ML20002B237
| ML20002B237 | |
| Person / Time | |
|---|---|
| Issue date: | 11/03/1980 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | AFFILIATION NOT ASSIGNED, UNION OF CONCERNED SCIENTISTS |
| Shared Package | |
| ML20002B233 | List: |
| References | |
| FRN-45FR41738, RULE-PR-50 NUDOCS 8012110161 | |
| Download: ML20002B237 (15) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In re
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STATEMENT OF POLICY:
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FURTHER COMMISSION GUIDANCE FOR
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POWER REACTOR OPERATING LICENSES
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ORDER The Commission being equally divided on a request filed by the Union of Concerned Scientists and Shoreham Opponents Coalition for a stay of the Commission's "Statecent of Policy:
Further Commission Guidance for Power Operating Licenses," 45 Fed. Reg. 41738 (June 20, 1980), the stay request is effectively denied.
Separate views follow from Chairman Ahearne and Commissioner Hendrie; Chairman Ahearne; Commissioner Gilinsky; and Commissioner Bradford.
It' is so ORDERED.
For the Commission,
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uuntl SAMUEL J. CHI Secretary of the Commission Dated at Washington, D. C.,
2110/W this M day of 8dt/ sr/ M, 1980
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SEPARATE VIEWS'0F CHAIRMAN AHEARNE AND COMMISSIONER HENDRIE:-
Recer,tly the Nuclear Regulatory _ Commission issued a Statement of Policy entitled "Further Commission Guidance for Power Reactor Operating Licenses."
-45 Fed. Reg. 41738 (June 20,1980).
In essence, the Statement of Policy announced the intent of the Commission that in future actions on nuclear power reactor operating license applications, it would look to_ the list ~of " Require-ments:for New Operating Licenses" found in NUREG-0694 (June 1980) as setting forth requirements -for new operating licenses which should be "necessary and sufficient for responding" to the-accident at Three Mile Island ("Thi-).
Consequently, current operating license applications were to be judged against
'present NRC regulations, as supplemented by these TMI-related requirements.
Insofar as certain of the provisions of NUREG-0694 seek to impose operating license requirements beyond those necessary to show compliance with the regulations:
although the-[ licensing and appeal] boards may entertain contentions asserting that.the supplementation is unnecessary (in full or in part) and they may ehtertain contentions that one or more of the supplementary requirements are not being complied with; they may not entertain con-Id.
tentions asserting that additional supplementation' is required.
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2 The Commission received a request for a stay of the effectiveness of the Statement of Policy from.the Union of Concerned Scientists and the Shoreham Opponents Coalition (July 25, 1980).
For the reasons stated below, we believe this request should be denied.
The core of the argument for a stay is the contention that movants have a strong likelihood of success on the merits of their challenge to the pro-mulgation of the Statement of Policy.
This is because, in their view, the Statement of Policy has inproperly cut off the rights of intervernors to raise
" contentions arguing that the public health and safety requires more than the items contained in NUREG-0694." This assumption is incorrect.
Under the doctrine set forth in Maine Yankee Atomic Power Co. (Maine Yankee Nuclear Power Plant, Unit 2), ALAB-161, 6 AEC 1003 (1973), affimed 7 AEC 2 (1974), affimed sub nom Citizens for Safe Power v. NRC, 524 F.2d 1291 (D.C. Cir.1975), intervenors have been precluded from raising before the Commission and the Licensing and Appeal Boards the issue of whether, on generic grounds not unique to a particular plant, something more than com-pliance with NRC regulations can be a prerequisite to obtaining an operating license.1/ Although 10 C.F.R. 5 2.758 provides some flexibility, that rule allows a challenge to existing rules and the imposition of stricter require-ments only on a case-by-case basis when there are "special circumstances with 1/
The Maine Yankee Atomic Power Co. case did recognize the possibility that where there are no regulations at all that address a particular subject matter, boards might fill this regulatory " gap" by imposing requirements beyond agency regulations.
See Trustees of Columbia University in the City of New York, AL AB-50, WlSH-1218 320 (May 18,1972).
Otherwise, Maine Yankee Atomic Power Co. stands for the proposition that compliance with the NRC's regulations is a sufficient basis upon which to grant or license.
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respect to the subject matter of the particular proceeding."El The Statement of Policy' imposes no further restrictions, not already existing under Maine Yankee and rule 2.758, on intervenors' rights to raise issues before Licensing
.and Appeal Boards, or t e-omm ssion.
Thus, the Statement of Policy does not h C i
cut off any rights which intervenors previously had. In fact, even though Maine Yankee suggests that intervenors were not even able to raise contentions before the Commission itself_ concerning the inadequacy of NRC regulations (absent a regulatory " gap"),1/ the Statement of Policy opens up the possibility that the Maine Yankee ruling might be waived at the Commission level in indi-vidual cases.S/
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It should be noted that rule 2.758 does not foreclose the Commission
.itself from initiating the imposition of additional requirements, beyond That rule present agency regulations, prior to granting a license.
addresses only the question of the circumstances under which a party to a licensing proceeding may " challenge" a Commission regulation.
The Commission's self-initiated additional requirements find amply support elsewhere in the rules.
See, e.a., 10 C.F.R. % 50.40(c), 50.50, 50.109(a).
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The movants seek to find support for their view that Licensing Boards must entertain challenges to the adequacy of our rules in the Court of Appeals affimance of the Maine Yankee decision.
They point to the court's statement that "in the absence of some indication or showing on a case-by-case basis to the contrary,... it may be found that facilities complying with the NRC rule [s]" may be licensed under the Atomic Energy Act.
Significantly, the court did not indicate that the case-by-case -
showing was required by statute to be raised initially at the licensing board -level. Moreover, this statement was made in the context of the
" gap" argument, so that the court's reference to the possibility of "some indication or showing on a case-by-case basis" should be read as leaving to intervenors the right to show a regulatory " gap," or perhaps a par-ticular plant-specific problem pursuant to 10 C.F.R. $ 2.758, and not the right to show some general inadequacy with Commission rules.
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Testifying before the Subcommittee on Environment, Energy and Natural Resources of the House Committee on Government Operations (July ?, 1980),
Chaiman Ahearne stated. that the Statement of Policy dealt only with the ~
Licensing and Appeal Boards (Tr. at 22).
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Although it may not have been clear in the Statement of Policy itself that this avenue is open, recent Congressional testimony by Chaiman Ahearne confims this. interpretation.E/ Whether this approach would be pursued on an interlocutory basis or only after an initial decision will, like application of the rest of the Statement of Policy, have to await developments in a particular case. 5/
Finally, we do not believe that movants have demonstrated that the State-ment of Policy is likely to be viewed as having, as they allege, "the same effect as that of a rule or regulation." The Statement of Policy is only an "announce[ ment of] what the agency seeks to establish as policy.
A policy statement announces the agency's tentative intentions for the Tuture."
Pacific Gas & Electric Co. v. FPC, 506 F.2d 33, 38 (D.C. Cir.1974).
The Commission has changed nothing by the Statement of Policy itself, for it is a
" pronouncement [which] acts prospectively...."
American Bus Ass'n. v. U.S.,
F.2d (D.C. Ci r. No. 79-1207, June 25, 1980), slip op. at 9.
The Statement of Policy genuinely leaves the agency free to exercise discretion.
Regular Common Carrier Conference v. U.S.,
F.2d (D.C. Cir. No. 79-1249, June 30',1980). The only aspect of the Statement of Policy which could be El At the July 2 hearing, Chairman Ahearne also stated:
In the future should any question be raised before the Commission itself under Appendix B regarding the validity of any part of the policy statement as applied to a particular case, the Commission recognizes its obligation to consider the question and reply on the merits based on the state of the record before it.
Thus, to the extent that intervenors present sound reasons for the Commis-sion to address the merits of their contentions, and thereby to waive the Maine Yankee ruling, the Commission should consider all relevant matters --
e.g., ~the pleadings before it, NUREG 0594, etc. -- in detemining whether the contention should be litigated.
This avenue is in addition to the right that parties have always had 6/
and continue to have to raise issues on an interlocutory basis under 10 CFR 52.758 when a particular case involves "special circumstances."
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consider by some as a " binding norm" that would adversely affect inter-venors, Pacific Gas & Electric Co., supra, 506 F.2d at 39, is the statement that the boards "may not entertain" certain contentions which would result in imposing on licensees-requirements beyond those contained in the NRC regula-tions and NUREG-0694. However, as we have stated, this already exists as a-matter of case law in Maine Yankee _, and under rule 2.758, and the Statement of Policy merely announced the non-startling conclusion that the Commission would not expect boards to veer from precedent or regulation in this regard.E In any event, the. Commission has called the Statement of Policy " guidance" for the boards.
45 Fed. Reo._ at 41739, 41740.
Although the movants' failure to show likelihood of success on the merits
'is an adequate ground to deny a stay, it is also useful to address their contention that they will suffer irreparable hann absent a stay.
In light of the fact that the Statement of Policy itself effects no change, finally deter-mines no rights or duties and promulgates no new binding precedent, there is nothing to stay.
Any harm which might occur could occur only within the context of a particular adjudication when, and if, the Statement of Policy is-U Theoretically, parties Lave been free to ask that boards refuse to follow Maine Yankee and instead entertain contentions that challenge the ade-The " guidance" offered in the Statement of quacy of NRC regulations.
Policy would eliminate this possibility, if boards followed that guid-However, it'is clear that this theoretical possibility has always ance.
been only that, and that in practice boards could not be expected to Thus, the ignore or overturn the precedent which limits their options.
Statement of Policy cannot be said to have made any real change in Com-mission policy or practice in this regard.
Even if this fictional change is considered relevant and to be binding -- and not mere guidance -- it is a change in agency practice or procedure which is exempt _ from notice-and-comment rulemaking.
5 U.S.C. 6 553(b)(3)(A).
- 6 applied, but -see. footnote 5, supra, although we hasten to reiterate that the Statement of Policy gives intervenors more, not fewer, opportunities to litigate contentions.
Even if intervenors are harmed by the Statement of Policy, however, we do not think that the failure to accept contentions at the licensing board level can be considered as subjecting the movants to -
irreparable harm.
See, e.g., Sampson v. Murray, 415 U.S. 61, 90 (1974).
Cf. Ecology Action v. U.F.A.E.C., 492 F.2d 998 (2d Cir.1974); Northern States Power Co. (Tyrone Energy Park, Unit 1), ALAB-492, 8 NRC 251 (1978).E/
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We have also considered movants' arguments that granting of the stay is more likely to result in fewer delays and consequently less harm to the Commission and to licensees than if the Commission denied the stay and that the public interest would be best served by granting of the stay.
We find these arguments lacking factual support and otherwise unpersuasive.
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m Additional separate views of Chairman Ahearne:
1I continue to support the approach outlined in the policy statement--not because I believe'it is the best approach that could be' devised, but -
because it is the~ best of-the options I found available to me given'the interaction' among the Cunnissioners and advice from the General Counsel.
As LCommissioner Bradford pointed out in a recent speech
- there is "a fundamental disarray in the 11RC's regulatory processes."
I-agree.there is a disarray and with his conclusion that:
"The disarray that I refer to has to do with a lack of synchroniza-tion among the NRC's legal requirements, its technical review processes, its inspection and enforcenent efforts, and what is really going on in the nuclear power plants in operation and under construction around the country.
"For nuclear ~ regulation to be effective, these four areas must be closely linked, with each one having an understanding of the needs of the other and.a quick and efficient method of appraising the significance'of events in the other three spheres."
4 In attenpting to deal with the Three Mile Island accident, the Commission went through an extensive evaluation of the consequences of the accident for licensing in general, The product and the process were far from perfect, but they were entitled to be given some weight.
It made no sense for a board in an adjudicatory proceeding to start from'a blank slate and ignore the effort which was reflected in the Action Plan and the resulting Commission decisions.
As we said in the Policy statement:**
"There are several reasons for this.
First, this represents a major effort by the staff and Commissioners to address an almost overwhelming
. number of issues in a coherent and coordinated fashion.
It -is extrenely doubtful this process can be reproduced in individual proceedings.
" Reasonable Assurance, Regulation, and Reality," address by Commissioner Peter'A. Bradford before the ALI-ABA Course of Study on Atomic Energy Licensing and Regulation (September 24,1980).
"Further Commission Guidance for Power Reactor Operating Licenses;
- Statement of Policy," _45 Fed Reg 41738, 41740-(June 20, 1980).
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y-2 Second, the NRC does not have the resources to litigata the entire Action Plan in each proceeding, nor does it believe it would be a responsible decision to do so.
Third, many of the decisions involve -
Most of these are more policy rather than factual or legal decisions.
appropriately addressed by the Commission itself on a generic basis than by an individual licensing board in a particular case."
Based on these considerations I proposed the following approach:
" Consequently, in detennining whether the health and safety of the public would be adequately protected, the Boards are to consider whether a license application complies with the regulation as supplemented by the operating license requirements.
12f If a party to a proceeding alleges that a longer tenn item or any other item must be implemented in a given case to assure safety in light of TMI accident considerations, a Board may give consideration to such items if it finds that a party The Commission is able to show cause why the issue should be litigated.
intends that this require a party to identify why its position raises a significant issue and how its position might alter the results reached in the Action Plan in some material respect. M/
"12/ Cf. Maine Yankee Atomic Power Company (Maine Yankee), CLI-74-2, T AEC 2, 4 (1974) (the Atomic Energy Act does not require consideration of residual risk after Commission requirements are met).
"13/ Cf. Wolf Creek, 7 NRC 320, 338 (1978) (analogous standard)."
Under this approach contentions based on the Three Mile Island accident would
- However, be litigable ~ regardless of their relation to existing regulations.
there would be a substantial threshold which must be met
- because of the Commission's effort in developing the Action Plan.
I was willing to allow dis-cussion of the decisions we had reached, but only if a party could show it had something serious to discuss.
Unfortunately the General Counsel advised that this approach was illegal.
Compare Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590,11 NRC 542 (1980).
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s Given that' I was unable to adopt _my preferred approach, I agreed to the b'
approach outlined in the policy statement because it accomodated my
- ' concerns better than -.the other options which were available.
- I believe this is a very good example of the problem identified by Commissioner Bradford. ~ It is unfortunate that we were not able to better
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link the adjudicatory proceedings to other efforts in the agency.
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SEPARATE VIEWS OF. COMMISSIONER GILINSKY:
'For-the same reasons that-I disapproved of the Policy Statement-(see attachment), I would grant a stay of that portion ofLthe' Policy Statement which limits.the ability _of the parties.to challenge the' sufficiency of the'new requirements.
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COMMISSIONER GILINSEY'S SEPAPM E VIEWS REGARDING THE COMM!SSION'S POLICY STATEMIST --
COMMISSION GUIDANCE FOR POWER REACTOR OPERATING LICENSES I regard.the Action Plan as a directive to the staff from the Commission acting-in its superviscry capacity and expect that it will be given appropriate deference by the-' adjudicatory boards.
However, in view of the fact that the Action Plan and the.NTOL list are not regulations, and are not the result of a public proceeding, thay cannot be given the weight of rules.
-Nor does the fact that the Commission spent a great deal of time developing the Action Plan change the situation.
There were many items to deal with and the
. Commission did not spend much time on each of them and very little on some.
Moreover, as Commissioner Bradford.has pointed out, the industry has had extensive opportunities to comment on the Action Plan and to obtain changes, which in almost all cases have resulted in a reduction of.the requirements initially proposed by the staff.
To now limit litigation to the issues of whether these requirements have been satisfied or are excessive, and to exclude discussion of whether they go far enough, is a manifestly unfair and unwise policy.
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c SEPARATE VIEWS OF COMMISSIONER BRADFORD I would grant the stay requested by UCS and use the time to reshape this unfortunate document into something legal and sensible. The Commission has, by its subsequent " clarifications" conceded the illegality of the 1/
- Policy Staternent as. written.
In its place, it has created a procedural 1/
The illegality and unwisdom of the June 16 Policy Statement are discussed in my original dissent. Some problems with the modi-fications introduced in subsequent Commission correspendence and testimony are set forth in my July 2,1980 testimony before the House Subcommittee on Environment, Energy and Natural Resources, Committee on Governnment Operations.
The relevant' portions of that testimony are as follows:
"In its testimony before this Committee and in recent letters sent out explaining.the Policy Statement, the Commission has, for th9 first time, stated that 'should any question be raised before the Commission itself... regarding the validity of any part of the policy statement as applied to a particular case, the Commission recognizes its obligation to consider the question and reply on the However, as to merits based on the state of the record before it. '
any such contention, the state of the record before the Commission will be barren indeed.
The Commission has assured this by having the policy statement require the exclusion of the contention'itself and all testimony, discovery cnd cross-examination that would have supported it....
"While the clarified form is not quite so offensive.as the original policy statement, it is a terribly cumbersome and confusing way of dealing with issues of this sort.
It would have been far better to have left this set of' issues subject to litigation before licensing boards applying normal rules of evidence as to relevance and materiality.
However, if the new policy is to be adhered to, it should provide for the ' Commission to review issues referred to it on an interlocutory basis.
"In the policy statement itself the Commission seeks to conceal the nature of its action behind an assertion that it 'does not in any way diminish intervenors' present rights.'
That is not entirely true, but, it is entirely beside the point.
After Three Mile Island, the Keiiieny Report, and other studies the Commission could not. imaginably have continued to license on the ' basis of its pre-
.TMI regulations alone.
It would have been jeered out of every legislative or judicial forum that it appeared before.
Hence, its benign assertica that its policy statement is 'in the direction of permitting parties to raise more issues, not fewer' suggests nothing so much as the' shopworn political adage-that 'When you've got an angry mob after'you, the thing to do is to walk a little faster and pretend you're-leading a parade.'
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1 maze for the Boards, the parties, and ultimately the NRC.-2/
The best remedy would be to repeal the June 16 document and provide i
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"The Commission is not expanding the rights of parties to raise questions. The accident at-Three Mile Island did that....
f "The fundamental mistake being made by the Commission in this and j
other recent cases (notably the curtailment of the hearing offered in the NFS-Erwin matter and the Commission decisions in the Marble I
Hill and Point Beach cases as well as the Commission's effort to divest itself of export licensing responsibilities) is that all of these actions tend in the direction of reducing the general public's ability effectively to scrutinize matters of considerable concern to it.
"I'm under no illusions as to the ability of under-funded intervenors to contribute extensively to the resolution of complex technical issues.
Nor do I doubt that on a few occasions hearing rights will j
be abused by those seeking the delay of the licensing of a nuclear power plant, especially if the Commission continues to arouse the public through the kind of treatment it has meted out in the last i
few months.
However, balanced against allegations of intervenor ineptitude or delay must be a realization that it would only take one group in one proceeding to raise an issue in a manner that pre-vented a Browns Ferry or Three 11ile Island-type of accident to 4
repay all of the cost of delay in all proceedings many times over.
l Furthermore, the costs to nuclear power that stem from cur agency showing that it either fears or'is impatient with serious questioning l
from concerned citizens or from intervenor groups is something far i
beyond the cost of the minimal delay that would be likely to occur in tightly run hearings.
The public's right to be heard effectively on these questions is not to be treated as mere window dressing, i
dreamed up by one set of lawyers to be undone by the next.
It is fundamental to acceptable and sensible governmental decisions.
That is why the recent trend in Commission decisions, culminating in the policy statement and the Erwin matter, is so important and so wrong."
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I have some sympathy with Chairman Ahearne's desire to erect a
" threshold" of some sort to the litigation of. items in the Action j
Plan.
However, such a threshold would exist if the Commission merely sanctioned the Action Plan as the determinent of the staff position.
As I pointed out in my original dissent, "as a practical matter, this would have made it a document of considerable influence.
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In uncontested cases, it would clearly have governed.
Intervenors in contested cases would have been taking on a very heavy burden in trying to go against a staff position and convince the Commission to change its mind on a document that it had alreidy approved."
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the Boards. The next best remedy would be to allow ~for interlocutory treatment of these questions by the Commission.
1 It is worth noting that the Commission has recently completed a set of significant modifications of many of the requirements that it proclaimed i
"necessary and sufficient" on June 16. These modifications are now out for public comment and could conceivaoly be modified ~again. They are 1
clearly not graven in stone, and we should stop treating them as if they were.
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