidance regarding tne relationship of the " possession-only" license and a decommissioning plan when forwarding Petitioners' requests to intervene in LILCO's request for a " possession only" license to the Licensing Board. CL191 1,33 NRC 1 (1991).

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111. - NEW YOl(K JUI)lCI Al, Pl;OCEElllNGS ne proceedings before the New York Court of Appeals are lluce tch challenges to a Settlemert Agreement between the State of New York, a LILCO We Setuement Agrcement resolved the opposition of the State of New York, the County of Su!!olk, and the Town of Southampton la the lleensing of Shoreham. He Agreement provided, inter alia, that LlLCO would not operate Shoreham as a nuclear plant; instead, LlLCO agrwd to sell Shoreham for

$1.00 to LIPA, which was established to obtain and decommission Shoreham, in return, LILCO receised numerous fin:mcial bersfits, including various tax benefits from the New Yuk sta!c government and favorable rate increases from the New York Publi.: Service Commission. See generally CL190-8,32 NRC at

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20&05, Petitioners and other parties attacked the Settlement Agreement in the New York courts on various grounds including violations of substantive New York law and the state's constitution.

Initially, the Settlement Agreement _was upheld in unanimous opinions by j-the New York Supgme Court and the Appellate Division. See Cirirens for an Orderly Energy Policy v. Cuomo,144 hbc,2d 281 (N.Y. Sup. Ct.1989).

af'd 159 A.D.?d 141, $$9 N.Y.S.2d 381 (A.D. 3 Dept.1990); Dollard v.

l.ong Island Power Authority,159 A.D,2d 141, $$9 N.Y.S.2d 381 (A.D. 3 Dept.

1990); Nassau Sufolk Centractor's Ass'n,Inc. v. Public Service Commission, j_

_ A.D.2d _,559 N.Y.S.2d 393 (A.D. 3 Dept.1990). Moreover, the Appellate Division d:nied permission tJ appeal in all three cases. Sec, e.g., Nassau Sugolk, permission denied. 76 N.Y.2d 982, 563 N.Y S.2d 769 (1990), llowever, the New York Court of Appeals gmnted leave.to appeal in all three cases. See _

N Y.2d N.Y.S.2d _ (Feb.19,1991). Oral argument in all three cases is scheduled for September 11, 1991.

IV. ARGUMENTS OF Tile PARTIES Petitioners' argument centers on the action by the New York Court of Appeals. The Court of Appeals granted " leave" to appeal under standards that appear to mirror the certio. art provisions of the U.S. Supreme Court. In their

" Stay Reouest," Petitioners provide statistics for the year 1989 as published in official court publications which indicate that in such situations, tha Court of Appeals reverses approximately 40% of those decisions that it reviews and

~ t modifies approximately 4% more. Petitioners provide calculations to support their argument that the 409 rate of reversal, wh n combined with three separate cases being appealed, constitutes over a 70% chance that one of the three cases involving the Shoreham agreement may be reversed. Rus, argue the Petitioners -

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they have demonstrated that they have a "probabiiity of success on the merits" of their uppeals justifying a :.tay of further Conunission pn,eeedings.

After asserting that they satisfy the remaining " Stay" triteria found in 10 C.F.R. 5 2.788, i.e., irreparable injury, lack of injury to others, and the public interest, the Petitioners argue that the Commission should " stay" all Shoreham-related actions pending the outcome of the New York proceedings. They assert that if the agreement is vacated, our decisions in CLI 90-8 and CL I 912, supra, will be undercut extensively, if not soided altogether. Thus, they argue, the NRC should defer action pending a deelsion by the New York Courts out of

" comity," citing Kaiscr Steri Corp. v. W.S. Ranch Co., 391 U.S. 593 (1968).

Furthermare, Petitioners argue that the NRC is the only forum in which they can seek such a stay because the New York Rules of Court do not allow for stays pending appeal by the New York Court of Appeals.

The respondents appear not to disagre t with the Petitioners' central observa-tion - that the Court of Appeals reverses a substantial portion of cases that it accepts under its certforari standard - although they take issue w ith the calcula-tion of the 70% figure? Instead, they argue that the NRC expressed two separate holdings in CLI-90 8 and CL1912: first, that the N RC has no control over the private decision to close Shoreham and thus NEPA does not require an analysis I

of " resumed operation" as an alternative to decommissioning; and sceond, that resumed operation is not a " reasonable alterr"ve" to decommissioning because it i.i "speculaJve " Respondents appear to concede that a decisian by the New York Court of Appeals raight impact the second alternatM holding, but they contend '. hat such a decision would not effect the first he'.dmg. Thus, they ar-gue, a decision vacating the Settlement Agreement will not remove the legal underpinnings of the Commission's position.

Moreo3er, LILCO states in its response that it will never opetate the plant under any circumstances, i.e., that then is no chance that any action by the Coun of Appeals vacating the Settlement Agreement will ever prompt LILCO to operate the plant. Accordingly, LILCO and the other respondents argue that resumed operation still is not a "reasanable alternative" to decommissioning.

Therefore, argue the respondents, becas a decision by the Court of Appeals will not force resumption of operations, there is no need to " stay," or hold in abeyance, any other Shoreham related proceedings.

I AM'oma!!y thA rapomicms a; Tear to arga tha the New York Cowt of Appuh hM have authostty w issa mys t.c raaue4s berors it, and that Pethmers shouM ettems tu exhaan audt ec4.uns. we fmd no cu4uon w uy authway that the Court or Appuis,Lu hm saA acumy 467 i

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V.

ANAL.YSIS A,'. Characteriration of I'ditioners' thquest laitially, we are not satisfied that Petitioners' pleading is actually a "r,tay" request as defined in our regulatk>ns. 'IYue, the Ittitioners' pleading is Atyled as a " stay request" and asks for a " stay" of all current and future Commission, Staff, and Licensing Itoard ac00ns, llowever, our " stay" criteria found at 10 C.F.R. 5 2.788(e) are designed for those situations in which parties before the Commission seek to " stay" the effectiveness of a deision that has already occurred, penJing some additional event - generally, further appeal within the

. NRC's adjudicatory system. liere, neither the Commission nor the NRC Staff has yet taken any action on 'iny of the matters that the Ittidoners wish to 1. ave delayed that have any " final" consequences.

Instead, Petitioners' request is more in-the nature of (1) a " motion to reconsider" and (2) a " motion to hold in abeyance." The " motion to reconsider" aspect of the request asks us to reconsider - again - our holdings in CLl-90-8, as affirmed by Cl.1912, on the basis of" newly discovered"information, i.e., the recent decision by the New York Court of Appeals to, in effect, grant certiorari to the Petitioners and others in their attempt to overturn the settlement agreement between LILCO and the State of New York on the basis of New York law. Meanwhile, the " motion to hold in abeyance" aspect asks us to order that all other Commission, Licensing floard, and Staff activities regarding Shoreham be held in abeyance pending the outcome of the New York judicial proceedings.8 We will consider both motions separately in sections "D" and "E" below, 11, LIPA's Pleading LIPA filed its response to the Petitioners' " Joint IYtition" without a acquest for leave to file as an "mn/cus" under 10 C.F.R 5 2.715(d) because it asserts

' hat it has an interest in several of the actions that the Petitioners seek to have held in abeyance, llowever, LIPA has not formally intervened in any of the matters now pending before tnc Commission or the Licensing Board, i.e., ei'J1ct (1) the Ittitioners' request for hearings regarding the three matters at issue in CLIM8 and CL191,2, or (2) the Petitioners' request for a hearing regarding the requested " possession-only" license. See CL191 1, Ily this time, the period for timely intervention in _those proceedings has expired.

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telame on estum 1788(e) w inappnynate and uslysts or die tradamnal twe suy snwrw* u ummen..ry.

Thereture. hecuse ow Iwmners' reuunt in m t prymtly riled under secunn 1783(et s- *di ma ruch die I.-

queat,un -msmdy raised ~ nr etwoner lwanwrs' emire onginal [4cadwg ahmid have teen smdan as bemg

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in view of the above, LIPA can only proceed in these matters as an amicus under section 2.715(d) by satisfying the live criteria for late intervention under 10 C.F.R 52.714(a)(1)(i)-(v), or by seeking to participate as an interested

- goverrunent agency under 10 C.F.R. 5 2.715(c). Because LIPA has tot attempted to intervene under section 2.71d(a)(1), or to participate under section 2.715(c),

the only course left to it is to proceed in these matters under section 2.715(d).

Ilowever, LILCO and LIPA have submitted a request to transfer Shorehain fiorn LILCO to LIPA. *Ile Staff has noticed this request in the Federal Registcr see 56 Fed. Reg. I1.768 (Mar. 20,1991), and both Ittitioners have filed petitions for intervention and requests for hearings. Sec Petitions of April 19,1991. LIPA is certainly a party to that proceeding, 'thus, as a matter of Commission discretion, we have filed LIPA's response as an amicus pleading under section 2.715(d) to tic motion for reconsideration and as a party's response to the motion to hold -

_ pending proceedings in abeyance.

C.

Petition 4rs' Reply l

Petitioners seek to file an additional pleading as a " reply" to the responses I

l of LILCO, LIPA,.Oovernor Cuemo, and the Staff. The Ittitioners argue that the respondents filed a "bhuard" of paper in response to the Ittitioners' initial pleading and that the respondents raised arguments that were unanticipated.

The Petitioners' initial pleading was hardly a model of brevity, in any event, the Petitioners have no right to file a reply to the responses to their motions.

"The moving party sha!! have no right to reply (to a response or "ansvu" to a motion) except as permitted by the,,

Secretary or Assistant Secretary."

10 C.F.R. 5 2.730. Nevertheless, after reviewing the Petitioners' reply, we find that it contributes to our understanding of Petitioners' arguments. in fact, it presents the Petitioners' arguments more cogently than tiie original pleading.

Thus, while we do not wish to provide incentivc to future movants to file additional and unnecessary pleadings, we have decided to accept Petitioners'

" reply" pleading in this instance. We emphasize that the number of pages filed by respon(,;s is irrelevant to our decision here, We expect future movants to anticipate potential arguments and lengthy responses and to frame their opening pleadings accordingly.

D.

Petitioners' Motion for Reconsideration Succinctly stated, Petitioners first argue that: (1) the New York Court of Appeals ha granted leave to appeal in the three Shoreham related cases

- filed in New York when the Appellate Division of the New York Supremo Court denied leave to appeal; (2) that in those instances in which the Court i

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of Appefds pants leave to appeal in this manner, it reverses the decision of the lower court in a substan'ial number of (ases; and thus, (3) the status of i

I the Settlement Agreement is open to serious quation. Then, the petitioners' l

f tugument contmues, because the status of the Settlement Agreement is open to serious quesdon, the Commisskm's decisions in CLI.90 8 and CLI.912 are in doubt because those decisions were based upon the validity of the Settlement Agreement. Specifically, petitioners argus dtat the Comtnission's first holding i

in CLI 90 8 and CLl 912 - th.it the decision not to operate Shoreham is not a federal decision -- is seriously undercut and the second holding - that

" resumed operation" is not a " reasonable alternath e" - is destroyed altogether.

While we fmd the petilkmers'stathlical argument to be confusing and, to de extent that it is clear, incorrect, we acknowledge that there is certainly a "nontrivial" possibility that the Settlement Agreement may be chher modified or vuented, indeed, respondents do not challenge this rather obvk)us conclusion.

Nevenheless, such a deciske mmtifying or vacating the Settlement Agree-rnent would not have an adverse irnpact on our primary holding, i.e., that the decision not to operate Shoreham is a private decision and that NiipA only requires the NRC to consider ahernative methods of decommissioning Ser CLI 90-8, 32 NRC at 207 08; CL1912, 33 NRC at 70 71, 'Ihat portion of our decision was based upon the nature of the action in question, not on the hArhhood of the action occurring. Any dechion net to operate Shoreham will still be inade by LlLCO (or LlpA) and will still be a private decision, regardless of the probability of its occurrence. 'lhus, as a starting point for out an:dysis, tids independent basis for our prior decision will be unaffected by any New YoP Court of Appeals' decision on the validity of the Settlement Agreement.'

As to our second holding, we note that LILCO has now stated that, regardless of the outeorne of the New York litigath>n, it is committed not to operate Shoreham under any circumstances. Src LILCO Response at 10. Ittitioners

-characterire that response as merely " arm waving " and allege that LILCO is

" contractually obilgated to make that assertion. Ser Joint keply at 3 n.3.

Ilowever, the Commisshm has no basis to kn behind LILCO's statement, and, accordingly, we will accept LILCO's declaration at face value, Oiven this, we see no compelling reason to reconsider our view that eesumed operation of

- Shoreham is remote and speculative.

Icoweners argue that die NRc has found that. "but for" a legally vol.d sesdamed agreemann,Illf0"undd

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19. Quite s6mib, die cunmaaiun d.d me intw,4 to rule dm e he y natid soulaners Agreeman is a hacesary n

. parapasute to an aghcauan to dotm.mnanim Shwsham, cJeady,lJtfTre shday to deude to dansrumsaum Shmham does out rest un the enoWvenue tar the Scadeners Agminent IJtfD - to any h enace, fin d.st meuer - na tapende or decidmg to deveumsswn a sutur lanhty at any time danns b qwatarig bre et de ranhty. our und rts in cl.19M shed not be interporwd in a mannar d st is irwunsiam; e a d,at penhe 470 f

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1 I:. Petitioners' Mollon to ilnld in Abe)nnte Essentially, l'etithmers argue that because the issues tiefore the New Yosk i

Court of Appeals ate central to the decisions to be made in Ods case, and because there is no mechanism by which they can seek a stay before the New

%sk Comt of Alycals, the Commission should stay all funhet adjudicatory i

4 proceedings and Staff actions pending a decision by that court. We cannot aprec. As we noted above, we hnd that there is no basis to change our ruling that NEpA does not require consideration of "trsuined operatkin" as an alternauve to decornmissioning 1hus, there is nothing before the New Yo:L Court of Appeals that is central to our decisions.*

VI. Till: ' I'OSSI'SSION.ONLY" LICl:NSR LILCO has sought an annendment to the Simicham heense that changes the license from one that authorlies L!tf0 to " possess, me, and operate" Shoreham to one that authorites LILCO to " possess, use, let not operate" Simrcham. Sec CL1911,33 NI(C at 3. "Ihe Staff proposes to issue the license amendment as immediately effective, after making a finding that the amendment involves "no sij;nificant hazards considerations

• Src $$ I cd.1(eg. 38.098 (Aug. 21s 1990).

Itudoners have filed cornments oipvnng the Staff's proposed finding and have requested a hearing and intervention, Srr CLI.91 1,.m/rra. We have forwarded the requests to intervene to the Licensing !!oant for further action as appropriate.

Scr id, at 1.

The NRC Staff has now secommended that it be n!! awed to issue such a license amemtrnent. Ser SECY.91129 (May 13,1991). 'lhe Suff served a copy of that paper on all interested panics, including Itutioners. Srr 10 C.I'.lt 9 2.781(a)(2). 'Ihe Petith ners have had an opportunity to file comments in response to the Staff's reccmmendation. After due consideration, we hereby approve the Staff's recommendation l'iat it be allowed to issue the license amendment, without prejudice to lYtitioners' rights in the lleense amendment proceeding before the Lleensing hoard. Cf.10 C.l'.R. 5 2.7M.

VII. ADMINISTRATIVI: STAY We understand that lttitioners inay seck judicial review of this ac00n and.

in the process, may seek a judicial stay of out action authoriting the issuance L

I I

'%e sumne. rot purimacs or d s<-unswn. Out lWaumers u.trutly snow New hk law segseding $s evidehahty or pays betwo We kw Yo4 Cwn or Appe.nla As we ntar41 eashe us n na 1. syre, esspeedssus e.gue est the Own er Appeals 44..mW have sah suihanty, but they reset al...auvely stsw -+ wuh anstumi-est ow i

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of a ICL. To permit the (udenly processing of such a stay sequest t>y the Court i

of Appeals, we will adopt a two-stage administrative stay of the effectiveneSt of the ICL. Initially, we will stay the effectiveness of the IOL urail ten (10) wuking days after the d.ite of publication of the amendment in the frdctal l

Rrgime, if petitioners file a motion for sby with the appropriate U.S. Court of Appeals within that time, the administrative stay will tic automa0cally extended for an additional ten (10) wo Ling days to provide die court with the time to review the matter.

b Vill, CONCLUSION j

l Ibr all the foregoing reasons, we deny ?ctitioners' request to reconsider 1'

CLIW8 and CLI.912. We also deny Petitioness' request to hold further adjudicatory pngcedings In atieyance, and we deny Itutioners' request that

- we direct the Staff to cease review of all other pending appliantions for related amendments to the Shoreham license. - We hereby approve the Staff's recommendation that it lie allowed to issue a " possession-only" amendment to the Shorcham operating license, subject to the administrative stay described atiove.

It is so ORDERED, 1

l let the Commission

- i SAMUEL J. ClllLK s

Secretary of the Commission

-Dated at Rockville, Maryland.

I Ods 12th (tiy of June 1991.

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Cito as 33 fJRC 473 (1901)

CU 919 UtJITED STATES OF A!AERICA NUCLE AR REGULATORY COtAMISSIOt1 COfAIAISSIONERS:

Kenneth lA. Carr, Chairman Kenneth C. Rogers James 11. Curtiss Fortest J. Remick in the IAntter el Docket Hos. 50 445 50 446 RICHARD E. DOW June 20,1991

'llie Conunission denies Mr. Ibw's motion to qua'.h a sulPoena that requires him to produce doeurnents identifying individuals who allegedly infortned him of safety related deficiencies at Comanche Peak and containing information regarding the allegations. The subpoena remains in force with a return date of July 10,1991, itUlfS OF l'ItACTICI:: SUltl'Ol:NA It is inherently reasonable that notice of a motion to quash a modify a subpoena be provided to the person requesting the sulpoena ut the same t;me it is provided to the Commission.

1:ULl'.S Ol' l'ItACTICI:s NONTIMI:lN MOTIONS la deciding whether to dismiss a motion on grournis of failure to file in a timely fashion, the Commission may consider all the circumstanccs surtoutuling the filing.

473

l ItUl.I:S Ol' PitAC'llCI:t S I'Al l' Iti:SPONSillit.Illt:S l

it is the Staff's ressmsitiihty to actiew and resolve allegatims legarding public health and safety. Srr, e.g., Udtra St.etes v. Cemlry, 890 l'.241539, 542 (1st Cir.1989). "To deny (the Stafil the oliportunity to gather relevant information for [this] undeniably propt purposell wouhl be to thwart its effort to better exceute its sesponsituhtles." United States v. Jtidiorern, 87 l'lt D.

$90, 593 (M.D. Pa.1980).

i ItUl.l:S OF PitACTICI:s STAIT AUTilOltlTY

'The NitC Staff not only has the right to investigate tilegations regarding the public health and safety, it has the duty to do se 14UI.ES OF pitACTICI:s SUllPOI:NA a $ e able to avoid

'lhe Commission cannot allow Ll>J recipient of a si!.3. -e:

i that subgena by simply alleging if at the records sought tty.ne eabpoena contain information of Staff misconduct.

ItUl ES Ol' PitACTICist SUllPOENA in a situatkm whero Staff rnisconduct is alleged the Staff should (wrdinate receipt and review of materials subpoenaed in support o,' the allegations with the Office of the inspector General.

ItUl.ES OF l'It ACTICE: CONI'lDENTI Al, INI'Ol(M ATION

'lho NRC Staff must " carefully and conscientiously" explore any possible alternative snethods of obtaining information from un alleger's sources in order to pmtect thcir confidentiality and to minimize any intrusion into the allegers' First Amendment asuwlation rights. Ser Urdred States v. Garde,673 l'. Supp.

604,607 (D.D.C.1987).

It01.ES OF PitACTICE Under oppropriate circumstances, an alleger's First Amendment rights must give way to the " compelling" intierest in the pitblic he4ilth and safety.

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Sil'.Mol( ANI)Uhl ANI) Oltl)l'It This nutter is before the Con. mission on a : notion by lthhard E. "hikkey" Dow to quash a subpoena dmrs tenen issued to hini by Oc NitC Staf f. The NitC Staff has filed u sesponse as we directed. Ibr the reasons expl.uned below, we deny the tur, tion to quash.

1.

IIACKGitOUNI)

A.

Mr. l>on's initial Discuwlons with the NitC Mr. Da fast cominunicated with the NitC Staff in January 1991. During subtequent discussbm with bo0i the technical staff and the NitC's Office of Ime50gatna ("On Mr. Dow apparently presented a number of allegations negarding the calus of the Cumanche Peak tiuclear power plant. These alle-gations were based upon information provided to Mr. Dow by other persons.

Af ter reviewing his allegations, both 01 and the technical stall informed Mr.

Dow that they had not found any evidence of regulatory violations at Comanche Itak.

Arnong the iteins Mr. Dow discussed with the Staff and 01 were sisteen audio tapes created by the TV Electric switchboard monitoring system. Mr.

Dow informed the Staff and 01 that he had obtained these tapes Inun a former plant ernployce. At that time. Mr. Dow did not allege that the tapes themselves contained any information regarding violations of NitC regulations.

11. Mr. Dow's April 9,1991 Pttition On April 9,1991, Mr. Dow filed a " Petition for Temporary itestraining Order and Preliminary injunction" in the U.S. District Court for the Northern District of Texas. In this pleading. Mr. Dow sought to enjoin the refuchng and operation of Comanche Peak, Unit 1, and the continuing construction of Unit 2.

The District Court dismissed the petition for lack of jurisdiction. Src Dow v.

Comanche Peak Stram Electric Station, No. 4 910255 E (N.D. Ten. Apr. I1, 199115 in his petition, Mr. Dow alleged..nier alia, that he had raised various safety conce ns with the NitC and that ne did not believe that these concerns had been satisfactorily resolved. lic also alleged - for the first time - that I w u... h ra.a.n nulin... oia omis.m m o s coun or Anua em o. sinh Cami h d.,uca ti.

sapes r4 en senwuon 3.end.cg anval See Dew e Cessa. Ae l's.a Sun flessru 3:4:wa. Nu 91-1444 Dih Ca May 9, lWi> 1he lif A Cinwi has sino dennd v.* Imiei im wns or Mandsmus. dirmwns

.a D.sinet u

hdge to giani 0.s vnpeated bynunn See Dew e E 6ry Jr. % 91-1451 Oth Ca May 7, IWI) 475 l

a person who had listened to the tairs had informed him diat the sistecn tapes contained comersallons between NRC officials ami RI Electric officials concerning hazardous conditions at the plant and diat on at least one occasitut, NRC officials had given TV Electric permission to ignore Ionible hatardous t

conditions at the facihty.

On April 19, 1991. Region IV St:df members conducted a transcribed iriterview with hit. IXiw under oath. While he Ivovided the names of some of his informants and some additional details, he refused to provide the names of individuals whom he stated did tot wish to tic identihed twause they feared harasstnent lie also refused to provide the name of another individual whom he said did not wish to be identified b use tbt individual did not telieve the NRC would take any action, hir, Dow also refused to provide the NRC with the tapes he alleged contained

- the infortnatkm cited in his petition, lie admitted that he himself had only listened to a portion of the sisteen tapes and that he personally had rol heard any information that he considered islevant to NRC activities. Ilowever, he j

alleged that three of his " sources" had informed hirn that the tapes contained conversations between NRC officials and plant of ficials and that the person who had provided him with the tapes had refused to permit him to release the tapes.

4 On April 29, 1991, Mr. Dow reiterated his refusal to release the tape recordings in a telephone conversation with NRC Staff niemters, in response, on May 8,1991, the NRC Staff infortn d Mr. Dow that it could not initiate any action based upon the concerns he had expressed because his information lacked sufficient detail and tecause he had refused to provide the names and telephone numbers of these Individuals so that the NRC could interview them directly.

II. Tile NI(C STAtT SUllpOENA 4

On May 10.1991, the NRC Lair issued a subpoena to Mr. Dow. The subpoena was signed by Robert D. Martin, Regimal Adtninistrator, NRC Region IV, and was returnable on May 20, 1991, at the Regio:, IV lleadquarters in

. Arlington, Texas, approximately a 2.hout drive from Mr. Dow's residence. The subpoena sought two classes of records from Mr. Dow. First, the subpoena directed Mr. Dow to provide "for copying such reports, memoranda, letters, notes, and any other records or documents in your possession, or control, which you allege contain information concerning safety related deficiencies at Comanche IYak....**

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Second. the subpoena sought for owing at 0,e same tmic any topvis, incnnaanJa. Iructs, rates is any other truisds is daumends in your tushd), undrul, or piarsiusi. whkh iJcnufy the telegiusie inuntw as te a.ldrtues or tuth the ttlephone humi. cts anJ addiruts of pisisis whten you idenh6cJ dunng ywir intemrw.

as allegtJ!y haung infortutJ you of safety nlated acfurnries at Coinamlic link

'lhe subgoena informed Mr. Dow that any request to quash ot modify the subpoena would have to be in "the hands of die Secretary of the Commission no later than 4:(O p.m., May 17, 1991." l'urthermor ', the subpoena itself contained Oc facsimile number for the Office of the Secretary. Finally, the subpoena informed Mr. Dow dut if he filed such a motion, he shoulu provide " notice to the party at whose instance the subpoena was issued... "

111. TilF. MOTION TO QUASil

%c Commission has reccised a letter hom Mr. Dow that essentially consti-tutes a motion to quash. De letter is dated May 17,1991, but was not prosided to the Commission until sometime later. A copy of Mr. Dow's motion was provided to the llegion IV itegional Counsel in Arlington, Texas, on May 20, 1991. nc Office of the General Counsel provided the motion to the Secretary on May 21,1991, after receiving it from the itegional Courtsel. The Secretary has received no other copy of the motion.

According to the Stall's reslonse, a friend of Mr. Dow's provided a copy of the letter to the itegion IV counsel and informed counsel that Mr. Dow had delivered the letter to die Commission's former address in downtown Washing-ton, D.C. Mr. Dow did not inform die Of0cc of die Secretary directly, either by mail, facsimile, telephone, or by leaving the motion at die Commission's Public Document Itoom.

IV, AltGUMI:NTS Mr. Dow claims out his material will indicate a situation of " duplicity and compromise" tetween SitC itegion IV, RI Electric, and a citizens' group.

Moreover, he believes Out the tapes contain conversations regarding violations of the Atomic Energy Act and that only the Office of Inspector General ("O1G"]

should base jurisdi'; tion of this matter. Mr. Dow does not otherwise challenge the scope, purpose, or service of the Staff subpoena.

He Stalf responds that Mr. Dow las alleged the existence of safety conceina or violations of the Atomic I:nergy Act, llecause it is charged with protecting 477

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public health and safety, argues the Stalf, it has a right to unco,er information i

surrounding those allegations. - I'mtherimwe, this responsibility is a proper purpose for issuing a subpoena.

Moreover, the Staff argues that the 010 is well aware of the matter because the Regional Administrutor himself notified the 010 of these allegations on Alvil i

18,1991, and formally referred the matter to the 010 on May 21,1991, in tie Staff's view, upholdmg the subpoena will not prevent Mr. Dev from bringing

)

his allegatie is to the attention of the 010. Accordingly, Mr. Dow's unsupported allegations should not be idlowed to defeu in otherwise valid subpoena.

I Y.

ANrINSIS A. - The Timeliness of the Motion to Quash liefore we turn to the merits of Mr. Dow's motion, we address its timeliness.

Clearly, Mr. Dow did not comply with terms of the subpoena in filing his motion 3

L to quash because he did not paperly notify the Of fice of the Secretary within

[

the time specified, despite the fact that the subpoena itself supplied the facsimile number for filing a motion with the Commission on short notiec, Nor did he inform the Region IV Office of his motlon, i.e., provide " notice to the party at whose instance the subpoena was issued," as the subpoena required, until May 20,1991, the date the subpoena was returnable, We sgree with the Staff that it is inherently reasonable that notice of a inotion to quash or modify a subpoena be provided to the person requesting the subpoena at the same time it is provided to the Commission, in its response, the Staff advised us that there are some indieta that Mr. Dow made a " good-faith attempt" to serve the motion on the Secretary personally,

{

although at the incorrect address. Under all the circumstances, we decline to l

dismiss the motion on tirnetiness gmunds and, instead, consider it on its merita.

11. The Merits of the Motion to Quash QL,ite simply, Mr. Dow has alleged that 'IU Electric has committed violations of the NRC's public health and safety regulations and of the Atomic Energy Act at Comanche Itak. It is the Staff's responsibility to review and resolve allegations regarding p.blic health and safety See, e.g., United States v. Com/cy, 890 F.2d $39,542 (1st Cir.1989) "Ta deny [the StaffJ the opportunity to gather relevant information for [this] undeniably proper puri vse[] would le to thwart its effort to better execute its resp (msibilities." Unitru States v. McGovern,87 F.R.D. 590, 593 (M.D. Pa.1980),

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In sum, Ow NitC Staf f not onif has de right to imestignie dicsc allegatiom, it lus uw duty to do so. lheielete, the St.df has the right to require Mr. Dow to substantiate his allegations. Cf.10srt h /. Afa. Aral, CLl 8912, 30 NRC 19 (1989); floa.uuri lixhririg urut /%c-r Co (South Texas hoject, Umts I and 2),

C1187 8,26 NRC 0 (1987). 'lhe Staf f is enuded to review One material upon which Mr. Da relics to support his allegations, ar identified in the subpoeru.

'this material de.uly includes t'.e tapes.

lissentially, Mr. Dow argues that because he lui alleged inisconduct on the part of the NRC Staff, we should (push the Stall's subpoena and tuunfer jurisdiction of the case to the ORI. We disagree. We cannot allow the rttipient of a subpoena to be able to asoij that subpoena by niniply allegmg that the senitds sought by the subpoena contain inhirmation of St.d! misconJust.

As the Staff conectly notes, the 010 is well aware of this niatter because the StafIitself has referred the snatter to the 010. *lhe 010 is peilcelly caluble of issuing its own subpoena for the requested material if it beheves such a course of action is appropriate. We base no reason to believe that enforcement of this subpoena will in any way prevent the 010 from resiewing the tees or any odict information, should De 010 deciJe to do so, in the interests of orderly process, ho Acver, de Staf f thould coordinate receipt and review of the tapes with the 010, in the esent dut the 040 exercises its dacretion to do 50.

C.

'I he Confidtuttality of Mr. Ihm's Sourses We note that the second paiagraph of the subpoena asb for information disclosing the identities of Mr. ILv's sounes. 'Ihe StafI belleges that it needs to interview these indisiduals in order to substantiate their led,nical concerns.

As we noted earlier, Mr Dow states Out he wdt not cbsclose die identities of some of his sources because those sources fear that disclosure of dwir n.unes to the Staff would lead to the disclosure of their names to TU lilectrie, leasing those individuals open to haranment and intimidation by the utility.

In a recent similar sittution, an individual who alleged the existence of safety violatiens at another nuclear plant argued that daciosure of the identities of the sources of that informalmn to the St;df could result in Dioso persons dioosing not to bring forw;ud informatlor. in the future. !n Oct case, the court held that the NRC must explore any ponible alternative methods of obt;unmg die requested information froin those individuals in order to protect dieir confidentiality and to minimi/c any intrusion into toe ahegers' First Amendment association lightt. Sec Utdred Starr3 v. GarJc,073 F. Supp. ON,607 (D.D.C.

1987). Ilowever, the Garde Court also pointed out that "it is clear that under appropriate circunut.mces

, Ithe] I"irst Amendment rig, hts would gise way to the compelhng gosernment interest in nuclear safety." Il at 606,

.t79

In order to amid any possille in! ingernent on hit. thiw's associatanut ric, hts

-- and to provide the opportunity for hit l Am's murces to inaintain their wnfidentiahty - we dites t the Staf f to discuss with hit. I Aiw various alteriutine means of intersiewing the indnidiuls whose allegations he has presented. Ibr esarnple, the Stall ina) of fer fortual ptotection to these inJnidaals unJer the confidentiahty plosisjons of NRC hianual Chapter 0517. We do not direct the StalI to choose any l articular alternalise; ruir do we eqvct the staff necessarily to accede to all of hit. Ihm's requests. 'the Garde Court snade clear tlut permns who present allegationi cannot "ditlate how the Nlte condtwts its af fairs." 07.3 F. Supp. at (M. We only holJ that the Staf f naist" carefully and conscientiously" explore allirasonalle alternatives to obtain the identities of these indniduals in order to protect their conhdentiahty. U.S. c. Garde, apa.

VI. CONCl.USION Ibr the foregoing rcasons, we have denied the : notion to quash. 'ihe elipoena reinains in force and the new return date is 10 (0 a.m. on Wednesday, Ju'.y 10, lWl, at Suite 10(0,611 Ryan pla/a Drne, Region IV. Arbngton, Texas, it is so ORDl:RiiD.

Ibr the Conunissioni S AMUI 1. J. C1111%

Sctrctary of the Corninission Dated at Rocksille, hiaryland, this Khh day of June IW1.

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asynnca it 480

I Atomic Safety and Licensing A3 peal Boards issuances ATOMIC SAFETY AND UCENSING APPEAL PANEL Ctristem N Pdd. Charman A:an S Iboonthal Dr W ikwd Johntaon 1tomas S Moore Howard A Whir G PaalIbitwerk, lit I

. -. ~.. - _.

One as 33 tJIt0 401 (1991)

ALAD 948 UlJiiED STATES OF AfAEnlCA IJUCL EAR REGULA10RY COMMISSION ATOMIC SAf'ETY AlJD LICEtJSil10 APPEAL PANEL Chilt, tine IJ. Kohl, Chairmani in the Matter of CAllOLitJA POWER AND LIGHT Dockei No,50 201 COMPAtJY (Operating License Amendment)

(ll.D. flobinson, Unit 2)

YlRGINIA ELECinl0 AND Docket Hon. $0 338 POWER COMPANY

$0 33d (North Anna Power Station, (Operating License)

Units 1 and 2)

FLOftlDA POWER Af1D LIGHT Docket No. 50 309 COMPAtJY (Construction Permit)

(St. Lucle Nuclear Power Plant, Unit 2)

CAROLINA POWER AND LIGHT Docket Nos. 50-400 COMPANY

$0-401 (Sheaton Harris Nuclear

$0 402 Power Plant, Units 1,2,3,

$0-403 and 4)

(Construction Permit)

PUBLIC SEllVICE COMPAtJY OF Docket IJoe. 50-443 NEW HAMPSHIRE, el al, 50 444 (Seabrook Station, Units 1 (Construction Permit) and 2) 8.,d r=='s w to e I n 6 2 ? 10.)(2).

1 481

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i KANSAS CAS AND ELECTfil0 Dockel No. STN f,0 402 COMPANY and KANSAR CITY (Construellon Perrnil)

POWER AND LIGHT COMPANY (Wolf Creek Generating Station, Unit 1)

June 11,1991 In order to clear tte dwket following alolition of the Atmnic Safety and Liceluing Appeal panel, the panel Chairman issues an ortkr seferring sis proceedings to it e Commission. *lhe proecedings have teen in abeyance pending final Commission action on one issue, the health effects of radon etnissions, OllDElt The sin proceedings listed in die above caption still remain pending before various Appeal lloards for consideration of ote " generic" issue - 1.c., the health elfects of radon 222 emissions.8 in 1982, several Appeal !!oards resolved this issue in a consolidated " lead" proceeding involving three other facilides,8 but a petition for review of the lloards' decision (ALAll-701) was filed with the Commission. The Commission stayed ALAll 701 and deferred acdon on the pet] tion for review, pending further rulemaking activity in the area of mill tailings regulation.' Further action on the other proceedings that remained lefore various appeal teards (including the six proceedings identitled above') was therefore deferred as well.

• lhe Commission has yet to take final aethm on the petition to review ALAD-701, arnt thus thesc $1s pniceedings technically remain in abeyance before appeal boards. *lhe Commission, however, has abolished the Atomic Safety 83es Caehoa reast end Lg4 Ca. Olli Ruinnn% Un6 2), AIAB $69,10 NkC 557,562 (1979), l'e ginae r

Deceu ed ter Co. (Nunh Asms IV*st suuim. tituta 4 and 21, ALAll 676,15 NRC 1117.11M n 66 oks2),

1 km.de Pmr saJ UsM Co. (SL lacio Nudcar Ibew 1% n. Und 2). AIAll 603,13 NkC 30,33 n2,65 a 132 (1980X Cachne fe wr sad ug4 Co. (% cane tierns Nudoar Ibew 1%nt, thu 1,2,3. sad 4), AI All490, I hkC 2.M. 241-42 0975). F.ehe Serme Co. qf New flampebis (scabnm4 stau.s% timu i sad 2k AIAD $17, 10 NRC 153,157 e 10 (1979). Kamide Gas sad / lacksc Co. (%4f Cmc 4 oivwwsuna tatum. Unit 1), A1Ah 462, s

7 NRC 320,340 n 38 0975) See mise PM*44.s Dscues Co. (l%h thstian Asunus Ibwer statam Viuta 2 and 3), AIAllano 7 NRC 796 0978) 43 ied Res 15.611,15,615-16 (1978)(Cisnmiaawm directs toJim lasue to le eJdreased an all prweed4nga den pmwhna term twenanns or oppsial beenk, etwahas es neit that 6ssue hed been plued 6n canest Iy a pen 3)

'thLdelg@ Oncese Co. (Itacii ihauen Ausnic l%ww statum. this 3 and 31, AtAB 701,16 NRC 1517

{l982).

14. CU 1314,17 NkC 741 (1981) 8Tne red <n us,w wiginally amaned open la e numbes or othw panenhnst *a osa Hut due to dw smJaiam or Qie inm1ved plants ww die intentwung years, imly umas sia ses lef t 182

l and Licensing Appeal huiel and it will soon cease to esist. In order to clear the Panci's dwlet, these proceeding.s are accordingly trfertrJ to the Coantainion for eventual dis [esition when the radon anatter is finally resolved.

It is so ORDERED.

1 IUR Tile Al' PEAL 1%NEL Bart ara A. Ton @ Lins Secret:uy to the Appeal Panel 883

Cne as 33 f1RC 464 (1991)

ALAD 949 Ut41TED STATES OF AMERICA IJUCLE AR REGULATORY COtAMISSIOff ATotAIC SAFETY AllD LICEtJSit10 APPEAL DOARD Administrative Judges:

Thomas S. IAoore, Chairman Howard A. Wilber G. Paul Dollwerk, lit Docket flos. 50-443 OL 1 in the IAalter of

$0-444-OL 1 (Emergency Planning issues)

PUBLIC SERVICE COIAPAtJY OF 11EW HAIAPSHIRE. et al.

(Sonbrook Station, Units 1 June 21.1991 and 2)

'The Appeal Board affirms tic Licensing Doard's order, LDP-89 38,30 NRC 725 (1989), denying the intervenors' motions to admit late filed contentions and teopen tic record concerning the Septemter 1989 Seabrook onsite emergency exertise.

Ol'EllATING 1.lCENSEt EhlEltGENCY PitEl'AltEDNESS (ONSITE EXEllCISE)

ItEGUI.ATIONS: INTERPitETATION (10 C.F.it,l' ART 50, Al'PENDIX E, iIV.F.1)

The " exercise" that is the subject of the third and fourth sentences of section IV.F.1 is plainly distinct from, and supplement;l to, tic " full participation" exercise that the first two sentences require. Consequently, tie structure of the provision and the placement of footnote 4 are such that the footnote plays no part in defining the term " exercise" in the third sentence.

484

OPI'.it ATING 1.lCI:NSist 1:hil:ltGl:NCY PitLPAIll:DNI:SS (ONSITI:

1 XI:itCISI )

t iti:Gtil.ATIONSt INil'.llPitt:TAllON (10 0.I'.it. I' Alt t' 50, A PPl:NDIX 10, i lV.l'.1)

'the third and fourth $cutences of section IV.P.I do not require that the scope of a prelicensing onsite exercise be synonymous with that of a full partici;ution exercise so as to include all major observabic elements of the onsite plan.

APPI:AllANCl:S John Trafironte, Boston, hiassachusetts. Diane Curran, Washington, D C.,

and Itobert lla(Lus, hianchester, New II:unishire, for the intervenors Attorney Generad of htassachusetts, New IIngland Coalitkni (ni Nuclear i

Pollutkm, and Seacoast Anti-lbilution League, sespectively.

Thomas U, Dignan, Jr., George 11, I,ewuld, and Jeffrey P. Trout, Iloston, hiassachusetts, for the tipplicants Public Service Company of New llampshire, et al.

l.ha II. Clark for the Nuclear llegulatory Commisskm staff.

MEh10ltANDUh1 AND OltDElt Defor us is the appeal of the intervenors, the biassachusetts Attorney General, the Seacoast Anti l'ollution League, and the New IIngland Coalition on Nuclear Pollution, from the Liectning floard's mernorandum and order in LDP-89 38.8 That order denied the intervenors' motions to admit late filed contentions and wopen the record relating to the September 1989 Seabrook onsite emergency exercise and their motion for summary disposition on those contentions 'Ihe applicants, the Public Service Company of New llarnpshire, el of., and the NitC staff opicsc the intervenors' appeal. I'ur the reasons that follow, we affirm the Board's denial of the intervenors' motions, t

350 NRC 723 o6891 j

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lhe Commission's emesgency planning regulations,10 C.F.R. lWt 50, a

Appendix li,6 IV.F.1, requite that a full participation excicine testing both onsite and of fsite emergency respcwe plans ruust le conducted within two years before f

issuance of the initial full tower operating license for a power reactor. If the full participation exercise is conducted rnore than one year prior to issuance of a full power operating license, then the regulations provide that an exercise testing only an applicant's onsite emergency plan must be conducted within one year tefore such licensure, Aplicar>$ did not receive a full power operating license for the Seabrook facility by tN iirst anniversary of the June 1988 Seabrook full participation exercise.1 hey also failed in an atterupt to obtain an exemption from the onske exercise requhement.8 As a consequence, to fulfill the regulatory requirements for a full power operating license, the applicants conducted an onsite exercise on September 27,1989.

Two days later, the intervenors hied a motion with the Licensing floard

?

to admit a contention alleging that the applicants' prelicensing onsite exercise had not rnet the requirements of Appendix E, llV.F.1, becaure it failed to test "all or even a significant number of the mapt obseliable tortions of i

the Seabrook Statiori (Radiological Emergency Responic Plan)."3 lbliowing the staff's issuance of a favorable inspection report covering the upplicants'

,a second motion to admit prelicensing onsite cxercise, the Intervenors f:

another contention on October 13,1989.8 The sex ; contention listed a numlet of perceived shortcomings in the scope of the applicants' prelicensing onsite exercise and, like the first contention, alleged that the Septemter 27 exercisc had not met the requirements of Appendix E, llV.F.1, because it failed to test the major observable portions of the onsite plan.' On October 16,1989, the intervenors filed a third motion seeking to amend their earlier motions in order to address the pleading requirements of 10 C.F.R. I 2.734 for motions to reopen the record.' That motion was followed on October 18 by the intervenors' fourth motion that sought summary disposition of their two prolfered prelicensing onsite exercise contentions?

in its December 1989 decision denying the intenenors' motions to admit the prelicensing onsite exercise contentions, the Licensing !!oard first determined I3ee Ctj 8919. 30 NkC 171 (1989).

1nisivenus' hinun to Adma Cunt.wwns on the Sepamber 27, 1989 larwegmry 14sn 1.tarcise (sett. 29, 8

1989) AuaA A at t [hcreinefia l'aret blaum Cwamitas4

• intervens'sesmd Meon to Admd Cwswidme on the Sepomber27.19891.n

.,4y l'Lan I.asrum ((At Is.1989).

8M. Ausch A si 2 3 thercinefier seemd Minust Cumen6an]

'Inwrvenu.s' Mauen to Amand latervenurs' Mo61sta d serierrder 29. 1989 and (Avder 13. 1919 to Admd

-Omieraham cri the 5epamher 7?.1959 onnis lawrgency lian Iaercise (o5t 16.1919).

Ilniervorus' M4mn rue Senmary thsemamn un Canaaniini JIonsiis i;a.1 onal n onante I;4-2 (cat 18.19591 486 I

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diat the contendons were deficient fo> fn!!. g to allege chher that st ese was a i

furdament.d flaw in the applicants' t t. site emergency plan or Hot the scope

- of the prelicensing c Actcise was it,sufhcient to reveal a fundamental flaw in the plan - essendal prerequis;!cs under agency case law for contentions challenging the adequacy of any emergency response etewise' Next, the 1kurd coiwluded that the intervenors' motions must ineet Om acquirements of 10 C.P.R. 5 2.734 for reopening the record, but determined that their motions failed to address a significant safety issue - a guincipal criteshm f ir accord reopening required by section 2.734(a)(3).' in this same vein, it decided that the intenences' motkos failed to corriply with the exiness regullement of section 2.734(ti) tiot reopening motions inust be accompanied by affidavits setting forth the facitol or technical bases for reopening the record * 'lhe Doald also found that a tulancing of de five fa; tors in 10 C.F.R. 6 2.714(a)(1) governing the adminion of late-

- filed contendons, weighed against admitting tie intervenors' prellecruing onsite exercise contentions." Finally, in denying the intervenors' modons, the lhurd rc#cted thelt interpretation of Appendia E, ilV.F.1, Diat provides the legal underpinning for both of their exercise contendons. Contrary to tic construction of the regulations contained in the intervenors' contentions, the L.iceluing Ikurd held that the agency's regulations do not require that the scope of a grelicensing onsite exercise be synonymous with that of a full participation exercise 50 as to include all major observable elements of the onsite plan.'8 II.

On appeal, the intervenors challenge each of the Licemig n,,,ard's Lyc grounds for den >mg their motions to admit.he prelleensing onsil4 exercise contentions. Because cach of the lloard's ste,d grounds is independently dispositive of the intenenors' motions, mr affirmance on eiy one ground is sufficient to uphold de lloard't derPJ of the mothms. We need not, therefore, freight our decision with a disce. m of all of the lloard's alternative holdings. Rather, we will consider only IM intervenors' attack up(m the Ikurd's interpretation of Appendix li, llV.P.! ~ the central legal issue before us. 'ihe Board rejected the interrenors' :,ading of the Commission's regulation that forms the legal prenise of ben contentions. Without the foundathm of the intervenors' interpretation, it is um."sputed that their prelicensing onsite exercise contentions cannot stand.

8 1JW 59 34. 30 NPC et 73G37. 740

'l4 st 732 41 W14 at 73114.740 014at74a41l 83/4 et 7n 4s.

l 487 i

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1he pleinise of die intenenorti' unate esercise uvitentions is that Appenshs E, iIV.P.I. requires Hat, as with a f ull p.uticipation escreise, the prelisensing onsite esercise taust test die inajor obsenalite portions of the appbeanti ensite einefgency plan. Acctuding to the piolleled contentions, the applicantv Septerntier 1989 exertise did not test t citnin spedfied portions of the onsite plan, thus making die exercise legally insuf ficient to support die issuance of a l'ull-ponet operating license for Scabud " k, b z'itirely, the pertinent regulation states Out A full paruopatam' etettine whi e ha as t so J U ucrace. Metc amt ku ne ewigerw) plant as is ttanssiably e-h. t 4 s t1 VC % 5 e o obin partn ymu.si shall be pushkteJ for taJi site na whnh a 6 in. V y W L #f k whnh die farit - presung hiene fie that site is iswed shre Julv O. t 4 i f t.,..em, shall be usiJaJ withm

.s 4th > eof full. i te (tme tu0nartung two years ts-fsve de issuunte ad die fast gicia.m f

ipernii si atme $1lr of f at J power) of the hvis traoot and shall inou,1c perburauim by eth State and 14al swernmers unhm the plume capisure pathmey 1.P/. aral es,h Steie modun die angestart capimure pathmsy 13'/ If die full gwruutoinsi eterose is issukatcJ nire than tvie yest pruit to issuante of ari tip tnung lutnine fut full pimet, an e tetuse whidi trou the intrate's esmic enwtstewy plans shall be tionlutted u nhm tuie ytar bi-fore inunnte of an sprinung laense for full pomes lbs etttune twed t>e have Staie or kual twestitucia gerwipathin wupna9.um.h.nu.ainn.#

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mo p,v.an,s...im n..pn t.t

.as vnwa pntnat. dt.,t. u.i.a st...iiononne..a n.m. pmmna priun,.,,4. uvun.te pn = imuns 9 ad uiuwnd unhanr to.%=wa.

ed rapi d un en **a=* *i e uanmm si r

n,m1+41 puots g4stu. "lbu prucyuum"in*1ed4e imung es p ake adeeneus pesis d de smias and dt.aa==rmy pt.<..a n.a h,,um d om b..i na io.

p, u.i.nd n., ruour. c. in surfians rundos ki vesify um tarb. hey to respuW to Oss actt.ims s+mann 1hc intervenors' appellate litief on the issue of the interpretation of this regulation is woefully deficient. It increly incorporates t>y reference the legal analysis presented to the Licensing Ikurd'* - a practice-we have held to tie tant:unount to die alundantnent of de issue," In any event, the intenenors' construction of the regulauon cannot be sqtured with die language of the regulation.

" Am=Ans W d t= ace radiud I = inwn== a%-==. e emirra = af om ename et r uva amifd he the trians pruim d die Jane 1455 full priaat eme saamas demmausteel St.at am s g the *nispe SersysWe prutsis* ma neal in h smibsr 1989.sie developuent d onsite pcursu e s um rmsama.dameis (PAkal, i

uulustum of t(Isas ms46 al ptsmael arW truuned f anhurs, pnu estarea hw 36une und p13 te edaw41 rmsuhiring imaed to suces o!!aus rededo6ul canaapnues. pahhc ruiufuu.si syntaan sepawues (e 3. sme sierung),

emad shift staffmg, a wi oftans nuuung sW tinadamuutam d asaas pastend hse M.aum Canaam ai

) 4, Swed Miem Ctaassaue et 15 l' Inner or intmanus in Suppet uf near Appal or litP 8918 tlm 22, t WO) at 32. $se Manisardam d de Inanans in sugy.vt ur he nasun ice lunenery thap 4um of 94 %cpe Ow=u.w I da in ites,mse to the byteder:77,1989onsue I nets we lost it, l989)lhectnaha,intamuss' Lanmary thspeiu m Mani.vandinn)

U$ee, a g. Tet.at U6Lt es lh pr Ca (Cannsam he 14 4 ke.am filestig Lahun, Ural 1), Al Alt kt,23 NkC 912,924 a 42 (1987) See mLee Al.An W7,3) NRC M, U2 (1991).

t88

In brief, the intervenors argue diat Appendix F., iIV.F.I. afkl footnote 4 of the i

reguladon compel inclusion of the activities enumerated in dicir contentions in the pelicensing onsite exercise required by the third and fourth sentences of the provishm. 'lhus, the intervenors assert diat the language in footnote 4 of secdon IV.F.1 of Appendix 11 that provides for " testing the major ot$ctrable portions of the onsite and offsite ernergency plar.s" applies to the applicants' September 1989 prelicensing onsite esercise. According to the intervenors, this is so because the term " full participation" in the regulation shou 1J be read as having two distinct meanings: one defines the "how" of the exercise, Oc other defines the "who." 'their argument condnues that, when the regulation is read in this manner, the applicants' Septemter 1989 exercise did not require the participation of state and local governments because it was not a " full pardcipatkm" exervise, but it ttill required the " full participation" of the applicants in the seme that the applicants' penonnel were required to test all " major observable portions" of die onsite plan.-

1-We think it is clear that the regulation cannot reasonably te read in the manner asserted by the intervenors. Rather, the " exercise" that is the subject of the third and fourth sentences of section IV.F.1 - arid the type of exercise conducted by h

applicants in September 1989 - is plainly distinct frorn and supple nental to the

" full participation" exercise that die first two sentences require. *lhe term " full

' participation" is not used in conjuncuon with the ;ctm " exercise" appearing in tie third arul fourth sentences. Consequendy, the structure of the prov%n and die placement of footnote 4 are such that Oc footnote - the linchpiri of die intervenors' argument - plays no part in defining the term " exercise" in the third sentence.

'The intervenors' interpretation is further refuted by the wording of footnote 4 itself. To be sure, Die secorx! sentence of that footnote contains Oc " major observable portions of the onsite and offsite ernergency plans" language relied upon by the intervenors. Ilut the preceding sentence emphasizes that " full participation" means that " appropriate offsite k> cal and State audorities and l

licensee personnel physically and acdvely take part in testing their integrated capability to adequntely nuess and respond to an accident"(emphases added)."

385n intervenwe' sienmary thspisitum Manneandum et 101s.

As we indgaiad la ALAD 446, s) NRC ses,246 (1990, a fuu pescipathe eseems taung t=nh 04 subad ww.no and offsiis energency 3 ans was bald in December 1990, vrv,m pian ais nusuhs alta opg4uen received s 4

ruD power egetsung tunise As slao was nised in Out donakun de staff immd no definesicies ta um amargecy plans a a ssemeuuuxe d the eneruna hr the um easias in AIAll446, de mean hafure w wi this eneal may well have been indered mind by ie Daarnbet 19'#0 fu;l gerucipstnei saarnet Aldunigh de a;gduasas mmed p

la a Feteuery 12.1991 ausum to danuss de imariemus' orgwal en aber staunds, see see mae 19. uwy did

. sus argue put the issues berure us were vendered muni by die t>=cenbar 19's0 roll penaipsu,m enescan. Nur did we raus die trustness issus sua opwus. Anurdingly, basuna dw perues have tus red an egyartmuty to brtar de gesuan. es rage deckhng in.arvaurs' stycal wi dei tusa.

Jse reas Aand t.ighs Ce_ (ihinutam radcar Powse steutet. Una 1). AIAli 9m. 2: NRC 275,2:9. 293.

r 297, so.ew drdard, ClJ sl-ll,28 NkC M 09sss 489

ne next sentence also telels, in the conjunctise, to motiilising die calucity of " State, local and licensee personnel" (emphasis added). Il Oius is clear Olat the " full particigution" exercise referred to in die fegulations is die more comprehensive exercise seguired prior to initiallicensing and has no bearing on the scope of the supplemental onsite exclelse that is fequired only in ecstain circumstances due to timing eidgencies.

Accordingly, as the Licensing Ikurd determined. O e clear import of the language of the regulation cannot t>e construed to teach the result urged tiy the intervenors relative to die scope of the Septemtiet 1989 prelicensing onsite exercise "

Ibr the foregoing reasons, the Licensing Boafd's dental in LBP 8438, 30 NRC 725, of the intenenors' motions to admit their proffered onsite exercise contentions is affemed."

" Alduaigh die intavvenoen have tesistruded an eleNaste orgamest irreu de admirus;rsuve hiswry d die regulawnse 6n son <un of Goa emais est a full gerucquium esercme seul e pelumama maae eternae must to essensally 6derau.al in empo, that battry pmvules htdo sunen for Onur peerurut in fa4. @ist had my induswa pist,in canarmet to wie full perucqwam eneruns that has se e pruwspal ob;ntes die idamNataan d plamma definancies, dw pelasiams aisne peruse is 6ntended to focus upm die prepanames of applaats possimum! tu d

carry me dear rupumikliams under the revi<.only tesied usine plast lur enemi e, en respase w e orggestum w delow die dard and fourth scenances of Appendia E,ilYLI, de Dunnussum saplained:

'fhe imponsrug of ann.aal sessas ernengecy plarutes sawnsen by die tueinee's ryersweial sta!! has mise 64 tout recognised in the Oswrutussum's regulatums.

• huh noe require dat after a facihty as luerved to spems there must be an tum.al maae eserchas, lhe annual emntgency respame function en11 a1sures that es twennee's rww perswmel are 6dequalcJy and purnp y tramed and dat entsteg luaises j

pmuismal maunam d,ar emergewy respume sepaklay 1he etates rupinznas af a preweratunut msua ensrch # wuhin me year prus to full pown bcame 6ssumme is c4smatant wah dus 3 ahm@y as 4

os,11 as os 04vnnu siem's gencial desas to have pre-eg=rre.amal emergerwy planturg taerunes as skms as preauable to the time :s twenirs

$2 l's4 lleg.16.123, if,,834 2109th See alte ad at 16.823 (hanns essais saeruse wahm ime yur hafio luarming erAmia fut disi anduare makes a full unto shih inan facihty assarmtum to tpwawe wuNa de laa 12 to 18 emuha and reistne many two aqwrsumal perewmel who must le ready to carry mt utibiy's eatsung ermas plan). Ibaher, das interpretetusi la cmamime wuh the reading de tiruwd States Casa of Aneels f<e de Dwarwt of CulamNa Cucuit 6 ave aestam IV.lti in su recat dussum in Marsm%sesu v. NAC,924 l',2J 311 (D C. Cu 1991), pentwafor cert fund,59 U.S 1.W. 3755 (U.5 May 7,1991) (No. 941657). Thers, d.e s<iun emaidered whether the lanus d Gus adrnaasitahiy ad c4:uenutse raums camas gdannmg weakewanes purpatedy evidonied in the hme 1988 full genwyeuon esercise was armated by the anslu4nu'subnapers 5epamber 1989 avuste esernsa. The coun esavied de laerums Ekens's esplanauan thai ou purpus d the "rmre hnuted maae dnll" was * *no ensus than enersemy respetw tionarant reta.n sufruuss knowledge and esperuse to sawam en ancrgem y lplan) shess.ly drarrauned #Aro6:4 e reasonaMy castrear '/uti pencesswa' eanrcase ao 6e adreare ed inshow fun.kawmal A,n=s.'

• Id at 3% (quotes tllP-84 31,30NRC et N445 (em;tese sapphed by the emn)). In the tenta-u d tbs pweedes. the Cumnuumn has esponned a torrupsidmg, a but susibmdms, www, 34# C1JM3,31 NRC 219,256 0990)(in e!!actawws: deuaum dawaam regaiding theneing ihmid's rejectum of irnerymnes' pslumums swaits naruse cmiamma, C(inmmum erseas det "guum ir*1 goal" d suniist ammal smite snarcise is to svund "tradiness tapaas").

" Bm>ause die 13 coming therd statecdy dmied the truervennes' minums to admit dw suune samuse esstaansis, their nwu m for swumary dapunuon shwld euensardy have bem disnmai. Sunitarly, our 6ffirmarme of Ow Ikerd's dernal of the uservmwn' motuva to adtrut c4mtmuma nukes k unnaruary fw us to rule m he enduous*

I obruary 12,1998 nwnaan to damnias intervenors' anwal un the giounds that de Distnet d Ca aamba Carews's ruhng in MesacA usau v NRC ressidmg de Sepamber 1989 maae vaerone, see myre nais ll, eventered de lloard's derual of a hearing nurat as a ensuer d law, 190

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Cito as 33 f4RC 492 (1091)

ALAD 950 UtJR ED STATES OF AMERICA 1

tJUCLEAR REGULATORY COMMISSIOf1 ATOMIC SAFETY AtJD LICEf4SitJG APPEAL 00ARD Administrative Judges:

1 Christir' L fl. Kohl, Chairman Thomas 7 Moore Howard '- #11ber in the Matter of Docket IJor. 50 250 OLA4 50 251 OLA 4 (Pressure /Tomporature Limits)

FLORIDA POWER & LIGHT COMPAtJY (Turkey Point IJuclear Generating Plant, Units 3 and 4)

Jur.o 24,1991

• the Appeal Board affirms two Licensing Board decisions in this open t-Ing license amendment proceeding concerning revisions to a facility's technical specifications One decision denied a late filed petition to latervene arul the other granted applicant's snotion for su,urnary disposition and terminated the l

proceeding, 'Ihe Appeal Doard also disnnsses an appellant for task of partici-

pation, it0LES OF PitACTICE: UNTIME1N INTEltVENTION PETITIONS A 1.icensing Board decision that icilects a careful weighing of each of the j

i lhe factors set fosth in 10 C.F.R. 6 2.714(a)(1) governing late-filed perJtions to intervene will not be overturned on appeal, absent a showing of an abuse of discretion. See Citizens for fair Utility Regulation v. NRC,898 F24 51 (5th Cir,), cert. dented... U.S. -., t il S. Ct. 246 (1990); South Carolina Electric ard Gas Co, (Virgil C. Summer Nuc' ear Station, Unit 1), ALAll 642,13 NRC 1

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k81 (l981), q!f'd sub nom. fairfectJ UnitrJ Attion v. NRC, bl9 Y.2d 261 (D.C.

Cir.1982).

l RUI.ES OF PRACTICi:t liittlVS Appellants are obliged to explain la their briefs on appeal how the Licensing 14ctd ured in the decision on review. Ser Grorgia Power Co. (Vogtle Electne Generating 1-lant, Units I and 2), ALAD 872,26 NRC 127,13132 (1987).

ADJUDICATORY 110ARDS: ItOLE Because it is an adjudicatory toard's very function to review and make determinations as to the admissibility of evidence, presumably it can do so without cornpromising the outcome by consideratio,a of inadmissible material.

RUI.ES OF PitACTICE: SUMMAltY DISPOSITION Although 10 C.P.R. 5 2.749(a) provides that no replies to the responses to a motion for summary disposition "may be entertained," it does not prohibit a Lkensing Board in its discretion from ordering the filing of further pleadings in conneulon with summary disposition. Such authority is surely encompassed within a lioard's general powers under 10 C.F.R. 9 2.718, subject, of course, to its exercise in an evenhanded manner. Src alm 10 C.F.R.12.730(c).

. ItULES OF PitACTICE: 1:VIDENCE (FEDER AL ltUl.CS): EXi'EltT WITNESS (ES)

EVIDENCE: 1:XPERT WITNESS

• Ihe Commlssion has endorsed reliance on the standard of Rule 702 of the rederal Rules of Evidence for judging whether a prospective witness (lualifies as an expert. Src Dale Power Co. OVilliam D. McGulte Nuclear Station, Units 1 and 2), ALAll.669, l$ NRC 453,475 (1982).

RULES OF PitACTICE:

SUMMARY

DISPOSITION; MOTIONS FOlt

SUMMARY

DISPOSITION Section 2.749(b) of 10 C.F.R. requires any affidavits submitted in connecuon with a mction for summary disposition to " set forth such Ixts as would be admissible in evidcnce" and to "show affirmatively that t!m affiant is competent to testify to the matters stated therein."

493

Itl'l.l:S Ol' l'It AC l'lCl3 IWlDINCE IWIDI:NCE: ADMISSillit.I'lY (SPONSOllSillP llY 1 XPI:lti'l

'the Conunission's ruier imlose a l'encial seguircinent on all esidentiary sutimissions that, in order for them to be admissible, they snust te "relev;uit, rnaterial, and rehabic." 10 C.F.R. 6 2.743(c). Ibr evidence on hir.hly technical subjects to be coinidered " reliable" and thus admissible, the pnipotent thereof must khow her or his quahhcations to sponsor and discuss such evidence.

'l1:CllNICAL ISSUES DISCUSSED Pressure /tcinperature hmits Neutron lluen<ce Fracture 'loughness Itequircinents,10 C.F.it. lurt 50, Appendit O lteactor Yessel Material Surveillance l'regra:n Itequircinents,10 C.P.It. Part

$0, A;pendix 11 Material degradation Neutron braJiation

!rindiatica embrittlement.

APPEAllANCl:S Joette I.orton, Miatni,11orida, intervenor pro se and for intervenor Center for Nuclev llesponsibility.

'Ihomas J. Saporito, Jr., Jupiter, llorid., petitioner pro se and for petitioner Nuclear Energy Accountability Project.

Ilarold I', llets, Stesen P. I'rantr, and Kenneth C. Manne, Washington, D.C., and John T. Ilutter. Miami, llorida for applicant I'lorida limer

& Light Company.

Patricia A. Jehic and Janice E. Moore for the Nuclear Regulatory Commission statt I)l' CISION This proceeding invob es an apphcation by llorida limer & Lip.ht Company (IT&L) for amendments to the operating liernses for Units 3 and 4 ut its 494

lbrkey point nuclear pmer f acihty. 'the mnendments, which were issued by Oc NRC staff in January 1989,8 cc 'ise 'Se beenses' inhnical s[ccifications by incorpetuting new pituurestempetature (p/FJ limits for die reactor coolant system. 1hese new limits are uppheable for up to 20 " effective full power years"(LITY) of plant operution, an.1 they replace the former p/I' limits, w hich applied to only 10 EITY.

Joint intersenors Joctte Lorion and the Center for Nuclear Responsibility (terion/CNR, or interwnors) have appealed the Licensing Board't twmrandum and order that granted F1'1L's anotion for sununary disposition and terminated the proceeding. Src LDP 90 4, 31 NRC $4 (1990). Petitioners Thomas J.

Saporito, Jr., and We Nuclear Ercrgy Accountabihty Pioject (NEAP) have appealed the Licensing Board's companion decision Otat denied their late. filed petition to intervene. Src 1.bP 90-5,31 NRC 73 (1990). Upon consideration of the parties' arguments on appeal and the record in dus proceeding, we affirm loth Licensing Board decisions, at explained below.

A.

The SaporitdNEAP Appeal 1.

Before turning to the merits of this appeal, we first altress a proefdural anatter. Last December, applicant ITAL requested that we issue..n order to E3AP directing it to show cause why it should not be dismissed froin this proceeding. IT&L's motion was based on the fact that NLAP had moved to withdraw from another licensing proceedmg due to its andelpated dissoluden effecuve Decernier 31.1990. 'Ihe NRC staff supported ITAL'.t motion. NEAP did not reply to the motion, nor did it reply to our Janury 11,1991, show cause order, Accordingly, NEAP is dismissed from this proceeding, and die arguments raised on appeal insofar as they n: late to NEAP'k effort to intervene are necessarily disregarded.

2.

Tte Saporito petition to intervene was 11 months late. Sce LDP 90-5, 31 NRC at 75 76. *lhus, as required by the Commissh>n's Rules of Practice, the Licensing Board balanced Die five factors set forth in 10 C.F.R. 5 2.714(a)(1) to determine if the late filed petition should be granted. After devotmg substantial attention to Mr. Saporito's arguments, the Board concluded that, on tular cc, the petition ft.iled to satisfy the necessary criteria for intervention at such a ate stap of the proceeding. LDP 90 5,31 NRC at 83, in particular, die Dowd found that the petitioner fell fa* short of meeting the first and most irnportant of Oc five factors - i.e., good cause for failing to ble in a timely mants:r,14 at 1640.2 8 n... nwn.

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g n.91(.K4)..am.. - _..mstu nnes.sixac.aon 50 495

We h.no reviewed htr. Saporito's tuguments on die fac factors, tiods on tippeal and in ins filings below, and find no basis on whkh to overturn the Licensing Board's decision. Indeed, d,ie llo.ud's dedsion tellects a emeful weighing of each factor and on ultinate judgment well within the lloard's discretion, See Cithens for Fair Unlity Regulation v. NRC,898 l.2d $1 (5th Cir.), cert. denied. _ U.S.

, i1i S. Ct. 246 (1990); South Carolirta Electric and Gas Co. (Virgil C. Suminer Nuclear Station, Umt 1), Al All+42,13 NRC 681 (1981), s'f'J wb nwt. Fult)ielJ United Action v. NRC, bi9 Y 2d 261 (D.C.

Cir.1982). 'Ihere is nothing on which we could elaborate.

Migh of Mt. Salorito's argument on appeal niso goes to the issue of his standing to intervene la Ltds proceeding. 'the Commission's Rules of Practke,10 C.F.it i 2.714(d)(1). requise every petidoner w ho seeks intervention - s hedier timely or not - to dmonstrate suffident intercat in the proceeding iio as to estabhsh standing. Ilecause the Licensing Iloard determined that Mr. Saporita's petiuon was "inucusably late" und thtts must be denied in tuiy event, it saw no n.9d in addressing the standing issue. Tic Board nonetheless noted that the standtrq of eith$r the ink,ldual or organizational petitioner was "at best a close call." Lllt'.90 $, 31 NRC at 83 n.12.

'the Liceming lixrd committed no error in pretermitting the question of peutioners' standing. Itaving found tht Mr. Saporita failed to satisfy the criteria icquired for late intervention, ex) purpose would have been saved by sucli an exercise. Even if the 11oard had concluded that Mr. Symrito or NEAP had standing, the balancing of the five factors of secth( Di4(a)(l) compelled denial of the 11.nyniths late petition,

11. The Xorlon/CNR Appeal In LllP.904, the Licensing Board granted I'P&L's modon for sununary dispositkm of Lorion/CNR's Contention 2, the only remaining issue in this proceeding.5 As admitted by the Doard, Oc contenthm alleges that the conduct of IT&L's Inugrated Sunelliance Program (ISP) does not sausfy certain regulatory requirements insofar as Unit 4 of the *1brLey Point plant is concerned.

Parucularly at issue are the requirements of 10 C.F.R. I'.trl $0, Appendices 0 and 11, which describe " Fracture Toughness Requirements" and " Reactor Vessel Materht! Surveillance Program Requirements," sespectively, in addithm to specifybig the requirements for the ferritic materials used in the pressure contmnment bo'.:ndary, Appen:lix 0 requires, among other things, testing of 5..m xNa wisin.n,.s.na am.sminum. m iaamna B ad asend casaanim I ha n a at t

k sduum ti also rwhfieJ is te. wood rivsms ur C<enatum 2 as snaugeble,a twysed die ocupe it stus pew mhng. SSP s9-IS 29 NFC 4VI. 4W M64 0919) Intanm..

1. ors ma oppsalud pist deuasun. Ny ulumatsly wr.hJts w Cema.um ), h.uowvig sn ra.heye ur inhemsum lismen die peruca lhPW4,31 NRC at E 496

- - ~... - -

4

" beltline" materials as prescribsd in Appendin lif Appendix il establishes surveillance program criteria and permits the use of an integruled serveillance program "for a set of reactors that have similar desigrraind operating features "

10 C.F.R. Part 50, App.11, ill.C, According to the Licensing Board, the gist of Lorion,CNR's complai is that FP&L's testing program, which was based in part on data from surveillance capsules in hrtey Point Unit 3, does not provide " adequate assurance that the materials making up the belt!ine (roughly the midpoint) of the Unit 4 reactor vessel at Turkey Point will be tough enough over the life of the plant to furh safely under the pressure, temperature, and irradiation to which those beltline materials will be subjected." LDP-90 4, 31 NRC at 57. Intetvenors' primary concern stems from the diffe nt operating histories and capacity factors of Units 3 cad 4. See id at 62.

After providing the technical and regulatory backgrour'd for Contention 2, the Board set forth the positions of the parties and the controlling law ou motions for summary disposition. la. at 58 67, As required for a grara of stwh a motion under 10 C.F.R. 5 2.749, the Board found no salient facts in dispute. It also concluded that"the matters raised by Intervenors are either explained by (FP&L]

or constitute an attack on the methodology of the Commission's testing program for reactor vessel materials." Id. at 67, it thus determined that FP&L had met its burden of proof and that the cond.nct of its ISP was in compliance with all regulatory requirements. Accordingly, the Board granted FP&L's motion and terminated the proceeding.

De Licensing Board's decision is thorough in its rettion of both the technical bxkground of this matter as well as the positions of the parties.

We therefore need not rehearse that material here. Nor have Lorion/CNR provided any persuasive reason for overturning the Board's ultimate judgment, Nonetheless, we address briefly each of the cight arguments Lorio,vCNR have raised on appeal.

1. Lorion/CNR first argue that the Licensing Board erred in not addressing the views provided by their expert, Dr. George Sih set forth in a letter attached to intervenors' reply to the motion for sumlaary disposition. They contend that this letter, in which Dr. Sih states why he believes the difference in operating times of Units 3 and 4 is significant vis-a vis the fracture toughness of the Unit 4 reactor vessel, was evidence from a competent c.spert on metallurgy; even

'De **beitlins" is the regiort or ihs reactor vessel (well maternalincluding welds. heat afrccted ames, and plates or rorgings) that directly surmunds the cfreetive height er Oss acuve core and adjacent regions of the reactor vesact that are Avd to saperience surrgient neutmn radiation damage to be unisidemiin the aclaticas or the nwat limiting matenal with regard to radation damap 10 C. Alt iso 6)(a)ok put s0. App o I11F.

497 l

1 i

~

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.._ mm _

1 though it was not in affidavit form, the letter should not have been excluded from consideration by the Licensing l'oard.

Nowhere in its opinion, however, does the Board exclude or reject Dr. Sib's letter, Lorion,CNR concede as much later in their brief. See CNR/Lorion liricf (Mar. 5,1990) at 22. To le sure, the Board found Als. Lorion to le lxking in the technical expcrtise to qualify her to provide testimony on metallurgy or mechanical engineering matters, as tequired by 10 C.F.R. 6 2.749(b). LDP 90-4, 31 NRC at 64.' De Board also stated that it was " tempted to (and could well) decide d is case in [FP&L's] favor on the basis o'(% cbsence of a sworn affidavit by a quahlied affiant in support of intervenors' oppositica. to lFP&L's) motion."

Id. at 69, But de Board went on to refer to and discuss Dr. Sih's concerns and did not, in fact, exclude the letter in question. See i.f. at 65 & n.4,69-70. See al.to id, at 63 n.3, where the Board explicitly states that its decision relics on, among other things, "!_ntervenors' Response [to FI'&L's motion for summary disposition] and supporting documentation" (emphasis added). Larion/CNR's objection is thus without merit.

2.

Intervenors contend that _the Licensing board erred by weighing the evidence and making factual determinations at the summary judgment stage, in particular, they object to the Licensing Board's conclusion that, "(blecause the difference in opeuting features between the two Turkey Point reactors was acceptable in 1985,,,. - a foniort,,, a smaller difference today n: mains acceptable." Id..at 70-71. _ in intervenors' view, Dr. Sih's claim - that the olffcrence in operating experience betweca Unt:s 3 and 4 is significant to the resolution of Contention 2 - establishes the existence of a genuine issue of material fact that cannot be resolved upon summary disposition, An examination of the record makes clear that there is no genuine issue r

- of material fact in dispute, Dere may be a misapprehension on Dr. Sih's part, however, as to the relevance of the rate at which neutron fluence is accumulated. Dr. Sih's letter contains his view that material degradation fwm neutron irradiation is a " time-history and rate dependent process," Intervenors' Response to Licensee's Motion for Summary Disposition (Oct. 19, 1989),

Attachment A (Oct. 18,1989, letter from Dr. Sib) at 2, lie believes that FP&L's contrary position (i.e., the rate or duration of neutron fluence accumulation is not relevant in determi' 'ng the effect of irradiation) conflicts "with or.e of the most important unit [s],. for measuring irradiation damage of material"- namely

-"nyt," where "n"is the density or number of neutrons per cubic centimetet (cm'),

"v" is the velocity in centimeters per second (cm/sec), and "t" is the time. Id. at 2 n.*,

As FP&L points out in its brief on appeal, the difference between its position

- and that of Dr. Sih is essentially a problem of semantics, "since the rate of neutron irradiation integrated over the time of irradiation is equivalent to fluence." Licensee's Brief (Apr. 3,1990) at 30 n.57. See L.E. Stecte & C.Z.

498 l.

l;-

. n Seman, Jr., Analysis of Reactor Vessel Radiation Effects Surveillance Programs 264 (American Society for 1bsdng and Materials Special itchnical Publication 481,1970) (dermidon of" neutron fluence"). Se e also NRC Staff Brief (Apr.19, 1990) at 15-17,19. In other words, under the very formula for neutron fluence cited by Dr. Sih - nyt - the rate of neutron irradiation during a particular time frame " cancels out" and only the total accumulation of neutrons per unit area becomes significant:

(n/cmi) x (cm/sec) x sec = n/cm8 Dus, the difference in operating histories of Units 3 and 4 and thereby the different rates at which neutron fluence accumulated over the years are not the relevant data; the total accumulated fluence is, See LDP 904,31 NRC at 70 (differences in annual operating periods of the two units is ?' subsumed in the calculstion of total flucace"). Consequently, there was no actual dispute as to a material issue of fact and the Board did not err in granting summary disposidon on this particular point.

3. LorlorVCNR next argue dat the Licensing Board erred in not resolving any conflicts in the record evidence in a light favorable to them, as should be the case with the party opposing summary disposition. Specifically, they object to a footnote in the Board's decision in which it states that Dr. Sih's position on a certain point (as reflected in another letter submitted by intervenors) was "not clear." The Board went on to provide "[a] fair reading of this letter," explaining what it believed Dr. Sih meant. Id. at 65 n.4, But while intervenors object to the Board's characterization of Dr. Sih's statement as more favorable to the proponents of the summary disposition motion, they fail to c.rplain either what Dr. Sih really meant in the statement in quesdon, or how the Board's asserted misinterpretation led to an erroneous outcome. See CNR/Lorion Brief at 16-

17. Their complaint is thus wholly lacking in merit. See Georgia Power Co.-

(Vogtle Elecide Generating Plant, Units 1 and 2), ALAB-872, 26 NRC 127, 131 32 (1987).

4, According to l. orion /CNR, the Licensing Board erred in directing FP&L to file a reply to the intervenors' opposition to the motion for summary disposi-tion, and this ermr "may have resulted in substantial prejudice to intervenors "

CNR/Lorion Brief at 17; They acknowledge the Board's statement that, because the Rules of Practice do not provide for such a reply, it did not consider the

= FP&L reply and made its decision " solely" on the record prior to the motion,

- the FP&L motion itself and supporting documentation, intervenors' response and supporting documentation, and the NRC staff's response and sulporting

' documentadon. LDP 90-4,31 NRC at 63 n3. Nevertheless, Lorion/CNR be-lieve that the Board members "may have read the Reply and been influenced by -

the arguments contained therein." CNR/Lorion Brief at 19, As evidence of this asserted influence, 'ntervenors point to the Board's comment that "it appears

- 499 1

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Otat Intenenors' concern with strain rate in fact relates to fracture toughness requirements for the danger of pressurized thermal shock, a matter that has been excluded.,om this proceedmg." LilP-90-4, 31 NRC at 70 (eitations omitted).

'1 hey suggest that, because stiain rate was hnt raised as an issue in intenenors' respense to the IT&L motion for summary disposition and IT&L's reply thereto addressed the matter, the Board was hkely intluenced by the latter's arguments.

'lhe one example of assertedly isnproper iniluence cited by LorioWCNR provides no basis whatsoever for not taking the Itoard at its word that it did not consider the IT&L reply in reaching its decision. The lloard's discussion of strain rate cites a Corr. mission regulation (10 C.F.R. t 5041) and the Ikiard's own earlier decision concerning the proper scope of the proceeding (LBP 15, supra note 3,29 NRC at 503-G1), it is reasonable not only to assume, but also to expect, that Licensing Boards would be aware of and free to rely on both in rendering decisions. Further, as the staff points out, because it is an adjudicatory board's very function to review and make determinations as to the admissibility of evidence, presumably it can do so without compromising the outcome by consideration of inadmissible inaterial. NRC Staff Brief at 24.

Lorion/CNR's argument in this regard fails for other reasons as well. Ihr one, Dicy do not identify the " substantial prejudice" they "may" have experienced.

Moreover, it is by no means clear that the Board even erred in requesting ITAL's reply. Although the rule on summary disposition provHes dial no such replies "may Im entertained," 10 C.F.R, 5 2.749(a), it does not prohibit a Licensing Board in its discretion fium ordering the filing of further pleadings in connection wit'a summary disposition. Such authority is surely encompassed within the 30ard's general powers under 10 C.F.R. 5 2.718, subject, of course, to its exercise in an eventumded manner. See also 10 C.F.R. 5 2.730(c). In this case, given that intervenors' Contention 2 does not specifically mention " strain rate" and that this discrete point was not raised until the filing of their response to IT&L's motion for summary disposition, the Board's original instinct in giving IT&L the opportunity to address the matter was the right one.

5.

Intervenors next maintain that the Licensing Ikiard erred by allegedly adhering strictly to formal rules of evidence, and that this prejudiced their case, in this connection, they object to the Board's finding that, under 10 C.F.R.

I 2.749(b), Ms. Lorion was not competent to provide testimony on the technical matters at issue. They also reiterate the complaint, addressed supra pp. 497 98, ahut the Board's treatment of Dr, Sih's letters.

Once again. Lorion/CNR's characteri/ation of the Board's decision is at odds wiW reality. 'Ihere is no suggestion anywhere in the ikiard's opmion that, in granting IT&L's motion for summary disgusition, it applied die formal rules of evidence or, indeed, any rules c/dier than the Commission's Rules of 500

^

^

Practice.sllhe Board also conectly determined that, because Ms l. orion did "not claim any expertise in metallurgy, or in inaterials or mechanical engineering,"

or " provide any indication of training or specific experience,, dat wouhl qualify her to address the technical issues in this Ivoceeding," she was not

" competent" for the purposes of 10 C.F.R. 5 2.749(b). Lilp 90-4, 31 NRC -

at 64. That prevision requires any affidavits sulunitted in connection with a motion for summary disposition to " set forth such facts as would be admissibic in evidence" an1 to "show aflitmatively that the affiant is competent to testify to the matters stated therein." Even if this language could be considered somewhat ambiguous, the Commission's rules impose a general requirement on all evidentiary submissions that, in order for them ta be admissible, they must be " relevant, material, and reliable " 10 C.F.R. 6 2.743(c) (emphasis added). For evidence on highly technical subjects (such as the resportse of reactor vessel materials to neutron irradiation and tem [crature variables) to be considered " reliable" and thus admissible, the proponent thereof must show her or his qualifications to sponsor and discuss such evidence. Ms. Lorion failed to doso.

That does not mean, however, that the lloard could not consider the orgwnent supplied by Ms. Lorion in her response to the summary disposition motion. In fact, the Board did just that, as is evident from the discussion of intervenors' tuguments throughout the decision before us on review. Sec LDP 904,31 NRC at 65,69 71.

6.

Lorlon/CNR see conflicts between the position of an NRC staff expert and that of IT&L's witness concerning why a surveillance capsule removed from

- Unit 4 showed a higher ru" of embrittlement than similar specimens from Unit

3. Specifically, intervenot, contend that, in responding to their interrogatories, one NRC stalTer stated that "llux IOt is only of minor importancu in determining the sensitivity [of certain welds used as surveillance materiall to radiation embritdement." CNR/Lorion Brief at 24, but; according to intervenors, another staff witness, as well as Fp&L's expert, actually attributed the higher degree of embrittlement to alleged dilTerences in "llux lot number." Ibid. In interver ors' view, this " conflict [] in the record" demonstrates a genuino issue of material fact that cannot properly be. resolved on summary disposition._ Lorion/CNR also telieve that this asserted conflict raises a question as to whether FP&L has satisfied the Integrated Surveilkmec Program requirements and tvhether diere is a danger to the public heahh and safety. Ibid, Intervenors' basic premisc - that there is a conflict in the record - does t

not withstand scrutiny. FPAL's expert witness stated that the impact of the 8The Omnmission. however.has endwied rehence on the starwl4rd ur Ride 102 or the Fedal him or Evidaea tur bigmg whether a pngwnve wancu quehfir-s se an espert see DuAs 1%er Co (Waham IL MWuire i-Wdaar Station. Unita 1 and 2). AIAll(49. Is NRC 40,47s 0957).

501 l.

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

difference in ilus lot numbers is " unclear." Licensee's hiotion for Smnmary Dispution(Sept. I1,1989), Afhdasit of Stephen A. Collard [hereinaltet Collard Allidavit) at 27.* Although he o!Ters the vanation in llut tot numbers as one of four possible explanations for the Jiscrepancy in test results, he describes this as "of secondary importance," Id. at 29. In response to intervenors' intenogatories, NRC staff witness llarry J. Elliot stated that "the !!ut tot is not considered important in determining the sensitivity of the weld to irra hation embrittlement."

NRC Staft Response to (CNR/Lorion's] First Set of Discovery Regnests (Aug.

28,1989) at 7. We see no meaningful ddierence between these two positions.

Moreover, the staff and l'P&L agree that there is na reason to exclude the results of any of the surveillante tests hom the data used to due mine the new pressure / temperature limits for Unit 4. The weld samples in ooth Units 3 and 4 were fabricated from the same heat number and thus have essentially the same copper and nickel content (the elements that are of importance in irradiation embrittlement). Response of NRC Staff in Support of Licem.ec's Motion for Summary Disposition (Oct. 19, 1989), Affidavit of B:ury J. Elliot [ hereinafter Elliot Affidavit) at 8 9; Collard Attidavit at 27. The staff also points out that the data provided by the Unit 4 specimen are within the expected range of vahles.

Elliot Aflidavit at 10-11. In this circumstam;c, we are unable to find any ;'enuine dispute as to a material fact or any question as to FP&L's compliance with ISP requirements. Accordingly, Lorion/CNR's argument fails.

7.

Intervenors strenuously object to the Licensing Board's finding that they were, in essence, sceling to modify the Commission's rule establishing ISP requirements,10 C.F.R. Part 50, Appendix 11. See LBP-90-4, 31 NRC at

71. They maintain that they were merely challenging whether 1*P&L met the requirements of the program, as specified in Appendu 11, and that this was made clear to the Board throughout the proceeding. Lorion/CNR urge that Unit 4 data be used to set revised pressure /ternperature limits, and they also contend, as they did before the Licensing Board, that FP&L should be required to have a written, detailed contingency plan la meet ISP requirements.

We are not persuaded by intervenors' arguments. Even if the Licensing Board mischaracterited their complaints (and we do not suggest that it did so), it would be harmless error at worst. The Board clearly addressed what I. orion /CNR claim was their point - 1.c., that FP&L has not satisfied the requirements of the ISP.

The Board specilically found "no evidence that [lTAL} has donc anything other than satisfy the requirements of the integrated surveillance program approved for use at Turkey Point in 19S5 pursu:mt to Appendit II." Ibid. It stressed that the ISP specifically authori/es reliance on data from Unit 3 in assessing fracture m cot:ua exp!.m it i w hi ha rmne er mire,r uis to.! or ib.,,wenis uw wu.;.t m the prmhaum.4 ma 6

M4 ur ong.nal ht tna Ibn sa a omm41 that se u,cd o pcmg. shwdve, is tauht4ta mumal ed unleasable mide sukamca m the surf aas or nide coCard AfLlant si 26 n i 502

F toughness of both Units 3 and 4. and that "{tlhe Appendix 11 requirement for -

a contingency plan is, on its face, satisfied by the existence of two similar units each with surveillance capsules installed"; no separate written statement is required. Ibid.

We also find that the Licensing Board's conclusions are consistent with the

- language of the pertinent regulatory provisions. Appendix 11 to Part 50 requires a material surveillance program to monitor changes in the fracture toughness properties of ferritic materials in the reactor vessel beldine region resulting 4

from neutron irradiation and temperature variations. An integrated surveillance program "for a set of reactors diat have similar design and operating features" is explicitly authorized under Appendix II, and "[tlhe representative materials a for.urveillance from each reactor in the set may be irradiated in one of the reactors." 10 C.F.R Part 50, App. II, iII.C (emphasis added).

on the Unit 3 data in setting pressure / temperature limits for both Units 3 s

e

,. a thus in keeping with Commission requirements. As for the contmgency plan requirement, found in Appendix 11 section ll.C.3, the regulations do not prescribe what form that " plan" must take. It appears to be enough if there is assurance in the ISP itself that the " program for exh reactor will not be jeopardized by operation at reduced pour level or by an extended outage of another reactor from which data are expected." Id. lil.C.3. As the staf f imints out, if there were an extended outage or period of low operation at one Tbrkey Point unit, FP&L "would rely on the surveillance capsules in the operating unit or place all the capsules in the operating unit." NRC Staff Brief at 35.

8.

LoriorVCNR's concluding argument is that the Licensing Board's " con-duct throughout this proceeding has been prejudicial toward the citizen in-tervenors and not in keeping with the spirit of the Atomic Energy Act."

CNIVLorion Brief at 28, They also contend that "the Board's actions may be part of what appears to be a growing and concerted effort by the Nuclear Regu-latory Commission to severely restrict citizen participation on important nuclear safety issues." Ibid. But other than their argument (already addressed supra pp.

500-01) that the Board erroneously applied the formal rules of evidence in this

. proceeding, intervenors supply no examples of the claimed prejudice. Moreover, our review of tie record and the Board's decision reveals that this proceeding was conducted wholly in accord with Coinmission rules and policies, i

l l

503 i

l

{

Appellant Nuclear Energy Accountability Project is dismissed from tiis pucceding. The Licensing lioard's decisions, LilP.Mb4,31 N1(C 54, and LllP-Mk5,31 NI(C 73, are affrmed, It is so Ol(del (ED.

FOlt Tile APPEAL llOAl(D Darbara A Ttunpkins Secretary to the Appeal lloard 504

Cite as 33 NRC 505 (1991)

ALAB 951 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

Christine N. Kohl, Chairman Dr. W. Reed Johnson G. Paul Bollwerk, Ill in the Matter of Docket No. 9999004 (General Lleense Authority of 10 C.F.R. 6 40.22)

WRANGLER LABORATORIES, LARSEN LABORATORIES, ORION CHEMICAL COMPANY, and JOHN P. LARSEN June 25,1991

%c Appeal Board reverses and remands the Licensing Board's initial deci-sion in this enforcement proceeding involving an NRC staff order that revoked the authority of Licensees to engage in the chemical processing of depleted uranium pursuant to a general license under 10 C.F.R. 540.22. The Licensing Board had modified the staff order so as to permit Licensees to continue oper-ating, subject to certain conditions. The Appeal Boani, however, concludes that the Licensing Board erred in several rulings of law, warranting reconsideration of the staff's revocation onter.

SOURCE MATERIAL: LICENSES Section 62 of the Atomic Energy Act (AEA),42 U.S.C, 0 2092, authorizes the Commission to issue general or specific licenses for the transfer or receipt in interstate commerce, or the transfer, delivery, receipt of possession of or title to, or the import into or export from the United States of source material.

505

SOUltCE hlATEltlA1,: DEFINITION Acting pursuant to its authority under AEA sections 117. and 61,42 U.S.C.

ll2014(t),2091, the Commission has defined source materia' to include, inter alia, "[ultanium or thorium, or any combination thereof, in any physical or chemical form." 10 C.F.R.140.4.

SOUllCE M ATEltlAL: SPI:CirlC 1.lCENSES Under 10 C.F.R. 540.20(a), the Commission issues " specific licenses" to named persons upon applications filed pursuant to de regula'hns in Part 40.

SOUltCE hlATEltlAL: GENEllAL LICENSES "mt Under 10 C.F.R.140.20(3), a " general license" is ei -

of an application with lle Commission or the issuance o ts to a particular person - in effect, an authortration granteo i -

3 to anyone conducting activities pursuant to the parametery regulation. See U I40.22.

RULES OF PRACTICE: CllALLENGE TO COhlMISSION ltl:GULATIONS Under 10 C.F.R.12.758, challenges to Commission regulations in initial licensing proceedings are generally foreclosed.

GENEllAL LICENSE: STANDARDS Under 10 C.F.R. I40.22(a), the Commission has authorized and issued a genend license for the use and transfer of not more than fifteen pounds of source material at any one time for research, development, educational, commercial, or operational purposes. A general licensee may not receive n, ore than a total of 150 pounds of source material in any one year, REGULATIONS: INTERPRETATION "As is die case with statutory construction, interpretation of any regulation must begin with the language and structure of the provision itself. Ihnher, the entirety of the provision must be given effect. Although administrative history and other available guidance may be consulted for background information and the resolution of ambiguities in a regulation's language, its interpretation may rmt conflict with the plain meaning of the wording used in the regulation," temg 506

I island 4Jghting Co. (Shoreham Nuclear Power Station, Unit 1), ALAll 900. 28 NitC 275, 288 (eitations omitted), review declined. C1.18811, 28 NitC 603 (1958). See alw Kerr.McGee Chemical Corp. (West Chicago Itare [httths Ricility), ALAll 944,33 NitC 81,132 33 (1991), petitionfor review pending.

GENEllAl, l.lCENSE: STANDAllDS In order to be in conformity with section 40.22(a), a general licensee cannot have on lumd at any one time more than hiteen pounds of sourre material, whether in the form of unprocessen, processed, or waste matter, A general licensce's receipt of source material likewise is governed by this limitadon to the extent that il cannot receive any amount of material that would cause it to exceed the limitation of fifteen pounds >n hand. Ritther, while there is no limitation on the numter of source material consignments a particuhtr general licensee can receive, each licensee is limited to the receipt of a total of 150 pounds of source material in any calendar year, itEGULATIONS: INTEllPill'TATION He publication in the Federal Register of the Commission's statement of considerations for a regulation essentially provides notice to all interested persons of the contents of, and thus the Commission's intent regarding, that regulatory language. Ser Federal llegister Act,44 U.S.C. I 1507, ATOMIC ENEltGY ACT: COhlhllSSION AUTilOltiTY Section 161b of the AEA,42 U.S.C,5 220l(b), authorit.cs the Commission to establish by rule, regulation, or order sich standarda and instructions to govern the possession und use of source material as the Commission may deem necessary or desirable to promote the common defense and security or to pmtect health or to minimize danger to life or property. See also id. 5 2201(l).

ItEGUI.ATIONS: SOUllCE hlATEltIAL (10 C.F.it. PAltT 40)

SOUllCE hlATFill AL: IIEGULATION Sect ons 40.41 and 40.71 n ake clear that an order is an appropriate means i

for modifying the terms and condiuons of any license issued under 10 C.F.it.

htrt 40.

507

SOUltCE MATI:ltl Al.: LICENSES in accordance with section 62 of the AEA,42 U.S.C. 5 2092, the Commission can determine that quantities of source material utillied for certain specified purposes are so " unimportant that no license is required. Scc 10 C.F.R. I 40.13.

AGENCY DISCitETION: RUI.EMAKING Olt ADJUDICATION ll is within an agency's dacretion whether to use either rulenuking or adju.

dication (i.e., orders) for announcing new requirements of general applicability.

SEC v. Chencry, 332 U.S.194, 201-02 (1947); NIRB v. Bell Acrospace Co,

416 U.S,267,294 (1974).

ENi'OllCEMENT ACTIONS: LICENSE REVOCATION OllDERS Under the Co umission's enforcement policy, the issuance of a license revocation order is appropriate when, among other reasons, a licensee is unable or unwilling to comply with NRC require:nents or refuses to correct a violation, or for any other reason for which revocation is authori/cd under section 186 of the AEA,42 U.S.C. 5 2236 (e.g., any condition which would warrant refusal of a licensee on an original application).10 C.F.R. Part 2, App, C, iV.C(3)(a),

(b), (e).

EQUAL ACCESS TO JUSTICE ACT: INTERPRETATION

'Itc Equal Access to Justice Act,5 U.S.C,6 5(M does not permit a licensee to obtain attorney's fees as recompense for its participation before the Commission in an enforcement proceeding. See Admnced MedicalSystems,Inc (One Pactory Row, Geneva, Oil 44(M1), ALAll 929,31 NRC 271 (1990).

APPEARANCES Ann P, llodgdon for the Nuclear Regulatory Commission staff.

John P. Larsen Orem, Utah, for licensees Wrangler Laboratories, Larsen Laboratories, Orion Chemical Company, and John P. Larsen.

508 i

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

DF. CISION Tids appeal is before us on the NRC staff's request for icview of the Licensing !!oard's initial & cision, LilP.89 39,' inodifying a staff enforce:nent order, flhat order revoted the authority of John p. Larsen, doing business as Wrangler Laboratories, Larsen Laboratories, and Orion Chemical Company (hereinafter referred to as Liecnsecs), to engage in tir chernical pmeessing of depleted uranium (DU) under a general license autho" cd i

") C,13.lt. 6 40.22.8 Ilecause we conclude that several of the focal legal p..

underlying the lloard's & cision are in ertur, we reverse its determination and remaiwt the matter for further consideration consistent with this opinion.

1.

IIACKGitOtlND As is pertinent here, section 62 of the Atomic Energy Act of 1954 (AllA),

as amended, provides that luhdess authswired ty a general or specine Inense issued by the Cimindsske whidi the Csatunisdat is authistsed to issue no person may transfer tv tucive in iederstate aunrneste, transfct, skliver, receive possciske of tw title to, os imgutt hen or espwt itsen the 11 uted States any source mascrial,,, enregs that tkenses shallin4 t,e required for quantince or storse material whkh. in the opinks ul the Catanissam, me smunimetant.'

To implement this legislative grant of licensing authority for source snaterial such as DU,' the Commission in 10 CJr.R. 0 40.20 has provided that "[s1pecific licenses are issued to named persons upon applications filed pursuant to the regulations in [lbrt 40]."8 in contrast, a " general license" is one " effective without the fding of applications with the Commission or the issuance of licensing documents to particular persons"* - in cffeet, an authorization granted by operation of rule to anyone conducting activitics pursuant to the pammeters estab!!shed by the regulation.

• lhe distinction between general license authoritation and specific license authoritation has practical as well as legal significance. Notwithstanding the principal limitation of conducting operations subject to a cap on the amount of 8 30 NRC 746 09891 33n 53 Fed Res 32,123 (19sst 3 42 U.s C. ( 20u -

4Actmg rum,ani in its suiNway under AI A autusa 11s smi 61,42 U s C ll2014M,2mt, uw Omwm si.m lies defbed suune meenal to animia, pun saa. "tuhaousu er themum, et any unnh nsuun omvi.r> m any i

phyw41 or themisal rawm? 10 Cl;lt. l404 8 10 CF R.140 20M

'Id 509

. ~.

s

- source material involved, operatiott urnlet a genettd license is usually vesy desirs able for those firms that can conform to the peninent regulatory sequisements, particularly small businesses such as are involved in this proceeding. Ilesides avoiding the administrative burdens associated with a specific license, a him conducting uctivities pursuant to a general license is exempt f om a numler of de regulatory restrictions imposed on specific licensees, which can involve sig-nificant expenditures to ensure complianecJ With dils less structured regulatory scheme, however, comes the potential for a less structured licensee appnuch to the safe handling of the albeit limited amounts of source material general license holders are alloud to use. indeed, it does not seem imwarranted to conclude diat tensloru between operadonal economics and operadonal safety played a significant role in shaping the events that have cuhninated in the proceeding now tefore us.

The factual circumstances smTounding the enforcement nedon at issue are described in some detail in the Licensing floard's decision? We provkle a somewhat briefer, summarlied exposition. John Larsen is sole owner and proprietor of Orien Chemical Company and Larsen 1.aboratories, located in provo, Utah, and Wrangler Laboratories, located in livanston, Wyoming, lhese firms have engaged in the chemical processing of DU to produce uranyl acetyl acetate, a substance used in the production of Delurtment of Defense munitions.

The revocation order at issue here is not the first enforcement action Licensees have faced in the ten or more years Atr. Larsen has been conducting his DU processing activities. Citing various regulatory violations identified during an inspeedon of the Orion Chemical Company facility (including exceeding source material possession limitations imposed by 10 C.F it. I 40.22, failure to maintain and make records available, and unauthorized DU distusal), in September 1982 the NitC staff issued an immediately effective suspension of his general license authorization.' Subsequently, on the basis of hit, Larsen's corrective actions, in October 1982 the staff issued an order rescinding the general license suspen-siondalhe staff nonetheless determined det the violations at isque warranted the imposition of a civil penalty,:which it proposed in December 1982 aral which hir, Larsen paid in htarch 1983."

Also as a result of the 1982 inspection, the stafI determined that hir. Larsen's

. DU processing activities should be conducted pursuant to a specific, naher than a general,' license. An Ni<C specific license was issued to larsen Laboratories 1Cevue al il t # 2. 2n2. 212 (sti perima imamd under 10 ci: R ha 40 are s@t sa :=gwanaus or 10 CF R. Paris 19,20, and 21) wA wr $ 40 22(b) (perusis,5=ratmg uner a gaiens! Iwam are enante run the p"awWuas or 10 Cf R Parts 19,20, enJ 21).

Jee I.DP-84 39.30 NRC at 751 s),762 f.4

'See 47 Fed. Reg 40.953 0932x N Sve 47 l ed. Reg s0.128 098D.

H,e 1.nP 89 39,30 NHr' at 7$t.

5 510

in Decemlier 1983, but the agency retained usersight responsibility for this beense for only a little more dan a year. As a consequence of the State of Utah's obtaining " Agreement State" stains under AEA section 274b," in May 1985 the State reissued a specific license to Larsen Latuvatories. Mr.

1.arsen, however, soon ran afoul of State authorities. In November 1986, the Utah Delurtment of llealth issued an immediately clicctive order that suspended Larsen taloratories' specific license and imposed a civil penalty, in its suspension order, Utah required that Mr. Larsen complete a number of specified actions. In a January 1987 settlement agreement, a portion of the proposed civil penahy was suspended and Mr. L:usen acceded to performing the activities required by the order. The reduced civil penalty was paid, but the license suspension remained in effect because Mr. Larsen failed to comply with his promises to move to a production facility approved by State officials Otrough license amendment procedures and to hise a qualified radiation u

protecdon otheer Nor was the assumption of State control over the Larsen laboratories' specific license the end of Mr. Larsen's deal!ngs with the NRC. Acting on allegabon>

presented by authorities in the nonagreement state of Wyoming, in November 1987 the NHC staff conducted an inspection of his Wrangler 121 oratory chem-ical processing facility in Evanston. As a consequence of this inspection and a followup enforcement conference, in November and December 1987 Mr. Larsen and the staff entered into a series of agreements, emixxlied in Confirmatory Action Letters (CALs), by which he made a commitment to dispose of all DU remaining at the Evanston hicility and to have employees wear lapel air samplers and submit urine samples for uranium analysis. The staff found his compliance with diese agreements unsatisfactory, however, for in Febmary 1988 it issued an immediately effective order suspending Licensees' use of source material under the general license authorization. As justitication for the suspension, the staff cited failures to provide promised bioassay information, evidence of ap-parent internal contamination of employees, contradictory statements made by Mr. Larsen to NRC and State officials concerning DU pmcessing activities, and inadequate proecssing controls resulting in facility contamination exceedmg NRC guidelines. In addition. the staff ordered Mr. Larsen to decontaminate the Wrangler facility and to dispose of all licensed material."

As is permitted by 10 C.F.R. Q 2.202(b), in March 1988 Mr. Larsen submitted a written reply to the suspension order. From this resixmse, the statf was able to identify what it concluded were additional deficiencies on the part of Liecusees, un usc pmm Ufee (SitI9 W,30 NkC 4171471. He Utah spatrw twenu

• s abwed to engm se theNe 31.1988 whde st.D under soapmim See Doard Ndeiusi Na 940t (I ch 8,19w). Imi at 1.

14 5,# s1 i c4 Reg 7452 0938')

511

.m

!acluding transfer and receipt of source material in amounts exceeding general licensing limitatkins and deviauons inun various CAL provisions reganting employec urinc samples and bloassay results, iteferencing these purported failings, as well as violations of the 1986 Utah suspension order, Licensecs' fa lure to provide certain facility protective equipment, de contamination of the i

Wrangler facility, and Licensces' history of continuing violations as reflected in de various NRC and Utah enforcement actions described previously, de staff Issued the revocation order that is the subject of this prucceding.u Pursuant to section 2,202, Licensees requested a hearing. In June 1989 the Licensing 11oard conducted a threculay evidentiary proceeding during which it heard testimony from staff witnesses as well as from Mr, Larsen, his spouse, and one of his employees '* In response to the staff's testimony detalling his purported fallings, Mr. Lar sen gencrully ascribed these difficulties to de travails of a small businessman in a complex and demanding regulatory environment, While acknowledging that Mr. Larsen had many problems in this regard, in its initial decision the floard liottedicless refused to stistain the staff's revocation order in its entirety, it instead concluded that the mc,st significant of the alleged violations did not consthute rieviations from applicable generallicense requirements and that the multiple violatkins that were demonstrated by the staff were insufficient to support license revocation," While Lins permitting the Licensees to retain their general licensing at.thorintion, the lloard found that the requirements of 10 C.Folt. litri 20 were applicable to Licensees and, accordingly, authorized the staff to impose " routine and systemic" employec urine testing requirements upon Licensees as a condition for further opera.

tion,$8 The stan challenges various aspects of tie Licensing floard's legal and factual conclusions relative to the revocation orde-" We fmd it unnecessary to reach u3ne s3 f =L Reg. 32,125.

I' Tt. 77 721 -

U3ee t.nP.89-39,30 NRC at 761.

HM Nha lua part, Mr. l.steen has aulinisted leuers desed Manh s and April iI,1990, in wiude he sumans the vehJtty et catain recent sethms by thah regarJing bis activisice in that state and queau,ma whaber the re holeswat hasants associaal with DU are surliaent to warrait NRC regulausy cururut liy later Jatal Aptd 17,1990, we advuod Ms 14nsi that we would anat tbse letters sa his leier un anal Wkh regard to the sututance d this mnespisidawe, we hvo no jurudwtion in muutain his ownplaum ciswaming the Lash state authontics, As to Mr.1.arsen's seemJ argumera, uniter the terms or 10 CF.R. l 2.738, the shallcoge to de Cunveiashm's regulatwy authmiy undmisally would be toredueed an an lential beamma sees as a challange to om Conunisaiist's segulatuss that does nia meet the requimnerna d that rule. By us ternu, however, sectmn 2.73s se a s spptwahle here because this is not sa "bubal twamng' case.10 C.liR.

6 2.755(al See U.s, Dep's or Intwo Annwy Courers Ar.sou d ee ak Ahumantrerive Precedere Act S633 (1947). Nanaheless, the rmwJ berm un rully sugvms a fht ng that the aumuon or NRC segulausry awhety i

oww the source material involved in tMs tnataiwe la arynynatat See Tr. 247R l%rtharmore, any uvnplainta cmcernmg the empe or om NRC's autharay in tNs waani ahould be adJtessed to the Coogress, wtuch ha Jaarmmed, through the AIA, thes snurse maiorist 1.Le Do is to he regulmal, 512 i

w.

p.,

y -,-

re------

-- g

m all these issues," however, because we conclude that the error extant in several of the Board's conclusions of law mandates a remand of this case for further consideratiort.

11. ANALYSIS A.

A principal staff concern involves the Licensing Board's interpretation of the source material amount limitations specified in 10 C.F.R. t 40.22. Sec-tion 40.22, which is titled "Small quantitles of source material," specifies in paragraph (a) that:

A general licerne is hereby issued authorizing commercial and industrial firms, rescarch, edi.catimal and medical insututioru and Federal, State and local govemment agencies to use and transfer nm more than fifteen (15) pounds of source material at any me time for tesearch, devskyment, educational, unmercial or operational purposes. /, person authorised to use a transfer source matenal, pursuant to this general license, may not receive more than a total of 150 pounds of sourm material in any one calendar year.

According to the staff, this provision's weight limitation on the "use" of source material precludes any general licensee from having on hand at any one time more than fifteen pounds of source material, a limitation that it found Licensees had violated on several occasions. Under the staff's interpretation, this limitation applies without regard to whether the source material is stored awaiting processing or scientific. evaluation, is actually being processed or analyzed, or is waste matter, la contrast, the Licensing Board interpreted this provision as not including material awaiting processing / evaluation or waste matter. By the Board's reckoning, as we understand it, a general licensee may stockpile and thus have on hand an unlimited amount of source material, so long as it does not actually engage in processing / evaluation operations involving more than afteen pounds of that material at any one time, As a consequerice, the Board refused to countenance any of the staff's charges of section 40.22 possession ll.nitation violations by Licensees,2 In resolving this dispute our previous guidance concerning the interpretation of a regulation is instructive:

As is the case with statutory :.onstruction, interpretation of any regulation must begin with the langesge and structure of the provision itself.,,

Further, the entirety of the provisim must be given effea.., Ahhough administranve Estory and other available guidance may be coruuhed for badground inforrr.ation and the ruolution of ambiguities

1. sas. 8 f., NRC Staff Brier on Anal or illP-8919 (Mar. 5, t WO) at 8 9,11 10 l

M ses (JIP 2909,30 NRC at 753-57,759,769 70. 7ss,787.

I I

513 l-I l

in a ergulation's language, ut interprNasn snay not onll,ct with tic plain meaning or the u

wordmg und in that regulatim in accord with these guidelines, we focus first on the language and structure of the regulation.

%c first indication of trouble for the Licensing lloard's interpretation is foand in the title of the regulation, which refers to "sinall" quantities of source materis.'. Under the Licensing Board's resolution of this construction dispute, tiere exists the possibility that firms such as Licensees can operate tsnder the relaxed strictures of general license authority afforded by section 40.22, yet have unrestricted control over and inimediate access to a potendally unlimited amount of source material, as well as unlimited amounts of wasic material. This

- iJ hardly consistent with a provision intended to deal with "small" amounts of source material.

An even more cruebl element, however, is the languas of paragraph (a),-

which imposes the fineen-pound limitation on the "use" of source material for those that desire to operate under general license authority. As the wording of that paragraph makes apparent, in order to fall within its terms, a licensee must "use" the source mmerial for certain specified purposes, including performing re-search, development, educational, commercial, or operational functions. Unlike some other general license authorizations in Part 40, which involve essentially passive control over source material," these specified functions embody ongoing analytical or operational processes. Consistent with the dynamic nature of these functions, source material "use" necessarily encompasses more than merely the act of physically handling the material as part of an operational or evaluative process. Rather, the "use" of this material in the process begins when it is re-ceived by the general licensee to be employed for one of the specified purposes and continues until such time as it is t~ansferred.

The Licensing B(mrd declined to accept such a reading of paragraph (a). He Board placed its reliance instead upon the canon of construction that the whch l

l of a regulation must be given cifect." In this regard, it found significant the fact that the terms " possess" and "use" are both contained in pamgraph (b) of sec-tion 40.22, which provides an exemption from certain regulatory requirements

- for those k ho " receive, pessess, use, or transfer source material pursuant to the Das L!and rigus Co. (shoreham N2 ear 1%*c sunm, taut 1), AL.AB-9uo. 28 NRC 715.218 (citamms emuneJ). renew decimed. CtJ.88-11. 25 NRC 603 (1958). See alw Kerr McGee CA,mel Corp, (West umsgo Rare Earths licilay), Al. ABS 4. 33 NRC 51.132 33 6 991). res.honfor renew peng-1 D,e. e s.10 C.F.R. I 40 23 QaneralI, cense authaned fw p.escuiun of uansant dupnara of mere materaD; 3

id i 40.23 (acneral heense for the custody and larg istm cars uf certam urmwm and thanum mill tadmas d.spaal attest MSee West CAic. age. 33 NRC at 13213.

514 L

l l.

l L

1

general license "'8 Accordmg to the Board, this establishes that paragraph (a),

whleh includes only the term "use," is not intended to place any limitation on the amount of material that a licensee can " possess" (i.e., have on hand "at any one point in time").26-i The language of paragraph (b) undoubtedly creates some ambiguity regarding the scope of the term "use" in paragraph (a). As our previous guidance indicates, however, a primary tool for resolving such uncertainty is the regulatory history of the provision. On this score, the staf f points to a 1960 notice of proposed rulemaking that advanced a compNic revision of 10 C.F.R. Part 40, including sc4; tion 40.22. In that notice, the Commission's predecessor, the Atomic Energy

- Conunission, declared:

i 1hc prepard amendmera wou!J screrally ikense panession and sue c( ac to 15 poundr -

c{ conlauncJ uranswn or chariwn or any extbioution theres(at any one time by censin classes of users.,, 'lhis general heense is subject to an urutual pissession limit of 150 pounds of contained utardwn or thurhun or any comidnathan diereof. Under uds provision

- many users of small quantities of uraidwn would le rehewed of die nece_ssity of obtaining a specific hcense. Such gencial licensees would also le exemped inen cunphance with the

-_ puvision of Pan 20 of dds chyter."

4 Subsequently, referencing the ' proposed rule's " detailed statement of comidera.

tions explaining tie provisiom of the following amendments," the Commission adopted the regulations as proposed (with one exception not pertinent here),

including language in section 40.22 virtually h!cntical to that now at issue.28

'Itc Licensing Board denominated this explanation as "at best unclear "" We, however, fmd it dispositive of the interpretative disagreement between the Board and the staff. As the Commission's statement makes evident, in order to be in conformity with section 40.22(a), a general licensee carmot have on hand at any one time more than fificen pounds of source material, whether in the form of unprocessed, processed, or waste matter " A general licensee's receipt of 1884mu,al language is fowat vi 10 CDt. 6 40 22(c) whd pnkhas pasma mW *:neave, pauss, une or transfer sourse maisnal punaant to the guerst hercae insucJ m pregiaph (er' rnwn eJndmatenng ssente matenal m bman beings tw nwJacinal ca oikt purpses, 26tJIP 89 39,30 NRC si 751-U25 FM Reg 8619,1619 (1960) temphaus adJcd).

as 26 Fed. Reg 284,254 (19641he wiguwt wurdes or secum 40.22 was revincJ in 1950 to us curriss fwm.

The change in lanauss*. however, in rmt perunet to oio issue Wfure us hers. Cowwe 25 FeJ Res at 8621 wuA 451d Reg. 55,419, $5,420 (1950x -

- "t,nP 84 39.30 NHC at 756 "By die soms kAca, we www this statement as shap<maive d any attans to escuse maman%4n6e with 10 CF R. I 40 22(e) mi the hans 4 e 14JL or abday to understand die caiau of me kna4uans imp ed by tha segu14uan The pbbcanon d tha Ctanissim espaium in the Fedeel ##guser esseniauy pnnlos maice to all intermicJ ptsuns nr Gio ruments or, and thus the Canimauun's knent regardang. the segulamry language.

See I sderal Reguter Act,44 U s C. $ 150L la any eve 4 the licemera bre certainly were on masce of this staff interpettauan at icast se eady as 1982, when Q>e staikx4 entonement astun Jes tJIP 89 39,30 NRC at 7fA70. '

~515

~

I source material likewise is gos erned by this limitation to die extent that it camut receive any :unount of material diat would cause it to escced the limitation of fifteen pounds on hand. Further, as the Commission's statement makes clear, while there is no limitation on the number of source material consignments a particuhtr general beensee can recche, each licensee is limited to the receipt of a total of 150 pounds of source material in any calendar year.

The Licensing Board's interpretation of the possession limitations specified in section 40.22 thus is in error and so we reserse its determination in this regard. Ihther, given that its legal ruling constituted the basis for its rejection of a number of alleged violations put forth by the staff as justification for its revocation order," we iemand this matter for further consideration of those charges as grounds for the staff's enforcement action.

B.

As a corollary to its ruling regarding section 40.22(a), the LicSnsing Board also concluded as a matter of law that, in the absence of an amendment of the regulation establishing the general heense, the staff has no authority by means of an order (or other formal enforcement action) to imfase additional requirements upon general licensees similar to those applicable to specific licensecs.n As a consequence, the Board concluded that certain staff allegations regarding regulatory violations could not be considered as justilication for its revocation order." he staff contests the Ikiard's conclusions in this regard, asserting that the Commission's bestowal of general licensing authority by rule does not I;mit its authority to utili/c orders (and other enforcement mechanisms) to place appropriate conditions on individual general licensees as may be necessary to protect the public health and safety.

Several AEA provisions speak to the Commission's authority to impose requirements and conditions upon licensees. As is pertinent here, section 1611 authorizes die Commission to " establish by rule, regulation, or order, such standards and instructions to govern the possession and use of,,, source material.,, as the Commission may deem necessary or desirable to promote the common defense and security or to protnt health or to minimim danger to life or property." Similarly, paragraph (1) of AEA section 161 permits the Commission to preunbe su h n gulauons or or&rs as it may deem nctessary.. O) to gmern any acuvtty authorind pursuant to hhe AEAl. incladmg standards and renrktims goverrung the & sign, laation, and operanon of facthnes used in the conduct of such activity, in order to pnmt heshh and to minimite d.inger to hfe or property "

h See eyra note 21 and saumpanyuig trat E See IEP-3949,30 NRC u 7so,754,781.

M See 4 si77L 732.784.

I'42 U.s C. 4 22010>) (emphans sJJed)

M.r 5 2201(i) (cmphaus added) t 516

Implementing these statutory provisions with regard to the regulation of source material are two especially pertinent Commission rules. The first of these is 10 C.F.R.140.41, which provides in pertinent part:

(a) Each license issued pursuant to the regulations in this part shall be subject to all the provisions of the l AEAl. now or hereafter in effco, and to all rules, regulatkes and orJets of the Commission.

(e) he Canmluion may incorporate in any hcense at the time of luuance, or thereafter, by alyropriate rule, regutatim or order, such adJitional requirements and condiduns with respect to the licemec's receipt. possession, use, and transfer of source or tnpunlud material as k deems appreiwiate os newssary in orJer to:

(1) Promote the common defense and security; (2) Protect heahh or to minimize danger of Isic: *to"I life or propeny; (3) Protect restricted data:

(4) Require sudi reports and the keeping of such reewds, and to gruvide for sudt inspectims of acdvities under the license as may be necessary or arpnpriate to effectuate the purposes of the I AEAl and reguladons thereunder.

In addition, there is 10 C.F.R. 540.71, a provision not referenced by the Licensing Board in its decision, which declares in part; (a) he terms and conditions of each license shall be subject to amendment, revision, or modification by reason of amendments to the I AEAl, or by reason'of mies, reguladons, or 1

crders issued in accordance with the [ AEAl.

(b) Any bcense may be revoked, suspended, or modified, in whole oc in part, fur any material false statement in the asphcation or any statement of fact required under sectic 182 of the (AEA),or because of conditions revealed by such applicadun or statement of fact or any report, record, or in;pection or other means whkh wtmid warrant the Commission to refuse to grant a license on an original agylicadun, or for violation of, or failure to observe any of, the terms and conditions of the I AEA), or the license, or of any rule, regulation or order of the Commission.

'As is evident, in each instance, the regulation clearly states that an order is an appropriate means for modifying the terms and conditions of any license issued tmder 10 C.F.R. Part 40."

In the I icensing Board's view, if the staff (or the Commission) finds that a particular firm's activities under a generallicense mandate additionallimitations or requirements in order to protect public health and safety, it cannot act to impose those conditions by order (or other enforcement mechanism); instead, a time consuming rulemaking amending section 40.22 itself or a " waiver" of the

' " Ahhough 10 Cf.R. I 40.7) speds in terms of "each Lcense" rai.her than 'leladiIwunse issued pus 94,1 to the regulaums in Llus pan." as is the reference in sectwn a0 41, the dennithm or "heense" in 10 Cf.lt ( 40 4 mdes a clear that the sererences have the sarna rneamng.

517 i

rule is required," 'lhe lunitations and requirements specified in section 40.22 dius would constitute the regulatory upper boundary for any general licensee attempting to operate under that section's aethoritation,

Undoubtedly, if the Commission wished to estabbsh a licensing scheme limiting its audiority (and that of the stalf) in this utanner, it could tulve done so. We can find no evidence that was its intention, Rather, as sections 40.41 and 40.71 inate apparent, the general licensing authorintion afforded by section 40.22 constitutes a regulatory foundation upon which, in the proper circumstances, the staff can impose additional constraints and conditions. Utwier die terms of those regulations any license authorintion, including Otat provided under a general license, is subject to mmutication in any particular instance by, for example, an order issued pursuant to 10 C.F.R. il2.202,2.2N, As with any other staff initiated enforcement action under 10 C.F.R. Part 2 Subpart 11, an order modifying a general licensec's authorintion must have a sufficient factual and legal predicate to warnmt imposing the particular conditions on the licensee. But contrary to the Licensing floard's conelusion, the fact that an order imposes requirements upon a general licensee in excess of those mandated by the regulation providing general license authorinttion does not disqualify it as a valid regulatory requirement,"

llaving identified the fundamental legal error in the Licensing limrd's justification for discot.ating certain purported Licensee violations as grounds for die revocation order, we nonetheless are unable to conclude that it necessarily follows that the result reached by die lic.trd was incorrect. As described by die lloard, the violations at issue were based upon the Liecusecs' (1) failure to comply with regulatory requirements regarding licensee technical competence, institutional capability, and equipment and facility adequacy, w hich requirements U Ind tBP 39 39,30 NKC et 750,781

• As a[pamni suppurt ror this cumlusam, the tscrueg floard rched urim a Cwrumsaum rmJeg ht general swrce matenal Wenae e.uwtues ut the speufied quanuucs "can be cmducted wahmt any unreasonshle hasani to hfe or perceny" 125 i e4 Reg at 5619 ) in caber wurda, the Cmuntamm has spearied ht authurard gener.. Iweius uuviucs do rud create an smerasimable haastd, bt haung so, the kart ww4 ruly m rr.dic heahh and safety umerns w angnes silatamal

+

pabha hulth and safesy con &ums 14 a'. 755 See she L at 788. ne Ganmisuun finha refervmed by the Duard, however, has no relevance to the case at bai, De qucaed statement pe%ns to quanituca or suurte mate.nal iaaaed rir cenam spoorte l purpees n s uwolved hors ht, in seconianes wah Ar A secuan 62,42 U.S C 4 2tm. the Cunmame conswers w be so "ununpurtant" ht no hcunie is repuoi 25 i ed Re6 at 8619, see 10 C.r R l 40.11 See else swire p. 5(y)

• Cona' ly, swen le Supmne Coures rewgiunm m casca such as SEC v. CAswy. W U s. 146,20102 (1947K m

and NMR v. Seti Aereapwe Ce,416 U.s 267. 244 (1974),that ti is wittua en agency's 4 cretum whether to une saber vulanding or ad;uacauon (ie, urders) tur annwncmd new nyuunnets or general applaahaty, we perveave no reanim ror rm,1mg ht the NRC has less pnwedurallautuds m tie 6nma the spent.s reqmrcmenta that may be nesessary in a parucular came to pisxt the puhhc heahh and safety la ihas regard. the tacenams lloard's umlumn atmut the need ror rulandmg to unpuse adatsmal smlaams upon general tamsces appean, in pan, tu have been ructed by na cmccan that the stalt should nie be pernuued to turn e gsewrel ha'nsee tnlo e speor,c hcensee by ontsimg the general kcnate In tuinply wuh L&Wital reqminuents See tDP-89 39,30 hkC et 750.755 Whde the admmuustave emciency or suA an endravtw may be quesuoruble, a,a not appamit hi si nu!J vadate any appinable petistdural rapiremeian 518

are applicable by rule to only " specific licensees"; and (2) use of inadequate controls resulting in facility contamination in excess of NRC guidelines,"

Although our reasons are different from those of 'he !!oard, we too harbor doubts about the ability of the staff to rely upon these purported violations as justification for a revocation order.

Under the Commission's enforcement policy, the issuance of a license re-vocation order is appropriate when, among other reasons, a licensee "is unable or unwilling to comply with NRC requirements" or " refuses to correct a vi-oladon," or "[fjor any other reason for which revocation is authorized under section 186 of the [AEA,42 U.S.C 3 2236) (e.g., any condition which would warrant refusal of a licensee on un original application)" The policy defmes a " requirement'~ as "a legally binding requirement such as a statute, regulation, license condition, technical specification, or order,"'2 nnd a notice of violation sets forth "one or more violations of a legally binding requirement."'2 Consis-tent with this enforcement policy, the Board correctly refused to consider the

" violations" underlying the staff's revocation order, unless the aforementioned

" specific license" requirements and contamination " guidance"" have been im-

. posed upon Licensees here as " requirements". (i.e., by prior order or some other legally binding requirement), or unless the failure of Licensees to follow those requirements and guidelines would warrant the refusal of a general license to Licensecs under section 40.22 " It is not apparent to us, however, that either of these circumstances exists.

Nonetheless, the potentially expansive nature of the Board's erroneous le-gal determination regarding the Commission's nuthority to impose additional requirements on section 40.22 general licensees by order leads us to conclude that the stalT should be given an additional opportunity on remand to address the issue of the validity of these purported violations as justification for the revocation of Licensees' general license authority, in addition, in light of the Board's extensive findings regarding the Licensecs' failure to comply with the terms of the CALs regarding urine sampling,*' and its apparent lack of findings "see 13P 89-39,30 NRC si 772,782 84,788.

10 C F.R. Pan 2, App C, i V.COXak (b), (a). The entartement puhey alaa declaw that issuance of a license revocanon aider is an awtopnata manenm when a twcnses "das mL sosped to a nonce of violatim wh1re a respmas was required" w "scruses to pay a rue required by 10 CFR Pan 170,"it iV.COXe), (J), circumstanees not aneged in dUs instance.

"Id (111 a.2.

OldiV.A.

• • see syre w.518 519 A acts 40.

48Rolanse to the secnon V.COXe) standard, see syra nas 41 and accianpanying next, the other nasais for whidi revocation is authorized by AEA se66cn 186 eaher am not awlicable hers (i.e., nding a fataa stataners in an awhcation or any staicment or fact required smder AEA secum 182,42 U.s C. $ 2232% or are subsumed within the policy staianent's avocadon order criteria V.COXs) or (b) 04, failure to construct or operate a facility in accordance with a cmstruction permit, hernse, or applicanon technical specincadma, or violatam or any AFA gmvision or Canrnauon regulaum).

see IllP-89 39,30 NRC at 774,779,78187.

519 l.

l-l^

~,

.. -. ~. - -..

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

i concerning the import of Licensecs' noncompliaree with the CAL proviskms-regarding lapel air sampling, upon remand the Board should give additional consideration to the extent to which this noncompliance, while evidently not violative of a legally binding requirement," nonetheless justifies license revo-cation by demonstrating an unwillingness or inability to cornply with NRC re-quirernents Finally, if the lloard again finds that the staff's revocation order cannot be sustained,'8 it also should consider whether any legal basis remains for the imposition of the conditions requiring urine testing and reporting." given that the linchpin of those requirements - Licensecs' Utah specific license -

no longer exists." -

..Ibr the foregoing reasons, the Licensing Board's decision, LDP-89439,30 NRC--716, is reversed and this cause is remanded for further proceedings consistent with this decision.

It is so ORDERED.

FOR Tile APPEAL BOARD Barbara A, Tompkins Secretary to the Appeal Board Dr. Johnson did not participate in this decision.

"See 10 CFA Paa 2, Asy. C,8 Y.l!..

89-39,30 NRC at 4ala sah a ctrasnstana, cmtrary to the Ikmsing Board's earlier seermum, see I.BP "161 stil, the F sal Access to Jostaa Act. 5 U.S.C.1504, does ma perma Licensees to ch4tn atsorney's roca 4

as reewnpcase rut their parutipatam beras the agerty in this type or enforcernet pnwedang. Jee A.Auwad Medeaf Spame, tw (One Factory Row. Geneva. 01l Alm 1), ALA10929,31 NRC 2710940).

"See si, pre note 18 and accanpanywg test "See supre noss \\3, 520

-.u..-.-

.. ~..

-m _ _ __

t Cito as 33 NRC 521 (1991)

ALAB 952 '

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION -

ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

Thomas S. Moore, Chairman Howard A. Wilber -

G. Paul Bollwerk, til in the Matter of Docket Nos,50 250-OLA 5 50-251 OLA 5 (Technical Specifications Replacement)

FLORIDA POWER & LIGHT -

COMPANY' (Turkey Point Nuclear Generating.

Plant, Units 3 and 4)

June 26,1991

'The Appeal Board affirms the Licensing Board's order LBP-90-24,32 NRC 12(1990), dismissing the petitioner Nuclear Energy Accountability Project, from the. operating license amendment proceeding;for lack of standing to intervene.

RULES OF PRACTICE: ' STANDING TO INTERVENE

'.The Commission long ago established that judicial concepts of standing are to

~ be used in determining whether a petitioner has a sufficient" interest" to intervene

- in a proceeding Portland General Electric Co. (Pebble Springs Nuclear Plant, Units I and 2), CL176-27.- 4 NRC 610,614 (1976). Sec Flor (Ja Power & Light Co. (St. Lucie Nuclear Nwer Plant, Units 1 and 2), CLI 89 21, 30 NRC 325, c

521-

+

'O

+

-i, m--

k.-----

m-..

s ev..

. -. --...+e w...

w.

,,m-

1 329 (1989); Airtropolitan I'doon Co. ('three Mile Island Nuclear Station, Umt 1), CLI.83 25,18 NRC 327,332 (1983).

RUI.ES OF PitACTICE: STANDING TO IN'l1:RVENE When an environmental organtiation seeks to intervene in its own right, independent of its status as a representative of one or more of its memtiers, it must demonstrate an injury m fact to the organtiation within the tone of interests of the Atomic Energy Act and the National Environmental Iblicy Act.

Sec Nuclear Engqcering Co, (Sheffiehl, Illinois 1.ow-1.evel Radioactive Waste Disposal Site), d,All 473,7 NRC 737,740-41 (1978).

HULES OF l'RACTICE: STANDING TO l*4ThitVF.NE An organitation's asserted purposes and interests, whether national or k) cal in scope, do not, without more, establish independent organliatkmal standing.

It0LES OF PitACTICE: STANDING (ItEPitESENTATIONAL)

An organtiation may acquire standing as the representative of one or more of its members if the member has standing in his or her own right and the member has authorized the organi/ation to represent his or her interests. Src St.

l.ucic,30 NRC at 329; TAff,18 NRC at 332; rebble Springs,4 NRC at 612-14 See also Hunt v. Washington Apple Advertising Comm'n,432 U.S. 333,342 43 (1977).

RULES OF PRACTICE: STANDING (REPRESENTATIONAE)

Representational standing hinges upon the organization having a member to represent, in other words, the organitation's standing is essentially derivative of the member's standing.

RULES OF PRACTICE: INTERVENTION (DISCRETION ARY)

In es.ercising its discretion on the queuion whether a petitioner should be granted discretionary intenention, the Commission indicated that a licensing board should consider, among other things, the factors set out in 10 C.F.R.

I 2.714(a) and (d) governing late intervention and intervenbon generally. febble Springs,4 NRC at 616.

522

f Al' PEA it ANCI'.S liillie l'irner Garde, llouston, 'thas, for petitioner Nuclear Enctgy Account-ability Project.

liarold F, Itels, Michael A. Ilauser, and James Vigs. Jr., ' /ashington, D.C.,

and John T. Ilutter, Miami, Florida, for applicant Florida Power &

Light Company, Patricia.lehle for the Nuclear itegulatory Commission staff, DECISION Petitioner Nuclear Iinergy Accountabihty Project (NE.sP) appeals the Li-censing Board's memornndum and onler dismissing NEAP from this operating license amendment proceeding for a lack of standing to intervene.' Fur Ou: rea-sons that follow, we nffirm the llord's order.

I.

On December 5,1989, the Commission published a notice of opportunity for hearing on the applicauon of Florida Power & Li ;ht Company for amendments to t

the operating licenses for Units 3 and 4 of its 'Ibrkey Point facility.8 The applicant sought the amendments to replace the custom technical specifications for the two plants, which dated from initial licensure in the early 1970s, with technical specifications based upon the Westinghouse Standard Technical Specifications, tu response to the Commission notice, Thomas J. Saporito, Jr., filed a request for a hearing and a petition for leave to intervene on his own behalf and on behalf of NEAP.

De petition asserted that NEAP, a corporation with its principal place of business in Jupiter, Florida,"is an environmental organization with specilic and primary purposes to operate for the advancement of the environment and for other educational purposes "3 It claimed that members of NEAP " live, work, and sacation in and otherwise use and enjoy" the area within fifty miles of the Wrkey Point plants and that such members could sulfer severe consequences in the cunt of a serious nuclear accident at the plant. The petition also stated i.DP-90 24,12 NRC 12 09901 1

Isa 54 Fed Reg. 50.295 0959L 3 Kapest ra llearms and Paann for leve to lawrvene (tke 27,1939) at 12.

523

i diat hir, Sapotito, the Executive Dtrector of NEAP, works in and atout die City of hilami, Florida, as a teacher in the field of digital electronics, in addition, the petition states that he regularly travels to hiiami to conduct research in Oc 'auclear field, thus placing him "within the NRC ' Zone of Interest' on a regular basis /* Iloth the applicant ans! the NRC staff opposed the intervention petition on the ground that neither NEAP nor hit. Saporito had demonstrated Out they met the Commission's requirernents for standing to intervene in the license amendment proceeding? In a February 5,1990 memorandum and order, Oc Licensing 11r ard noted that the petitioners were without legal counsel and that the applich. and the staff "have paid particularly careful attendon to the law" in opposing the intervention petition.' Urging the petitionen to study these answers to their petition, the Iloard provided them an opportunity to cure any deficiencies.'

On h1 arch 5,1990, the petitioners filed an amended intervendon petiuon, accompanied by fifty six contentions. With respect to the standing of hir.

Saporito, the amended petition, supported by his affidavit, stated that he resided with his family in Jupiter, Florida, some eighty three miles from the 'liukey Ibint plants and Out he worked as an instructor at a technical school in h11and, Florida, a location he declced to be "well within the NRC's ' geographical zotv of interest.'"' The amended petition further asserted that, in addition to being its Executive Director, hir, Saporito was President, Treasurer, and a member of the Board of Directors of NEAP.The petition also stated that h!r Saporito opposed the license amendments tecause the revised technical specifications will cause the plant to be operated ursafely, resulting in the release of radiation that will adversely affect his health and safety?

With respect to NEAP, the amended peution asserted that, as a no.iprofit environmental organizadon, its " primary purpose (is) foettsed on providing for public safety and for the protection of the environment as a whcle regarding Nuclear power Ocneration."3 It further stated that NEAP derives standing through its Executive Director, Mr. Saporito, and that NEAP opposes the license amendments because it, along with its members, tulieves the technical spec!!ication revisions will cause the 'thrkey Ibint plants to be operated unsafely.

According to the amended petition, such operation will aCversely affect the

" M al l ISee thennes's Answer in ogyoutum to Request rca lleanog and Iwtum fur I cave to Intsivme Can 10.1990) at 2-1s. NRC staft Rearmaa to Request tot Nanns and 1%um to: Isave to intervms d {hT.AP] and Th man

3. saponto, Jr. Uan. 16.1990) at 3-9.

• Memorandum and order (l'ab. s,1990) at 3 (unpubl.she,').

'M al% timers Ammded IWthat fue liacrvmuon and Dnef m s4 ton %snor (Mar. s.1990) et 10 [hemnafter Arnended 1%thm)

' M si 11.

N M et 15.

524 l

heahh and safety of its ineinbers, ur well as N!!AP's abihty to c;uty o nt its inission to inforin and educate die public."

in their gespcstive sesponses to the pctilkmens' ari".nad intenientiori petithvi, the applicant and the stati conseded tlut Ma, Sai.otito tud sLtading to intersene based upm his einployinent in the ucinity c! the Turkey Point plants afkl Out NEAP, through Mr. Saposito, also had estabbsheJ representatiotal standing.88 Nonetheless, a httle over a week after a hiarch 23,1990 prehearing confereace at whish he septe$ented NEAP as well as himsell, Mr, Saporito bled a notice of withdniwal flotn Oc proceeding. *1he April I notice stated that the applicant's nction in seeking to verily Mr. Saporito's employtnent by writing his einployer 3

" caused Mr. Suporito to fed intimidated by the Applicant's actions" so he was withdrawing from the proceeding, lening NEAP as the sole retualning petitioner."

In an April 24,1990 meanorandum and order, die Licensing floard indicated Out it would treat Mr. Saporito's withdrawal notice as a motion to withdraw," in its ruling, the lhurd first stated Hat, if die withdrawal suution were granted, the question of NEAP's uandmg, both as an organization and as a represc' tative of i's meinbers, would be revived because at the prehearing conference.he ikurd lud not determined "whether N!!AP had standing in this case without reliave on Mr. Saporito as the member whose interest is alfected by the propowd amendment."" It then determined that, on the basis of Commission precedents, "N!!AP does not have standing at an organhmkm since it is increly claiming a generaliicd grievance - alleged danger from a nuclear power plant - that is shared by the general public.*t* Next, outlining the Conunission's requirements for establishing representational standing, the lioard fo'md it had insufficient informathm to rule on the issue. It therefore ordered petitioner NEAP to provide a statement signeJ py an euthonird offwer of N1:AP duit.

1.

• lhe organiemimn has detidoJ diat u ocsires ta continue i3 be trpreitnicJ in dus pro;eeding.

2.

Sets furth the name of O,e organitahon's nudonird reparirntauve in this prtsted.

ing, 3.

l'splains the naiure of anJ privargre or memberib,0 in N!! AP and ho. Ow t,rt,anisatun de.ermmes whethrt a janisular gerwin is a member.

.e H a et is M l

Aa4.t am's kenpose w Arna u ! Peutmn no Intenme (Mar 16. I990) si 6. hi<c Sialt kaspsine 6a ieuwens' N

Amerwird IVumni ro: Ime to lnenene (Mar 19,49W) at 7 9

'3N%m or W 1 mont run 1% eed.ag (Ag4 1, Ivw)

" Marwaad.4m and o* (Apr 24, lWi) at I lhumarter AprJ 21 ordo 11 Uld at 5 See ISP W lu,11 Nke ha, s11-12 09W) r I' Aptd 74 on!w ai 6 (mphans m wgmen k,

s?S e

I 4 siates di.t es.h iJ die reu.is tai sham hl AP ethen 10, stuiding u e uwmlee or ht'.AP. InolvJmg die date usey letame a mcuilr# anJ diet they ha,e laen a enender time the brgsmusig tJ this je,6etang unut the gutsesa dans "

1hc Lkensing Board also directed dial petitioner NI!Al' provide a statement flom at least one of its meinbers that:

1, 11.cy desire to be eepreunted try Nr.Al' in diis pnineJme

2. latabbstes diet they lim a pcrainial innertst in die pneeding (sua as die 6e gdase it tes;Jeng to d.: tabet osanas deal estabbah that they hne e dire 4s 6nterest; ar J the nature it de inicerst dry sets to pnatts).

1 l'stahtahes the data they trt ame e munber or NP.AP and that ttwy are currendy swibere ad NEAP.

4.

Denmuninics their taidastanJmg unweining their pivderes as e nwedet ed NI:AP and the nature ur dicit perunpation in N1:AP ennihes."

In resymse to the Licensing floard's order for slwific lofo" nation, hit.

Saporito, on behalf of NilAP, stated tlat, even diough he tal withdrawn from the proceeding in his personal capacity, he was NP.AP's authotlied representative, N!!AP's responso also indicated that, pursuant to its bylaws, members are entitled to receive infortnation arc.l newsletters but they base no voting rights, unless specifically authorir.ed by the lloard. Finally, the rerpome tuserted that N!!AP rehed upon its inernber, Shirley tirezenoff, hr standing, referring to her attached affidavit and mernbership application. In her affidavit, his. Ilretenoff stated that she is a member of NilAP who is concerned about the hukey I'olnt license amer.dments, that she lives within 50 tuiles of the nuclear faelllty, and that she authorites N!!AP and hit. Saporito to re[vesesit her interests.1hc attached copy of her membership apphcation, however, was rmt signed by his, firerenof f in her individual carucity; instead, it was executed t.y her on tchalf of an organization called Quad City Citizens for Niskar Arms Cmtrol."

After receiving NPAP's res[onse arJ replies from the applicant and the stalf, the Licensing floard granted part of hir, Euporito's still pending anotkm to withdraw, but only as it related to him Li bis capacity as an individual petilkmer.

• lho lloard did not permit hit. Saporito to withdraw from the proceeding in his cafuelty as a member and representative of N!!AP, whkh it noted would have deprived N!!AP of standing

• The Ik.ud thus left unchanged its prevk.us determination that N!!AP had standing as the representative of its member htr.

Uld et :

"l4 at B 9.

UNIAP's liospume to the AsLil's P 'awnoesnJam and onder (ht4y 5, IM) [herinnertet N1.AP's keegiussej

1. 41tP 9a 16. 31 NRC u 514

$M u - - - --------. -._ _ __ - --.-, _ _

i l

l 1

Saporito, but At tunde its ruling contingent ugun htr, Saporito's filing "a pleading i

in which he personally states his willingness to be represented by NEAP."U in this regard, the Daard noted that i

(telete hir. Sarwao e tow >ct,luuy informeJ d de possade nessequerites of his miskvi to widiJrew, we migig grand his entaiset and rule that Nl AP is no 1.siger a party. lleweser, given Mr. Sapeno's tsy status, our denial of (part ofj hn minim,iu gnt him a diarme to asisider de full umsequerwes of his sequest.)

eee if Mr. S ;orna unainues to vidntraw hinaelf u de bois fur NIAP's standing, he may do m llomer, he is de stde basis cm whi.h NEA? rejits and NIAP has already had all the Tronunity it needs to estatash stanJar g: h rney n(e Ale any further do6uments alleging a tea tesis for standaig. lleuse, sf kir. Sannoo faits to assure us of his wdhngress to have N11AP represcrd him... tic ernire tesis f.e standir.g Icv N!!AP fails and ibis taie will te distnlued82 In making this provisional ruling on standing, the Licensing floard also found that the information provided by NEAP in its response was insufficient ta support NEAP's standing as a representative of his. Brezenoff because she did not have the requisite indicla of mernbership dae to her lack of control over NEAP and the ab$erte of her individual membership in that organitation." Finally, the Itoard adtnitted five of petidoners' contendons, Therefore, the Board's ruling effectively granted NEAP's intervention petition contingent upon hit Saporito's filing the required pleading indicating whether he wished to be lepresented by NEAP.

11y letter dated June 20,1990, NEAP's newly retained counsel advised the Lleensing Board that hir. Soporito was no longer employed in the htiami area and that he had been dismissed from his teaching gusition on hiny 10,1990P Counsel's letter also enclosed a copy of hit. Saporito's June 19,1990 statement declaring that he desired to be represcated by NEAP in the license amendment

_ pro ecding. On June 22, 1990, the applicant, asserting a material change in L

circumstances, moved for reconsideration of the Licensing Board's ruling on I

i NEAP's standing. *lhe applicant argued that the intervention petidon should now be denied and the proceeding dismissed becausc NEAP failed to meet the standing requirernents of 10 C.F,R. I 2.714.8' The staff supported the applicant';

motion und NEAP opposed it?

I'M st s3s 23 M essie DM st 51s a s, '

3'M si s3s.

D.auer rnen 8. oarde sa Ikoni.ng Board Dune 20,1990) at 1 1

3* Awlwe-/s M-tum tw Rasum deratusi and Dianusul d Peutum u Intervene Oww 22,19%).

31,e NRC start Rea,.mse in Amluent's Misum tw Rom.daieuia, (My 12,19W); keep.ma <4 (NIAPI 3

and Dumas L saporno io Ibrids twet ersd taght's Mcwe for Rea wideweiam and thammul or 1%inke ta Intervens (My 10,1990) 527

r l

in the order that h now behne us on appeal, the 1itensing !!oard granted j

de applicant's anotion and dnniissed N!!AP hoin the proceeding for latL ol standing?' ~lhe licard eniphast/cd in its ruling that the sole ground fty NiiAl"s starnling was the standing of its relvesentatise and sneniber, Mr. Saixwito, who was employed in Miami in the kninediate geographical 5icinity of 'ltutey Point 1

- a critical fact diat was no longer true. 'the lloard aho reiterated a N!!AP concesshe in its response to the applicant's dismissal mothvi to the cIIcct diat the changed circunntances climinated the basis for Np.Al"s standing. Ruther.

l One limrd denied N!!AP's requests to sulanit tuhlitional facts and argument to estabihh N!!Al"s standing and to hold the inatter in abeyance peixting a deterrnination by the Ikpartment of ladiot whedict thc applicant caused Mr.

Saporito's discharge by his employcr. In this regard, the Licensing Ikunt foutul Otat N!!AP already had ample opportunity to c$tablish M!Al"s sta:Khnp We rate that tenul Ods time Mt 'ihanas L Sapuito, who is red a lawyer, has aggrated asi tchalf of NIAP, as is his rigts unkt die per tedural regulaiksis... As the repesentauve ad NI AP Mr. $annito had die full audionty and respeaiNiity to restsent b im lash teduncal and puteduralinauers. lie camlJ m m or lose the case <m seenplea innues ad soeme.

1. nginectmg, and law. Ile also eindJ inake argianents that impne die ti sis of respeine eri agqvising parties and the umis ad denska tm de Nmtear Regulaney Otwnminsket While we have tren panced and protet-live of his omis at a n.edawyer, he has now had all the p<actuon he can properly le erheded.

NIMP has had ample aqquaturuty to denusoitate thal u has stanihng irstependers ad Mr Sapmtn, and u has uit dime so" Finally, the lkiard denied N!!AP's request hv discretionary intersention, firuling diat such interventica was inaplvopriate under Oc standards laid down by the Commission."

11.

A.

Ikhve us, NP.AP first argues that the Licensing Ihurd erred in denying it organt/atitutal stamling in its own right to intervene in the license mnendment proceeding." The crux of its argument is shnply that Nt!Al"s status as a small i

2a!JIP 9tk ?d. 31 NkC 12

"/J at 15 (chatum imuual)

"fd et 15-17.

IIAhhia gh NIAP's eigeliste lewf a stylal" Hoer rie Aatellanta Nudear leergy Amamtelehty Pnyert BTAh and Esnes J sapmm." NI AP w the only piger sigellata herire ta Mt sapante voluntanly a.mgfd in I

wahdies fann de gerewhng and the lhamng Heerd gramed his rquent 3,4 IJIP w I A 31 NRC at 514. Nia surpnsegJy, he did run hla a twhee of appeal, me std he how a right m Georges Pme Co (%gtle I tesw cmerstmg Pissa. Unaa i and h, AI AH 151. 24 NMC SM (19tf) l I

5 211 P

l l

u__ _,,.. ~. _ _ _ _., _ _. _ _ _. -, _ _. _. _ _ _.,

___,,.,,__..__u_,_,

__._m._.m_ _ _ _

organisation with locally IWused interests and purloses is sulticient to provide it the oundation for organi/ational standtng u NEAP's arytunent is without r

merit.

Pursuant to 10 C.F.R. 9 2.714(a) of the Commission's Rules of Practice,

"(alny person whose interest may be affected by a prweeding" may sak to intervene by, infer alla, filing a petition " set [tingl forth with particularity the interest of the petitioner in die proceeding, how that interest may be affected by the results of the proceeding, including the reasons why petitioner should be permitted to intervene," "the Commission long ago established that judicial concepts of standing are to be used in determining vhether a petitioner has a suffic'ent " interest" to intervene in a proceeding?

Those well known standing principles requite a petitionet to estabibh that ite Commission's action will cause an " injury in fact" and that the injury is arguably within the " tone of interests" protected by the statutes governing die proeceding? Regardless of whether the petitioner seeking to intervene is an individual or an organtration, the same showing is required? Thus, when an environmental organliation socks to intervene in its own right, independerit of its status as a representathe of one or incre of its members, as NEAP does here, it must demoruttate an injury in fact to the organitation within the tone of interests of the Atomic Energy Act and the National Environmental Polley Act?

To incet ',he injury in fact test, the petitioner must show a real or threatened harm, not merely an academie interest in a inatter? Similarly, the standard is not met if the asserted harrn is only a generallied grievance shared by all or a large class of citizens that does not result in a palpable injury?

Although NEAP claims that the Licensing floard should have fourx! it had standing to intervene as an organization in its own right, it has failed to demon-strute any injury in fact to its orgunirational interests fiorn the 'hukey Point liecuse amendments. Indeed, NEAP simply ignetes this essential prerequhite, Rather, in its brief. NEAP points to the load nature of its organliational interests and purp)ses, asserting, in effect, that these alone are suf 6cient to establish its organizattomd standing. Thus, it argues that the assertions in its amernied inter-121trist rio Arpolianu l NEAP and sagwuo](%qs s.1990) at 4l 43 lhereuahar Nt.AP linerl.

Uferstand General flecaic Co. 0%hle springs Nulaar 1%nt, Unita i and ?), CtJ 427. 4 NRC 610. 614 (1976) See rionJa re.er A liska Co. (si. taas N, ale.ar Ibwm Plea. Uns I and 2), CtJ s0 21,30 NRC 325, 329 0 989), Mayorelaea 1:J. sea Ce Ohree MJs Island Nodar stsuun. Unit ik C1J ss ai, il NkC 377. 332

1. 1933),

M34. tais. 30 NRC et 329. TMI,18 NRC si 332. Jee, e g. Wes4 v. $ eld.a. 422 U s. 490 0975h Assori.wwa

+# Dale frecus,as Serv. Orgasserwas v. Caevi 397 U s,130 0970).

33See Tstl. Is NRC at 332, "42 U S C, il Joll et uv ; 42 U s C ll4321 es set See Nwlear las rerias C#. (sharrau Illans tse 14=e1 s

Radwacuve Wam Dupmal sm), AtAh473,7 NRC 737.744410975) -

U fe6Ne Spesags.4 NKC at 613.

" TMr Is NRC et 33), Trisv=ulsar, lac. (ran Ar1.retone tw tee. land.ed Usanun i.apos to I L7RAIoM 4

Mant.cr Neaunsk C1J 77 24,6 NRC s25, sil 0977)

$29 I

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_. _ _. _ _ u...._,_.,_.,._-_.__--_,_.--_..,,,.;.._,_-.--..--

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

t vention petition - i e., 06at NE AP "'distalti.tes informadon about une 'Ihrtey Point nuclear plant in llomestead, llorida.,1(hichi provides for public ed.

ucation of nuclear energy issues and tueets a requirenient of NEAP's inission'"

and "'hn obtzdned authorization Imni the Superintendeni <>f the Dade County School doard to conduct educational setninars at all of the giblic schools in the Seaool lhurd's jurisdiction'"- are sufucient to establish its oganliational standing," But diese assertions, as well as others from Oc amended politkui to de effect thal NEAP's " primary purpose [is] locused on providing for Ishlic safety and for the Itotectioa of the environnient as a whole legarding Nuclear Ibwer Generation,"" simply do not demonstrate an injury in fact to an organi.

radonal interest of NilAP Oct is widiin the tone of interests of the applicable statutes. An organization's asserted purposes and interests, whether nadonal or local in scope, do not, without n ore. establish independent orgnnliatiotal standing. As the Supreme Court stated in Siena CMi v. Morton," "a mere

' interest in a problem,' no matter how hangstanding the interest and no matter how qualified the organization is in evaluaung the problem, is not sufficient by

'itself to render the organitation ' adversely affected' or ' aggrieved' within the meaning of the [Adtninistradvc Procedure Act]." Sinularly, the purposes recited by NEAP are insufficient to establish its " interest" in the proceeding utkler the Cornmission's regulations." Accordingly, the Licensing Itoard did not err in determining that NEAP Lieted organizadonal standing.

i II. NEAP nes.t asserts that the Licenslag 11oard ested it denying it standing as the representative of Ms. Brerenoff. Like the proverbial short horso soon curried, this argumetit need not detain us long.

An organisation may acquire standing as the representative of one or more of its members if the member has standing in his or her own right and the rnember has authorized the organiiation to represent his (r her ;aterests" "NTAP Dnst at 41 See AnwndW twties a li 16 "S Anusulad 1%utwn et is la na rst (ai 47) NIAP also qmase, wduut siuhaum, ei neral aahtumal statanmas or the gurpees and e

trataw ed NIAP. the language qwaal tiy NIAP tuned trwn a NIAP pssmaetsial ripa out us enadwd nu de swinera's answer to NIAP's anwevanum peuuun. Daauw dus insienal does ma e, tear in NIAP's emmeded buevasum peutam, we see ha 4 posed to see two MAP 4 an noe use a un appr41 to estehlah us is genuammal stan&ng in any stad, this materi I stom rushmg to establu6h s'artdang tw NIAP as an avganusuim pt ha oma

• phL t

l 405 U s. 77/,739 (1972). '

"3ladeed, NIAP's suerad suermis tere ore shmely aba to One tienta%eJ biIkg.eM 7 NRC a 740, sa patendy msutriciere to estabhnh the urganisatumal manang d an luirass ma tw pdn enrpnetue an the lawise rerewal and amaminesa prwiwdmg tw a low level seatetive waaie lunal saa, in $4t/fisM the vuesvenuam pastem stated, susa she, that *%d Anwma, se a pdas missest renaidatum, is tienerned stih lush the benetus enstang to the gmaal p4bbe fmn dw tas or raanssuve insteriala and enh the d.spaal J uns pn>Jucts in a sate mamer eith respett to peruwa and the. envu,mnent " /J l

'834# St raine,30 NkC at 329, TMr. Il NRC si 332, retele 4.nA s,4 NkC at 61214,345,4 7 NRC si

/

t 741. See else //ww v. NuAsagten A ple AJ ertu.ag Cea.ai n,4.11 U.s. 3'), s43 43 (19TI), Her:A v SelJia 422 U.s. at 511, i

l l'

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Such representational standing,l.oweser, lunges u;w the organi/ation having a member to represent. In other words, the organitation's standing is essentially desisathe of the member's stanihng.

Alter hit. Saporito bled his April 1,1990 notice of withdrawal, the Licensing Ikurd found it had insufficient infottnation to determine whether NEAP had standing as the representative of any of its menitvrs. Thus, tic lhurd ordered NEAP to prmide the necessary information including a statement from NEAP naming each permn upon Ahom it relied for standing and tic date he or she became a member." The lloard also required NEAP to file a similar statement (nun each member it identified.'$ In response to the order. NEAP named only one supposed member, stating " NEAP relies on its member his. Shuley tirezenoff,.. for standing in this proaeding'** NEAP then attached the affidavit of his, lirezenoff and a membership appheation signed by her "Ibr Quad City Cititens for Nuclear Arms Control." As part of its June 15. 1970 ruling on hit. Saporito's withdrawal motion, the 1.icensing Ikard found that NEAP did not lene standing as a representative of his, lircienoff because, litter alia, she "became a member %r Quad City Citizens for Nuclear Arms Control' and not for herself."

nat ruling is manifestly conect. Indeed, in its brief, NEAP does not even address this Licensing floard determination. As the lloard found, NEAP's standing cannot rest upon his. Bre/enolf because she is not an individual member of NEAP and benec NEAP cannot act in a scpresentational capacity for her, htoreover, NEAP made no showing establishing the standmg of the Quad City organitation, an asserted rnernber of NEAP. Nor can NE AP be heard to complain that it did not have ample opportunity to establish its standing as the representative of its members.** Under the Licensing floard's order, it was free to provid: Information on any or all of its inembers. Instead, it chose to rely solely on his. liteienoff, who was herself not a NEAP mernber, but a representative of yet another organization. %us. NEAP ran the risk that, if its response was found inadequate, it had no other metal.cr on which to base its standing." Accordingly, the Licensing Board correctly found that NEAP did not have standing as the representathe of his. Ilre/enoff.

" Apd 24 oidu at s

l4 at 9 "NI.AP's Restwee et 3

11tP 9016,31 NkC at 513 n S

'8N4mg in ne emumasam's kJen d hehe u.andan u.ai NI AP Os st sapeno) W g1=m mulupe sqyoftmnas to we unmmum putan utrw nuca (Weed, d the tasawi.tg thased is k. le fewbd in ous regard. it stadd be for bmdmg two twa nents to sad N1 AJ in no intavenum quest.

• 'la na bner (et 43 4n NIAP also sticsoa eiduait any rashorauen, uiat it utsNakJ wpr.mtaumat sunda>4 by riamug in na amenkd wwwetmn prutom a nsenba t4 sdes vidmdaals Not ash is tNa da4m inedg,atcJy bnefd end bnce shareeted. see Cerei..w Po=c a=J 14W Co (Wano name Nmicu l% a IW), AI All-s37,23 NRC 525. 513 34 oW-) twa nisie d um au6meu sondaJ by one p4ve,au ind.4 ead they wue (Coon,.ed) 531

I 4

I l

- C, NEAP also challenges die Licensing Daald's ruling denying its addi-tional request for discretionary intervention, in l'rbble Springs, the Commission held that u hen a petitioner is not entitled to intervene in a proceeding as a matter of right, the Licensing Board nevertheless may permit a petitioner to participate in die proceeding as a matter of discretion." In exercising its discretion, the Commission indicated that a board should considet, among other things, the factors set out in 10 CAR,12.714(a) and (d) governing late intervention and intervention generally 52 We will reverse a licensing board's determination on i

discretionary intervention only when we find the board abused its discretion, Under that review standard, the petitioner i

has a suhtaritial burden im this slycal. h is nd enough for it to establish sunply that die thenairig !!oard snight jusufiably have newlded that the lutal4y d de cireurnstanas totuig up.e the (10 C.I'.R. (1714) factori tigred the etales in fay (v d lihe stas] vi die petitim. to cehr to dcoce that outctwne, me snust le gecrivakd that a reasonable niind

. cwlJ scath no othet ecsult.s2 Ilete, the Licensing Board considered the factors prescriled by the Columis-sion and determined that "on balance it is not appropriate to use our discretion

._ to admit NEAP as a party."55 We have reviewed NEAP's arguments on appeal and find no basis upon which to overturn the Licensing Board's ruling. *lhe Board's decision reflects a considered balancing cf the prescribed factors and a

- Judgment well within its discretion. Accordingly, we are unable to conclude that the Board abused its discretion in denying discretionary intervention to NEAP.

Ihr the foregoing reasons, the Licensing Board's order dismissing NEAP as a party for lack of standing, LDP-90-24,32 NRC 12, is qrfvmed.54 membas ed Ni se dactihed Se purpwted mjury eey shfler.J. Mormws, NIAP wm s eww air una the individuals named ivi lis March s.1990 amended paniim given its autmegame samass mi in na sospa se to the ljcensmg htard's Aptd 24,1990 wdes that 6: rehed sido!y upe his Deemanarr to stabhsh hs manding.

8"re6Ne 3prings.4 NRO et 61417, 83M st 61L 8 rasdungsoa t bhc Power s yply $purm (wlYss Nudes: Projed Na 3), AIAD.741, is NRC 1167,1871 t

{l9:3).

3LDPW24,32 NRC at 17.

' 8'our afrirmaue or the tAensu a Board's damtssal of NIAP rir la.t or standma, snakre it wmmisary Irv us i

to rule en me aniinain's canestcJ December 19,1990 nunum liv e show esase order uhy t}w pnmoedmg shuutd not te terusnaied anel he auhnapias l'ebruary 8.1991 motam to strike the pendumar's reply 532 l

(

It is so ORDl!R11D.

1 OR Till! Alt!!AL llOARD 11:utiara A. Tompkins Secret:uy to the Alpeal Board

$33

Atomic Sa"ety anc _icensing Boards issuances ATOMIC SAFETY AND UCf.NSING BOARD PANEL B. Paul Cottet.* Chlot Administrativo Judge nobort M. Lato,* Deputy Chict Administrativo Judgo (Exocutivo)

Trodorick J. Snon.* Deputy Chlof Administrative Judge (Technical)

Members Dr Goorge C Anderson James P Ginason Dr Emrraith A Latsbo Chartre Dachhoetet*

Dr Cadet H Hand, Jr Dr Pavineth A McCollom Fuer B Okch' Or. Jo!Ty Hwtusr*

Morton B Margutes' Gionn O tuight Dr David [ Hotrek Meshall E. Mdkw

.j p g ;, g.

Dr A Dixon Callahan Ertent E. Hdi Dr Fettw A Monts g*

Janes H CaTentor' Dr. Frank F Hooter Dr Rohard R Pantek Dr Rcha'd F. Cole'

[hrateth D Johnron Dr Harry Rein Dr Thornas E. Elioman Dr. Watter H Jrsdan Lestew S Rutonstein Dr George A. Ferguson Dr Charles N Kelter*

Dr dam R Schink Dr Harry Foreman Dr Jorry R Kline*

Ivan W Smrth' Dr Rn hard F Foster Dr. Feter S lam

• Dr George Tricy John H Frye lil' Dr James C Lamta Ill ChobiriJ Wotte

• Perrrwent pane, members

..-m

Cito as 3314RC 535 (1991)

LDP 9125 Uf111ED STATES OF AtAERICA f4UCLEAR REGULATORY COMPAISSION A10lAlc SAFETY At4D LICEt4Sil40 DOARD Dolore Administrative Judges:

Charles Dechhoefer, Chairman Dr. A. Otxon Callihan Dr. Jerry R. Kilne in the Matter of Docket flo. 3012319 CivP (ASLDP tio. 90-61843 CivP)

(EA 89 223)

(IAaterlal License t4o. 3517178-01)

TULSA GAMIA A RAY,INC.

June 13,1991 The Licensing lloard determines that the Licensee in a civil penalty poceed-ing is not required to present its case through prepared testimony.

RULES OF PilACTICEt PitEPAltED TESTIMONY Any requirement to file prepared testimony in a civil penalty proceeding would be contrary to NRC rules, which exempt enforcement proceedings from the general requirement for filing prepared testimony 10 C.F.R. 6 2.743(b)(3).

MEh10RANDUhl (Filing of Direct Testimony)

By letter dated June 11,1991, copies of which were pavided to the Licensing Board, the NRC Staff advised the Licensee that the Staff (which had filed prepared testimony) would object to any testimony of the Licensee that was not similarly prefiled in prepared form. ('lhe Licensee has filed no pTpared 535

-~

- testimony.) As a basis for its position die Staff cited the 1.icensing Ikutrd's Order of November 15,1990,1.11P-90-43,32 NitC 390.

'the lloard had considerable doubt as to the legal audaity for stwh a losilmn and, in addition, was aware that in discovery the 1.icensec had indicated that it planned to call several named witnesses, Accordingly, tic Ikiard alternpled to convene a telephone conference to discuss this mtter but was unable to establish a time in the near future when all parties rould participate (so that the Licerm would not be put to the burden and expense of preparing direct testimony, if it did not wish to do so).

As a result, the Iloard on June 12, 1991, rieparately advised the parties by telephone that (1) the Novemter 15 Order did not requite the filing of prepared testimony but only established a date by which parties were permitted to file such testimony, and (2) in any event, any requirement to file prepared testimony in this civil penahy proceeding would have beeri contrary to NRC rules, w hich exempt enforcement proceedings of the type involved here from the general requirement for filing prepared testimony 10 C.F.I(. 6 2.743(b)(3), Src also $ 7(c) of the Administrative Procedure Act. 5 U.S.C. I 556(d); Anorney Generats Afaruud or the Administrative Procedure Act, U.S. Ikpartment of Justice,1947, at 1118.

FOlt Tile ATOMIC SAlliTY 4

AND LICENSING llOARD Charles 11cchhoefer, Chairman ADMINISTi(ATIVE JUDO!!

i

!!cthesda, Maryland June 13,1991 I

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Cite as 33 f4RC 537 (1991)

LL 16 UtJITED STATES OF AMERICA IJUCLE AR REGULATORY COMMIS$1Cl4 ATOfAIC SAFETY At4D LICEf4SitJG DOARD Def'ne Administrative Judges:

Morton D. Margulles, Chairman Dr. George A. Ferguson Dr. Jetry R. Kline in the Matter of Docket tio. 50 322 OLA 2 (ASLDP tio. 9143103-OLA 2)

(Possession-Only License)

LOl4G iSLAfJD UGHTit4G COMPA!1Y (Shoreham fluelear Power Station, Unit 1)

Juno 13,1991 MEMOltANDUM AND OllDEll (Ituhng on Annended Petitions to intenene and to lloid llearings) 1.

INTit0 DUCTION On March 6,1991, the Licensing Iloard issued Memorandum and Ocler, LDP 917, 33 NitC 179 (1991), which afforded Petitioners, Scientists and Engineers for Secure Energy (SE2) and Shoreham-Wading River School District (School District), the opportunity to amend their previously filed petitions to intervene and to hold hearings on Long Island Lighting Company's (LILCO's) application for w hat the Commission has determined is a possession only license (POL) for the SlKirchain Nuclear ibwer Station, Unit I (Shoreham) 8 I C1J 911,3) NRC 1,3 0991) 537

• lhe Licensing Board, in LilP-917 had found that Ittitionen failed to i

estatitish standing, as provided for by 10 C.F.it 9 2.714(a)(2), in the sut9ect 4

proceeding. On April 8,1991, each Ittitioner filed an " Amendment to its itequest for llearing und Petition to latervene" to corrett deliciencies found by the Licensing floard in the origirial petitions.

On April 23,1991, in ecsponse, Licensee Ided "LILCO's Opposition to Itti.

tioners' Amended Pentiens to intervene and itequests for llearing on Proposed

'lbssession Only' l.icense for Shoreham." LILCO asserd that the amended pe.

titions have othing worthwhile to contribute to the proceeding and should be dismissed.

i On April 29, 1991, NitC Staff (Staff) filed its response titled "NitC Staff llesponse to Ittitioners' Amended Ittitions to Intervere and itequests hw llearing," It requests that the amended petitions be denied.

In this Memornndum and Order, which supplements LUP.917, the Licensing Daard reviews and rules on the amended requests for interveritiori and hearing.

11, l.ICI:NSING ll0Al(D'S 1((fl,!NUS ON DITICll'.NCil'.S IN OltlGINAL l'l:1Il'lONS l

A.

The Petitions Ittitioners principally based their cases on the chtims that the POL is part of the defacto decommissioning of Shoreham; that die l'OL application should be preceded by a decommissioning plan: that prior to the issuance of a POL, Staff must issue an Environmental Impact Statement (EIS); and that an EIS must conskier resumed operation as an n!ternative to decornmissioning because it is l

a viable alternative.

Pursuant to the Commis-lon's instructions in CLI.91 1, that the Licensing

!!oard act in accordan;c with that decision and the opinions expressed in CLI.

90-8,32 NitC 201 (1990), qff'd, CLt 912,33 NitC 61 (1991), tic Licensing

!!oard found that the Commission's policy decishms stripped away Ittithmen' main arguments for standing,

. 'lhe Commission had found in CLI.90-8 that the Staff need not consider resumed operation of Shoreham as an alternative course of action in any envinmmental review of decommisskining it performs, f

Contrary to petitioners' claim, the Comtr.ission found in CLl 91 1 Otat a n>

quest for a POL need not be preceded or accompanied by either a decommisskm-i e

I 5.4 w w w- *-

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~,

_.. _ ~

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i ing plan or particular emitonmental informadon, or a National Environmental Iblicy Act (NEPA) review related to decommisskoing.8 1.

The Slu !*rtition SE2 claimed in its original petition that it was injured because of Staffs refusal to prepare an EIS to the alleged decommissioning of Shoreham of which tic ICL application was part, it stated that Osc failure to act by Staff deprived Ittitioner of its right to comment directly on the EIS, to advise its members on its meaning, and to make recomrnendations to the public and political leadership.

SE2 asserted that the Commission inacdon interferes with its informational purposes and deprives de organization of its nbility to carry out its organizadonal purposes. De Licensing Daard ruled that, based on the Commission's holding in CLI 911,.a POL may be issued without any environmental review, and Ittidoner's claim of injury was invalid.

De Licensing Board also found that SE2's petithm was defecdve because it failed to identify any particular injury to itself or its members that can be traced to the challenged action. Ikilums v. NRC,863 F.2d 968,971 (D.C. Cir,1988).

pedtioner only presented bare canctusory bliegations that the proposed reductiun in technical specification requirements would increase radiological health and safety risks without identifying a particularized inji'ry, His was fount

• by the Licensing floard to be legally insufficient to estab!!sh standing.

De Licensing Board did not permit SE2 to successfully invoke a presumpdon of injury for five of its members w ho live, work, or have property interests within

$0 miles of Shoreham. It was foumt that um presumption could not be employrd because die POL does not involve a construction permit, an operating license, or a significant amendment $at would involve an obvious potential for offsite consequences. Florida l'ower and IJght Co. (St. Lucie Nuc1 car Power Plant, Units 1 and 2), CLi 89 21,30 NRC 325,329 (1989).

%c Licensing Boa d further found that member interest was that of ratepayers and that it was well vttled that such an interest does not confer standing in a NRC licensing proceeding.

Ibr an organization to rely upon injury to the interests of its mend ers, it must provide, widi its petition, identification of at least onc of de persons it seeks to represent, a description of the nature of the injury to Oc person, and demonstradon that the person to be represented has in fact authorized such representadon. I'hiladelplan Electric Co. (Limerick Generating Station, Unitt 8%

at. conna. m runan round ihat d po. o.. mes==al eaaana.. xi.cA em,. tw. a may be emanned, tw easmolo, at the 101, dearly (n.ld be shown io twedes alternauve says to c4md.we daumndssauws that would malgais w auevists stone stgrufmana envwannental impaa. Ivutammt had snade au sudi daun in the wgmal paitans

$39 -

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i I and 2), LitP-82-43A,15 NRC 1423,1437 (1982). 1he Licensing floard found that Petitioner haJ not sutimitted a supporting statement containing sush information for any memtiers claimed to tie represented, as is seguired. Neither did SL2 state that its organuauonal purposes prosiJe authority to represent members in adjudicatory proceedin A petition to intersene inust contam the specifie aspect or mpects of the subject matter of the proceeding as to which petitioner wishes to intervene.

10 C.F.R. 5 2.714(a)(2). Based on the Commission's decision in CLI 91 1, that the request for a POL need not bc preceded or accompanied by particular environmental information or a N' IPA review related to decommissioning, the Licensing board ruled that NLPA requirements are not at issue in the proceeding and aspects relating to NEPA were not relevant to the proceedmg.

Also, it was found that those mpects proposed by the Petitioner dealing sidi desommissioning, resumed operations, and the Staff's no significant ha/ards consideradon determinadon are not relevant issues in the proceeding.

2.

The School District *t l'etition 1he School District's original petition extensively duplicated that of SE2's.

To the extent that the two petitions were identical, the Licensing !!oard made the same ruhng on identical matters, To the extent they differed, the following ruhngs were made on the deliciencies in the School District's petition.

School District was found not to have the organizational interest for standing.

Its interests were those of a ratepayer and a tax recipient. These economic concerns are outside of the Commission's jurisdiction.

As to representational standing for the President of the Board of Education, tic Licensing 11oard found that although the individual might reside or work in close proximity to the nuclear facility, it did not create a presumption of injury for standing because there was no obvious potential for offsite consequences.

The POL requires that LILCO not operate the plant The Licensing Board further found that School District had not particulanted a distinct ad palpable harm that constitutes an injury in fact to itself or to its employee, nor did it trace any such injury back to the challenged action, 'the Licensing Board ruled that these allegations, proffered by the School District without specifics, did not meet the regulatory requirements for standing.

Ill. LICENSING llOAllD'S ItULINGS ON AMENDED PETITIONS

• the Liceming Board, having res icwed and fully comidered SE2's and School District's amended petitions and LILCO's and Staff's answers, all f led in response to LilP-917, makes the following determinations and rulings.

540

r i

A.

Proctdural issues in the Amended l'ttillons 1

Ittitioners cured the procedural deficiencies found by the Licensing Daard i

in the original petitions. 'They did provide a necenary supporting statement for each of the persons they sought to represent, identifying the individual, describing the nature of the alleged injury to the person, and demonstrating i

that the person, in fact, authorized such representation. "Ihe Licensing Board concludes from the afudavit of SE2's lhecutive Director that petitioner's organizational purpose provides authority to represent members in aJjudicatory proceedings.

11 SE2's Amended l'etition in its wnended petition, SE2 requests that tic Licensing Doard reconsider its prior fmding that NEPA requirements are not at issue in tic POL proceeding, on tic basis of the Comtnission's most recent guidance in CLI 91-4,33 NRC

[

233 (1991), which modifies Commission holdings in CLI 904.

'Ihe rehrenced proceedings telate to threc licensing changes to tic Shoreham full-pour operating flcense, the Confirmatory Order Modification, the Security Plan Amendment and the Emergency Preparedness Amendment. In these pro-ceedings, Ittitioners contended that the three actions were part of an unautho-rited defacto decommissioning of Shorcham without a required agency NEPA review. 'Ihe Licensing Board, relying on CLI 904, in LDP 91 1, denied the foregoing as issues in the three proceedings.

'Ihe Commission more recently in CLl4'l-4 stated that its " comments in CL190-8 were not intended to preclude the Licensing Bord, as a mattes of law and jurisdiction, from entertaining properly supported contentions that such an EIS must be prepared at this time? 33 NRC at 236 37.

it further stated that "it is within the scope of NEPA and a groceeding on any license amendment to claim diat the tunendment requires an EIS because it is an inseparable ser,, ment of a larger federal action with a significant environmental impact? Id. nt 236. The Commission gave the Petitioners the opportunity to challenge the three actions.

As a result of the Commission's further guidance in CLl 914 and additional information SE2 submitted in an amended petition of February 4,1991, the Licensing Board in LDP-9123,33 NRC 430 (1991), found SE2 had establishej standing under NEPA, as provided for in 10 C.F.R. 6 2.714(aX2).

1 The Licensing Board, in regard to the three licensing actions, found that the alleged defacto decommissioning of Shoreham without a required agency environmer:tal review was an issue relevant to the proceedings. It further determined that SE2 had posited a cognizable injury tmder NEPA to establish standing.

541 L

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'the injury was alleged to result from the Conunission's liuction in condust-ing an emiromnental review of the allyed deconunissioning whkh lvecluded SE2 from colatnenung on an EIS and aJvising its members on the environ-tuental rists and repomng its hndings ath! rewmmendations to the public and gelitical leadership as provided far in its charter. SE2 made a sufficient case for standing based on its claim that its progranunatie informa.iont muvities and ciganizational purposc were significantly harmed by the failure to cenduct an environmental review. An emitorunental interest identifie41 by Peutiots was a preference for a mothfulling type of solution, as a cholce among allearattiver, in the lvoress of deconmiissioning Shoreham.

In its original petition on the ICL,5112 made the argument that L1LCO's application for a lOL is but another effort toward the deconunissioning of the Shoreham plant without a requ' red EIS.

t SE2, in its amended petition, requests that the Licensing 11oard follow Oc Commission's guidance in CLI 914 arkt consider as a relevant issue die allegation that the POL is part of an irnpermissilde segmentation of the decommissioning of Shoreham and Owl an 1:lS is required for all of the actions.

LILCO and Staff olyose such consideration. LILCO clairas,that in CLl-91-4, the Commhslon was only discussing the applicability of NEJ'A to the three licensing actions at issue in Petitioners' other tets of petitions and has no applicability to the IOL.

Staff asserts that Petitioners have not shown that die pmposed issuance of a POL is an inseparable segment of a larger NRC action or that such an action would require an El". It further asserts that there was no showing that a l'OL would not have a separate utility of its own. Staff claims that use asleene environmental impacts complained of all sten,..om the Licensec's deciskm not to operate Shorehain and not from deconunissioning de facility.

'lhe Licensing Itoard finds that the Commission's guhlance in CL1914 does apply to the ICL provecding. The Commission. in assigning the IOL io the Licensing Doartl stated that the matter should be handled in accord.mte wkh CLt 90-8. *lhe guidance in CL1914 is but a mo htication of CLl 90 8 and to the exter.1 CLI 90-8 is applicabic to the ICL 50 is its modificathm.

The Licensing 30ard further concludes that based on be Commisskin's guidance in CLi 914 und additional information provided in the amended petition. SE2 has established standing on the NEPA issue in One IOL application proceeding.

SE2 makes the same case for standing on die ICL as it did on the three licensing actions, its position is that the POL is part of the continuum in the alleged unauthort7cd decommissioning of Shoreham without a required EIS. 'Ihc Commission has recegnized this nosition to be relevant to license amendment proceedings and ujen which htigable contentions may be based.

542

t l

1 l'etidoner in the IOL proceeding identified the same Lind of injury to its programmatie informadonal actisities and organiradon that the Licensing Board found to be a cognizable injury under NEPA and was Sulliciently qualifying to establish standing for the u.rce licensing actions.

l' As evidenced by Staff's criticism, SE2 has not made a p.uticularly strong showing for standing. Ilow ever, it has been recogntied that "NEPA's purpose of ensuring well infmmed government decisions and sumulaung public conunent i

on agency aedons effecuvely lowers die threshold for establishing injury to i

inlutmatkcal interests." Competitive Enterpthe Institute v. NatLmal Illghmty Traf4e Sqfety Admin. 901 F.2d 107,123 (D.C Cir.1940) Peutioner hwheated a prefererce for a mothballing type of solution, as a choice among alternadves, in the decommissioning of Shoreham, thereby providing an environmental interest that NEPA is intended to protect.

He Liceming Dcard's determination that SE2 may file a contention alleging that a N8PA review is re,)uired in the ICL prmeeding is not contrary to the Commission's determination in CL1911 that the " decommissioning rules do not contemplate that a POL would, in normal circumstances, need to be preceded by submission of any particular environmental information or accompanied by any NEPA review related to decommissioning." CLI.91 1,33 NRC at 6-7, no Commission did not make the proscription absolute, it went on to state i

that "lolf courso diere may be siveelal circumstances w here some NEPA review for a ICL muy be warranted despite the categorical esclusion, for example if the I'OL clea ly could be shown actually to foreclose ahernative ways to conduct decommissioning that would mitigate or alleviate some significant environmental impact." /d. at 7.-

SE2's allegation of injury transcends ordirtary circumstances involving a separate, independent POL liccnsing nedon. It claims that the POL is but another step in the impermis;ibic segmentation of a major federal acdon (decommissioning) usat requires an EIS.

He Licensing Doard believes that the "special circumstances" referred to by the Commission have been successfully pleaded here and permits SE2 to file u contentkin or contentions on the NEPA issue as prescribed by the

- Commission's requirements enunciated in CL1904, CLI-91 1. Clif t 4, and 10 C.F.R. 5 2.714(b)._

As to standing on Atomic Energy Act (AEA) issues, Petitioner riaims that with the removal of the technical specifications, which were previously found necessary whether the reactor was in any operating or non operating mode, wuuld significantly increase the radiological risk to persons and property.

Petitioner presents an abstract argument that when a power plant with a full power operating license undergoes outages, it is not relieved of its license conditions. Herefore, Shoreham, when in a non-operating mode shouki not be

- relieved of its license conditions as the l'OL and other license changes would 543 i

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1 Ivimit. Petitioner uten concludes Out to limit Shoseham's license cornhtions would result in an otulous potential for of fsite consequences and increased fisk l

10 persons and property.

'the argument fails for standmg purposes twause Ittiuoner has not presented anything convincing for one to conclude Otat a temporary outage in an operating

} tant is the cyulvalent, for safety purposes, of a defueled plant dial is shut down and that Licensee will not be permitted to operate. It also fails twause SE2 does not ofier more than its bare unctusory asserdun that to rdieve the Licensee r

of the licerae cornlitions as proposed will result in a potential injury to persons and their propeny. Additionally, the potential injuri.s are not iden'llied. As the v

4 Licensing Board has previously ruic41, such pleadings are legtdly insufficient to establish standing.

- Similarly, SIT 4 falls to identify a particularind injury stemming from the M)L and other license changes when it stated that the proposed atdea " destroys LILCO's abihty to assure a safe evacuation of die emergency planning tone in the event of a radiological incident, including an incident of radiological tabotage." The claim of injury is all too vague.

The affidavits of Attitioner's Executive Director end six of its members did nothing further to cure the deficiencies describr41 by the Licensing Board in l-LDP.917 regarding SE2's organimtiotal and trpresentational standing.

Memters' claims, that their rights to imvc an opfortan!!y for meaningful comment on environmental cons lderations of decommlisionmg will bc )(cju-7 diced or completely denied if there is no environmental review, are vagw and do not !dentify a palpable injury to establish standing.

Affiants appeared to conunue to rely tipon a presumption of injury lwause members live, work, or have propeny interests within 50 rniles of Shoreham.

Nothing meritorious was presented to overcome the Licensing Board's prior ruling that the presumption was inapplicable, a

Claims of members Out "the amchdment also represents a threat to my personal radiological health and safety and to my real and personal property" do nothing to overcorne the 1.icensing 1toard's prior finding that members failed to identify any injury that can be imced to the challenged actions.

Members' economic intearts such as that of a ratepayer continue to te nonqualifying for standing. As to claims of injury from replacement fossil fuel phmts, they relate to other methods of generating clemicity, a subject that the Commission los repeatedly swed is m>t a N!!PA issue.

e Except for the NEPA issue. Petitioner has not satnfied the standing require.

menti of 10 C.FJt. 5 2.714(a)(2). Aspects iviat!ng to NEPA are relevant and will be considered in the POL proeecding.

I SE2's amended petition is wide rnnging, it sects adop60n of the Council on Envirory. ental Quality re;;ulations on the scope of an EIS. SE2 assetts that in so doiu it would encompass the indirect effects of construction of fossil

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l plant ruid unmmission lines to replace Sluucham. Such indire4.1 cifects would i

Ic outside the scope of any required NEPA review in this proceeding, it is clear beyond call that the Conunission has helJ that resta t will tuv. be considercJ nor will other methods of generating elecuicity, w hkh include fossil fuel plants.

Likewise, the eff ects of fossil fuel plants are beyond Oc scope of the Ivoceeding.

Petitioner also requests that should the Licensing floard decide that SE2 has a right to an EIS, it adhere to 10 C.P.It 6 $1.l(O w hlch prohibits a dw;ision on a license amendment from being issued where an !!!S is required, unicas prescribed Trderal Register an41ces are followed. S!!2 raised this matter prematurely but can again raise it at the appropriate time.

Petitionet raises tis issues (a) w hedict the Licensec flanhhed the Commission with a reasoned analysis about the no significant hat.ards consideration com-plying with Commission standsds and (b) whether Oc 10 C.P.It 5 50.91(b) procedures for notifying states of the considerations were followed and, if rot, whedier the amendments should be barred. Evidentally the issues raised are di-rected at the aJequacy of Stall's proposed no significant hazards consideratkun determination.

The Licensing floard must consider the request to be hivolous,$ 'the issue had already been ruled on earlier. In LilP-917,33 NI(C at 183, the Licensing Board stated:

Ostuniukm regul.ute is very skar that a LAensing II.m J is widetad sudu.rity to review Staft's sigenhcans hara Js tunniJeration detenninathm.10 Clit,8 50.$5(bXQ ne theniing Ilos d will abide by the regulatito and rus etninider any challenge to e sigmficars e

haralds simiiderathm dcierminatkm by $tarf. h part of the Danmluhm's t.oute (4 Aug.

21. 1990, relating to Staff's aisnilisiin har.arJe desesminathai, is beymd de sup it ib hearin5 tai die peqiused ameruiment.

Again at 194 it stated that [t] hose aspects set forth by the Pctidoner that i

deal with... Staff's no significant hazards consideration determination are l

not relevant to the issues in the proceeding and will not be considered."

C.

School District's /.mendtd Pctition Scicol District does not provide anything in its amended petitiori that would warrant Oc Licensinj; lloard (hanging its tuling that School District has failed to establish standing ia de IOL proceeding, a

School District's amended petition is a repeat of that of SE2, Like SE2, i

11 requests that Oc Licensing Board reconsider its prior finding that NEPA requirements are not at issue in the ICL proceeding, based on the Commission's Sc.wi won io hos a paa... run in.uuns ergneau um hm basi naw up.n ana wu,.i...ut n.

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guidance tn CL1914.11 claims that the IOL is part of de unauthorized defacto decom+ eloning of Shoreham whivh requires the pegaration of an E13 under NEPA

%e injury that the School Distsitt guerts is that, without an environmental review, l'eddoner's right to commerit and the Cornmission's duty to hae available considered detailed information concerning significant envinmrnental impacts before decisions me made would be violated.

Although the purpose of NEPA is to ensure wtll. informed government decisions and stimulating public cornment on agency actions, the failure of an agency to prepare an EIS does not ipsofacto result in a cogninble injury not affords standing under NEPA. A petitioner mmt show dat it has suffered, or will suffer, a distinct and palpabic harm dat constitutes an injury in fact.

SE2 made its case for standmg on the claim that the failure to prepare an EIS caused its programmatic informational activities and organistional purpne significant harm. School District made no such showing, of a distinct mxl palpable harm; therefore its claim for organizational standing and that issue must be denied.

As to representational standing on the NEPA issue, School District's President of the Board of Educadon males the same argument as SE2's members did on i

injury, lie claims Oct his rights for meaningful comment on environtnental considerations of decommissioning will be prejudiced or completely denied if there is no environmental review, no claim is too vague to identify a pdpable injury and does not provide a tesis for establishing representational standing for the School District.

As to the rema!nder of School District's amended petithm, it repeats the same posidons that the Licensing Board found in.slequate for standing in its origital petition and in SE2's amended petition which it duplicates, School District's inteirst condnues to be that of a ratepayer and tax recipient.

Its President also expresses concerns over die cosa of electricity. Rese economic corans fall outside of the Commission's jurisdiction and do not i

provide a basis for standir.g.

School District, like SE2, and for the same reasons, failed to establish the applicability of a presumption of injury for itself, its president, employees, or students because of a presente within a 50-mile mdius of Shoreham, t

i Neither did School District particularize, imder die AEA, a distinct and palpable harm that consututes an hijury in fact to itself or Diose it sects to represent, nor did it truce any such injury back to die challenged action. As the Licensing floard has repeatedly stated, those dmt die School District proffers are conclusory generalitaticns that do not meet the regulatory requirements for t

I standing as provided for in 10 C.F.R. 52.714(a)(2).

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CONCI.USION

$li2 inay file contentions as pieseribed undes 10 C.F.R. 62.714(b) and in this Memontndru on the NEPA issue. Ils peution (W standing, as amerkled, is otherwisc denied.

School Distriet, having failed to estabbsh standing, should have its petition for intervention and to hold a hearing on W POL denied.

SE2's contentions will le considered at a prehearing conference whose rigenda will follow that prescriled in 10 C,F.R. 6 2.751(a),

OltlEll 11ased upon all of the foregoing,it is hereby Ordered:

That SE2 may file conwntions in the inanner grescrited in this Memorandstrn. Its petition for standing, as arnended, t< yond that for which approval was granted for filint contentions,is hereby denied.

That School District's petition for intervention and to hold a hearing on the ICL is denied and it is dismissed frcan participation in the proceeding..

That SE2 shah file contentions, in hand with the 1.icensing Itoard and the participants, on July 1,1091. LILCO shall file an vnswer, in hand with the Liennsing Doud and the panicigunts, on July 15,1991, and Stat 7 shall file its answer on July 22,1991.

That the prehearing conference will te held on July 30, 1991, llauppaty,c. New Yoit IOR Tile ATOMIC SAFUTY AND LICENSING DOARD Morton D. Margulics, Chairnutn ADMINISTRATIVE LAW JUDGE liethesda, Maryland June 13,1991 547 i

o 1

Cits as 33 NRC $40 (1991)

LDP 9127 Ut4iTED STATES OF AMERICA NUCLEAR REQULATORY CotAtlSSION ATOMIC SAFETY AND LICENSit40 DOAflD futic Auninistrative Judges:

Poto." 8. Bloch, Prosiding Offcer Charles H. Kolber, Special Assistant in the Mutter of Docket No.40-672 MLA (ASLDP Ho. 91+C39-02 MLA)

(License Renewal)

(Source Material License No. SMD 179)

NUCLEAft METALS,INC.

June 18,1991

• the Pres! ding Officer dismissed de petition for a hearing Iccause it had not been filed within 30 days of receiving actual knowledge of the application and had not demonstrated an adequate excuse for untimeliness under 10 C.F.R.

I 2.1205. lie found that Ittitioners had failed to contradict Licensee's assertions that they had actual notice of the application for license renewal 8 months prior to filing their request for a hearing, and that they had further notice toth of the right to file a " letter" of opposition to the notice 2 months prior to filing their petition.

RULES OF PRACTICEt SUllPART L; TIMELINESS (IGNORANCE OF TilF. LAW IS NO EXCUSE)

Actual notice nn'ier the timelincss requirements of 10 C.F.R. { 2.1205 was held to include e-of an application but not to requirn notice of the rir,ht to oppose the applico, u; the principle that "li]gnorance of the law is no excuse" was said to apply to the need for lttitioners to comply with the timeliness 548 I.

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t provisnin of the Irgulatiotts, particul.uly where they had enough knowledge to inquire further.

hil:MOltANDUh1 AND 01101:11 (1)lsmhsal) 6 After reviewing the reply filing of Citizens Concerned Atiout Nuclear Metals, the Natkmal *1bsic Campaign I utid. arid the National Toxics Campalgn (Petition-i ers), filed Jure 6,1991, I have concluded that the petition should te dismissed.

litilkmess have not achtressed facts clearly set forth try Nuclear Metals, Inc.

(Licensee) that demonstrate that !Ytitioners have not set forth circumstances that demonstrate the timeliness of their petitkui or that lic untimeliness was cAcusable.1

• the govesning law relating to the timeliness of a petition, w hlch is a utxestary condition for the admisskm of a party, is the following portion of 10 C.F.R. 1 2.1205:

(c) A persm other than an s;1 cant shall file e request for a hearing withm 4i eee (7) !! e federal /:rgaser mnice is sus putdialed..., the earhet of-.

(i) %iny (30) days aher J.s acquestur renives atual ousi64 of a g.cnding ari cathm tir di an agency actam grarning an aggihuths;....

eoe (g) In tuhng m a request for a hearing tiled un.lcr parsgraph (c) 44 this sectrin de pesiding officer shall detennire.. that the petition is timely.

eee

' (kXI) A sequest for a hearing or a pension fin leave to iraervene found by the preades of fices to tw untimely unlet persgraph (c)... *ill te entertairwd tedy upon determination try the Ctsnmission or the pesiding erficer that the acquestur ur peutioner has estaldished thas-(i) %e delay in films the request foi e hearing av Lie penniun for leave to interveis was escusebic;....

I.

UNTIMl:1.1 NESS Licensec's answer attached an af fidavit that stated that Petitioners, who filed their petition on January 24,1991: (1) provkled public information aliout their license renewal information in March 1990 and that CCNM " regularly and 8 De pincigel f nas as: 14uar rnen sanford I t amis to John Kmnarnan. USNHC Regne 1. January 24.1991 (peuuon). Answer '.a Potaam af Cusana Cnerned About Nansar Metels IcmM), Nauunal Toak Cang a:an twd amt NatusialToska Campaign, May10,1991 (Answer), keply to Ansees at Nul ar Meta;s,la c Regardes Praitum to Intervens, June 6.1991 (Reply). (hi May Ifa,1991,I innued a Mimerandurn and Onter (unpubhalwen amhona.ing a reply, and povid.ng f%.tnawns wah a ammasy egy or C resars r/ sAs Ca wrairy qf haouri, ISP 90 ll. 31 NRC 539 (1990).

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medeulously" inspected those files;8 and (2) in public forums during September j

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and November IWO. the Applicant and the NitC told the petitioners of the pending application.'

Licensec's af fidavit thus r.et fonh important facts that petitioners would have i

to respond to if dt.y were to demonurate to me cilher that they filed deir gxtition

~

within 30 days of receiving actual notice or that their delay was excusable.

Ittidoner's reply failed entirely to address the question of when Ittitioners first received actual notlec of the pendency of the renewal application. 'this leads me to believe that CCNM had actual nodce of the pending application in March or April of 1990. I presume that the ot'ier petiuoners, who failed to state when Oey received actual notice, were equally taidy: over 8 months late when a 3(klay delay perkad is specified by the regulations.

i Although the reguladons are silent as to whether " actual notice" must include toth notice of the application and of the legal right to challerige thil application, it is a general principle of law (with a few narrow exceptions related to specihc statutes)- cven of criminallaw -that I noranec of the hw is no cicuse;* thih E

l is particularly so when a person has I.nowledge of circumstances that would lead to further inquiry.

I conclude that c

.61 notice does not require notlec of the legal light to challenge the application or of the period of time within which a challenge must te filed. Ilowever, Petitioners were informed in November 1990 not only that license renewal was being considered but that "commertts ori the lleense renewal" could be sent to the NitC.8 'lhus, Ittitioners leafned of a way to tegin their challenge - plus an opportunity to question arl NRC official about the requirernents for " comments"- and they have not offered any persuasive explanation of why they did not assert their rights in a timely fashion.'

- the " excuse" for untimeliness offered by etitioners is that they did not file a p

" letter" as suggested to them by the NRC ollicial because they were negouating i

3 Affidavit or l'ank J. Vanbue uuhed in de Anawar, at12.1156.

3M st 24.tt? 12 I

8UmaaJ Seesse v. If.kat. 909 F 2d 1114 09W) (no eAcuse of ignourn d 11 s. la e for aandang to saimh AraNa a certirusuem or put Jonig imniness with larael); Unned Jr.uas v. Memelwas,504 F.2d tot 4. sers. denied. 450 UA 931.107 s. OL IS67 0956) (no esches orig'erance er grunmal canopause when defendata was udwmed smly or civd smaequerwee rur contanrt and later as also swummed for cnminal smiertip0. fla(erd (4 e Inneraar e f

Co. t. Tule owawee Co 520 F 2J 1870 0975) (ign<wame that mderlying fuud invahdaan the quesuaned runs i

is no determe in a civil phon on the ame), rope v. Ithwer. All 11s. 497. sli,107 s CL 1988, ts L 14 2d 439 et 41s 09s7) QAnnent, car.amty la less notensary ut civd than An enmmal teace).

IAffidavit af Frank J. Visnhaco, sitad.eJ to the Answer, et 3, t12. see ebe I.akht F Kyla Nands. *Publie ingwt in NMI cleanup getmens soup,ht.* Cenard /wnsf. Nuvember 22. IWo. pge 18, cida. 21

'The Reply states, si 24. that an agayy unpluyse nnrmmr4 Frutamers that if a "leties" was wratan to um agecy dare could be an adjudousy hearu 3 m the hccrue. Agy.orernly adhing was said akan die regt.latary supuemera Gisi the "least" be wrman wnhia 30 days. llever.1%uyonces shuuld have iryaired fuseer abas s e reprenwma for auch a louer it they apught to rds sww. In adih6on, pry have 4 lawyer who should havs bewi suffmantly cun a.s to unquire of the aserwy (w of die ufficial ete docussed the rams it a "lauar") as to any hmshiwas requeronanta. Jae Affidavit of Mary Jane Wuhams (auadwd to fuesa' lieply) at27,11 4. 7.

l 550

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with Nuclear Metals, Inc., in an attempt to resolve die issues involved in this rase.' flowever, the esistence of negotiathms does not create any excuse for a party to sleep on its obligation to file a petition in a timely fashion, any more than negotiating about a tort (n (lvil suit) wouhl permit a party to overstay die statute of limitations.

Furttermore, tecause of Petitioner's failure to respcmd to Licensec's allega-dons c meerning the date on w hich Peddoners obtained tv;tual notice,1 conclude dial Itudorers knew of the applicatkui for months, without ascertaining their procedural rights, lYthkners do not offer any cAplanation of why they did nu inquire about legal rights to challenge the appikation during that estended period of time.

Consequently, I conclude that de letition was inexcusably untimely and shall deny the peutkm for a hearing '

11, CONSIDERATION OF Tile SElt100SNESS OF Tile ISSUES RAISED Since 195H, Nuclear Metals, Inc., has operated a plant in West Concord, Massachusetts, where depleted uranium (umnlum from which pst of the fissliv isotope. U, has been removed) is treated by electrochemical and machining processes to form a varkty of products, primarily armor piercing cores for antitank weapons. '!he company also manufactures metal powders for medical applicadnns and photocopiers and siccialty inctal prmlocts, such as beryllium subing used in tM aemspace industry, petitioners have salsed a variety of allegadons concerning Licensec and hase supported them by an t.ffklavit of Dr. Marvin Resnikoff, Ph.D.'In this portion of rny mernorandum, I will examine Dr. Hesnikoff's af fidavit to determine w hether he has raised any issues that ought to oc sclerred to the St:df of the Nuclear Regulatoey Commission (Staff) for its consideradon.

Dr. Resnikoff is a graduate (1%5) of the University of Michigan with the degree of Doctor of Philosophy in *Iheoretical Physics, lie is Senior Associate at Radioactive Waste Management Associates and ha performed numerous studies on nuclear waste management. I have determined, based on the limited Mcord I Reply on s.

'The Mutat or Naiser Metals, Inc., rar I AAVO to suppamas la Answer. krw is.1991 is denied he deciaWe was gwepared in drift rurm prus to assiving the Mai<st. and I do the rmd that the seudum c4wuaws actuung nacaseary to die denswn d this see.

' Affsdavit or Mamn Resnikurr. IkD., antaaed in sag 1 eman to l'euuan to tmenaw and fis e 1%biac lisarms, 4

hew 6,1991, I'Radundm Waste Campa;gn, thing Wuhouf /W%s lnnspaified date d pe o cam), sc epthiv. Deafy Defense. A Cause ouida an Md.wy lan.plis {wuspenrimi done or poblnsh<wij, sudu r,74, Neat h les osanNe, (Censseund).

551 Y

before me, that le is a com;wtent t xpert uith respa t to the subjnI he covels in his testimony, indeed, his testimony is very thorough and ptolessional, llaving already determined that the peution shall be denied for lack of timeliness, the review I male of it in this memorandum can only be for a naf row purpose: to deteimine whether to make a referral to the Staff. If petitioners would hie to file a petit 5n to the Staff under 10 C.F.R. 6 2106 with respctt to some or all of deir allegations, they may do so. None of die ruialysis in this memorandum is intended to prejudice the result they might achieve through a filing with the Staff."

Dr. Resnikoff has reviewed operations at Licensee's plant from May 15, 1958 to the present (Affidavit at 2,19); he points out (d. at 1 15) that he had caterisive but limited inf6/mation about Licensec and has had to fill in "some information gaps... from my knowledge of the federal government's uraniurn procening facility in Fernald...." I have accepted Dr. Resnikoff's assumiu tions, ranking my conclusions insensiuve to his use of collateral information.

My analysis follows.

A.

Altborne Releases During Normal Operation Dr. Resnikolf states (Affidavit at 3, t 11) that Licensec's Concord plant conducL* operations that could release uranium particulates so the erlernal environment through rorty of its fifty.cight stacks. Utit, as Dr. Resnikoff reports (M. at 4,116), the stacks m question had been fitted with cyclone separutors and llEPA filters. Such particulate collection and filtration is highly efficient:

commercially available cyclone separators remove at least 96.5% of pr,niculates" while liigh Efficiency Particulate (llEPA) filten typleally trtuismit less than i part in 10,000 of the fine particles impinging on them." Cyclone separators typically are used to separam and collect larger particles, while the llEPA filters subsequently remove the liner particulates.

Dr. Resnikoff then perform %l a calculation based on wind patterns from another site (Knolls Atnmic Power Laboratory, Schenectady, New York) to estimate a land dose to a hypothetical adult standing modonless 300 meters from the plant for an entire year. Dr. Resnikoff estimated Licensec's hourly release rate for depleted uranium and derived a yearly dose estimate of about Traseperssave mad $ scrap of A Jear Wane lunspearimi daw d publaau.m) 34 lintubd A to os Arridasti d ktarvm kswidr.1%o.

hot. anes to segulati.sia ni s. aft gmdww tmsht miharu de gwumet.

II smt* I am evah.atms uw empeants d allegnuore that have rue bee aandtud no this ptsades. I have weed trustwunhy eas.rsas d intcamamus vnh de aid or my techstal adnaut. who has teen mtui hal dal nu me See i

P. 5tallard, et al. **l. e Ibe.higinate or o malu tube Asia) 11ow Cychsia separaut Synem r<w Uns ln Nmlear oAs Gaanmg syswns." Pn.c. 2ith oo! ARC Nudsar Aa Ocamns Omt:rou. 2M 77 09st)

Dbl Ammeruh es al. "Coenarnmauma Releasra rnan nl.PA I dieri Under n.gh legeret.us oimieung Omk harw." Pnc 2ith Do!>NkC % 4 Ocamng Conterzue. h9 M 091%

552 i

10 mihirem per year for the Lypothetical srson. While Dr. ResnikofI does not I

cite an applicable regulation,10 C.F.R. 20,130144 appears to be applicable, hat section states, in relevant part:

(a) Each 1.icensee shall celuct operations so th.it-(t) 'Ihe t(tal effective dose equivaknt to indhiJual memters of the puidic from the ticensed operation doca not cacced 0.1 rem (1 mSv) in a year, eactuaive of the dose ctaitritanke fran be ticensce's digssal of radionethe material into manitary sewerage h accordance with $ 20.2003.

nus, the dose estimated by Dr. Resnikoff for the hypothetical individual fixed at a point 300 meters fram the plant for a year is less than the ncendy enxted regulatory limit by a factor of ten," lbr more normal patterns of ir,dvidual movement, the estiraate would be still lower,

Dr. Resnikoff also is concerned about the failure to measure releases alw propriately (Affidavit at 5,119). lie says that "the best method to sho, that uranium air concentntions are within regulatory limits is to have high volume air particulate samplers at the fence post." llowever, he also states that "[tlhe company now has such samplers," thus curing the problem he raises.

11 Liquid Discharges Plant operations produce liquid waste. This wasta us,lally contains some depleted uranium, As pointed out by Dr. Resnikoff (ld. at 3,111214), the waste is either solidifted or recycled, with some solid precipitates of uranium oxide being separated in the recycling, %c solid wastes are then sent to licensed radioactive landfills, as is any scrap material, I conclude that Dr. Resnikoff does not specify an, issue with respect to this procedure that I might presera to the

Staff, Dr. Resnikoff taw. %es sc::ne other sources of concern that I will deal with individually.

I456 Fed. Reg. II,398 (Wy 21,1991), effseuve May20,1991, with de.fstral for exiaung becreem ursu January 1,1991 11 m 23J60. I una h accum, which is nut awheeblo to dse hcense appbcanon, as a standa:d fa companse because it has tan adapted by the Commiazion.

HDr. Rearukoff states (AfMavit at 4 s,118) that higher ura ium emeenuanma would owur during accideta, but he does not paiJe any informadon from which I ca.1J conclude that acciders frequency or unenalty is unaccepable.

At page 6,126, Dr Ra.nioff raacs a quanon shout the deponuon of uranium panwulates a, Llw ide but he does not ette any reason to behave that a regulausy standerd is being exccaled.

l' Dr. Rearakuff states (6,10,120) that "lainy additional radiadon due to local residents increanas the pnkebdity of cancers and other health.'~iects," I recog:nze that this view is a mimd approads fur health physictata to take and that it also is the view of as imponant segmenu of prefensional opuuon. llowever, a Idatams Board found in another cess - after catensive t ugaden - that there ta no vahd empuwal evidmee !vr health effects or less than 9 rads. General 1%bhc Ususe hclaar Corp, (nuce MJs !aland Nclear si uan,IJna 2),IJ1P-89-7,29 NRC 138,16667 0989) 553

1.

Ilo! Jing liasin and flog During operations in the years prior to 1985, liquid wastes were treated ask!

then discharged into an unlined holding basin and. apparently, from the material in 129 (id. at 7), into an adjacent bog located on the plant site. According to a report cited by Dr. Resn!koff, soil samples taken in 1983 on the perimeter of the bog showed a wide range of activity, verying from a few picoeuries per gram (pCi/g) to nearly 300 pCi/g. Ilowever, surface water uranium concentrations (id. at 7,132) met EPA drinking water standards. Dr. Resnikoff concludes that the uranium concentration is not water.coluble.

With respect to the llolding Basin, Dr, Resnikoff reports that a llypalon cover was installed over die basin in 1986; tids apparently had the beneficial effect of reduelig migration of uranium from the holding basin. In support of this conclusion, Dr. Resnikoff cites (id. at 8,134) a groundwater monitoring report prepared in 1990 to contrast with the 1983 report cited previously. lie then cites an EPA trip report (id.,135) that states that there is a " strong likelihood of migration of uranium along with the groundwater."

While these matters are of concern, Dr. Resnikoff has informed me that they are under surveillance by the EPA (id. at 6 n.6) and the NRC (id. at 7,129).

%us, these are not new matters of concern to public health and safety.

2.

Septic System One liquid pathway for releases is described by Dr. Resnikoff in 113: the septic system, which receives hand-washing and shower effluents. Dr. Resnikoff avers that thi+ system is contaminated. (The septic system is in the southwest part of the site.) In 137 (id. at 8-9), Dr. Resnikoff alludes to NRC inspection reports that state that the septic system has becsme "slightly contaminated."

- [ Quotes added.] Whatever poteulal dar~r !his problem poses, it is ::Icarly being treated by the NRC staff: notification would be superfluous.

3, Operating 1:xperience Dr. Resnikoff reviews (id. at 9-12) the operating experience at the Concord plant and cites a number of docket records of violations, plus an enforcement conference and letter in April of 1973. lie then states (id, at 9,143) that

"[alfter the AEC's enforcement letter April 1973... NMPs performance began to improve," Apparently there were some violations and an enforcement conference in 1983; after that time, Dr, Resnikoff does not note further violations or enforcement actions. The Staff's inspection and enforcement procedutus appear to have been effective, and no new issue is presented.

554

4.

Iloiding Itasin Remediation Dr. Resnikoff states (id. at 12, $ 52) that "lo]n August 13,1987, Nhil stated that a plan for permanent closure [of the holding tusin) would tie submitted with the next license enewal," Dr. Resnikoff then takes issue (id.,154) with the Staff's recent requirement of the procurement by Nhil of a hne of credit of $750,000 to give assurance that funds will be available to deconunission the holding basin. lie states that "the total, $750,000 will hardly tie enough to cover the cost of decommissioning the holding basin."

Although Dr. Resnikoff may be right, it is difficult to see any new issue here that is not currently under Staff surveillanee. Furthermore, the regulations appear to support the Stari action. Section 40.36(d) of 10 C.F.R., and Appendit A to 10 C.F.R. Part 40 are the apparent governing regulations. Appendix A, part 11, cites

"(e) Irrevocable letters or lines of credit.,." as an example of finarcial surety arrangements genemlly acceptable to the Conunission. Criterion 10 in Appendix A states a arquirement that a minimum charge of $250,000 (1978 dollars) must be paid to cover the costs of long-term surveillance. The regulation establishes the criteria to be used to determine the adequacy of funding arrangements to cover the cost of decommissioning, Since Petitioners do not indicate that the application of this criterion is incorrect, I presume that the Staff requirement of S750,000 surely is in accord with these regulations. If the Petitioners feel that the rule is incorrect, the remedy is to present a petition to the Commission to amend the rule, S.

Ilog Remediation Bog remediation is another issue involving, as stated above, the EPA as well as the NRC. The State of hlassachusetts also appears to be involved. Dr.

Resnikoff has sketched the situation at the bog and it is clear that the cognizant agencies are monitoring the problem. 'Ihus, Dr. Resnikoff does not specify any current issue that we might send to the NRC staff.

C.

Conclusion There is no, issue important to safety or the protection of the environment that merits a referral to the Staff. One reason for this conclusion of nonreferral is that we have no reason to believe that the Staff or other responsible government agencies are handling these matters improperly.

555

-_<.._m__.__.

111. ORDER For all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 18th day of June 1991, ORDERED, that:

1. The Petition for a llearing of Citizens Concerned About Nuclear hietals, the National Toxic Campaign ibnd, and the National Toxics Campaign, con-tained in the letter from Sanford J. Lewis to Jotm Kinneman, USNRC Region I, January 24,1991, and supplemented in the Reply to Answer of Nuclear bietals, Inc., Regarding Petition to Intervene, June 6,1991, is denied.

2. Pursuant to 10 C.F.R. 52.1251 of the Commission's Rules of Practice, thit initial decision will constitute the final decision of the Commission thirty (30) days from the date of its issuance, unless an appeal is taken in accordance with 10 C.F.R. I 2.1253,

3. Any party may take an appeal from this decision ivith the Commis'slon by filing a Notice of Appeal within ten (10) days nfter senice of the [partiall ini' al decision. See 10 C.F.R. 5 2.785 as amended October 18,1990 (55 Fed.

J Reg 42,944 (Oct. 24,1990)).

4. Each appellant must file a brief supporting its position on appeal within thirty (30) days after filing its Notice of Appeal. An intervenor appellant's brief must be confmed to issues that the intervenor appellant placed in controversy or sought to place in controversy.

5, Within thkty (30) days after the period has expired for the filing and service of the briefs of all appellants, a party or participant who is not an appellant may file a brief in support of or in opposition to the appeal of any other party. A responding party shall file a single, responsive brief only regardless of the number of appellants' briefs filed. Briefs shall conform to the _ length and format specified in 10 C.F.R. I 2.762.

Respectfully ORDERED, Peter B. Bloch, Presiding Officer ADh11NISTRATIVE JUDGE Bethesda, blaryhmd 556 l

l l

t I

i I

Cito as 33 NRC 557 (1991)

LDP-9128 UNITED STATES OF AMERICA NUCLEAR REGUL.ATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judgos:

James P. Gleason, Chairman Dr. Richard F. Cole Dr. Kenneth A. McCollom in the Matter of Docket No. 50-443-OLA (ASLBP No. 91640-09-OLA)

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.

(Seabrook Station, Unit 1)

June 18,1991 MEMORANDUM AND ORDER (Petition for Leave to Intervene)

DACKGROUND

'Ihe Scacoast Anti Pollution League (SAPL) has filed a petidon for leave

' to intervene in an operating license amendment proceeding instituted by Li-censee, the Public Service Company of New llampshire (PSNil). The Petitioner alleges that Northeast Utilities Company (NU) desires to acquire the Licensee and its rights and ownership interests in the Sec. brook Nuclear Station throug' the creation of a wholly owned subsidiary, the North Atlantie Energy CorIx>-

- ration (NAEC). SAPL contends that citizens it represents live within a 10-mile emergency planning zone of the nuclear facility and would be affected by any increase in risk resulting from the proposed amendment.'

3 SAPL Pouuan for 1. eave so latervenc., AprJ 1.1991.

557

'lhis Board was established to rule on petitions to intervene pursuant to a notice published by the Commission in the FrJeral Register on February 28, 1991 (56 Fed. Reg. 8373).2

'Ihe Ittitioner alleges that NU as the principal owner and operator of another nuclear power facility (Millstone) is currently being investigated by the NRC for a possible pervasive patterr of discriminatory practices against its own employees. The employees allegedly were intimidated and harassed for bringing safety violations to the attention of NRC officials. Such conduct can amount to discriminatory practices prohibited by NRC regulations. See 10 C.F.R. 5 50.7, SAPL also cites several other NU management deficiencies reported in a 1991 NRC Systematic Assessment of Licensee Performance (SALP). "Ihe petition concludes that NU should not be granted an operator's license at Seabrook if a hearing determines that either NU or its subsidiary NAEC has engaged in " suppressing employees" who communicated concerns to the NRC. This grant, in Petitioner's view, would constitute a " material increase in the hazard of the operation of the Seabrook plant."2 Tiw Licensee (PSNil) and the Staff filed objections to the petition on grounds that the matters complained of are outside the scope of the proceeding and that SAPL lacks the required standing to intervene.*

DISCUSSION in its notice concerning the proposed PSNil amendment (56 Fed.' Reg.

8374), the Commission referenced the regulatory requirements of a petition for inicrvention. As provided in 10 C.F.R. 5 2.714, the petition must set forth with particularity the interest of petitioner in the proceeding, how that interest may be affected by the results of the proceeding, and the specific aspect (s) of the subject mattcr of the proceeding on which the petitioner wishes to intervene.

'lhe Board designated to rule on interventbn requests must consider, arnong I

other factors, the nature of the petitioner's right under the Atomic Energy Act to be made a party to the proceeding, the nature and extent of the petitioner's property, financial, or other interest in the proceeding, and the possible effect of any order that may be entered in the proceeding on the petitioner's interest.

2 s6 Fed. Reg. 22.016.

3 s apt. Penuun at 4.

4 thensco Answer to the Imine.. (AprJ ll,1991); sufr Resporue to.. IN6tka.. (April 22.1991) In e Respmue, dated April 24. Lo LAensen's Ansect. sAPt. sought to amend its pcunun by admitung the names or several members rest.hng near tLa seabed racihty as its represenuuvea. De led or authurved represaustum os a derwievey in sAPL's pet. nun is cited by hah liessee and 24 sui Ibr guryses or thu decinian, we presume the vahday or sAPL's represenunat Sse //eastmi figAang ad l'aw Co. (Alleas Creek thclear Crmeranna suuan. Unit 11 al.AD-53s. 9 NRC 377. 390 (1979A i..

558 l

l

in a number of decisions, the Comminion has held that judicial concepts of standing will be used to determine whether a petitioner has sufficient interest in a proceeding to be entitled to intervene as a matter of right. The3e concepts require a showing that (a) the action complained of will cause an injury in fact, and (b) the injury is arguably within the zone of interests protected by statutes covering the pioceeding. See, e.g., Metropolitan Edison Co. (Three hiite Istarxl Nuclear Station, Unit 1), CL183 25,18 NRC 327,332 (1983).

%c license amendment proposed herein is intended to authorite a newly created entity, NAEC, to be included as a licensee and to acquire and poness PSNil's ownership interest in the Seabrook facility. According to the Commis-sion's Notice (56 Fed. Reg. 8373), the application for amendment reflects the transfer of ownership as part of a reorganization plan ordered by a Bankruptcy Court to resolve pending bankruptcy pmceeding* in another proceeding in-volving a separate application, it is proposed that a different entity, the North Atlantic Energy Service Company (N AESCO) and also a NU sutwidiary, become the licensed operator of the Scabrook facility. Scc 56 Fed. Reg. 9384, Since the proposed amendment here, howcVer, speaks only to a trarafer of ownership

- not operation - we are constrained in our review to consider on'y cencerns involving tl.at tranc.fer. Boards have limited jurisdiction in license amendment proceedings, and issues are admissible only if within the scope of the amend-ment application. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units I and 2), ALAB 739,18 NRC 335,339 (1983). With this bxkground, it becomes evident that allegations concerning NRC investigations of regulatory violations by a parent organization at another licensed facility (hlillstone) have no place and cannot be reviewed in the instant proeceding. As the Staff points out, the mere pendency of an investigation is not germane to licensing issues and does not show particularized harm.s his would be a valid conclusion even if the amendment application directly involved NU and concerned aspects of ownership or operational responsibdity at Seabrook.'

.h CONCt.CsION in view of the foregoing, we lind that the petitlener has not demonstrated any injury in fact and has alleged no basis for an interest within lhe scope of this proccedmg. As a result, SAPL lacks standing for this proposed operating license amendment, and its petition for leave to intervene is denied.

5 start Re nm..t a 9

• In ns Respme in luemes's Answer to the l\\utum. sal'L attemptd to betAten the peuu.ui s siunpass to refunnes NU as an ownu or agmatar of the Seahmuk faalay SAPt. Reapime at 2.

559

.~ - --

... ~.

_. ~. - - -.

ORDER Ibr the reasons stated, it is, this 18th day of June 1991 ORDERED;

1. The SAPL petition for leave to intervene in PSNil license amendment proceeding to include NAEC as licensee, and to transfer ownership in Seatrook Station to NAEC, is denied.

2, in accordance with the provisions of to C.F.R. 5 2,714a(a), this Order may be appealed to the Commisslori within ten (10) days after service of this Order.' See $$ Fed. Reg. 42,944 (Oct. 24,1990).

Tile ATOMIC SAFETY AND LICENSING BOARD James P. G!cason, Chairman ADMINISTRATIVE JUDGE Richard F. Cole ADMINISTRATIVE JUDGE Kenneth A. McCollom (by J.P.G.) '

ADMINISTRATIVE JUDGE Bethesda, Maryland June 18,1991 i

560 r

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Cde as 33 f4RC 561 (1991)

LDP-91 29 L

UNITED STATES OF AMERICA NUCLEAR REGULATORY COM% ION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

B. Paul Cotter, Jr., Chairman Dr. Richard F. Foster Dr. Peter S. Lam in the Matter of Docket No. 030-30870-OM (ASLBP No. 91-629-01 OM)

(Byproduct Material License)

FEWELL GEOTECHNICAL ENGINEERING, LTD.

(Thomas E. Murray, Radiographer)

June 25,1991 In a proseeding favolving an immediately effective order of the Nuclear Regulatory Commission barring a radegrapher from working for a licensee for 3 years, the Licensing Board modifies the order by reducing the period of suspension to 9 months and requiring tiu radiographer to serve 3 months as a radiographer's assistant before being requalified as an independent radiographer.

WILLFULNESS When the actions of a radiographer do mit evidence a deliberate intent to violate the purposes of the procedures or rules and are based upon his own personal interpretation of what is necessary, his failure to follow tie rules amounts to "a potentially significant lack of attention or carelessness toward licensed responsibilitics." This conduct (which would constitute a Severity Level 111 violation) is far more serious than an inadvettent lapse, but less serious than, for example, the deliberate defeating of a safety-related device.

561

FALSE AND MISLEADING STATEMENTS While a lack af candor in responding to investigators

• questions is not to be condoned, it does not require the NRC to abandon all confidence in a radiographer's ability to perform radiography in a safe manner. In this case, the lack of candor could be attributed to the radiographer's stressed and somewlut confused state of mind which was caused, at least in part, by the radiographer's wife being about to give birth and by the fact that he panicked upon being confronted by the investigators Under these circumstances, his transgression was categorized as intermediate, between very significant and of minor concern, and was found to be comparable to a Severity Level 111 violation, RADIOGRAPilY Absent any prior transgressions, a first-time failure to perform radiation surveys after radiographic operations, failure to prevent unauthorized entry into restricted areas, failure to lock the source in its shielded position, inadequate posting of restricted areas, inadequate boundary radiation surveys, and a lack of candor in responding to NRC investigators was found to be insufficient to sustain a 3-year suspension of the radiographer from his job. In its place, the Licensing Board substituted a 9 month suspension and a requirement to serve 3 months as an assistant radiographer before he could resume duties as a radiographer.

INITIAL DECISION By letter dated November 18,1990, Thcmas E. Murray timely appealed an immediately effective order of the Nuclear Regulatory Commission ("NRC")

barring him from working as a radiographer for Fewell Geotechnical Engineering Ltd, ("Fewell") for a period of 3 years. The issue in this case is whether the order should be sustained, modified, or sacated. For the reasons set forth within, we modify the Commission's order.

1, STATEMENT OF Tile CASE On November 2,1990, the Deputy Executive Dirktor of the NRC issued an order modifying the Fewc!) license, which provided ht Fewell Geotechnical Ibgmeeting, lad., shall rot utilia Mr. h, li Murray in any bcensed activnics, including, but sut limited to, actisities performed by radkigraphers, radkigraphers' assistants, and helpers, for a period of three years.

562

Staff ihh.1, "In the h1atter of Fewell Geotechnical Engmeeting, Ltd., Order hioalfving Liceru.c (Effectis e immediately)," $5 Fed. Reg. 47,409,47,410 (Nov.

13, IWO)(the Order).

Although hit. h1urray is not a licensee, the Order provided that he cot.ld request a hearing on whether the Order should be sustained. Id. lie did so, and, following appointment of this lloard on Decemter 21,1990, a hearing was held in lionolulu, llawaii. Mr. Murray procceded pro se although he was assisted by a certified health physicist, Phillip blanly. T.179. At the hearing, testimony was presented by Mr. Murray on his own behalf, and by Messrs. jouloff, Slov, and Lieberman for the NRC Staff. Posthearing briefs have been filed by the parties.

A.

The Actigity Littnsed Ibr purposes of this case, the NRC licensed activity at issue conectns Mr Murray's examination of industrial pipe welds witn a radiography camera to ensure that the welds were sound.

Industrial radmgra;ily is a technique of twndestruaive tenmg dist uses rsJanuve sweres or a says to Jcted flaws in welJs.

Safety Requirements for Industrial Radiographic Equipment, $5 Fed. Reg. 843 (Jan.10,1990) (" Safety Requirements") 5

%c radiography camera Mr. Murray used was an Amersham Model 660 projector (S/N 3131) ("the camera"). It consisted of a metal housing of about I cubic foot, a radioactive source, and a 20- to 25 foot-long control cable that could move the radioactive source, scaled in a capsule, in and out of the metal housing into a stainless steel guide tube attached to the camera, lloard Exh. 4; Tr. 3545.

De camera employed iridium 192, a gamma-emitting source. Iridium-192 emits two Linds of gamma rays, one of 0.316 eaillion electron volts (McV) and one of 0.468 MeV, with a half life of 73.83 days (i,c., only half as much radiation will be emitted after that period). Gamma rays are generally ten times stronger than x-rays. The total amount of radioactivity in the Amersham camera was approximately $4 curies. Tr.131. Dat is enough radioactivity to cause extensive damage to tissue in contact with the source or to deliver a life-threatening dose to a person in close proximity during prolonged exposures.

8 IThe saraty Rapuanama amended 10 C F.R. Pait 34. "1ketues rg Radwpi@y and Radiaum safety Requiremems for Radmyaphic operaums" na Safety Requuunaus s..clude a naus detaded densnptmn or industnal radwgraphy apphCaums, but the prun' pal Lhnut or the amendmaus related to radwgiapac equymert The "Badpuund" ter the ammaments, uutiated :n 1938. reLed heavtly on a st dy or indusra;%c expencnce trom 1974 to 19R 563

.._.m Jec NUREG/BR-0024, " Working Safely in Gamma Radiography" (September 1982).

De capsule holding the iridium 192 source is attached to a control cable that pushes the source out of the camera to take an "x-ray" image of, for example, a wcld, and pulls the source back in after the image has been taken, When tie iridium source is inside the camera, the sarce is surrounded by depleted uranium, the heavy density of which effectively prevents the gamma radiation frun escaping from the camera. In that position, the source is described as being in its " shielded position." 'It 38-14,

%c source is pushed oci of the camera by a crank on the control cable.

Because the stainless steel source guide tube through which de encapsulated source moves in and out of the camera is not transparent or translucent, the radiographer cannot confirm visually whether the source is in or out of the camera. The 20 to 25-foot length of the control cable allows the radiographer to be a safe distance away from the source when it is exposed, i.e., outside the camera. Id.

Because of the significant radiation danger the exposed soun;e represents for people, three safeguards are provided in operating the camera. First, an odometer on the contros cable can be used by the radiographer. The odometer is intended to tell the radiographer whether the iridium-192 source is in or out of the camera. Ilowever, the odometer reading could be mislerting if the source becomes detached from the cable. Second, a kx; king mechanism on de camera allows the radiographer to lock the source inside the can'.cra in the

- shicided posn and thus prevent the source from eccidentally moving out of de shicidcc nn. Third, a radiation survey of the camera and the source guide tu d with a survey meter after radiographic exposure will detect de presenc.

. accidentally exposed source. Tr. 44.

H.

The Fewell License On September 29, 1989, the Commission issued Amendment No. I to Fewell's Dyproduct Material License No. 53-23288 01, adding Thomas E.

Murray to the license as a radiographer, item 15 of the license, as amended, incorpomtes by reference Fewell's September 12,1989 letter to the NRC, which forwarded documentation of Mr. Murray's radiographic training and experience, item 15 also incorporates by reference Fewell's original license application, NRC Tbrm 313. dated October 24, 1988, and a supplement to the Fewell application in the form of a January 13,1989 letter from Fewell to the NRC.

Attached to the January 13, 1989 letter are sections I and IV of Fewell's 564

l operating procedures.3 Staf f thh. 2; Tr.15-23. As a part of Fewell's application, those operating procedures became a part of the terms and conditions of the license. Finally, item 15 of the Fewell license states that:

De Nudear Regulatory Conunisiksi s regulatknis shall guvern unless die ststcar ents, representatkms and pitudarts in the hcemce's appheatkin and torrespeiderwe are enore restriedve than the itgulatknis.

Staff Exh. 2; Tr.17.

The portions of Fewell's operating procedures and NRC regulations at issue here provide as follows:

1.

Radiation bowtdary survey. Paragraph 2.5 of section IV of the operating procedures requires that radiation surveys be performed to establish a 2-milliroentgen per-hour ("mRjht") radiation tourxlary before commencing radiographie operations;

2. Posting radiation boundary. Paragraph 2.2 of section IV of the operating procedures requires that the radiation tuundary be posted and roped off; 3.

Postexposure survey. Sectio". 34.43(b) of 10 C.F.R. and paragraph 2.6 of section IV of the operating procedures require that a radiation survey of the camera itself be made after each exposure to dctctinine that the scaled source has been returned to its shleided position; 4.

Securing source. Section M.22(a) of 10 C,F.R. and section IV.

paragraph 2.6, of the operating procedures require that the scaled.

source assembly be secured, i.e., locked, in the shielded position after each exposure;

5. Boundary security. Paragraph 5.0 of section I and paragrapn 2.5 of section IV of the operating procedures require the radiographer to prevent entry into the radiation boundary by individuals other than radiographers and radiographers' assistants.

Staff Exh. 2.

C, The ther at issue 4

On October 23 and 25,1990, an NRC investigator, Philip Joukoff, and an NRC inspector, David Skov, observed Mr. Murray (unknown to him) as he conducted radiographie opera *.ons at Campbell Industrial Park, Oahu, llawaii.

'lY,27, %ey took still pictures on October 23 and videmped ap oximately 35 minutes of Mr. Murray's activity on October 25,1990. Board Exh. 3; Staff 21 hens operaung pmecdures are tsferred to m the oider as the "operug and frergenwy Prtwedarra" 55 l'ed Reg at 47AMM in ths duimm we refer to them simply as "operata, poce.Lren "

565

Exh. 5, hiurray's worksite was in a ditch alongside a highway where lengths of largediameter pipe were being laid and wclded in place, hturray was working in

- the ditch, about 20 feet frorn the road, checking the welds with his fadiography camera. Opposite the highway, the back of the worksite was bounded by a temporary workroad bordering a vegetated coral formation that rose irregularly to a height of some 30 feet,

'Ihe results of the Joukoff Skov observations were summarized in the Novem-ber 2,1990 Order of the NRC Deputy Executive Director as follows:

(1) On October 25,1990, Mr. Murray conducted radiographic operations withmt performing suneys to estaldish the raiatiun boundary; (2) On October 23 and 25,1990, Mr. Murray failed to rope off any pordw of the radiation boundary, and failed to post signs for most of that boundary; (3) On October 23,1990, on at least 12 occasions and m Oek4ct 2$,1990, m at least 5 occasions, Mr. Murray failed to perform surveys of the exposure device to deterudne that the scaled source had been returned to its shielded posinm after ra&ographic capusures;

. (4) On October 25, lWO, Mr. Murray failed to secure the radiographic source in the fully shielded posinun after each of several source exp.nures; 1

(5) On Oeuber 23,1990 Mr. Murray failed to prevent entry into the restricted area of individuals other than radiographers and radiographers' assistants.

- Staff Exh,1,55 Fed. Reg, at 47,410.

- In addition to the foregoing violations of NRC regulations or Fewell operating procedures, the Order charged that on October 25,1990, the NRC investigator and the NRC inspector asked hir, hiurray whether, on October 23 and 25,1990, he had complied with the requirements for the conduct of surveys to assure that the source had been retracted to its fully shielded position, for the securing of the source in this shielded posidon after each exposure, and for preventing the entry of unauthorieed persmnel into the restricted arcs.

'Ihc Order states that, contrary to what hiessrs. Joukoff and Skov had observed, hir, hiurray told them that be had complied and then demonstrated the correct survey procedures for them, Id, After reciting the requirements and the violations described above, the NRC

- Deputy Executive Director concluded:

It appears that Mr. Murray's nedens were willful because he was experienced, trained, and knowledgeable concerning NRC and 1.icensee requirements pertaining to surveys, to securing the source in the fuVy shielded position after each source exposure, and to preventing l

. unauthorized entry into a restricted area, and because he repeatedly failed to comply with these requirements on at least two days in one wee'. In adation, Mr. Murray gave the NRC false information emccming his actions, cmtrary to the observadons of Iwo NRC employees.

l l

l I

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%erefore, the NRC has nuwluded that fahe informatnin was also pimidtd willfully. As a result of these willful violatuns, the NRC does nos have reasonable assurance that Mr.

Murray will nunply with regulatory requirements.

. id.

II. POSITIONS Ol' TIIE PARTIES A.

The NRC Staff

'the NRC Staff asserts that tie five categories of conduct in violation of the license terms and regulations either have been admitted by stipulation or established by the evidence in the case. In addition, the Staff asserts that hit, hiurray's conduct and his representations when confronted by hiessrs, Joukoff

.and Skov amount to willfulness on hit. hturray's part. Consequently, they conclude that the Deputy Director's November 2,1990 sanction barring htr.

h1urray from working under the Fewelllicense for 3 years should be sustained.

. See generally "NRC Staff's Proposed Findings and Conclusions of Law in the Ibrm of an initial Decision," dated h1 arch 8,1991.

1.

Proscribed Conduct In general, Staff relies t,n hir. h!urray's stipulation to the facts as described in three of the live operational procedure violations charged in the order. *lhey presented testimony on the other two violations and assert that hir, hiurray essentially admitted one, item 3, the camera survey, and failed to deny the other, item 5, permitting unauthorized entry. Ilowever, standing alone, the Staff does not identify an appropriate sanction for these violations or scck to categorize ticir severity under Appendix C of Part 2 of the Code of Federal Regulations

-(10 C.F.R. Part 2). Rather, the Staff treats them as essentially one element in the Deputy Director's conclusion that hir hiurray's corxtuct warrants his suspension for 3 years. (This is essentially a Severity 1.cVel 11 infraction. See discussion at pp. 574-75,576 n.5, and pp. 577-79 iq/ra )

2.

\\t'lllfulness and False Information As noted above, the NRC Cr6cr stated that hir. hturray's actions were willful because he was " experienced, trained, and knowledgeable" in the requirements of surveying, securing the source, and preventing unauthorized entry, and, despite his background and knowledge, he repeatedly failed to comply with the requirements on Octoler 23 and 25,1990, while being observed by NRC investigators, htr.Joukoff and hit. Skov. Secondly, Staff asserts that hit. h1urray 567

I provided false information to NRC investigators, and, tecause of his background and knowledge, that act had to be willful. Staff Exh.1, supra, $5 Fed. Reg. at 47,410.

a.

Source Surveys Mr. Joukoff te;, tined, and Mr. Skov veri 0ed, that on October 25,1990, Mr.

Joukoff asked Mr. Murray whether, on that date, he had surveyed the camera after each exposure and Mr. Murray had answered yes. Furthermore, Mr.Joukoff testified, and Mr. Skov af6tmed, that Mr. Murray stated that he had secured the camera after each exposure. B. 67-68. Mr. Murray also demonstrated the proper method of surveying the camera after retracting the source and of locking the source after exposures. "IY. 70. Ilowever, Mr. Joukoff testined that Mr. Murray performed none of these required acticas during Mr. Jou' off's observation. Tt. 71, in response to the Board's inquiry, Mr. Joukoff read his notes taken on October 25,1990, which indicated that he had questioned Mr.

Murray specifically about what had taken place on that day. 'Ir.127 30.

b.

Entry of Unauthorized Personnel With respect to unauthorized personnel entering the radiation area, Mr.

Joukoff testified that Mr. Murray told Messrs. Joukoff and Skov that unautho-rized personnel had never entered the radiation area. Tr. 67-68. Ilowever, Mr.

Joukoff testified that, on October 23, 1990, he witnessed six individuals who were not radiographers or radiographers' assistants within the restricted area while the source was out. lie testified further that Mr. Mt.rray had a reasonable opportunity to keep all of the individuals out of the area because he was not engaged in any other activities. Tr.122-23.

Mr. Joukoff testified that 2 days after Mr. Murray's failure to prevent entry on October 23, 1990, Mr. Murray told him and Mr. Skov that unauthorized personnel had "never" entered the restricted area. Tr. 68. One week later, during the November 1,1990 interview, Mr, Murray again stated that he allowed no unauthorized individuals in the restricted area while conducting radiographie operations. Board Exh. 2 at 78,118. After being shown still photographs taken on October 23,1990, Mr. Murray admitted that these individuals were within the 2-mR/hr boundary when the source was out. Board Exh. 3;id. at 154 55.

3.

Public flealth and Sqfety The Staff asserts that Mr. Murray's violations of NRC regclations posed a threal to public health and safety James L.lebe man, Director of the NRC 568

Office of Enforcement, testified that he considered Mr. Murray's violations

. significant. Tr. 142, 158. lie further testified that, in promulgatirig new regulations for radiography, it;was noted that, while only 4% of radiadon workers are radiographers, they account for 18% of the overexposures that oct.ur tmder the jurisdiction of both NRC and the agreement states. R.142; Safety Requirements, supra, at 843. The Statement of Consideradons for the Sr.fety Requirements reports that in the decade ending in 1984, radiographers accounted for more utan half of the overexposures greater than 5 rems' to the whole body or 75 rems to tne extremitics, and almost 60% of the overexposures greater than 25 rems to the whole body and 375 rems to the extremities. De Commission has established a limit of no more than 5 rems per year for individual exposures.

10 C.17.R.120.101(b)(2) (1990). He Safety Requirements also describe a number of incidents leading to overexposures, and note that all of these risks to health could have been avoided by performing a radiadon survey after each radiographic exposure. D,142-43.

Additionally, Mr. Skov testified that the source used by Mr. Murray on October 25,1990, contained approximately 54 curies of iridium-192. W.131.

With that amount of activity, Mr. Skov concluded that (shane very very serious radiation exposures have reauhed due te radiography events.

tiven ihr.;gh the popidatiun of r Jivgraphen constitute [sl only e small praportion of radicim workers working with heensed snaterial, they beve actuanted for over half of the overexposres tha4 have occurred._ Se uere is a very significant threat to the heahh and safety of radiation wo.kers, radiogragters.

W.132-33.

4.

Sancibn in support of the severity of the sanction, the Staff asserts that Mr. Murray's actions damonstrate that he does not have the mtegrity to perform unsupervised radiography, Tr.162. The Staff asserts further that the fundamental reason for issuing the NRC order was to remove a safety hazard, namely, Mr. Murray,

%us, the Staff fixed the 3. year length of the suspension from a combination of tlic severity of the violations and the threat to the pubile health and safety that they assert Mr. Murray represents. D.176 He Staff testified that the NRC inspectica program for radiography is an audit type program. Radiography licensees are only inspected approximately once a year, absent allegations. Because it is an audit type program, the NRC 3A ran is a umt or measiuwnant or tudogscal damage by radiation It ta defmed as rollows: "rhe &me equivalers in rems is equi to the absorbed dose in rads maluphed by the qualaiy raetor

• 10 C.F lt. 6 2ntool, he osamplo, th$ qJisy tastus for gamma radtauon u 1. and for alnta particica is 7J.

369 l

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depends on the training, management oversight, and integrity ' individual ra,liographers. Of the three factors, integrity is ti e inost importani t anuse most, if not all, radiographers are well trained, and management cannot be present at all times htorcour, if a radiographer knows management is present, he will likely do tie job properly. Thus, Staff concluded, a strong sanction was clearly appropriate, hir. Lieberman testified that the action taken in this matter was based on experiences that the Staff has had with the dangers associated with radiography when the required procedures are not followed. 'It 142-46.

De Staff argues that the sanction is consistent with recent practice, citing Staff actions in Western Stress,Inc.,56 Fed. Reg. 4311 (Feb. 4,1991), and C &

R Laboratories, Inc., 55 Fed. Reg. 50,424 (Dec, 6,1990). In Western Stress, a radiographer who removed his fim badge was suspended for 1 year, in that case, the radiographer admitted the violation to the NRC. it 16162. In C & R Laboratories, the licensee fired the radiographer on its own initiative, but was required to give the NRC notice if the individud were to be rehired within 5 years. 'It 177. The Staff noted that, until recently, it did not specify a period of years when suspending an individual from licensed activities. De NRC orders were open<nded, with a provision for relaxation by the Regional Administrator for good cause shown. The Staff asserted that in the past year,1990, at least three individuals were removed from licensed radiographic activities for an inde0 nite time period. In the last 6 months, the Staff has been including a term of years for suspensiotu. It 147-48, s'

In fixing the severity of hir, hturray's sanction, the Staff also states that it took into account his employment at Finlay Laboratories, whose NRC license was terminated in 1988. The Staff had proposed to revoke the Finlay license, but the case was settled by termination of the license and a 3-year prohibition on licensed activities by Finlay. Finlay Testing Laboratories,Inc., LDP 88-17,27 NRC 586 (1988). The Staff offered no information to indicate that hir. hiurray bore any responsibility for the Finlay sanc'. ion. Nevertheless, although the Staff concluded that hit. h1urray's actions did not warrant a permanent suspension, the Staff deemed the circumstances su'liciently serious to warrant a sanction comparable to the 3 year suspension imposed on Finlay, Tr,147-48.

De Staff also asserts that it is the respondbility of the Commission to prevent overexposures to members of the public, including radiation workers.

We Staff intends to use the Nuclear hiaterials Safety and Safeguards (Nh1SS) newsletter and letters to radiographers to inform other mdiatha workers if other radiographers realize that they could lose their livelihood, they might pay more attention to adhering to requirements and performing the required surveys.1h 149. Staff asserts that while the fundamental reason for issuing the Order was to remove the safety hazard, enforcement actions can also be used to provide notice to other individuals. The Staff notes that the Enforcement policy states that one 570 I

~

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of the means of achieving the purposes of the NRC enforcement p ograms is by

"[d]eterring future violations." 10 C.F.R. Part 2, Appendix C, il (1990).

11 Position of Mr. Murray Mr. Murray stipulated that he acted as described in three of the five instances of conduct cited in the Order but argues that mitigating factors were present in those and the other two instances described. 'Ite Doard notes that Mr. Murray is proceeding pro se, and takes that into consideration in reviewing his pleading 4

and presentation of his case.

1.

Proscribed Conduct a.

Radiation Boundary Survey Mr. Murray stipulated that he did not perform boundary surveys on October 12,1990. Tr.12. llowever, in mitigation, he asserts that rather than strictly adhere to Fewell's operating procedures, he felt that he could establish radiation

_ boundaries on the basis of his general experience and the physical surveys he i

had made on prior days for adjacent parts of the worksite. *1Y.184. Ihrther, he considered part of the surmunding area where the ground rose several feet to be inaccessible, and, consequently, there was no need to :urvey that part of the toundary. R.180, b.

Posting Radiation Boundary Mr. Murray stipulates that on October 23 and 25,1990, he " failed to rope off any portion of the radiation boundary, and failed to post signs for most of that boundary" "lY.12. Ilowever, in mitigation, he asserts that because of the configuration of the site, he had difficulty roping off the restricted area, la seeking a solution, he discussed the Intent of radiation boundaries with an NRC Ilealth Physicist on October 4,1990. lle concluded from this conversation that, l,_

so long as an individual received no more than 2 millirems in 1 hour1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br />,10 C.F.R. Part 20 requirements would be satisfied without roping off the boundary. 'IT, 185-86. Mr. Murray also asserted that he did not consider it necessary to post that portion of the restricted area that he believed inaccessible to the public. R.

I89 90, 571 e

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- - ~..

i j

- v.

Postexposure Swvey j

i hir, blurray did not stj ulate to the charge that p

m Ostwr 23,1990, m at least 12 cuassa and m Omber 25, 1990, m at lean $

evas6ms, Mr. Munay faik:J to jerfoim surveys ci the expmure device to determine that the scaled soutcc had been etturned to its shiclJed pminm afict radmgraphic caposuits.

Staff Exh I at 47,410, hir. httuTuy is uncertain as to how many times, if any, he falted to perform the survers. D.12-14. As a general practice, he followed a selMeveloped method to assure himself that the source was fully retracted and shielded. This involved the use of an audible-alarm rate meter ca: Tied on his best, the observed fluctuations of a second meter positioned near the cameru, and a " feel" for turning the crank of the exposure device. An alarming dosimeter provided backup protection. Tr.19196. On October 25,1990, the audible alarm meter was inopemble so he modified his usual practice R.193.

Ilowever, hir. hturray admits that "[he] was getting too used to listening to that alarm," and "wasn't doing proper surveys." R,197.

d.

Securing Source hit. hturray stipulated that on October 25, 1990, he " failed to secure the radiographic source in the fully shielded position after each of several exposures" as charged in the Order. He proffered no specific explanation for this infraction.

e.

Boundary Security hir, hturray declined to stipulate that on October 23, 1990, he failed to

- prevent entry into the restricted area by individuals other than radiographers and I

- radiographers' assistants, lie believed, based on his understanding of 10 CF.R.

$20.105(b)(1), that individuals could be in locations adjacent to his source so long as their exposure did not exceed 2 millirems in any I hour. hir, hturray testified at the hearing that he was aware that various workers at the job site were passing through the restricted area on October 23,1990, while the source was out of the camera. Tr, 198-200, 205-06. lie testilled that, because of the. ditch and the angle of the source, he believed that there were no safety problems. Tr.

l 206-07. Thus, when individual workmen who were aware of his radiographic work approached his source, he would mentally estimate whether or not they were in a safe area on the basis of the source position, dis',ance, shielding, arxl l

time factors. Tr, 199,200,206.

hir, hturray did not deny that the information he provided NRC personnel on October 25,1990, was false in fact, he admi: led the answers he provided "were l

572

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probably what I said." Tr. 2N, At an investigauve interview of Mr. Murray conducted by Mr. Joukoff and Mr. Skov on November 1,1990, he stated that because of personal reasons, he was " extremely stressed out." Board Exh. 2;

'llr. 205, 2.

Willfulness and False h@rmation in his November 18,1990 hearing request, Mr Murray denies that his actions were willful, stating i d.d nu willfuuy violate the provisions o( [Fewcu's limnie of NRC regulatiotal therely placing the heahh and welfare of the general polic in jegerJy.

Request for llearing at 3.

The Staff uses " willfully" in reladon to the charges of violadon of specific license procedures and NRC regulations and to 7ecific false statements, Mr.

Murray did not, however, address " willfulness" in his testimony in relation to any specific actions or statements, Rather,- he points generally to his interpretation of NRC limits on the radiation exposure for individuals outside of a restricted area. 'llr 205-06, lie attributes his violations to comp!xency because of the isolation and characteristics of the site, realizing, belatedly, that he hul not followed proper procedures. Tr. 207.

Although Mr. Murray acknowledged that he had not followed procedures after he was shown a videotape documenting his failure to survey the camem and lock the source on October 25,1990, and photographs of unauthorited persons entering his restricted area on October 2',1990, Mr. Murray argued tnat those statements were made at times when his mind was on his v#e (who was about to give birth) and on other stressful circumstances. *lhus, his attention was not fully focused on Hs radiographic procedures or on the questions being asked.

l Board Exh. 2 at 140-41,146; D. 20248,2N-05,208. Ile assetts furdier that I

based on conversations with workers at Finlay 1.aboratories, he had acquired a hostile attitude toward the NRC. Consequernly, when Mr. Joukoff and Mr, Skov confronted him with a badge on October 25,1990,"immediately [he] just panicked." D. 203, l

Mr. Murray tenified that after talking with Mr. Manly, a certified health physicist with Gamma Corporation, and Mr. Johnson of NRC Region V, his attitude toward the NRC Js now entirely differ'nt and that he no longer feels l

l that an enemy has corne mside my territory and ! have to put up al, these defenses and charades

[

and to nu orfer any information.

l 573 l

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E I never thought for a ninute that I w as lying. I w as jat trying nus to offer any infurinatkn Stupid ndonale,

'It 209.

H1. APPLICAllLE LAW A.

In General The Fewell Ocotechnical license was issued pursuant to 10 C.F.R liut 34 (1990). Section 34.1 makes s,ich licenses subject to the provisions of 10 C.F.R. Part 30. A Part 30 license may be modified,'in whole or in part, for violation of, or failure to observe any of the terms and provisions of the Atomic Energy Act or of any rule, regulatiori, or order of the Commission.10 C.F.R.130.61(b)

(1990). Wrthermore, a license can be suspended for any reason for which

- it would not have been issued it.itially.10 C.F.R. 630.61; acc also Maurice P. AC0Jtd, Jr. (Reactor Operator License for San Onofre Nuclear Generating Station, Units 2 and 3), l.BP-89-20, 30 NRC 195, 212 (1989) (holding in the context of reactor operator's license).

II. Enforcement Polley -

More detailed guidance in taking enforcement actions is described in 10 CF.R. Part 2 Appendix C (" Appendix C"). The first two sections of Appendix

- C describe its purpose and authority. Section 111 establishes five levels of severity for violations: Level 1 describes the most severe violations and Level V the least severe. Eight supplements to Appendix C contain examples of violations to provide specific guidance for categorizirg the severity of proscribed actions.

Three of these supplements are relevant to the case before us, viz, Supplement IV," Health Physics"; Supplement VI, "Wel Cycle and Materials Operations";

and Supplement Vil," Miscellaneous Matters."

Section V, paragraph C, of Appendix C, psovides for the issuance of license modification orders, and specifies the " base civil penalties" that will normally bc.

assued against licensees such as industrial radiogmphers.Section V, paragraph B, specifies the appropriate upward or downward adjustments to be nuide to the base civil penalties according to mitigating or exacerbating circumstances.

'Ths procedures the Stafr rtuat follow to impose requiremmis by order or to mo&fy, suspend. or revoke a kense me ses cut in Pan 2 to Tide 10 vf the CcJe of TsJeral Aspdation See 10 C.FA (2.200, es set (1990).

Sectwo 2.2tM allows a license to be mu&ried, erfecuve immeestely, who it la desamuwd ht the public heahh.

i safesy, or mterest so requares la this case, the Staff, Wsed on h facts set fah ab.we, desernuned ht the Order i

shendJ be made irnnw&4tely effecuve. a matter not contested bcfore us. see Nuctaar Engiasaruig Co. (Sheffield.

Ulinms low-tevel Radimetive W4ste Dopos41 Site). Ct.l-79 6,9 NRC 673 (1979).

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Section V, paragraph E, Enforcement Actions involving Individuals," states in

_ pertinent part:

l'aforcemea actions involving indiviJuals,,. are sianificant personnel saksis, width

- will be closely curarolicJ and judiciously applied. An enforcement acdun will normally be taken tndy when there is hule doubt ht the individual fully understood, ur should have mderstoud, his or her resgonsit41ity; knew, or shoulJ have known, the required actions; and knowingly, or with careless disregard (i.e., with more than mere siegligence) failed to take arquired actions which have actual or potential safety significance Most tiansgressksis d individuals ai the level of Sevesity level !!!,IV, or V violadone will be handled tv citing mly the facility beensee, Mors serious vidadons, including those involving the iracgrity of an individual (e.g.,

lying to the NRC) concerning matters within the scope of the individual's respcasitslities, will ts considered for enforcement action against the individual. Acdun against the individual, however, will not be taken if the impruper action by the individual was caused by management failures,,,,

In av.uon, NRC may take enforcemers action where the conduct of the hidividual places m ques ion the NRC's reasonable assurance that licensed activities will be properly cmducted. 'the NRC may take enforcemers action for acasons he wou!J wartant refusal to issue a license on an original application. Axordingly, enforcement saion may be taken regarding mauers that raise issues of integrity, competence, litness for duty, or other mauers that may not necessarily be a violation of specific Cummission requirements, in the came of an unlicensed individual, an Order modifying the facihty tianse to require the removal of the individual fran all nuclear.related ac6vities for a specificJ period of time or indefinitely may be a;pnpriate.

I V.

DECISION A,

Proscribed Conduct hit, hiurray stipulated to the truth of the matters asserted in three of the observations made by NRC personnel and recited in the Order, Based on hir, hiurray's stipulation at trial, we find that these facts, items (1), (2), and (4) in the Order, have been established as stated. See p. 566, supra.

A significant factor in our deliberations is the safety significance of hir, hiur-ray's actions. That issue has two components: (1) whether actual overexposure or unnecessary exposure occurred; and (2) whether there was a significant threat of any overexposure, We find that there was no radiation overexposure to the radiographer during the observed violations. Tr.167, Dere appears to be very minor unnecessary radiation exposure to other workers who entered the reswicted area, in the range of a fraction of 1 millirem. 'lY, 82-89. This value of unnecessary radiation exposure was estimated by the Staff, based on a radiation survey of 15 mR/hr l

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at the location where one worker was *cn the source was out of the camen, and the short period of time the worker spent on that location. Tt. 89.

Although the violations in this case caused no overoposure to the radiogra.

pher, and caused very minor, unnecessary exposure to other individuals, of the order of a fraction of I millirem, the Board finds the Staff's testimony credible, namely, that hit, hiurray's violations of NRC regulations in this case posed a potential threat of overexposure to hir, h1urray himself and the general pub-lic, 'the evidence presented to the Board establishes that hit. hiurray's failure to conduct radiation surveys after radiographic exposures breached a significant safety barrier against accidental radiation overexposure. Tr,142 43, This breach of a significant safety barrier against overexposure, combined with hir, blurray's failure to rope off restricted areas and his failure to prevent entry of unauthorited individuals into the restricted areas during radiographic operations, constitutes a potential threat to both h1r. hfurray and the general public, B.

Appropriateness of the Sanction hir, hiurray's actions at issue here are clerly within the ambit of the violations described in Appendix C, section V, paragraph E. Consequently, the imposition of some kind of enforcement action against him as an individual is in order, The question is, what kind and extent of sanction are appropriate?

The Order of November 2,1990, directing Fewell not to use hit. hiurray in licensed activities for a period of 3 years did not include a civil penalty or an evaluation of the severity categories that might be associated with hit. hiurray's i

failure to follow NRC requirements and Licensee operating procedures,5 Rather, the sanctions visited upon hir, hiurray were justihed by the Deputy Executive Director m the grounds that "the NRC does not have reasonable assurance that hit, i.furray will comply with regulatory requirements. Staff Exh. 2, Q 111; T;.156. Unlike the explicit guidance provided in Appendix C for determining the magnitude of civil penalties, scaat policy guidance is provided about the-application of various sanctions where integrity and confidence are at issue, Our task is made somewhat difficult because of the lxk of a coherent enforcement scheme _ for byproduct materials users like radiographers. The 3On February 7.1991, the Mninistraior for Region V issued to Fmli a Nace or Wlatiun and Pnyosed Imposition or Civ0 Penaldes which did categorize the severuy or de violauona sitnbutable to Mr. Muay. Dosrd '

Enh. 9. 'Ihe letter stasc4 in pr.runera part that -

Individually, these violations would be clasaitted at severuy levels UI, IV, and V, llowever, taken together, wuh the eksnents or willrulness and lack or management oversight. they smstitute a very signir, cant regulatory co,wern. Thererors, in accordance with the "oeneral staternent or 3%Iicy and Pvtwedure for NRC Enrorcement Actions",

,10 CIR Part 2 Amendia C 0990), the violauma have boca classi5cd in ihe aggregate as a seventy level 11 problens The document was sent to the noard by rnemorandam dated Febnaary 7,1991. pursuant to the Cmmuasim's Board Rt26estim procedurs, 576

enforcement scheme laid out in Apgendit C is directed at, and was designed for, licensees. Users of byproduct material who are not directly licensed by NRC appear to have been addressed here and there in Appendix C as an afterthought.

Consequently, we are required in several in:tances to evaluate hir. hturray's conduct, and the sanction appropriate to it, by analogy.

We can, however, reach a reasonable judgment based upon: (1) an analysis of civil penalty categories <:oncerning the severity of violations; (2) a considera-tion of " willfulness"; and (3) an evaluation of the deliberateness of hir. h1urray's statements and actions in relation to health and safety consequences. We turn first to the level of severity.

Severtry Levels Severity levels are broadly defmed in Appendix C, section III, as follows:

Severity Level I and 11 violadons are of very significant regulatwy concern. In general, vialatime that are included in these severity categories involve actual or high potential impact m the public. Sewrity level tIl violations are cause for significant concern. Severity t evel IV violadons are less serious but are more than minor cmccrn; i c., if left uncorrected. they could lead to more serious emcern. Severity trul V violatims are of minor safety or environmental cmccru, hit, hturray's failure to perform surveys to establish the radiation boundary and to rope off and adequately post the radiation boundary violates Fewell's operating procedures, and they are associated with the pc'.cntial for individuals in an unrestricted area receiving doses in execss of 2 millitems in any I hour or 100 millirem in 7 consecutive days. See 10 C.F.R. (20.105(b)(1) and (2).

Supplement IV to Appendix C ("Supp. IV") contains examples of categories of violations. Paragraph D, "Severily IV." includes:

2. A radiation level in an unrestricted area such that an individual emlJ roeive greater than 2 millir in a one hoor period or 10u milbrem in any seven cmsecutive days.

Some evidence is available on the radiation levels in the near vicinity of ra-diographic work at the Campbell Industrial Park project. hit. Skov used a survey meter to measure the dose rate at selected locations on October 25, 1990. 'n 84-89. The highest dose that he reported was 15 mR/hr at a place where an individual had been observed on October 23rd, hit. Skov noted that "the individual was there for only a short period of time. So he would not have received anywhere near two millitem exposure." 'n. 89.* These conditions

• In Mr. Maray's Rapest for llunr.3, he reconstsueted by cakulation the probable ame rates near lus wudade for october 23.1990. See otro Tr. 89. lia figurs I shows a masumun dine raw of 6.5 mR!br at a din road some

- 20 fast trum the sourca llowever, thcae sakulatims were ma addicased at tnal.

577-y s-,

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would barely justify a Level IV severity classification and clearly were well below Level 111 (i.e., greater then 100 millitem in a 1. hour periml). Supp. IV, jC.2.

Mr. Murray's failure to perform surveys of the exposure device after radio-graphic exposures and to secure Lle radiogmphic source after each of several exposures is associated with the risk that a radiographer will receive excessive radiation exposure as a result of the source not having been retirned to, or re-maining in, a shielded position. *1Y.143-44. This situation is described in Supp.

IV, paragraph C.4, as Sututarsial ptential for an taposure or release ir enct2s ti 10 CIR 20 whether or not sudi capiure or release ocars (e.g, entry into high radiation areat, such as react (w vessels in the viciruty of empised radhgraphic sources, without having perfumed an adequaw mrvey.

tverathm of a radiathm facihty with a nonfundkming interkxk system).

Although Mr. Murray argues that alarreig rate meters and dosimeters provided him with adequate prutection (Tr. 7441,19197), we accept lie Staf!'s position that, absent the Lind of survey specified in the operating procedures, there was substantial potential for excessive exposure. His is a Schrity Level til situation. At Level 11, an actual, rather than a potential, exposure would be insolved. See Supp. IV,111 Mr. Murray's failure to prevent entry into the restricted area of individuals other than radiographers, like the first two isstes discussed above, is associated with the danger of individuals receiving a dose of more than 2 millirems in any I hour. As in the first two violations, the Severity Level is IV.

in summary, we find that each of the live violations falls under either Severity Level 111 or IV. In combination, however, they constitute a Severity Level !!!

viciation described in paragraph C.12 of Supp. IV as follows:

l Breakdown in the radiata safety program invulving a nurnber tt violathms that are related or, if isolated, that are sexurring that collectively represent a potentially signi6 cant laik of l

nuentsm or carelessness noward hcensed resomsihihties.

Near identical wording is also used in describing Severity Level !!! violations in fuel cycle and snaterial operations. See 10 CF.R. l' art 2. App. C, Supp. VI,1 C.8 (1990). Thus, we conclude that Mr. Murray's radiographic practices on October 23 nnd 25 were not greater than Severity Level ill - cause for significant concern, but not so perilous as to warrant Severity Level I or 11 classilication.

Appendix C, section V, paragraph E, states that "[m}ost transgressions of individuals at the level of Severity Level 111, IV, or V violations will be handled by citing only the facility licensee " We turn next to the aspect of willfulness.

l 578 I

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-~

C.

Willfulness

- Ihe November 2,1990 Order places great significance on the " willfulness" of Mr. Murray's actions (Order, t ill), pointing out that Mr. Murray knew the proper procedures but did not follow them. Appendix C, section 111 " Severity of Violations," provides some policy guidance on how " willfulness" should be taken into account.

He severity level of a violation may bc increased if the circumstances sunounding the mauer invdve careless disregard of requirements, deception, er other indication of willfulness. he term " willfulness" as used here embraces a spectnan of violatims ranging from deliberate intent to violate a falsify to anJ including careless disregarJ for requirements.

Willfulness does nd include acts whis do no rise to the tevel of careless disregard, e s.,

inadvertent clerical enors in a document submitted to the NRC. In deactmining the spetafie severity level of a violation involving willfalness, consideration will be S ven to sus factors i

as the position of the person involved in the violatim (e.g., first.line supervisor or senior manager), the intent of the violator 0.e., negligence not amounting to careless disre;ard,

~

careless disregard, or detiberateness), and the economic advsniage,if any. gained as a result t.I the violation. De relative weight given to each of these factors in arriving at the appropriate severity level ri'l be dependent m the circtunstances of the violation.

Although Mr. Murray is listed on Fewell's license, he worked only part time for that company. Tr. 208-09. He was not a "first line supervisor or senior manager," In fact, he was not even a member of management.

Additionally, there is no evidence of any economic advantage to him from violating procedures.

We find no evidence of deliberate intent by Mr, Murray to violate the purposes of the procedures or rules (i.e., the prevention of an overexposure) or to falsify records. Rather, although he failed to make boundary surveys, rope off his radiation zone, or prevent unauthorized persons from encroaching on his work area, the evidence indicates that he believed that other actions he took were adequate to prevent others from receiving a dose of more that 2 millirems in any I hour, 'IT. 154 87,190,20r). Ilis precautions were based on his own personal interpretation of what was necessary, rather than careful and rigorous attention to Fewell's operating proc / utes, in this regard, he may have misinterpreted conversations with an NRC..cahh Physicist. Tr,185-86.

Except for inattention, Mr. Murray's reasons for not properly surveying or locking the source following each exposure were not explained, lie clearly was aware of the need to ensure that the source was completely retracted following an exposuit, for his own safety and that of other individuals in the vicinity, Tr.182. When he knew that he was being observed, he performed the surveys properly (Tr. 70,141), but his testimony suggesu that he frequently relied upon his own procedure, using audible ah.rms to assure 1.nself that the source was retracted. Tr.191-97. We find no deliberate intent to bypass a precaution for 579

ensuring that the soutee was retracted, but tather the substitution of persoral rnethods for those specified in the rules.

On balance, we find hir, h1urruy's actions nmount to "a potentially significant lack of attention or cattlessness toward licensed responsibilities." As su,h they are cause for significant concern. hir. hlurray's conduct is far more serieus than an inadsertent lapse, but less serious don, for exampic, the dehberate defeating of a safety related device or failure to prevent an overexposure, We find his failure to follow Fewell operating procedures in these situations to constitute Severity Level til violations.

D.

l'alse Statemenh he Order of November 2,1990, in section lit, places great importance on take statements made by Mr. Murray concerning surveys of the source, which he did not make; securing the source, which he did not do; and the presence of unauthorized individuals in the resuicted zone, which he did not tKLnowledge, hir, hiurray's denials appear to have provided the principai basis for the Deputy Director's tindmg of lack of integrity and, thus, die enforcement action against him personally, We note th t Appendix C, secuon V, paragraph E, states that Most transgrenions of indiviJaals at the lesci of Severity t.evet Ill,IV or V violatants will be handicJ by citing toly the faabty htensec.

Mars serious viulaties, includa's those unwlvvag the ussegrity of me vshv61wl fe g, lying 40 the NRC) cimcerning matters within the scwe of the indiviJmTs sespnsibibtics, sdl be twulleredfor enforcror. cat actson agairut the i.,JsvLlual" It'mphasis adacd l Consequendy, we need to consider the nature and circumstances of hir, h1urray's statements,Section VI, " inaccurate and incomplete informanon," and Supplement Vli of Appendix C address situations where a licensee official, including "a person listed as an authorized user of licensed material," provides "[ilnaccurate and incomplete information" to the NRC. We note at the outset that the Otrust of Appendix C on this subject focusses primarily on licensees and licensee management, not byproduct material users under a license, like hir, h1urray, Although die language of some paragraphs of this policy guidance might be construed as descriptive of hir, h1urray's statements,' we inte@ ret the scope of "providing inaccurate and incomplete information" as embracing quite different circumstances. At the time they were clicited, h1r. hlutray's statements were not associated with any information required to be kept by the licensee and

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t. laempicie or umr4.e tnimmatam whwh a prnWe,I to the hkC (a) teause or m & quam asskms un the pn or licensee oftmate hut ned ammmtmg Lo a wventy tevel i or 11 vndaum.

580

furnished to the NkC. They were not asuviated widi any emergency utuation or an unconoulled status of the sourn. *lhey wese not asxAlated with any actual overexposure. The, were init asuwiated with information Out the NitC would rely upon. l(ather, the f ahe s.tatements coinisted of hit. hiutray's answering "yes" to questions asked by NI(C cruployees w ho had rJrcady obtained photographs and a video recording showing tha' a loithnght answer should has e been "no." ~11, 67 09, hit hiurray's statements were initially inade at die Campbell Industrial Park worksite on Octo'e.et 25, lWO, and were not remrded, not was hit. hiunay under oath at the time, llowever, a transcript was made of the investigauve Interview on November 1,1990, when hit. hiurtay was questioned, under oath, r% cal the same tiret mstances again by hit. Joukoff and hit. Slov. Iloard Exh.

2. On both wcasions, hit. hiurray was undet wnsiderable 5 tress for personal reasons. 11,203 45.

Our reading of the transcript of the investigative Interview not only confirms

'Jiat hir, hiurray was in a stressed and somewiut conf used. tate of inind, but also indicates that, by repetitise leading questions, the investigators sought to clicit staternents froin hit. hiurray which he did not w.tal to male. In short, hit. hiurray, while not yet aware Otat he had been under covert surveillance, attempted to avoid admission that he somethnes failed to follow operating procedures, in some cases, howeser, hit, hiurray did admit that he lud not followed wr;tten pwcedures, or stated 0.at he was unsure as to whether or not he had properly placed boundary markers or surveyed the source, lloard Exh.

2 at.38,30,97 98,1(0.

hit hiutray's lack of candor in responding to the N1(C investigator's ques-tions is 1,ot to be condoned, llowever, we do not find his statements to arise to such a level as to require N1(C to abandon all confidence in his ability Ic perform radiography in a safe manner, licie again, we would categoriic his transgressions as intermediate, between very significant and of minor corwern.

Considering the three factors of seserhy, willfulness, and integnty together, we conclude that the apptopriate penalty lesel is comparable to Severity lxvel lit.

E.

SanrHons in Oihtr Cases lhe lloard tales official ne' ice of sanctions imposed by the Stall in radiogra.

phy cases during the period tw January 1982 to September 1990 as reported in NUltEO W40," Enforcement \\de n: Sigmheant Actions itesolved." Dule Power Co. (Catawba Nuclear Stawr, Units I and 2), l. IIP 74 22,7 AEC 659, 667 u 174). 'I wenty six sant tions etc imposed on radiographers during this pc.

riod invol.ng violations similar to tho.e in thi case, namely failure to perform radiation sur cys alter radiogiaphie ojarations, failure to pre... unauthorized 581

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entry into restrn-ted area % !ailure to lak the ! < tree in its shielded tunitito, irnicqwte gutmg of restricted areas, arnt in. equate lound.uy radu, tion sur.

vcys, tk ly one of then twenty sis actions, Ilill Ahller, Inc.; NUR111@)l0, W1. 8, Na I (IM E155. June 1989), at II.A N3, involval willful enkronda t.

In that nethat the inrnsee was (harged with cattleu disregard lecaug like Mr. Murray, the radiogisjkss were trained and knowinigeable regardmg the violations they cormnitted. 'iho Sanction imguned was an 5N,00 thil penally for a severity Level 11 violatum, in that case two members of the pubhc received radiation overespnutes of the order of 200 to 4(0 niilliterm In the twenty-sin nethwa prior to 1990, civil penattles were impunt at the Severity fil, and occasionally the Severity 11, level. No licenses were suspended and no radiograpl.crs were rernoved in these ca'.es, lleginning in 1990. more sescre sanctions were imposed. There were two actions (neither of whkh involved willful inisconduct) where r:xltographers failed to perform radiation surveys of the camera aftet eshnuits, failed to put signs, and corninitted other related violations. Consolidated NIE lnc.,

90 080, NURl!GO)l0, Vol. 9, No. 3 (EA 9030. Novernher 1990), at it.A-35; llarnett induattlal X-Ray, NURl!OcMO, Vol. 9. No. 3 (BA 904:09, April 1990), at ll.A.14. According to the notices of violations and confirinatory actani letters inued for these actions, the radiogniphers in question were prohibited l

indefinitely froin engaging in radiographic woik. In the llarners actiori, there was a significant radiation overexposure to a radiographer, in the Consolldated action, the licensec h d committed similar violations less than 3 years earlier.

'these actions are not controlling on our decision, llowever, even if they were, we find thern clearly distinguishable on their facts fiorn the instant case.

We turn now to Mr. Murray's training and experience.lhey are sununarized in an attachment to Fewell's license. Staff Exh 2. Most of his radiographic training and experience was obtained between 1981 and 1989 while he was in the Navy, but hh resume also lists a 9-month perial in 1985 when he worked for Pittsburgh Testing 1.aloratories as a Radiographer Assistant using "lRl92" lAic]. Although his last 3 years with the Navy included the duties of "Nuticar and Non Nuclear R:xliographer" tit die submarine base Non tkstructise Testing

'llm suae of us onween st=ut de menter ed twwcap uues amma todmgtai wet. Ow NRC d

has camplesed has todormsy, re is mis desmg-(a) Deveh mmt or a trairung marsal rut radiography gernesual to help emurs diat 0,ey widwwand t

the need for, and the agylwau.m ut. gmd sedatum panectum penwes. (b) devehynwet td NHC mp,,remass to erwuse out radugraphm are eacquaiety trauwJ sesd m sesto ut theur dirent nopeshbiy for sarety geef<smance, (c) inumsed inspa-um or edm pesforerung actiet radioseaity ciersweis.

(d) pAlwaussi or gedame for trpvu,3 everus la ensure dist these repria m61ude clear ardormsuem mwerm.ig spigmuni radares shra altvopuate, and (c) us estabhahnet or safety rapuenweas for seda'6'e@ic eqwsnma salmy kmquummems, $5 I ed Heg et 844.

j The new mtum 34 20 enausshca the gerformente mpsimmas for radugespby equq.urnt thei dosdd suhtamially embre mmapurea dat muh rnen analf. mon is IJ at 831 n

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Lab l' earl llarbor, llawaii, Mr. Murray testihed that only twice during this penod was a source actually used: "your hands <m expellence (was] almost maie." Tr. 214. Alter leaning the Navy, Mr. Murray was "a battender for a httle while" before becoming a s diographer on the fewell hcense.'

1he lloard takes of ti:ial notice that the NRC Standard Review Plan for Ap-plications for the Use of Scaled Sources and Devices for Performing Industrial Radiography, dated Septernber 1984 ("SRP"), specifies that, hurt alla, a radio-i' grapher must i ave completed a minimum of 3 anonths (520 hours0.00602 days <br />0.144 hours <br />8.597884e-4 weeks <br />1.9786e-4 months <br />) of on the job training as a radiographer's assistant. SitP at 13 (Septeniber 1984). The need does not show whether or not Mr. Murray received any Such on the job training I

at Fewell. NRC Region v's report documenting an inspection of Fewell made on October 4,1990, states that "(njo retraining lof Mt. Murray) has occurred to date." !!oard lixh.1. Attachment 2. " Details." 2D. Absent such recent traltdng, his quahfications to perform radiography independently with a scaled source appear to the floard to be in need of reinforcement.

The record discloses that Mr. Murray's radiographic procedures had been i

questioned on only one occasion prior to the October 23 and 25,1990 observa-tions: 1his was in March 1990 when he allowed concrete to be brought ordo his worksite. Two Region V investigators contacted Mr. Murray, apparently as l

a result of an allegation. No violation was found bmause Mr. Murray had shut r

down his operath>n to allow the concrete wo:L to be done.1h 115,186 87.

Neither Mr. Joukoff nor Mr. Skov were aware of any other accusations or alle-gations of deficient performance by Mr. Murray prior to the events of October 1990.4 *!h 116.

Although the record in thin proceeding does not specifically establish that Mr.

Murray lackal the knowledge to perform radir' graphic work, it (k)cs establish that he did not follow procedures. Consequently, additional training wouhl be of benefit to Mr. Murray and would instill some confidence in the Staff as to die adaluacy of his radiographic work.

We do not share die St:di's concern for Mr. Murray's integrity nor agree that he should be Ivevented from practicing his trade for an extended period of tilne.

We do not find that Mr, Murray's " panic" responses of October 25,1990, or his confused responses of November 1,1990, constituted the kind of willfulness contemplated by the regulation. We certainly do not find premeditation.

If Mr. Murray is to resume his trade at all, he should be allowed to do so i

before his knowledge of the ficht is diminished or lost from lack of application.

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We find that a suspension of 9 roonths, beginning with the November 2,1990 order of immediate cifectiveness, tegvesents a reaumable tulance between a e

sanction for the Seyctity level of his transgressions and preservation of his radiographic knowledge and skills."

llowener, we also note the apparently limited time Mr. Murray has wo Led in the field as a Radiographer's Assistant under the tutelap of a fully qualified radiographer experienced with NitC license requirements. 'iherefore, we require i

that before resuming a position as a fully qualified, independent radiographer, hir, htarray must first spend a petiod of 3 months (520 hours0.00602 days <br />0.144 hours <br />8.597884e-4 weeks <br />1.9786e-4 months <br />) in on tle-Job training as a Radiographer's assistant. Mr. Murray inay serve as a i

i,xliographer's Assistant beginning August 3,1991, wherever he may find employment, *lhls condition is com;urable to the Standard iteview Plan training i

requirement for industrial radiography, and it will provide a constructhe basis for the restoration of Mr. Murray's status as a radiographer urnier a byproduct t

rnaterials license? *that rehabilitauon is consistent with the purpose of the NRC'S enforcement system which is to sanellon and deter, not to remove licensecs from licensed work.

Order

]

lbr all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 25th day of June 1991. ORDEltED:

1, That the November 2,1990 Deputy Executive Director for Nuclear Ma-terials Safety, Safeguards, and Operations Support's Order Modifying 1.leeme (Effective llamediately) is modified by reducing the period of Mr. Murray's suspension to 9 months, or from Novernter 2,1990, to August 2,1991: and

2. *lhat Mr. Murray shall serve $20 hours as a Radiogrupher's Assistant before being requalified as an independent Radiographer.

Pursuant to 10 C.P.R. 52,760 (1990) of the Conunission's Rules of Practice, this initial Decision will constitute the final decision of the Commission thirty (30) days from the date of its issuance unless an appeal is taken in accordanec with 10 C.P.R. 5 2.762 (1990) or the Commission directs otherwise, See aho 10 C.F.it i 2.786 (1990).

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Any party inay take an appeal hum this decision by filig a Notice of Appeal within ten (10) days after service of this initial Decision pursuant to 10 C.P.It.

6 2.762 (1990). Each alycitant piust file a brief suplotting its position on ulycal within thirty (30) days after filing its Nouce of Appeal (forty (40) days if the Staf f is the uppellantl. An interveinw. appellant's bilef snust te confined to lasues that de intervenor appe!! ant placed in controvessy (v sought to place in controversy.

Within dility (30) days aller the peri (xl has espired for the filing and service of de tviefs of all appellants [ forty (40J days in the case of the Staff 1, a party who I

is not an ajpe!! ant may file a Islef in support of, or in opposition to, the arpeal

. of any other lurty. A restonding party shall file a single, responsive telef only, l

regardless of the nuniber of appellants' briefs filed.11tlefs shall conform to the i

lerigth and format specified in 10 C.P.II. 5 2.762 (1990).

POlt Tl!!! ATOMIC SAlHTY v

AND LICENSINO 110AltD Peter S. Lam ADMINIS11tATIVil JUDGE

(

ltichard F, Ibster ADMINIST51ATIVil JUDGI!

I

- !!. l'aul Cotter, Jr., Chaltman -

ADMINISTitATIVII JUD0!!

liedesda, Maryland, June 25,1991.'

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0 Denials of Petitions for Rulemaking

Cao os 33 f4RC !,07 (1991)

OPRM-912 UlJ11ED ST ATES OF AMERICA IJUCLEAR REGULATORY COMMISSIOf4 COMMISSIOi1ERS:

Kenneth M. Catt, Chairrnan Kenneth C. Rogers James R. Cuttiss fortest J. Homick in the Matter of Docket No. PRfA 73-9 NUCLEAll cot 4T.40L ltJSTITUTF., et al.

June 5,1991 "Ihe Nuclear llegulatory Commission (NitC) is denying a pc000n for rule-making submitted by Eldon V.C. Orcenberg on behalf of the Nuclear Control Institute and the Committee to litidge the Gap (Pith! 73 9). *lhe Petitioners requested that the Commission revise its regulations to uppade the design basis threat for radiologleal sabotage of nuclear power reactors. The Petitioners te-lieve that the design. basis threat must be revised to include explosive laden vehicles, such as truck and toat bombs, and to reflect the possibility of an al-ta.k by a larger number of attackers using more sc;:hlsticated weapons. "Ihe petition is denied based on a Commission determination that there has been no change in the domesde threat since the design basis threat was adopted that would justify a change in the design-basis threat.

REGULATIONS: INTEltPitETATION (10 C.F.lt 5 73.1)

'Ihe Commission will not revise the design tosis threat, as set forth in 10 C.F.R. 673.1, whcre there has been no evidence of a change in the domestic threat since the design basis threat was adopted.

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1 DENIAL, OF l'ETITION FOR RUI,131 AKING l.

Tile Pirl'Il~lO N 11y letter dated January 11. 1991, shortly before the commencemerd of Operation Desert Storm, Eldon V.C. Greenberg, on behalf of the Nuclear Control Institute and the Committee to Dridge the Cap, filed a petition for tulemaling with the NRC. ne petition was docketed as PitM 73 9. He Itutioners requested that the NRC revise its regulations in 10 C.FJt. 67.1.1 to upgrade the design basis threat for radiohegical satotage of nuclear power reachts. (Radiological sabotage refers to any deliberate act directed against nuclear material or a nuclear facility that could endanger de pubhc health and safety by exposure to radiation.) %c Ittitioners believe that die ragulation must be redsed to include explosive-laden schicles, such as trucks and boats, and to reflect de puuibility of attack by a larger number of attackers using more sophisucated weapons.

De Petitioners contend that de present design basis threat is not realistic in view of the claimed current trends in tettorism. He Itutioncts state that a successful terrorist attack could cause the release of radioactivity cornparable to a severe nuclear accident, and result in signhicant health and safety consequences and property damage. He Peutioners telieve that the increased threats may be countered by measures that could te implernented for a modest cost but wouhl protect against events with potentially catastrophic consequences.

De petition descrioes the Nuclear Contro! Institute as a nonivolit corporation that monitors nuclear juegrams in the United States and other countries, develops strategies to prevent and reverse the 1;rowth of nuclear armaments, and explores strategies for reducing existing nuclear r.rsenals, thereby helping to prevent nuclear uroliferation and terrorism no pellike describes the Committee to Bridge the Gap as an organization concerned with nuclear safety and the threat of nuclear terrorism, it, ilASIS l'Olt itEQUEST De NR(' has established regulations in 10 C.F.R. Part 73 governing the physical protection of plants and materials. nese reguladons include measures related to the protection of nuclear facilities against sadiological sabotage.

Section 73.1, among other things, establishes the design-basis threat to be used to design safeguards systems to protect nuclear power reactors against acts of radiological sabotage.

De Petitioners state that section 73.1, as interpreted by the Commission, does not require nucler reartor licensees to protect against radiological sabotage l.

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4 atterupts by a group or an individual using wea[ons of girater sophistication Llan h.uwbheld autanatic weapons or esplosives, thereby excludmg an attack by explosive laden vehicles, or nuire than several extertal attackers, or atta Less operating as more than one team and employing team mancuscring tactics, lhe Petitioners beheve that tenorist itn n!cnts that have occurred since the design-basis threat was rklopted denioristrate the tibihty and willitigness of tett vists to Inount sophisticated attacks calubic of causing subsLinual physical destruction, particularly through the use of trtnL bombs, llecause of the Ittslan Gulf crisis, the growth of State sponsored terrorism, and tlanges in terrorist taclits, the l'elitioriers liepeve that curlent regulatory starklards do not provide a realistic of sulhcient guarantec of public health atKl safety or common defense and secutily, The Ittilloners state that the terrorist threat has become bkniier, more I

sophisticated ind better urined, and frequently State-supjorted. As a result, th? Ittitioners believe that the {ussibility of nuclear terroristn, resulting in a substantial number of casualties, is far more likely today than it was in 1979, when current regulations were promulgated, lhe Ittitioners believe that it is essential to upgrade the design basis threat to protect against vehicle bomb attaks which they believe pose a grave Oircat to civilian nuclear power plants. The petitioners cite the devastating efhtts of the truth txanb atixLs in licirut in 1983. The.ittitioners stato diat sitklics have itxticated the vulnerability of licerised power seinctors to att.nk by explosive laden vehicles and the potentally devastating consequences of stwh an uttack, 4

lhe Ittitioners believe that it is essential to thange the design basis threat to anticipate attxks by tuore sophisticated, larger, arul better. armed groups.

1hc Ittitkmers state that there are two comimacnts to this threat: (1) a larger nurnber of attxLers with the capability to act in several coordinated tetuns; and (2) heavier firepower, lhe Ittithmers cite documented large group attxis on nuclear facilities in latin America and !!urope and the widespre;kt availability of a-tvanced weagunry as indications that the current design-basis threat is no longer realistic, t

lit, itEQUESTI:D REGUI.A10ltY AC110N 1hc Petitioners requested that the design bash threat for radiological sabotage contained in 10 C.F.R. 5 73,1(a)(1)(i) be amended to read as set loath below.

Note that text to be added is in bold italic type and text to be removed is set of f in brackets.

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edgeable inJmdual who attenyte w genkipate in a pamve role (e g gvmide inforsnaikei),

an antve rule (e a fadhtste crutante armi entt, disable alarens aral torrununnatheit. pr.

skipate in th&re attack), of loth, (C) suitable weap5 sis l, up to seul 6tuluduig liarullirlJ aukunaut weapons,equyged unh sitouers andl haiing cifntive kwig tange auwacy,(D)

[hanJ 4arriedi equyencru, inclueng incapacitating agents and espk,sives for vie as tonis (4 entry av for sabermise dratruying trather, fauhty, tranipvter, to pensiner ivergniy ot features of the safeguards system,is pantities transporsaNe by tenirle, and,

%c Petitioners acquested dial dic NRC tale oder actions necessary to ensure that de specific protecuve measures contained in 10 C.F.R. Part 73 are sufficient to respond to die increased design basis threat and provide the high assurance required undet 10 C.F.R. I 73.5$(a) that the threat of sabotage will be cffcctively countered.

Itecause the Itutioners believe that the suggested amendments are vitally linprtant to reduce risks to the public health arkt safety and Oc cottunon defense and security, the lYlitioners requested that the Commission make a determinathm on the petidon within 30 days from the date of receipt and that it proceed immediately to promulgate a final rule, without issuing a pmposed rule, that would adopt the requested amendments.

The Commission evaluated the Petitioners' request for expedited aedon. W Commission determined that tic pedtion should be processed in accordance with its standard procedures for processhig a petiuon for rulemaking lo 10 C.F.R. 6 2.802/c?, but expedited by limiting the cornment period to 30 days.

Wat determinathm was contained in the Notice of Rtteipt of XYtition for Kplemaking" that was published in the Federal Register on January 29, 1991

(% Fed. Reg. 3229), interested persons were invited to sulunit written comments or suggestions concerning de petidon by February 28,1991.

IV, l'Ullt.lC COMMENTS ON Tile PETITION As of March 15, 1991, the NRC had docketed 35 letters of comment: 1i from individuals, 3 from public interest groups, and Oc remaining 21 frorn industry or industrial representative organizations, in addition the NRC received three letters from Congressmen, While the comments were carefully considered by the NRC, none contained significant new information that wouh! wanant a change in the design basis threat. In the summary that follows, the views presented are those of the commenters, 590 I

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Comments Opposing the l'ttillon

-Twenty-one commenters opposed the petition. 'Ihe main reasons cited by then cornmenters in support of the current regulations were:

[*

1, "the NltC Staff, in concert with the intelligence community and other federal agencies, continually monitors wo:Id events for potential threats assocl-ated with commercial nucicar facilities. 'lhese agencies have unique acccas to information, including sensithe or classified information not normally available to Lic general public.

I

2. Nuclear power plant licensees are in close communication with local law enforcement agencies and the NRC to ensure that any security threat in local areas is promptly identified and communicated. 'the response to tic current Middle P.ast situation should have (and has) heightened awareness and sensitivity on the part of licensee personnel and federal, state, and kical law enforcement ollicers.

3.

Nuclear power plant licensees has established detailed security mea-sures, tu required by the NRC in 10 C.F.lt.173.55(b) through (h), to counter tic design basis threat. 'lhese measures include:

Physical protection teniers and illuminated isolation wnes; Surveillance and patrols of the perimetct fence;

- Intrusion detection aids and alarm devices; A tactical reaction force; Ilullet resistant barricts for critical areas; A well trained guard force capable of carrying out the pruvisions of an NRC approved security plan; Access controls for personnel and vehicles, wN unrches and positive identification, and 1

Capability to execute safeguards contingency plans for dealing with threats, including truck bomb threats, in additkin, nuclear power plant licensees also have established detailed security.

related personnel programs, which include:

Itackground investigations with I'lli criminal history che(ks; i

Psychological testing;

- Drug and alcohol fitness for-duty determinations; and Special supervisury training for belavioral observation.

I Also, through the NRC's reguiatory effectiveness review program, individual power reactor sites are evnluated for security vulnerabilities and their ability to counter the design basis threat.

I

4. Nuclear power plant design is based on the defense in depth philaeophy in providing adequate public protection. Massive containment structures, thick l

wall pipinp and equipment with redundant safety and shutdown systems are const:ucted to permit the facility to withstand the impact of earthquakes, 591 E

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1 hurticanes, kunados, thiods, and airplane crashes. lktailed training and plant.

specific simulators preside added assurance. !!metgency planning and public notihcathm systems add yet autother layer of capability designed to protect die i

public health and safely.1he approved plans are p(riodically evaluated dusing exercises.

5.

Tie lttitioners have siot presented any new information reta:cd to the current sitaation; they have simply restated old opinions, none of u hieri provi.lcs a basis for altering Os design basis threat in this country.

6.

Sescial of the conunenters opposing the petition k)ok issue with the Ittilioners' view that the protecdon measures proposed by the Ittitioners couhl te put into place at imxlest cost. One comrnenter, a power reactor heensee, cidmated de cost at 51 million to 53 million per year at his facility.

II. Comments Supporting the Petition Seventeen letters sup1xnted the petidon. 'these letters are surnmarited as follows:

1.

The most conanon concern stemined from the Middle IMt situation Osat esisted during the public comment period (the conunent period lasted from January 29 until February 2H,1991). These commentes s pointed out diat Iraq had 1

issued a " terrorist call to arms"; that the U.S. military had attac ked Irw1 reactors, and thereby legitimatired U.S. scactors as teriorist targets; that informed and icspected Americans hhve warned of possible tenorist tittacks within the U.S.;

and that terrorist action might reasonably include reprisals against U.S. reactors.

2.

Anodict common therne was reject!on of the NitC view that the design.

basis Otreat currendy set forth in NRC regulations continues to be adequate.

1hese commenters argue that events in the Middle P,ast are a sufficient basis for escalating the design basis threat to the levels ct.lled for in the petition.

3. Several c7mmenters believe that power reactors are vulnerable to radkw logical sabotage; specifically, t artiers may be casily breached and vital systems may be satotaged.

4 Some commenters put forth the following cost argwnent: 'the conse-quence (and hence the cost) of successful radiological sabetage of a reactor is high in the extreme while the cost of protection is relatively modest. It is therefore prudent for the NRC to require the measurrs recommended by the Ittitioners.

5. One commenter put forward the argument that barricts rec already in place to protect reactors in liurole and Japan and the conchision diat only minor structural mmhficathms would be needed to pro.cct U.S. reactors against truck tombs.

6.

One conunenter suggested that the piimary threat to security is deranged persons who might use trutLs or suicidal air attat t. The commenter conduded 592 l

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that upgrading textor protection along the lines of the petition seems cost, effective.

The above concerns raised by the commenten are addressed in '.he NRC Staff evaluation of the petition (Section V).

V.

STAFI' 1 val.t!ATION Ol' Till I'l:TITION

'Ihe NRC Staff telieves that a decision on the petition can be based on

- response to a sinpo pivotal issue: lias the threat of radiologleal sabotage of dennestic nuclear reactors changed to an extent that jusdnes a need to upgrade de current design Iruis threat? 'lhe Petitkmers believe dat the threat to domestic nuclear reactors has internified in two ways: (1) the possible use of large truck bombs or boat bombs to cause radiological sabotage, and (2) the possible use of a larger numter of attackers armed with heavier weapons.

The natric of terrorism was the subject of detailed analysis before the NRC pubikhed its design basis threat (10 C.F.R. 673.1), and it condnues to remain the focus of Staff review. NRC ciforts in creating the design basis threat and de actions taken by the NRC since the publication of secdon 73.1 to ensure its continuing validity remain key componants in the NRC safeguards program.

• lhousands of acts of terrorist violence worldwide, ranging from simple attacks on property' to the sophisticated, deadly tombing of civil altlines, are examined and analyzed by the NRC. The NRC uses a wide variety of informa!!on, ranging from that reported directly imm the scene of the incident to that included in a finished analysis p.ovided by the intelligence community.

Throughout this ongoing dally analysis, the StafI focuses its effort on reviewing realisde, not hypothetical, adversary characteristics, including weaponry, group flic, tactics, explosives, and targets. The 1,RC then compares wlat has occurred or is credible to the attributes enumerated in the design basis threat.

With respect to truck and boat bombs of the slee estimated in NRC studies as being capable r,f causing signincaat damage to domestic power reactors, the NRC Staff notes the following:

- - There has been one such truck bomb in the U.S. (Math Lats Wiscon-sin,1970).

- there have been no others in the Western llemisphere.

There have been no othen outside of an area of civil unrest There have teen none directed against a nuclear acdvity worldwide.

There have been no boat bombs directed at any activity, nuclear or otherwise, worldwide.

- Contingency planning to protect against truck bombs has been com-pleted for all domestic power reactors.

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l Itased tm the foregoing facts, on discussitms with appropriate elements of the lisecutive lirainh, and on NRC's independent assessinent of the domestic j

threat environment, the NI(C concludes that the hkchimi of nu(lear terrorism j

involving the use of large truth bienbs against nuclear lower reactors in the United States is extremely low, that n (hange in the design-basis threat for radiological salutage is unwarrau.'. and that contingency planning is r>ulhcient.

1he NRC reviewed issues relattJ to the waterlxanc vehicle bomb in 1989 and corwtuded Inal no action was required at that time.1hc NRC has recently t

reviewed these issues apin and concluded that there have been no sigmficant changes.1hese conclusions are based, in part, on a leilew of worldwide terrorist events, where the threat of waterborne vehicle tomb attack agalmt a imwer y

reactor was fouwl to be much less likely than the threat of a larut vehicle txunb, l

whkh itself was only a remote pooibility. Accordingly, there is little basis for funher comidering the watettuac lunb thtcat at this thne.

1hc ittitioners also believe that it is imlottant to upgtrale the design tusin threat to anticipate attacks by imwe sophisticated, larger, aral t etter armed groups; specificelly (1) a larger number of attackets with the calubihty to act l

in f.everal coordinated teams, and (2) heavier firepower, lhe NRC is aware that, as described by the Petitioners, larger terrorist groups with heavier firepower than conternplated in the current design basis l

Ilucat have carried out operations in foreign countries.1he NRC is also aware i

of one incklent described by the Ittilkmers involving three coordmated. near.

simultaneous acts of sabottre on unprotected power transmission hnes Serving, but some miles Inun, the tri/oroi Nuclear Ibwer project, l'alo Verde Units 1, 2, and 3. 'Ihe acts constituted to threat to the safe operation or safe shutdown of the reactors No violence was involved agalmt the reactors or reactor sites.

• lhe most rtrent of the alove events is alnmst 5 years old at the time of this writing. They have been considered at length arul evaluated by the N'tC.1hc terrorist actions in foreign countries and the trammission line satotage events are remote, loth spatially arxl by the nature of the events, Innu constituting a direct peril to a domestic power reactor. The NRC continues to believe that, to date, there has been no significant change in weajunty, group site, State

- sponsorship, or targeting that warrants a nuxlification of the design basis threat requirements for NRC-heensed nuclear power reactors.

The following discusskm presents a detailed NRC analysis and reslume to the significant execrgxs from the petition, I,

Excerpt 6

lN)mlear femtoss twed run point agamit radological sahutage surnye by (0 a group

<e individust using wrapwis of straict upostkathsi rhan hand held aukenaue wrapu er e

emphnives, thus rathulmg anatk ty emphnives la@n erhkles. or (ad enore than three (1) 594 l

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eateinal anmine os nuaders impatde d gerating as mrne than seie scam le, cap.tk or 8

engdopng effetuve learn maneuvering tattks?

i RcArm.te it is imjortant to restlembe* that the current design basis threat he power reactors is a hypothetical threat statement. The statement is $ct forth in Oc regulations in positive radiet dian negative terms and is given iri sectior 73.l(a)(1) as follows:

(1) h.&ological sahutore. (i) A dsterrnined violeed etternal enauh, attait t>y stealth, se decepive adkva, ed sever 4 per:Sm with the for 'mitig attrdanes, nuintante ari.t equipneed:

(A) Wru tramed (includmg mihtary training and skills) anal dednated truhtiduali, (ll)Inside

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etnistance whid, may include a knowledgeable individual who anernpts to participate in a guiseve role (53, provide indismathwi), an adise ade (e g., facditate ernrance and enit, disable n'ams and maivnunir.aikea, panidpate ist vkhet attad), or hith, (C) suitable wapes, up to esal knludmg hand held auhenstic wespeis, equipprd u;th siteracts and having effeoive krig range scrutney,(D) hand carried equipneen,init.ed;ng incapacitating l

egetas and empheilves fin use as umle of entry is for inhrrunse destroying rememt,intility, trentportet, or taansiner imegnty or features of the safeguards system, and (ii) An lidernal uneet of an iraidr.r, hicludmg an empheyee (m any positke).

When the design basis threat was developed there was no credible threat tar-geting power rea: tors in this country. The NRC believes that this continues to be Oc case, notwithstanding the statements made in the petition and suggested by some commenters in particular, although changes are occurring worldwide, the NitC has not detected, to date, any significar t change to the threat environment.

l Including weaponry, group ;ite, State st'onsorship, or targeting, that warrants a modification of the design.Insin threat for NitC licensed nuclear facilities and materials - Aldough the adequacy of the design basis ducat was questkmed in die petition and by some commenters, the safeguards system developed from the current design basis threat is deemed adequate and ap;wpriate by Oc Cornmis-skm, " Itis system includes a physical security or:;anitttion, physical barriers.

- access controls, detectkm aids, communicadotis, testing and maintenance pro-visions, response provisions, armed responses, and provisions for offsite law enforce eent reslonse, it is impettant to note that the effec 0veness of this sys-tem is not limited to die design.Insis threat. In particular,in the face of a threat greater Otan the design-tests threat the system would not collapse but would continue to provkle a level of protecthm that may well te adequate, in addithm, power reactors are required to have contingency plans to address the truck-tomb Otreat. Should the domestic th* cal environment change significantly, NRC 8i%.i 4

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intelligence specialists, in coordination with otlar government entities, would propose nppropriate changes to the design basis threat, based upon die specifics of the threat envirotunent, 2,

f.'Kertpls his treitnediate threat liraq situatkel, couplcJ whh d.e growth of State-spwaored ternurism and disrges in tenwist tutic, indicates diat us curecid segdaunty maridards, whidi e

taduje de truck taste ducas ard s+histkated,large group attads suggiuried by outstarnial f.:egme, are neid.cs :ahstic not 6 suffitiate guarantur of ste pihbr heahh and safety and

.he corninun defer.se and scrurdy undet the Act.

i l'ctition at 5.

since de ad+6an (i d.e commisikm's eurma si.nduds fue imike assinsi end.ok.gitat natutage td nudcar resaors, de tettorist thseat has thanged in three imp >rtard ways: it is idoushee; it is more ug61sutated and lette anned; and it is </ ten State-stumsined. liecause the cinture (d the threat has dumged, h is incumteid on d.e Cummission to revise its regulathms to meet de poiciaisUy n..ne seven dallenges of de IWus.

Id. at 6,

Response

lhe nature of terrorism was the subject of desalled analysis proceding publication of the NRC design buls direat and remains the focus of continuing Staff review NRC cfforts in creating the design basis threat requirements, and actions since their publicalica to ensure their continuing validity, ternain key coruponents in the NRC safeguards progranh 1housands of acts of terrorist vlotence worldwide, ranging from simple attacks on property to the sophisticated and deadly immbing of civil altlines, are examined and analyzed. 'Ihe NRC uses a wide variety of information that is either reported directly from the scene of the hicident or included in a finished analysis provided by the intelligence community 'throughout this ongoing daily analysis, the NRC focuses its effort on reviewing realistic, not hypothetical, adversary characteristics - including weaponry, group site, tactics, explosives, -

and targets - and compares the events that have occurred or information that is credible to the attributes enumerated in the Jesign basis threat statements, On occasion, NRC effort focuses on a panicular facet of terrorism or on information that suggests a trend may be developing. Ibr example, the use of vehicle tombs in Lebanon, as discussed below, was clo:.cly examined, Similarly, the use of hang gliders, boats, the degree of Sophistication exhibited, and State sponsorship have merited and continue to merit close examination.

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1hc NitC's purpose n not tu catalog every dernonstrated or hypothetical terrorist attribute for subsequent inclusion in the design basir, threat statements.

NitC Staff experience, arulysis, and judgment, as well as the siews of other l

federal agencies, are applied in d e threat assessment { rocess. In its nuitlnuing trview, the N1(C considers demomuuted attributes tu determine whether (t rd they exceed cunent safeguards performarwe objectives. When an attribute i

does enned those objectives, it then tecomes the focus of additional and time'

.mination, including discusskin with die intelligence nunmunity or i

spr

,tudy regarding that specibe attsibute, to estabibh in a factual marmer a co,,iprehensive characteritation, inclujing the tuolivathm, dedication, and method of operation of the adversary. knputantly, the NitC examines and includes the circumstances or context surrounding a specific terrorht incident in its deliberation.

Rt example, the conditiom present in the chil strife of Ileirut,1.cbanon, diat resulted in vehicle bomb attacks, are not easily replicated in the United States. Notwithstanding statements inade in the pelilkni and supported by some commenters, the NitC would argue against the hLehhood of such Schele IKnnb attacks domestically.

1he hkelihood that terrorists would attempt to perp(trate art act of nuclear ternvism is of concern to the NI(C and the federal government. Itased on its own nr.alylle activilles and wo king closely with other agencies, the NitC monitors the threat enviromnent for indications that the hkehhood of nuclear terrorism is increasing. Any report of a threat against a domestic nuclear facility receives immediate review and threats against a nuclear facility overseas receive continued attention. On this particular point, the NItC agrees with a statement made by commenters who oppose the petition: that the NitC has access to relevant sensitive or classified informathm not inumally avaihble to the public.

Each incident, whether against a nuclear facility or not, is closely examined in the context of the design basis threat to assess its impact. Ilecause of the incicased number of events occurring concurrently with the Middle East crisis, NI(C has increased data available to tase its determinathm of any significant change in the threat environment, with particular focus on any increased threat of rmclear terrorism. Decistor; makers-pre being briefed, some on a daily schedule, regarding threats and terrorist incklents wtntdwide, and Staff planning ircludes response optkos available to address evolving threats worldwide and d(unestically, Although changes are occurring wildwkle, the NitC has not detected, to date, any significant cl'ang1 to the ducat environment, inc luding weaponry, group sire, State sponsorship, or targeting, that warrants a modihcation of the design-basir threat statements for NitC lkensed nuclear power reactors. Nonetheless, the l

NitC continues on a daily basis and with ongoing vigilance to review information

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on dircats hnd incidents to enLule that the dehign \\ mil threat blalcintats felnain adequate, prudent, and trasonabic.

I 3.

I:xteryts It it equaDy imp 4tand to upgrade the Jenign letis thsest to ardhipate attads Ivy sinne tiphinkai J larget auJ tettes assntJ getops.1hese are esecruially too etunpunas to diis upgraJc: (1) a laeget tiundwt of atthkers, w edi 0,e s ajatuhry to H1 inseveral tameJinated items, anJ (2) heaviet firepener, Petition at 17, in latin Anierite and Fanye Icp gnarp attuka tm nuticar f aubt:ts have tren anunmacJ, vis, da March 25,1973, aital try htteen scrusiste tai Uie Atuths At6nnic l\\ms Stathm in Argesdina.

14. at 20.

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111h.1:1 A, e nuque separmuni servorini gnup in simin. launded neaily 100 auma e against two nudest nlwds unJct sistsuuakm, using p*werful sesni e-Jehenied levnbs, plutic d

esphisives, hand grenade tauralers and anti-ta A stakets.1he aumks resuhrd in suure dian

$7 inillke in damage.

Id. at 21, Respon.se "Ihe NRC agrees that terrorist groups larger than and with heavict Grepower than contemplated in the design basis threat have carried out operathins in foreign nations. The operations were carried out in riations experiencing armed civil unrest, a situation not prevalent in the United States, '1he NRC has not identifed, to date, any sign 10 cant change or trend involving weaponry, group slie, State sponsership, or targeting that warmnts a nali0 cation of the design-

- basis threat statements for NRC licensed nuclear power reactors. If such a change were to occur, the NRC rerponse would be scaled to the imniediacy and scope of the ttucat.

4, llxcerpt 1he Ctanminiun's regulations exempt li6cnices fetan pniternns again 4 "the effetts (4 ottads and dentuctive nas,imlading sainnage, diretted againsi die f uihty by an esenny of the IJniscJ Staics, whetter a fewign government or toer genons.

10 CI R 15n13.

Ilowever, Petithmers undentand that the Cisnminihm Aics nit umsider diis enduskui lo

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ettend to terrurist grwje ultich sperate indennik< inly, eve n thinigh dicy niey have sins 4g hnks to and die stygsst ad fiseign goversantnis.

Ittilion at 6.

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Rt.tponse De NRC ogrecs with this statement. The information ori threats and incidents routinely reviewed by the NRC and considered in threat assessments, as discussed in the foregoing responses, includes activides of terrorist groups that o; crate independerilly but may have strong links to and the support of

- foreign governments, i

5.

therrpts

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1he Cwnmiolun also stattJ ihat the "defeme in deph" avicept of nislear tractor design I

• makes[ ) the edcasing to redinctivity by uns (4 salnaage difficuh" and dint the anac-quences of salonge wimlJ be less severe than d.e *succenful dehmstim of an ilhdi nudear caplosive device." 42 li d. Reg. at 1006, tot. 3. As diseassed iqs in Section C. diese e

i c<stsiderations iks eu apl=ar vahJ unisy in the judgment of die Gwmninitsi s own Staff and outside eaperts.

Ittition at 7, lhe "unaccepalde damage " hoted try Sandis National 14tasatories armi gueuutally asste.

cisted with a successful trud tunnb aumk, maaimelly means de mdtJown of a nudcar reactue cure, releasing massive amuurns of radionetivity, txsuparabic to what wou1J occ:ur in a severe accident. The Osnmluion has estimated, in de 44:e 64 une reachar that a severe aclJess could residt in up to 130,000 scute faialhics, 300,(10 latent (aswers, and NX).(10 genetic effects, while necessitating adfsite mitigniitsi estimated to unst $35 t4tliori, 14, at 13.

Response

De NRC continues to believe that, in general, the consequences of sabotage wuld te less severe than the consequences from successful detonation of an illicit nuclear explosive device. An illicil nuclear explosive device would tc r

portable and could te directed against a heavily populated area or le directed

- against a seat of government and detonated at a time selected for maximum explosive effect. All licensed power reactors are fixed. Moreover, as discussed telow, the NRC does not telieve that the consequences teferred to in the peddon 599 w-m,-

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i lhe tron " unacceptable damage," as used in icluuts of ilk' harxh.: stinly u sin whit h the l'ctunniers' trtnk-Inunb nigtunents are bmed, refers to the blast clin is on a uniarte w;'t panel eunt is in the section of the regusts that discuued inodeling of structural resluimes to lar held blast waves,11 is not ined in the regwels in the sense of predicting an offsite relear.

Wlule one can uniclude that ming the stand of f distantes develoied in this regwwt would emure salcly froni a potential truth taunb threat, the relunt does ruit support the corollary umclusion, i e., tlut a trin k tunnl*, plxed (loser to the trac'.i. would neccuarily result in a substantial radadogical releme. 'the inautre structures, redurulant safety systems, and damage mitigation features of turrerilly licensed reactors cach provide a critain, although utuluantihrd, inemure of lvotection agaimt an uncontrollable releme of radioative material resulting innn a tru(L Innnh, hresgective of stand-of f distance.

Acceptance of l'tu, mig m ute fatalities,8 which is the worst (me presented in the document cited, irnplies actrplance of cah of the followmg propmkhan m trut.

(1) that a terroelst group favors funclear fractor sabotage mer other targets that esist in the Lt.S ;

(2) Tlat they construct a very large trutL luunb undetected.

(3) Tlut liklicatoes from teriosist activity worldwide do not trigger hn-picmentathni of tsinL+1nwnb contingency plans; y

(4) 'that the trtkk innnb is sunenfully emplaced I a reactor bral detonated; i

($) That blmt dataruc and site tue suf ficient to cause $lgnificant damage; (6) Tlat the reactor has beers ogrrating at lwiwcr for stune tline; (7) Tlat the reactor's redundant salc4hutdown systems are all disabled; (8) Tiot containment is mawively tweached; (9) That huge quantitics of radionuclides are released to the atmosphere; (10) That the wind and other meterological avulitiom are f avorable to the worst cme consequences; (l1) That there is a large city nearby in a downwiral direction; arul (12) That the local population, even that part nearest the teactor, rlctis to remair. In place for 7 days with no niitigating enemures, lhe NRC comiders the foregoing set er auumptions to be unhiely in the extreme and not an appropriate basis for safeguards rulemaking.

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6, _ 1:settpl indned. M1's Tea line menocra unaninamly nnaluid uisi ae reactut actiJrra tvuugte at A by testorists, even one schasing signihtwa amousas of saduanctivuy, la ty no neans implausit4e aint is twtuiitaDy feasihte.

Peddon al 10.

Response

f The NRC has accepted the nodon that scactor sabotage, with radiological releases, is technically feasible for many years. Measures are employed at l

power reactoss to protect against credible radiological sabotage scenarios. In the

~

unlikely event of ladiologleal sabotage, damage control, and accident midgation incasures wouki likely limit the amount of radkurtivity released.

7, _ 05%f ttpft L

1 hen has already teen at least tow umanifitned threas of an iragi.spesured attad to a U.S.

nudear farihty. See Omanisaitsi, Prelivninary Notificsitvi t.f 1hreat or Um iual Orcurrem*

- PNO-190108 (the,26,19's0)(msing awened leagiinmih threat to the Wanuse Yankee Nudear l'ower Plant).

Peudon at 10.

It skw1J also le emited that the numbes d " safeguards events" has teen increasing in the lata 1980s, e disturbing trend indicating that the thuugts of satanage is in cunency,!! sus

-r i,ctuaUy scallad yet. See Commission, Sqferwilt Suwary Twat List (NUREG 4:523. Rev.

16)(Deten,ter 31,19s9): !citiminiy of Daniel llirsdi bi(twrsiskt #soriass at $2 and Figures 5 and 6. Ihrsch noted that as of 198:" safeguards evese,"irml4&ng koe hussea, (had] increased five fulJ since the int revision to tie design tesis threat iegulsikms.,.

Pedtion at 10.

Response

. The referenced Preliminary Notification (PNO-190180, Dec. 26,1990) concerned an anonymous phone call to the Governor.clect of Vermont stating I

that Iraqi troops were going to vomb Verment Yankee Nuclear Power Plant. All of the appropriate law enforcement agencies were.'.cC.cil of the call, including the Federal Itureau of Investigation. On the lusis of other information available at the time, the caller's information was deemed to be noncredible, incidentally,

- there were a number of other sabotage and attack threats to licensees during the 601 l

. -., - -... -,. = ~ _.., _...... - - _. _ -. -. - -, - _. _, _. _ _.. _ _ _ _ _ _

._____,..m-

period of die recent persian Outf crisis. A listing of all such events for the perial Aupist 2,1990, to February 21,1991, is provlJed (ut Appendix). Although these were a substantial nutuber reported, none was considered to te signiheant.

1hc NRC has reviewed the assertion that safeguards events, including bomb hoa es, have increased "fhe.lolJ" since the "last revision to the design basis direat regulations " A numter of factors substantially account for this increase.

First, NRC reporting requirements, i.e., the types of events that are recired to te reported by NRC licensees, have been expanded..* s the nuclear industry has implemented " Fitness for Duty" programs, more drug and alcohol related events have teen reported, regardless of whether or not any additional risk to the safe operation of the facility was imolved. Second, more firearms have tven detected during required routine entry searches, altimugh, typically, no malev :nt intent toward facility was identified. third, the number of operating rewtors has increased during the past to years, and thus, the numter of safeguards related events has increased during the same period.

The influence of event data reported in the Safeguards Summary Event 1.151 (NUREO-0525) on the design basis threat statements merits carefid examination.

Clearly, the number of events alone reported in the list does not suggest that a significant change has occurred in the threat environment. 1hc NRC considers a variety of factors, the most important being demonstrated adversary characteristics, in determining the status of the design-basis threat statement for radiological sabotage.1he events identified in the list typically represent hoaxes, i.e., noncredible threats, or adversary characteristics that fall well within the bounds of the current design basis threat statement for radiological satotage.

Therefore, an increase in the numler of reported events by itself does not warrant a change to the design basis threats.

t 8.

Ixcerpt While diere has rmt teen an idenufieJ international terrorist threat as yet against dinnestic ticensed teactors,tenorists have twen sessmaible for rnure than cu,e thisJ of nun U.S. reacus l

incidents in the lwriod 197u-1981 As was demonstrated by the arrest in 19ss (4 several indwdusts sisociate41 wnh the Syriar. Saialist Nauunall' arty while auemping to sniuggle explosives into the United States, the existence (4 an undetcard, internatheial tenonst threat in the Unned Sintes today is a posibihty whia canin4 he discounted.

petition at i1.

Responst' 1he first sentence refers to examples of the Linds of events that are under continuing review by threat evaluators at NRC.

1 i

l 602 l

1

• lhe NitC agrecs with the cornment la the second sertence: "[that thel international tenorist threat in the United States tod.ty is a possibility that cannot be disco 6mted." *Ihc NftC differs from the l'etitioners only in the details and level of response. The NitC believes that vigilant evaluadon of terrorist activities, su; ported by current psotecdon levels and contingency plaruiing for even stronger protection, constitutes an adeqtote response.

i incidentally, the explosive involved in the cited smuggling incident was contained in a hand-carried satchel and was of a small quantity, 9.

hxcerpts

% une d tru.1 insnha 1.as becorne a intic uf Jnhe he tenurists. W tactic is a grave threat to civilian power giards..,,

!Y0 tion at 10.

While this Pedtion focuses primardy on truck lxanha, it is also cuernial to protect against tool tannba. Many nuticar genes plants are louted adjacent to mater and are thus at risk innn aunck ty tut.

Id.

t Resysmse Truck tombs with explosive mass sufficient to pose a challenge to power reactors have been used in the Middle East. In the U.S., there has been only t

one known incident of a large truck tomb (Math Lab, Wisconsin, (1970)).

There is no information that a group cunently exists within the U.S. that has toth the capabilliy and motivation to carry out a truck (or loat) tomb detonation sufficiently near a power reactor that it could cause significant damage, Although the hkelihood of a truck bomb event is considered to be too low to warrant a change in the design-basis threa for radiological sabotage, contingency plans were put in place as a prudent response. 'Ihc likelihood of a boat bomb is considered to be much less th:ui that of a truck bomb, which itself is only a remote possibility. Accordingly, a requirenant for protection against boat tombs is considered unjustified.

10. Et.tryl

[T]n Western Eunpe, noticas power plarus are pracctrJ against trutk twanha by reinfmed fences and walls.

Ittillon at II, 603 l

l

Rnpt.

• De NitC [urtici utes as a ruemier of the interagency U.S. Phpical Protection i

Review Team which coiviucts technical eschanges on pcdicies, practices, and procedures for physical;%.. tion of nuclear inaterial and facilities with foreign governments that receite U.S, origm nuclear snaterial De information derhe(1 from the exchanges is classified (foreign-government restricted information).

Accordngly, the NRC cannot discuss specific safeguards planning or programs used by foreign entities. Ilowever, there is general ag r"ent between the U.S.

and its nuclear trading partners regardmg the level (,inysical protection that is prudent for operating power textors. All parties conunit to the physical protection critelia recommended by the International Atomic Energy Agency in its publication INFillC/225 Rey,2, and many, including the U.S., go beyond these minimum provisions.

11. Excerpts Aldiough the Cunmisiian hai tan aware vi des three luusk tsviihl at limit since 1910, nonethciess it has nu, rengs#J s !!hiendy to date.

Ittition at 11.

As exty as 1%4, the Cunmission staff retunnended mahficatari d de design tesis L reat 6

to include the use of trud t=wnbs by an advenary, nutmg,"he tise (4 a vehkle tunnb against a nuclear fadhty is a feusible form of attad."

Id.

m Cterunission's response to the recognacJ trud tunb threat has tren wuefully deficient While a Ctanmisikin IM4 nuncy of the Defeme Department, de Sctret Service, the Siate Departmcid, and die Deiw* nerd of l'.ncrgy found that *lalu four agendes tcheve that the "trud tunnb" threat in the 115. is sufficient to priens nonmi" and had *mplementrJ rucasures to counter the threat,"

. the Coitunisskat ceily Jctermmed at that tirne to study the issue and delay acthat Id. at 15, Some six years after identifwation d die threat, tai Apel 28,1989, the Casumissksi firully respndcJ try Joing no inme than insumg a *Genene letter" (h E9 07) whidi calls fin licensecs to devekp Nmitmgtncy plans" to deal with the trud tunh threat, lascJ upon a randractor reput The Genene leiter does not require liceristes to plan any permarrnt measures against vehicle bornbs, even though it is Iar f rten clear wbeder lkensees will have sufficient warning time of a partkular senonst ution to implement effectiw contmgency plans.

4 Id. at 16.

604

ne na tunh oata is emi 14cly to a.uprai, si.a.i inm eiped.nu. ma u one 8t 0([lCd ln Outt!60 tK11Cl NL $9 Ul,64fnply dJ lh4 h3tydal(If 4.1Jic3s dos 0,trat, nditt ros une near ut hugu actm M.ati8.

Response

NitC's design basis Oircats serve duce purlues. They are used to develop regulatory requirements, they provide a standard with w hich to measure changes in the real dircat environment, and they provide a standard for evaluation of irnplemented systems. The 1983 launbings in the Middle IIast were cleaily Icyond the capabilities attributed to the design basis threats, and this recognidon triggered NitC Staff aedon.

A first step was to dctermine the c!fects of large scale explosive attacks on licensed facihtles including power reactors. Liefore the results of the study were known, but with general awareness of the damage high explosives can cause to structures, Die NitC safeguards staff concluded that, to le prudent, an immediate effort was warranted, including the development of protw;tkus requirements, defensive strategies, and guid.:nce on vehicle barriers. This action was being taken while the U.S. intelligence agencies were gathering and assessing intelligence infortnation on the origin and geographic extent of this new type of threat, as well as the kinds and quanudes of explosives involved.

Subsequently, based on information received from these intelligence agencies,il quickly becarne apparent that the threat of vehicle bomb @cks in the continental U.S. was not imminent, and N!(C Staff resources were redirected away from immediate regulatory actions to a broader losed assessment of the entire issue.

The truck bombings in the Middle !!ast occurred in nations expcilencing armed civil unrest, a situation not prevalent in the U.S. Subsequently, the truck bomb threat in the U.S. was evaluated in depth and alternatives for dealing with it were developed. None of the information developed was interpreted as indicative of a need for immediate action; also, permanent measuies were considered but were deemed inappropriate, Power reactor licensees were required by Generic Letter 89-07 to develop contingency plans for providing protection against truck bombs under short notice, and to confirm in writing that they had included the threat of a vehicle bomb in their contingency planning. The NitC Staff verified that confirmations werc received from licensees that these conungency plans had been developed. Temporary Instruction 2515/102 (Tl 2515/102)," Land Vehicle llomb Contingency Procedures Verification," was issued on November 29,1989.

The purpose of Ti 2515/102 was to provide policy guidance for NitC regional staff to verify that lwer reactor licensees ime performed the contingency planning required by Ocneric Letter 8940 ~lhe objective of Ti 2515/102 was 605 l

\\

1 to verify dial the liceruces' contingency planning considered short term actium that could be taken to protect agaimt attempted radiological sabotage imotving a land vehicle bomb if such a threat were to materiali/e, inspections werc completed at all operating power reachir sites. Ibr each power reacur site, NRC inspecurs verified that the licemec's safeguards contingency procedures addressed the ability to regund to an NRC request to implemerit short term contingency measures and the licemee ha' determined that any resources or equipment needed to iisiplement short range coritingelsy measures would be available.

As noted in the petition, the NRC consulted with the Defense Department, the Secret Service, the State Department, and the Department of Energy, lhe NRC considered the extent of the protective sneasures ticy implemented in relation to the protective rucasures Otat were altendy in place at powet reactors, lhe consultathms wete conducted as an informal information gathering by the NRC Staff. It was reallzed at the tirne of the consultations that the agencies contacted did not, in most cases, have targets analogous to those protated urxler NRC regulation or with comparable consequences to a postulated truck bomb attack, Decause of this, it was judged reasonable that federal agency respome to the truck bomb issue might be agency 4pecific, Nothing was found that called (tw imrnelliate additional measures to protect against truck bornbs at power reactors, lhe NRC threat evaluation staff femains vigilant in its continuing search for t

indications of a truck bomb threat. The NRC continues to believe that, since the likebhood of such eyelits is considered to be so low, the actions taken constitute an appropriate response.

U, ExcerInts W Canminim's failure to prusett against truck luants a guwes plants stands in n.r.uait to its agprondi fue prisetting fuel facihties, Almost date yenes ago, de Cununissismi determined h was eryvspriate to aher the design basis threas for theft *6o include use ad land vehkles by psential advenaries suempmg to aanmit a dieft",,,. $udi asymmetry is namenskah logkally the Commissket (anme adnowledge ' die posible use of land vehides for locadiing of perimeter tetriers"- puisely de mdus creros.4 (J a ptesdial trud tarnh aunter -- without ademledging die passibihty (4 sudi an attad at tacensed

readors, petition at 17, w current standard is same hai amt iguous iname it does na spenruny indale a reference to vehiodas surgett,it., mtnkers activins by means whe than fint Clairman 7edi stated durir. die 19st oversight hrarings: *NRC's design buis threni indudes any smale <4 vansportsiksi - any sm.de <( uanspination - to get to 04 site, to ihnaigh da perimeter terries, Our design beis ihreat suumes any nule ina, steld get Omegh use 606

tenu ut, wi, uus..,..who nitois,J id unnyutsion" l#sWy die dnign tusis thetat hidt d,uuld eydnidy nwsnise usa proqwL

/d. at 19, Remonse lhe NRC distinguishes talween (1) thdt of high enriched uranium frtun a fuel facility and (?) radiological satolage of a lowes textor As discussed urkler the resgonse to liaccrpt No. 5, me cleft might support an illicit nuclear explosive device w!!h the potential for hi,,her consequences than those from tallological sabotage, An Illicit nuclear explosive device would be portable and could be directed agalmt a heavily populated area or le directed against a seat of government and detonated at a time selected for maximum explosive effect.

An advenary contempladng theft would be prep:ued and equipped differently frtun how he or she would te if contemplating radiological sabouige. 'the combinadon of these factors and other considerations (described below) leads to a design basis threat for theft that differs from that for radiological salotage.

L ccause it could be used in an lilicit nuclear explosive device, signincant quantilles of special nuclear matettal (such as high enriched uranium) must le protected rigorously against theft. %s material exists at cestain heilides administered by the Department of linergy (12) and at certain facilldes licensed by the NRC, 'the two agencies coordinate to carry out a policy of mainta;ning fully adequate and essentially equivalent safeguards systems.

During 1988, this goticy led the NRC to revise its design tasis threat for theft of materials fiorn high-enriched fuel facilldes to include land vehicles umi for transporting personnel, and their hand-carried equi mient.

l A comparubility review of the protecJon pmgrams ha power scactor facilldes has oot been conducted because DOE defense related reactors are fundamentally different from commercial units in slung, function, design, slie, nuclear fuel used, safety systems, and operadons.

All power reactors operating in the U.S. use low-enriched fuel, these is no high enriched uranium at these sites. 'Ihus, vthicle dental lurricts are not required to protect against theft at openidng power reactor sites.

'Ihe NRC interpretadon of the design basis threat for radiological salotage of reactors does not preclude adversaries' use of vehicles, other than truck tunbs, for transportatkin and for treaching protected area barriersi The interivelation also allows hr boats (other than boat tombs) for transportatkm and for breaching the Imrricts *Ihe protection system is designed independent of the tyle of surface vehicle. 'the vehicle, whatever its type, would be detected by intrusion alarms when it crosses the liatrict, No delay time is credited for the bariier, in respome to posillons taken by the petitioner and supported by some commenters,

-607 l

l 1

. ~..

1 l

ore could anodily the design lusis threat to empless this interpretation. *lho l

modification, however, would not affect the high level of Ivotettkun utready provided.

l.1 Ekcerpt j

i

$uth prisetuuns egelnst truts inunte 4 an tw schiev ed at tilativtly low tost, ll.e Omuninitti esuensied nei 191Lri, fut saangile, uint e vtlude dtmial system fue tueJeny nuess wudd unt (mily shuut $1(0,tKO-lh0,(XO ges le(ihty to instau and $10.(10-520,(10 annusuy ki mairusin, midle a prinneter stress denial system mindJ snJy sunt $$(0.fotL$1(10,tIO ps facitily to install sud $25,(R0 $$0,tX0 winually to maintairt..., indeed, use pria, d gouteuiun noems sinall wul well worth h. cunaidesing the aataattadde tunsequeines that undJ le associated with sustenlut sabotage. iraluJmg sigesfetwe offsete taJuecute releases and the tvisphng ad a power plant.

Itution at 18, atopcm.se Ameng the issues considered by die NRC durisig its deliterations on the vehicle bomb were the proviskins of the Comminion's backlit rule. 'the rule states in 10 C.F.R. 6 50.109(a)(3) that the Cornmission can requite backfitting when it detesmines that these is a substantial increase in the overall protection of Oc public bealth and safety or the cornmon defense and security to be derived fnun die backfit, and diat the direct and indirect costs of implementation for that facility arejustified in view of this incicased protectica. Contrary to the belleIof de Itdtloners and supported by some commenters, the NRC concluded that the vehl:te denial system referred to in ihls excerpt would not prmide a substantial Irrrtase in the overall protection of the public health and safety. Cost was not a deciding factor.

Incidentally, the dollar values stated by the Ittidoners for perimeter access denial are not representadve of the costs of providing standoff distances beyond tic existing protected area, as could be required to ensure protection against

• • captosives for use as tools of entry or for odierwise destroying reactor, facility, transporter, or container integrity or features of the safeguards system, in quantilles transportable by vehicle." (Ittition at 22.) in some cases, significant additkmal expenditures would te necessary for (in certain cases) purchase of land, tekicadon of roads and parking lots, additional length 6( banier structturs, and means to monitor the integrity of the barrier. These factors could add substandally to the costs stated for the perimeter system.

608 I

i VI. REASONS FOR DENIAL The Commission has considered the petition, the public comments, and the NRC Staff evaluation set forth in this notice. The Commission concludes that there has been no ch9nge in the domestic threat since the design-basis threat was adopted that would justify a change in the design-basis threat Accordingly, the Ittitione.t' request to modify the design-hsis threat for radiological sabotage as set fonh in 10 C.F.R. (73.1 is hereby denied.

FOR Tile NUCI.E#

REGULATORY MV1. 310N S AMUEL J. CilILK Secretary of the Commission Dated at Rockville, htaryland, this 5th day of June 1991.

609 y

?

i

l APPI:NDIX Listing of Sabotage and Attack Threats to NHC Licensees for the Period August 2,1990-l'ebruary 21,1991 1,

Date: 08/29/90 Site: hiaine Yankee hiaine Yankee Atomic Power Company Lincoln County, h1E Source: Licensce's Corporate Office Tlveat: At 3:40 p.m., an unsubstantiated bomb threat was received at the corporate office.

Action: The hiaine State Police, the Augusta Police, and the ITil were notified.

Resolution: Licensee and the police determined that the threat was noncredible. No further action due to the vngueness of the threat.

2.

Date: 10/22f)0 Site: Georgia Nuclear Plants Source: Dekalb County Sheriff's Office through the FBI Threat: An anonymous female telephoned the Dekalb County Sher-iff's Office at the Courthouse in Decatur, Georgia, and pro-vided a partially unintelligible message regarding an alleged kidnapping that occurred at Stone biountain, Georgia, on an unspecified date. The brief message was " covered" by the Sheriff's Department Radio traffic, making the name of the alleged victim undistinguishable. The caller stated that

'if the unknown victim was not returned to Stone hioun-tain, "they would ignite" a nuclear power plant in Georgia.

The ruclear power plant to be targeted was not specified (NRC licensed facilities in Georgia include ilL.ch I and 2 and Vogtle I and 2),

. Action: No action required.

Resolution: The Sheriff's department believes that the kidnapped in-dividual may refer to someone incarcerateo in the Stone hiounta:n Correctional Pacility, a medium-security state penitentiary located in Stone hiount:an, Georgia. The Fill plans no further action.

610 l

l L

1

3. -

Date: 12/25/90 Site: Vermont Yankee

- Vermont Yankee Nuclear Power Corpora:lon Windham County, VT Source: Oovernor-elect of Vermont Threat: At 5:40 p.m., the Governor-elect of Vermont received a telephone call Imm a male who stated that the Iraqi governm:nt was going to blow up the Vermont Yankee nuclear power plant.

Action: ne licensee was notified through the state and local police and, as a precautionary measure, increased security at the facility. Other nuclear plants in the Yankee system were also notified..

Resolution: De licensee and police determined that the threat was noncredible. -

4.

Date: 01/06/91

- Site: 'nojan i

Source: Bonneville Power Authority (DPA)

Threat: BPA received a letter from a woman who stated that "[i]n the new world God would destroy dams, coal-fired plants, oil fired pla as, and nuclear power plants. POE is the devil and will be destroyed by God within three months,"

Action: DPA notified the Portland General Electric Company load dispatcher who, in turn, notified the 'nojan Plant Superin-tendent.

Resolution: ne licensco determined that the threat was noncredible.

The letter writer was known by the Oregon pohce to be mentally ill and no threat to society.

5.

Date: - 01/10/91 Site: "Ransmission line Source: Consumers Power Threat: NRC Region lit was notified by Consumers Power, that the Canadian Power Control had received a telephonic bomb threat to destroy the new transmission line frorn Detroit

- Edison (owner) to Ontario liydroelectric. The bomb wa set to go off in 16 hours1.851852e-4 days <br />0.00444 hours <br />2.645503e-5 weeks <br />6.088e-6 months <br />.

Action: The FBI was notified and Detroit Edison was contacted.

Resolution: - No bomb was found.

611

h 6.

Date: 01/12/91 Site: llatch Georgia Power Company Appling County, GA Source: Georgia Power Company

' threat: NRC Region 11 received a call from Georgia Power advising that at 12:20 a.m. on January 12,1991, an individual drove up to llatch's Gate 1 (owner controlled area) in an 18-wheeler and asked to see a plant operator regarding a private business dealing. When told the operator would not be at work until January 15,1991, the driver stated he would be back. After he Sol in the tod he stated, "if I pulled the wires to disable the vehicle and loaded it with explosives, I could do something "

Action: 'Ihe local law enforcement agency and the FBI were noti-

fled, k Jolution: On January 16, 1991, the driver was identified, and his name was given to the Sheriff's office, lie was anested on unrelated theft charges. No further action was plarmed by the licensee.

7.

Date: 01/15/91 Site: Palo Verde Arizona Public Service Company Maricopa County, AZ Source: Corporation Offices, Phoenix, AZ Threat: At 8:15 a.m., the cwitchboard operator ut the Corporation Offices, Phoenix, Arizona, received a call from a male, believed to be 3040 years old, who stated, "I'm gomg to blow the place sky high."

Action: No action taken.

Resolution: Licensee determined that the threat was noncredible, 8.

Date: 01/15/91 Site: Brunswick

- Carolina Power and Light Company Unmswick County, NC Source: Brunswick Nuclear Power Visitors Cent:r Threat: At 11:08 a.m., the Brunswick Nuclear IYwer Plant Visitors Center received a call from a male, believed to bc Southern, who said in a raspy voice, 'You had better evacuate the 612

plant Iccause we are going to blow up Sunny Pt. (military, non nuclear facdity located near litunswick) today."

Action: Drunswick and Sunny Pt. facilities were nodfied, as well n, the 1111.

Resoludon: Licensee determined that the threat was noncredible, 9.

Date: 01/15N1

- Site: Wolf Crack Kansas Gas and Electric Company

- Coffey County, KS Source: Kansas Bureau of Invesugetion Threat: At 2:30 p.m., the licensee was notified by the Kansas Bureau of Investigation that they were called by a female, with secondhand information that someone of Iraqi descent worked at Wolf Creek, and if his country is invaded, he will sabotage the plant.

Action: The FBI was notified.

Resolution: Security of vital equipment was heightcned. Result of licensec investigation was negative.

10..

Date: 01/16/91 Site: Davis Desse Toledo Edison Company Ottawa County, Oli Source: Licensee -

Threat:- At 9:45 a.m., the licenscc reported that what appeared to be a bomb (three sticks of unknown material, no power source, and no Oming device) had been found in a cabinet drawer in a maintenance building which is physically removed from any vital areas but within the protected area.

Action: -Site secu.ity responded and reported it appeared to be a hoax,' but the response continued as a precautionary measure, Local law enforcement officials responded, and the FBI was notified.

Resolution: At 11:14 a.m., the object was identified by the licensee as a " security training device" made by one of the security officers.

- 11.

Date: 01/16S 1 Site: hicGuire Duke Power Company hiecklenburg County, NC 613

Source: Duke IMwcr Threat: Duke Power called Ril to deny rumors circulating in North Carolina that McGuire was under attack by Iraqls.

Action: FBI was notified.

Resolution: Rumors were false.

12.

Da'::: 01/17N1 Site: Brunswick Carolina Ibwer and Light Company Brunswick County, NC Source: Licensee Threat: At 1:26 a.m., the licensee received an anonymous telephone call from an individual on an outside line who said, "Want you people to know 600 hours0.00694 days <br />0.167 hours <br />9.920635e-4 weeks <br />2.283e-4 months <br />, it will go olf. Two C-4 planted and they will go off."

Action: The FBI was notified. De licensee conducted a search with negative results.

Resolution: De licensee determined that the threat was noncredible.

13.

Date: 01.T#91 Site: Byron Commonwealth Edison Company Ogle County, IL Source: Commonwealth Edison Company

'l nreat: The Rock River Division (Commonwealth Edison) received an anonymous telephone call which threatened a bomb explosion at Bymn in 7 minutes. Earlier in the morning, Rock River received another anonymous telephone call which threatencd a bomb attack against a substation in Rockford. Illinois.

Action: A search was conducted with negative results.

Resolution: ne licensee determined that the threat was noncredible, ne caller was identified as an unstable personality who had made seven or eight calls over several days to non-energy facilities. A warrant has been issued for his arrest.

14.

Date: 01/23S1 Site: Browns Ferry Tennessee Valley Authority Limestone County, AL Source: Tennessee Valley Authority 614 w_.

Threat: At 11:45 a.m., the main TVA *witchboard la Chattanooga,

'Itanessee, received a call from an unidertified male wie stated, "A black Cadillac or a Nissan truck is on tie way to Browns Ferry with a bomb."

Action: The FBI was notified. De licensee maintained heightened awarC8ess.

Resolution: he licensee determited that the threat was noncredible.

15.

Date: 01/23#1 Site: San Onofre Southern California Edison Company

. San Diego County, CA Source: California State Highway Patrol, Oceanside Threat: At 6:50 p.m., the California State liighway Patrol, Ocean-side, received a call from an individual who stated, "There is a bomb at San Onofre."

Action: The Sheriff's Office and Fan Onofre were notified. The licensec closed all but the south gate, searched vehicles at the south gate, and heightened security. The Sheriff's Department dispatched a patrol car with bomb-sniffing dogs to the site. De FBI was notified.

Resolution: We FBI determined that the threat was noncredib!c and notified the licensee.

16.

Date: 01/23/91 Site: Zion Commonwealth Edison Company Lake County, IL Source: Zion Police Department Threat: He Zion Police Department received a telephone call from an individual who stated, "There's a bomb planted at the local MacDonalds." A short time later, a secom! call stated, "I see you're not doing anything about the bomb at MacDonalds or the one at the Zion Nuclear Power Plant."

- Action: The FBI was notified.

Resolution: The licensee and the police determined that the threat was noncredible, 17.

Date: 01/23/91 Site: Drkey Point -

Florida Power and Light Company Dade County, FL 615

Source: Dade County Metropolitan Police Deturtment Threat: During the evening, Dade County Metropolitan Police De-partment received an anonymous call from an it.dividual who stated he was with " Iraqi International," and an air.

plane would bomb Arkey Point at 8 p.m.

Action: The c dl was traced to a pay telephone at a l' Mart, but no suspect was identified. He Dade iblice notified the licensee, ne FBI was notified.

Resolution: The licensee and the police determined that the threat was noncredible.

18.

Date: '01/24B1 Site: Consolidated Edison Corporate Office New York Source: New York City Police Department Ttreat: At 1:50 p.m., the New York City Iblice Department advised that they received a call from an individual who stated that a bomb would go off in 10 :ainutes on the 2nd floor of the Consolidated Edison Corporate Offices.

Action: A scatch was conducted with negative results.

Resoiution: No mention was made of an NRC-licer. sed facility.

I9.

Date:.01/25/91 Site: _ hrkey Point Florida Power and Ught Company Dade County,11 Source:.AT&T Threat: At 11:35 a.m., AT&T received a call from a male with a foreign accent, who said he needed nails and a hammer to bomb the Arkey Point plant.

Action: AT&T traced the call to a local residence in llollywo<x1, Florida De licensee centacted the local law enforcement agency and the FBI.

Resolution.- The local law enfortement agency investigation determined that the call was made by an 18-year-old as a prank.

20.

Date: 01/25S1 Site: Oregon State University Oregon

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Threat: ' At 9 a.m., the University received a general bomb threat which stated," Bombs will go off at several places, includ-ing Oregon State University."

Action: De reactor was shut down. A search was conducted with negative results.

Resolution: He University determined that the threat was noncredible.

21.

Date: Ol/25f)I Site: Davis Besse Toledo Edison Company Ottawa County, Oil Source: Licensee.

Threat: NRC Region !!! wat notified that an individual wallcd into the Edison Plaza Shopping Center, Toledo, Ohio, and threatened to kill all Toledo Edison employees and destroy Toledo Edison equipment.

A; tion: FBI notified.

Resolution: The individual was known to the local police as he had mado previous threats. The licerace filed a complaint, a warrant was issued, and the man was arrested and jailed.

22.

Date: 01/30/91 Site: Limerick Philadelphia Electric Company Montgomery County, PA Sourec: Licensec Threat: At 3:46 p.m., the switchboard, in a nonprotected area, received a telephone call from an anonymous individual who said,"I put a bomb there that's going to blow up,"

Action: De local police were notified. A search was conducted with negative results.

Resolution: ne caller was believed to be a boy, about 8 9 years old.

The licensee and police determined that the threat was noncred:ble.

23.

Date: 01/31f)1 Site: Manhattan College New York Source: Manhattan College Threat: At 12 noon, an anonymous bomb threat was received against a building at Manhattan College, Riventale, New York, hous.ag a nonpower reactor.

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Action: The kral police department responded. A search was conducted with begative results, Resolution: The College and police determined that the threat was noncredible, 24' Date: OMM/91 Site: Arkansas Arkansas Power and Light Com[uny Pope County, AR Source: FBI Office, Little Rock, Arkansas Threat: The FBI Office, Little Rock, Arkansas, received an anony-mous telephone call from an individual who stated that Arkansas Nuclear One was going to be hit.

Action: The licensee was notified and increased security.

Resolution: FBI determined that the threat was noncredible.-

25.

Date: OMM/91 Site: San Onofre Southern California Edison Company San Diego County, CA Source: Licensec Threat: Sometime between 4 p.m on February 5,1991, asi 7:30 a.m. on February 6,1991, the licensee recorded a message on an answering machine which said, ' Tie whole place is going to blow up today."

Action: The FBI was notified. A copy of the tape was provided to the FBI.

Resolution: The FBI determined that the threat was noncredible, 26.

Date: 0?/14/91 Site: Cooper Nebraska Public Power District Nemaha County, NE

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Source: Sheriff, Auburn, Nebraska Threat: J 'Ihc local sheriff in Auburn, Nebraska received an anony-mous bomb threat against the local hospital and against Cooper which said, "A bomb will go eff in 29 min-uteS...."

Action: A semth was conducted with negative results.

Resolution: The licensee rletermined that the threat was noncredible.

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27, Date: 02/'9N1 Site:

U.S. Embassy Ottawa, Canada Source: FBI Threat: 'Ihc U.S. Amlussador received an anonymous tlucat letter that alluded to various illegal activities such as drug dealing and postitution and contained threats against the U.S.,

including a threat of retaliatory L:unikaze air crashes into U.S. nuclear power planis by explosive-laden planes, if Iraq was invaded by U.S. forces.

Action: The Royal Ccnadian hiounted Police (RCh1P) and the 131 were notified.

Resolution: 'The RCh1P and the 101 dt.crmined through their investi-gation that the threat against nuclear facilitics was noncred-ible.

28.

Date: 02/21/91 Site: University of Utah Utah Source: Local Police Department Threat: At 7:05 a.m., the local police department notified the Uni-versity of a bomb threat against the hierrill Engineering Building. 'Ihe threat was not directed agamst the Triga re-actor which is located on the fest floor.

Action: A search was conducted with negative results.

Resolution: The licensee aad police determined that the threat w~as noncredible.

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