ML23151A405

PR-002 - 58FR34726 - Sec. 2.206 Petitions Requesting Institution of a Proceeding to Modify, Suspend or Revoke a License, or for Such Other Action as May Be Proper; Workshop

ML23151A405
Person / Time
Issue date:	06/29/1993
From:	Hoyle J NRC/SECY
To:
References
PR-002, 58FR34726
Download: ML23151A405 (1)

Text

DOCUMENT DATE:

TITLE:

CASE

REFERENCE:

KEYWORD:

ADAMS Template: SECY-067 06/29/1993 PR-002 - 58FR34726 - SEC. 2.206 PETITIONS REQUESTING I

'INSTITUTION OF A PROCEEDING TO MODIFY, SUSPEND OR REVOKE A LICENSE, OR FOR SUCH OTHER ACTION AS MAY BE PROPER;WORKSHOP PR-002 58FR34726 RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

PAGE 1 OF 2 STATUS OF RULEMAKING RECORD 1 OF 1

PROPOSED RULE:

PR-002 OPEN ITEM (Y/N) N RULE NAME:

SEC. 2.206 PETITIONS REQUESTING INSTITUTION OF A PROCEEDING TO MODIFY, SUSPEND OR REVOKE A LICENSE, OR FOR SUCH OTHER ACTION AS MAY BE PROPER;WORKSHOP PROPOSED RULE FED REG CITE:

58FR34726 PROPOSED RULE PUBLICATION DATE:

06/29/93 ORIGINAL DATE FOR COMMENTS: 08/27/93 NUMBER OF COMMENTS:

EXTENSION DATE:

I I

FINAL RULE FED. REG. CITE:

FINAL RULE PUBLICATION DATE:

16 I

I NOTES ON: SEE SECY-93-258 FOR RESULTS OF WORKSHOP.

FILE LOCATED ON 16-G.

AT. _; ** :

RULE:

PRESS PAGE DOWN OR ENTER TO SEE RULE HISTORY OR STAFF CONTACT PRESS ESC TO SEE ADDITIONAL RULES, (E) TO EDIT OR (S) TO STOP DISPLAY PAGE 2 OF 2 HISTORY OF THE RULE PART AFFECTED: PR-002 RULE TITLE:

SEC. 2.206 PETITIONS REQUESTING INSTITUTION OF A PROCEEDING TO MODIFY, SUSPEND OR REVOKE A LICENSE, OR FOR SUCH OTHER ACTION AS MAY BE PROPER;WORKSHOP DATE PROPOSED RULE ROPOSED RULE SECY PAPER:

PROPOSED RULE SRM DATE:

I I

SIGNED BY SECRETARY:

06/23/93 FINAL RULE SECY PAPER:

FINAL RULE SRM DATE:

I I

DATE FINAL RULE SIGNED BY SECRETARY:

STAFF CONTACTS ON THE RULE I

I CONTACTl: FRANCIS X. CAMERON CONTACT2:

MAIL STOP: 15-B-18 PHONE: 504-1642 MAIL STOP:

PHONE:

PRESS PAGEUP TO SEE STATUS OF RULEMAKING PRESS ESC TO SEE ADDITIONAL RULES, (E) TO EDIT OR (S) TO STOP DISPLAY

DOCKET NO. PR-002 (58FR34726)

In the Matter of SEC. 2.206 PETITIONS REQUESTING INSTITUTION OF A PROCEEDING TO MODIFY, SUSPEND OR REVOKE A LICENSE, OR FOR SUCH OTHER ACTION AS MAY BE PROPER;WORKSHOP DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT e 06/ s/93 06/23/93 FEDERAL REGISTER NOTICE - PROPOSED RULE 08/27/93 08/26/93 COMMENT OF THE COMMONWEALTH OF MASSACHUSETTS (LESLIE GREER, ASSISTANT A.G.) (

1) 08/27/93 08/26/93 COMMENT OF OHIO CITIZENS FOR RESPONSIBLE ENERGY (SUSAN L. HIATT, DIRECTOR) {

2) 08/27/93 08/27/93 COMMENT OF SEVEN UTILITIES

{MAURICE AXELRAD, ESQUIRE) {

3) 08/27/93 08/27/93 COMMENT OF NUCLEAR MANAGEMENT AND RESOURCES COUNCIL

{ROBERT W. BISHOP, V. P.) {

4) 08/27/93 08/27/93 COMMENT OF SOUTHERN NUCLEAR OPERATING COMPANY

{DAVE MOREY, V. P.) {

5) 08/30/93 08/27/93 COMMENT OF GEORGIA POWER COMPANY

{C. K. MCCOY, V. P.) {

6) 08/30/93 08/31/93 COMMENT OF SIX UTILITIES {MARK J. WETTERHAHN) {

9) 08/31/93 08/25/93 COMMENT OF PUBLIC CITIZEN-CRITICAL MASS ENERGY PROJ

{JAMES P. RICCIO) {

7) 08/31/93 08/27/93 COMMENT OF NUCLEAR INFORMATION AND RESOURCE SERVICE

{MICHAEL MARIOTTE, EXEC. DIRECTOR) {

8) 09/01/93 08/27/93 COMMENT OF SEQUOYAH ADVOCATES FOR ENVIRO SOUND TECH

{ANGIE ELLIS, SEC./TRES.) {

10) 09/07/93 08/30/93 COMMENT OF NORTH ATLANTIC ENERGY SERVICE CORP.

{TED C. FEIGENBAUM, SR. V. P.) {

11) 09/07/93 09/01/93 COMMENT OF U.S. COUNCIL FOR ENERGY AWARENESS

{MARVIN S. FERTEL, V. P.) {

12) 09/07/93 09/01/93 COMMENT OF GALLO AND ROSS {JOSEPH GALLO, ESQUIRE) {

13)

DOCKET NO. PR-002 (58FR34726)

DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 09/10/93 09/03/93 COMMENT OF WESTINGHOUSE ELECTRIC CORPORATION (N. J. LIPARULO) (

14) 10/14/93 10/11/93 COMMENT OF OHIO ENVIRONMENTAL COUNCIL (BRIDGETTE MARIEA) (

15) 11/15/93 11/01/93 COMMENT OF UTIL RADIOLOGICAL SAFETY BD OF OHIO (

16)

SENT BY=xerox Telecopier 7020 :11-10-93 ; 17:10 6147528251

. DOCKET NUMBERnn 7' -

PROPOSEO RULE..!.r..!!,...::~=-----

(s ~F (<.. J'i?:J.*6)

• 93 913015043200:# 2 Comments on the Nuclear Reguu.to.ry Commission's Review of Regulations and Practices Govemine Citizen Petitions Under 10 CFR 2.206 for Instituting Proceedings Against Licensees by the UTILl1Y RADIOLOGICAL SAFETY BOARD OFOHrO November 1, 1993

\\

'UCLr: ~ *

.. DOC!~.*:'

. *....,Y COMMISSION

~

'Cf S~CTION OFF-,..

r

..,RETARY c;: Tilt: r-c: *,,,, SSION

SENT BY:xerox Telecopier 7020 ;11-10-93 17:10 6147528251 913015043200;# 3 The Utility Radiological Safety Board of Ohi.. is pleased to offer comments for the Commission's review of the 10 CFR 2.206 petitlon process.

The Utility Radiological Safety Board of Ohio (URSB or Board) was established by the Ohio General Assembly in July of 1989. T.ne Board's purpose ls to:

..... develop a comprehensive policy for the state regarding nuclear power safety. The board's objectives shall be to promote safe, reliable, and economical power; establishing a meniorandum of understanding with the federal nuclear

• regulatory commission and the state... and recommend policies and practices that promote safety, performance, emergency preparedness, and public health standards that are designed to meet the state's needs."

Additionally, Ohio Revised Code Chapter 4937 requires the Board to:

"... make recommendations to increase cooperation and coordination among the member agencies toward the promotion of nuclear safety and mitigation of the effects of a nuclear electric facility incident."

The URSB consists of six state agencies: the Ohio Departments of Agriculture, Health and Industrial Relations, the Ohio Emergency Management and Environmental Protection Agencies, and the Public Utilities Commission of Ohio.

The URSB is advised by the URSB Citizens Advisory Council on Nuclear Power Safety (CAC) on technical and public safety and health issues linked with the operation of Davis-Besse, Perry, and Beaver Valley nuclear power plants. The CAC is composed of local government officials, academics, representatives from envirorunental organizations, scientists, nuclear and health professionals, and citizens residing near the nuclear power plants. The primary objective of the CAC is.

to represent diverse views and ideas. on the safe operation of nuclear power plants and to bring these views and ideas to the URSB.

The CAC has expressed interest in the effectiveness of the NRC's 2.206 petition process and has recommended that the URSB participate in reviewing the process and make recommendations for reform.

It has been noted by the NRC that the 2.206 petition process has not been comprehensively reviewed since this provision was added to the Commission's regulations in 1974. The NRC has acknowledged the critidsm that the process has received since its inception. The reevaluation of the process is therefore appropriate and will serve the Commission's efforts to enhance public participation in the Commission's declsionmaking pro~tss. The URS.B agrees with the Commlssion*s goal for this.review: to ensure that the

• 2.206 process is an effective, equitable and credible mechanism for the public to prompt Commission investigation and resolution of potential health and safety problems.

SENT BY:xerox Telecopier 7020 ;11-10-93 17:11 Page November l, 1993 6147528251 913015043200;# 4 The Commission has identified three broad areas for improving the 2.206 process:

(1) Increasing interaction with the petitioner; (2) Focusing on resolution of safety issues rather than on requesting enforcement action; (3) Categorizing petitions according to importance of issues raised.

The URSB, with the advice of its advisory council of citizens, recommends improvements in two areas of the 2.206 petition process: there should be a prioritization of 2.206 petitions so that the NRC can better use its resources to

• address important safety issues; and to increase interaction among the petitioner, the NRC staff and the licensee. To achieve these objectives, the URSB offers the following recommendations:

L The URSB recommend* that the NRC establish a formal mechanism to prioritize petitions filed under 10 CFR 2.206. The goal of the system should be to assure available resources are focused on minimizing the risk to public health a.nd safety. Petitions that are known to or could reasonably be expected to have merit, and that identify a significant risk to public health and safety should receive immediate and thorough review. Petitions that are without.

merit should be handled on a low priority basis and should use a minimum amount of NRC staff resources and no licensee resources.

Factors that should play a role in determining a petition priority include:

1.

Does an adverse impact on public health and safety now exist?

2.

What are the potential consequences of a delay in action?

3.. How many people and/ or plants are at risk?

4.

Does the petition have sufficient merit to warrant an aggressive review?

n.

The URSB recommends that the NRC improve communications with 2.206 petitioners and require that NRC Staff make a more articulate a.nd comprehensive response to petitioners by:

1.

Assigning a point person to each case. Petitioners should be given the name and telephone number of the point person so that petitioners may initiate discussions or ask questions regarding the petition.

2.

Providing petitioners the opportunity to communicate. with NRC staff who will analyze the petitioner's cas.e. The communications may be made in person, by telephone, or in writing. Granting the opportunity for petitioners to participate in dis~sslons of the petition among NRC staff, licensee, and vendors should be considered.

SENT av:xerox Telecopier 7020 ;11-10-93 17:12 Page November 1, 1993 6147528251...

913015043200:# 5

3.

Notifying petitioners about correspondence or other documents concerning the petition. Petitioners should be given the opportunity to request copies from the ~C.

The NRC should respond to the petitioners by providing the following information:

a. The decision.

b. Summary of what was done to reach the dedsi~.

c. The rationale behind the decision.

Conclusion The URSB applauds the NRC for taking the initiative to reform the 2.2.06 petition process. The NRC's background discussion paper and the workshop conducted to review the 2.206 petition process provided an excellent foundation for reform. A sound petition process is essential to enhancing public partidpation in Commission declsionmaking, benefits all the participants, and advances our common safety objectives. The Board encourages the NRC to develop a 2..206 reform strategy and to consider our recommendations as the NRC prepares this slt'ategy.

OHIO ENVIRONMENTAL COUNCIL 400 Dublin Avenue

• Columbus, Ohio 43215-2333 Tel. ( 614) 224-4900

• Fax ( 614) 224-4914

~ :. : :_ *.'

.,.)t'-i i*.C

• 93 OC: 14 P 4 :15 October 11, Docketing and Service Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 RE:

"Review of the 2. 2 0 6 Peti tier. Process" 58 Fed. Reg. 34726 (June 29, 1993)

'i. !,

t1,Jltr i

'I The Ohio Environmental Council (OEC) is a non-profit, statewide federation of over 160 environmental and conservation groups and approximately 1,100 individuals from throughout Ohio.

We work to protect the environment and preserve public health.

The OEC is deeply disturbed by the lack of bone fide citizen participation regarding regulation of licensed nuclear power plants.

The 2.206 process fails to provide any meaningful opportunity for public input and jeopardizes the safety of all Americans living near these facilities.

No wonder citizens don't trust the NRC!

The entire system is set up to limit public participation and to curtail remedial action on problems discovered after a plant is licensed.

The OEC supports the testimony and written comments submitted to the NRC at a public workshop on July 28, 1993 and in a letter dated August 26, 1993 by the Ohio Citizens for Responsible Energy, Inc. (OCRE).

OCRE's comments reflect OEC's growing concern that nuclear power plants are too insulated from the public's justified concerns and too often permitted by the NRC to operate under questionable and, even dangerous, situations.

The OEC strongly recommends that the NRC amend the 2.206 process so meaningful public participation is possible.

Sincerely,

~~/!1~

Bridgette Mariea Director of Environmental Research Ohio Environmental Council A

\\.;) printed o n recycled paper with soy ink A,

I d db d MAY 1 0 1994t---

°"6***

cKnow e ge y car..... """'"'"'-""""-

~ f; $.NUCLEAR RJ~*.,_.,,c-~** Cur..1t,,ISSION OOCK[Tli~G r. s1.::, ;,;er SECTION

\\

OFFICt: OF THE SECrlETARY OF THE CO,1MISSION Document S!atist;cs stmark Date

/ o / t:i-/CJ-'3

,Copies Received I

Add'I Copies Rep-ro-du-c-ed---rz;..-t-1-----

Special Distribution f1T fJ5. PQ/Z,

~

c ~W'--e{'O~

DOCKET NUMBER PR rJ PROPOSED RULE

~

( ~ o FR 31-/-7-:Z.-6)-. -__ -__

I.

..; ~ L LL-1 Westinghouse Electric Corporation Energy Systems Mr. Samuel C. Chilk, Secretary U. S. Nuclear Regulatory Commission Washington, DC 20555

Dear Mr. Chilk:

U0NhC

• 93 EP 10 AB :20

,_,r; it :.

• ~

l,\\r /

t.*uCf,: f.r-;[' *,

,;,, I

• I

j',.;

ET-NRC-93-3959 Nuclear and Advanced Technology Division Box 355 Pittsburgh Pennsylvania 15230-0355 September 3, 1993

SUBJECT:

REQUEST FOR COMMENTS ON 10 CFR SECTION 2.206 Westinghouse Electric Corporation ("Westinghouse") files these comments on 10 CFR 2.206 in response to the invitation to comment set forth in the Notice of Workshop on Section 2.206 set forth at 58 Fed. Reg. 34726 (June 29, 1993). In the Federal Register Notice, the NRC stated that it was initiating a review of its regulations and practice governing petitions under 10 CFR 2.206. As part of that review, the NRC held a public workshop on July 28, 1993, to obtain an exchange of information on the objectives of the Section 2.206 petition process, its effectiveness and what, if any, revisions should be made to the process. Representatives of Westinghouse worked with Nuclear Management and Resources Council ("NUMARC") in development of the nuclear industry position in connection with this important matter, and Westinghouse representatives attended the Workshop.

Westinghouse endorses the comments filed by NU MARC on behalf of the nuclear industry on August 27, 1993, in connection with this matter. We believe that the 2.206 process as currently operating appropriately meets the objective of providing members of the public with an effective mechanism to bring to NRC attention safety com:erns with respect to the operation of nuclear power facilities outside of a licensing or rulemaking proceeding. As noted by NUMARC, the 2.206 process is intended to be part of the NRC enforcement process and provides a method readily available to the public to have the NRC apply its significant resources to evaluate the concerns.stated in the 2.206 petition and consider whether any enforcement or other action is appropriate. As such, the process is in addition to many other mechanisms employed by the NRC to become aware of potential safety issues. Thus the effectiveness of the 2.206 process must be evaluated in the context of NRC enforcement, taking into consideration the availability to the Commission of the various methods by which the NRC addresses safety issues.

Westinghouse also agrees with NUMARC that some enhancements can be made such that the 2.206 process is better understood. lt is to the benefit of the Commission, its licensees and the public that the process actually be and be viewed as open. Thus, the suggestions in the NUMARC comments with respect to additional procedures which might be part of the 2.206 process are supported by Westinghouse. These procedures, of course, must he kept within the framework of NRC enforcement, an area where the NRC is entitled to exen.:ise its informed discretion. lt would be counterproductive if enhanced procedures were to increase the formality of the 2.206 process or overjudicialize the process. The ultimate goal of Commission regulation is to assure the health and safety of the public and the common defense and security. Additional procedures which involve 093 IC-BZC-I :090393 OCT 1 1993

,\\~l<no\\\\JlG~ged by card..................................

.S. NUCLE,.l REGULATORY COMMISSlOt\\

OOCl<f.Tl'~tJ.~...,fr'MCE SECTION 0.-F!Gr Of-THt SECHETARY Of TH(: C*Jl.fiM1$S1mJ

increased commitment of time and resources without commensurate safety benefits would not be warranted.

Westinghouse appreciates the opportunity to comment on this matter and would be pleased to discuss these views on the 2.206 process with the NRC.

Very truly yours, iparulo, Manager Nuclear Safety and Regulatory Activities

/p 093!C-BZC-2:090393

LAW OFF ICES GALLO AND Ross Mr. Samuel J. Chilk Secretary 888 SIXTEE NTH STREET, N.W.

SU ITE 400 WASHINGTON, DC 20006 (202) 416-0696 FACSIMILE C202l 775-9330 September 1, 1993 U.S. Nuclear Regulatory Commission Washington, DC 20555 ATTN:

Docketing and Service Branch RE:

Notice of Workshop

• 93 SEP -7 P 3 :28

_,i* ; it.=

~ 1l:t*J*\\ l i Section 2.206 Petitions Requesting Institution of a Proceeding to Modify, Suspend or Revoke a License, or for Such Other Action as May Be Proper; 58 Fed. Reg. 34726 (June 29 1993

Dear Mr. Chilk:

We participated in the development of the comments submitted by NUMARC's General Counsel with respect to NRC's initiative to re-examine its section 2.206 process.

These comments, which we support, are comprehensive, and they are well-directed to the issues being considered by the NRC.

On a personal note, my participation as a panel member at the workshop was a very beneficial experience.

I believe the exchange of diverse views among panel members furthered mutual understanding.

One diverse viewpoint warrants further comment, howe ver.

Some of the panel members were critical of the section 2. 206 process because of a perception of agency bias in it's decisionmaking.

They seemed to believe that agency 2.206 decisions either unduly favor the nuclear industry and/or unduly protect the NRC's regulatory posture at the expense of a fair assessment of the issues raised by section 2.206 petitioners.

This lack of trust motivated the panel's critics to urge that NRC Staff 2.206 decisions be subjected to re-examination through adjudicatory hearings or less formal procedures under the aegis OCT 1 1993

c: ~i'..,' * * **.

--* ;_:i ". :** i~v COMMISSIOt--.

.v* c:,.*,. : *---~ ; : --.. i,)= !=:ECTION 1.,,

,..:-,,: :f.:~:iETARY

Mr. Samuel J. Chilk September 1, 1993 Page Two of the Atomic Safety and Licensing Board Panel. 1 The NRC, in our judgment, should not seriously consider these recommendations because their underlying premise is specious.

No credible evidence of agency bias exists, and none was provided at the Workshop.

Moreover, it would be improper to ascribe such bias to the NRC, as some may, from the fact that most requests for action by 2.206 petitioners are denied.

As explained in NUMARC's comments, the high number of 2.206 denials is a function of the many other mechanisms and processes already in place and available to the NRC to address safety issues.

In short, no 2.206 petitioner should be surprised that the NRC, which was created to protect public health and safety, has addressed or is already addressing a proffered safety concern in the normal discharge of the agency's regulatory responsibilities.

In our view, the critics' complaints of bias and distrust stem from a basic disagreement with the structure of the Atomic Energy Act of 1954, which, among other things, permits power reactor operations so long as NRC-determined measures to protect public health and safety are satisfied with reasonable assurance.

Neither adjudicatory hearings nor ASLB reviews of NRC 2.206 decisions will resolve the objections of those who disagree with the Act or the manner by which the NRC prudently exercises the discretion granted by the Act to discharge its regulatory responsibilities.

Their recourse more properly lies with the ballot box.

We appreciate the opportunity to provide these comments.

Sincerely, JG/as 1 See transcript of 2.206 Workshop entitled "Review of the 2.206 Petition Process", pp. 145, 159, 182-83, 198-99, 205-06, 230, 232-33, July 28, 1993.

..,.~-*

~1:uYU =,

U.S. Council for Energy Awareness Marvin S. Fertel Vice President, Techmcal Programs September 1, 1993 Mr. Samuel Chilk Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 Attn: Docketing and Service Branch

'93 SEP -7 AS :56

• f ; 'l

• 1..:.1 1

tlj~l\\; '~H 1

(

' :, *"*ir.f 1 hf-NL,;

Swte 400 1776 I Street. N W Washington, DC 20006-2495

/202) 293-0770 FAX (202) 785-4019 (202) 785-4113

Reference:

58FR41061 Request for Comments on Proposed Rule on Equal Access to Justice Act: Implementation

Dear Mr. Chilk:

These comments are submitted by the U.S. Council for Energy Awareness on behalf of its Facility Operations Committee (FOC). ll1ese comments were prepared in response to the U.S.

Nuclear Regulatory Commission's (NRC) request for comments on the proposed rule on implementation of the Equal Access to Justice Act (EAJA).

The FOC membership consists of the owners and operators of fuel fabrication facilities, conversion facilities, uranium enrichment plants, material processing facilities, as well as transporters and other related service and supply facilities. A number of the FOC members would qualify as eligible applicants wider this proposed rulemaking. We are, therefore, very interested with the final outcome of this rulemaking.

In reviewing the proposed rule, we endorse the basic concept; however, as proposed, the rule appears to go beyond the requirements established by the EAJA. As indicated by the court in the West Chicago, IL v. U.S. Nuclear Regulatory Commission case, licensing proceedings for material licensees were detennined to be not "required by statute to be detennined on the record." Our understanding is that only proceedings under the Program Fraud Civil Remedies Act (PFCRA) are required to be "on the record" and as such are covered by the EAJA as it applies to NRC proceedings. The proposed rule, however, states the EAJA applies to "any" adversary adjudications conducted by the commission. Therefore, this is well beyond the appropriate scope for the mle as discussed above.

Additionally, as drafted, section 12.103(b) appears to invite parties to file applications for awards. This could result in the NRC spending resources, provided through licensee fees, to evaluate these claims. We would suggest the NRC rephrase this to indicate that, while this rule does not preclude a party from filing an application, they will not provide awards wider the EAJA if those proceedings are not under the PFCRA or otherwise required to be on the record.

We have reviewed and endorse the corrunents submitted by NUMARC on beha]f of its' members. If you have any questions concerning our comments, please call Felix Killar, or myself.

Sincerely, w~-b-fi:%;$

cc: Felix Killar OCT 1 19.,3 Acknowledged by card................................ H

• • s. t:,C, r;.',.- ~:-:::*;_.~_TO::! t COMMlSSIOt-.

c;:- --: ; ;... : :::=::=.-v:c::: SECTION L,(;* f,:, 1: * - ::: ~-~C'AETARY c.\\ 7,*.-::.; cc;.~... ::s:;:oN Po:;\\r1'>>/- ~, ' ~ __ J:i. A... v...~ a&#-J,.J -{..,..._J Co::,:c: :-, ~ ~ *.... ____ __ _ _( ____ _

Ad:i'l C**1* ' :,.....

..... J Spc;. Ji [.i~*,: ::;~_::_.~_ *tiL-..-ctJ J#-l}f--

2;

& i:r--et["{?b.

North

~--=,,,~~== Atlantic I.._:. i ;!

u\\t-i!~ c-.

P.O. Box 300 Seabrook, NH 03874 Telephone (603) 474-9521 Facsimile (603) 474-2987 Energy Service Corporation

• 93 SEP - 7 A S :34 Ted C. Feigenbaum Senior Vice President and Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 Attention:

Docketing and Service Branch Chief Nuclear Officer r ~

, u*

.,, r NYN-93 122 August 30, 1993

Subject:

Comments on the NRC 's Review of the 1 0CFR2.206 Petition Process Gentlemen:

On June 29, 1993, the Nuclear Regulatory Commission (NRC) published notice (58FR34726) of its intent to review the regulations and practice regarding the 1 0CFR2.206 petition process. In connection with this review process, the NRC prepared a background discussion paper that addressed the present practice regarding the treatment of 1 0CFR2.206 petitions and proposed several alternatives to the present process. The June 29, 1993 notice invited comments on both the published notice as well as the background paper.

North Atlantic Energy Service Corporation (North Atlantic) is responsible for the management and operation of Seabrook Station. Personnel from North Atlantic attended the workshop held on July 21,

1993 and have reviewed the discussions in both the notice and the background paper. North Atlantic appreciates the opportunity to present the following comments on the present 1 0CFR2.206 petition process and the alternatives proposed.

North Atlantic believes, based upon its experience, that information related to the safe operation of commercial power plants is being brought to the Commission's attention through existing processes and no change to the basic process is warranted. It is through our own self-assessment programs and the NRC's extensive inspection and allegation managment programs that the vast majority of issues are identified and resolved. In addition, the 1 0CFR2.206 petition process does provide a formal mechanism by which the public can identify and resolve those few issues not resolved by other means.

This is not to say that there are no improvements possible in the 1 0CFR2.206 process. The NRC's proposal to enhance communication with the petitioner will improve the credibility of its regulatory role. The specific proposal to place the petitioner on the service list for written communications is an appropriate one. Further, informal NRC efforts to discuss the issue with the petitioner would potentially serve to narrow the issue such that the impact on NRC and licensee resources is minimized. However, North Atlantic opposes any formal process by which meetings of the NRC, Petitioner and Staff are held or by which formal responses are required and rebuttal responses allowed. Aside from the problem of who gets the "last word", such formal activities would have a significant impact on both NRC and licensee resources.

a member of the Northeast Utilities system OCT 1 1993 Acknowledged by card..................................

U.S. Nuclear Regulatory Commission Attention:

Docketing and Service Branch August 30, 1993 Page two Given that the 1 0CFR2.206 process, in combination with the other processes available, has been achieving the objective of raising safety issues, North Atlantic sees no need for the more drastic modifications to the program suggested in its background paper.

Finally, North Atlantic strongly opposes the recommendation by several of the representatives of public citizen groups at the workshop that Director's decisions be reviewed by the Atomic Safety and Licensing Board (ASLB). Having gone through extensive ASLB proceedings associated with the licensing of Seabrook Station, North Atlantic is absolutely certain that such proceedings would require a significant expenditure of licensee, NRC and petitioner resources. This is clearly counter to the NRC's expressed goal of improving petitioner participation without adding significantly to existing resource burdens.

To summarize, North Atlantic believes that the 10CFR2.206 petition process has worked well and needs little in the way of improvements. The proposal to add informal measures to improve information flow to petitioners may be desirable to enhance the credibility of the process and the results.

TCF:AMC/act cc:

Mr. Thomas T. Martin Regional Administrator U.S. Nuclear Regulatory Commission Region I 475 Allendale Road King of Prussia, PA 19406 Mr. Albert W. De Agazio, Sr. Project Manager Project Directorate 1-4 Division of Reactor Projects U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. Noel Dudley NRC Senior Resident Inspector P.O. Box 1149 Seabrook, NH 03874 Very truly yours,

• 93 SEP -1 P3 :46 1_f-i-

... t,

"q 1,--d< *~*

1JULKi. 1N': *,,;, VIU Revisions in the NRC's Petition 2..206 process,..,cilre vital in two essential areas.

The present petition process al lows a minimal of interaction be 1-ween the petitioner, the

licensee, and other local interested parties who may be impacted by the pe Lit ion er' s requests.

This results in a continued animosity between all concernerl as well as a total lack of communication between the licensee and the petitioner.

It ought to be clear that the old II he said, they said, she said

routine with the NRC as the m~ssenger boy can only breed distrust and confusion for all *parties involved. The second area of needed change is in the total lack of representation by the segment of the population who support the licensee yet are often times negatively impacted by decisions made concerning the licensee by the NRC in response to petitions f i.led against the 1 icensee in the

2. 206 process.

This failing must be redressed in any revision of the petition process.

I would like to propose the following suggestion as a possible revision in the current petition process.

The process should be broken up into three stages.

The first stage following a petitioner's letter of concern would be for the NRC to arrange a meeting between the petitioner and licensee with or without the NRC present as a mediator or facilitator.

If at this stage an agreement

• about the concern can be reached between the petitioner and licensee then the action can be dropped without NRC intervention.

However, should one or both parties feel unsatisfied: with the outcome of this meeting, the NRC after listening to both parties (either while in attendance at the meeting or after reading a

transcript of the first stage meeting) should proceed to initiate the 2nd stage of the process in which the NRC would off er its suggest ions as to act ions to be taken by either the licensee or the petitioner.

For example I the f\\RC may wish the licensee to investigate more fully a specific health or safety proble°'1 (with which the petitioner is concerried) and then present their findings at the 2nd stage meeting.

The 2nd stage meeting should be open to the public ( the local populat:ion should always be kept informed of any potential threat since they ar.e the people impacted by the plant's presence).

The N~C may also make tbe suggestion to the petitioner that the licensee has adequately addressed the petitioner's concern and unless they find new evidence that would support their concern then they should drop their petition

( a reasonable time limitarion should be set so that the initial petition process may be re~~lved)

The third and final step in the OCT 1 1993 Acknowledged by card.................................,

process would entail offjcial action by the NRC after reviewing the petitioner's and 1 i censee' s respouse to the stage 2 suggest ion.

In addi t. ion to this thi rel stage, the local citizens living in the a1ea of tlu~ facibty should be given 30 days to respond to the, RC action and counter the petition's concerns if they can show possible higher risks to their health, safety, and economy due to the proposed actions of the NRC.

In revising the petition process in this manner, the.'RC gives the local people who are most directly impacted by decisions concerning the facility a voice in the regulating of their communities'

health, safety, and economic standards.

The present petition process does not allow representation from local people in support of the licensee.

It is designed only to address the complaints of a radical few who often times are not directly impacted by the operations of the licensee or the repercussions of NRC actions which they initiated.

Also, a petitioner should be limited to one petition action in process at a time.

This should help to hold down cost and focus attention on the most important and immediate concerns without wasting valuable resources on trivial matters which lack substantial evidence of a health or safety problem.

All petitions' transcripts from the initial first stage should be kept on file.

If another petitioner duplicates a previous petition, a copy of the transcript of the resolved petition should be sent to them.

If they can provide new information not previously used, the TRC may initiate a new petition process.

I further suggest that the NRC in the best interest of the local population publish any petitions, licensee responses, or NRC actions in the local media.

The NRC should request local public input on these items to better gage the level of concern for these issues among people who are directly impacted by the facility.

I respectfully submit these suggestion in the hopes that the NRC may be able to put them to use in remedying a an ailing process which presently robs many of a voice in their own future.

Sincerely, Angie Ellis, Sec./Tres. SAFEST Sequoyah Advocates For Environmentally Sound Technology

or:i*::<ET NUMBER Pr1',POS:::D RULE PR 2---...--, <<r WINSTON & STRAWN (5}-FYl-3'/126) \\.!J FREDERICK H. WINSTON (1853-1886)

SILAS H. STRAWN (1891-1946)

BY HAND Mr. Samuel J. Chilk 1400 L STREET, N.W.

WASHINGTON, D.C. 20005-3502 (202) 371 -5700 FACSIMILE (202) 37 1-5950 August 31, 1993 Secretary, U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ATTN:

Docketing and Service Branch Re:

Commission Review Of Regulations And Practice Governing Petitions Under 10 C.F.R. §2.206; 58 Fed. Reg. 34726 (June 29. 1993)

Dear Mr. Chilk:

CHICAGO OFFICE 35 WEST WACKER DRIVE CHICAGO, ILLI NOIS 60601 (312) 558-5600 NEW YORK OFFICE 175 WATER STREET NEW YORK, NY 10038-4981 On June 29, 1993, the Nuclear Regulatory Commission

(

11 NRC 11 )

initiated a review of its regulations and practice governing petitions under 10 C.F.R. §2.206 requesting the NRC to t ake enforcement action (58 Fed. Reg. 34726).

In connection with t his review, the NRC requested public comment on the §2.206 process and, in particular, on a background discussion paper prepared by the NRC Staff.

In response to that request, we submit these comments on behalf of Florida Power Corporation, Niagara Mohawk Power Corporation, Northeast Utilities, Public Service Electric &

Gas Company, the Tennessee Valley Authority, and Washington Public Power Supply System.

I.

INTRODUCTION The §2.206 petition is the primary formal procedure for a member of the public to request the NRC to take enforcement action.

It is in addition to the many mechanisms for the identification and resolution of safety and regulatory issues by licensees and the NRC.

The vast majority of issues are routinely identified and resolved by licensees.

In addition, the NRC maintains comprehensive oversight of the operation of its licensees through extensive and intensive inspection and regulatory programs.

The §2.206 process provides the public with a val uabl e mechanism to bring concerns to the attention of the NRC, and thereby aids the NRC in assuring that its enforcement 0 T 1 1993 Acknowledged by card....................... """""'

.. S. :. :r_ * :_.: ***""' 1! - J~ *t P. i./-/i Gl'"")~,~:l ""

or** ;\\_f-.-

.""'. :'....:.- *;-\\, "rjf'\\J o: r,1....-.:-~ ::: 1~,.-. -=1~.,- c 1.:._r.:..'1 V.: *1,,,: e,;J~l:/,.~';'".. \\~*J

Mr. Samuel J. Chilk August 31, 1993 Page 2 responsibilities are carried out. Through the development of this petition practice, the NRC has created an innovative procedure that encourages public participation in the enforcement arena. In this respect, the §2.206 process has worked well as one part of the Commission's overall framework for identifying and resolving safety issues.

The ref ore, while some improvements to the process of review of §2.206 petitions by the Staff may be appropriate, significant alterations to the NRC's current §2.206 practice are unnecessary.

The §2.206 process, while providing this opportunity for public participation in the enforcement context, also preserves the NRC' s discretion to determine whether action is warranted in a given situation.

This discretion is essential for the NRC to evaluate the complex factors that lead to a decision to enforce or not to enforce.

As the Supreme Court has stated:

[A]n agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise.

Thus, the agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency's overall policies, and indeed, whether the agency has enough resources to undertake the action at all.Y The NRC staff IIll,l.St have this flexibility to react to new saf,ety issues and to prioritize its resources.

Excessive fonnalism associated with one class of issues would only detract from the agency's ability to carry out its mission.

Consistent with the concerns noted by the Supreme Court, and the NRC's recognition of *the reality of shrinking rather than expanding resources, V we concur that the NRC' s review of its

§2.206 practice should seek to accomplish two goals:

11 H~ckler Y, Chaney, 470 U.S. 821, 831, 105 s. Ct. 1649, 1655-56 (1985).

58 Fed. Reg. 34726.

Mr. Samuel J. Chilk August 31, 1993 Page 3 (1) maximize public participation to the extent practicable, given limited NRC Staff and licensee resources; and (2) avoid over-proceduralization of the §2.206 process that might detract from the Staff's ability to exercise its discretion in considering

§2.206 petitions m:: lead to judicial review of Directors' Decisions.

With these goals in mind, the remainder of our comments address specific issues outlined in the Staff background discussion paper, as well as concerns regarding judicial review of citizen petitions (as discussed at the NRC's public workshop on July 28, 1993).

We also provide specific recormnendations for improvements to the

§2.206 process.

II.

DISCUSSION The Staff background discussion paper prepared in anticipation of the public workshop focused on three specific areas of potential change to the NRC's §2.206 practice:

Increasing interaction with the petitioner; Focusing on resolution of safety issues rather than on requested enforcement action; Categorizing petitions and allocating more resources according to importance of issues raised.

We examine each of these areas below and also discuss issues surrounding the possibility that changes to §2.206 might result in judicial review of Director's Decisions.

A.

Increasing Interaction Between The NRC Staff And The Petitioner Although the NRC Staff makes every effort to foster public participation in the regulatory process and openness in its decisionmaking, petitioners sometimes complain that, from their perspective, the §2.206 process appears to be a "black box."

At the public workshop, public interest group representatives stated that they sometimes submit petitions and subsequently receive denials from the N:RC with no intervening communication with the Staff.

Therefore, the Staff background discussion paper offers

Mr. Samuel J. Chilk August 31, 1993 Page 4 several suggestions for increasing interaction between the Staff and the petitioner.

Of those suggestions, we agree that the NRC should assure that the petitioner receives copies of all correspondence related to the petition in question until the disposition of the petition by the NRC.

In addition, the NRC should expand its practice of opening informal lines of communication with the petitioner after a petition is filed to focus or narrow the issues in question.

Such improvements to the process could enhance public participation without over-proceduralizing the practice or adding to Staff or licensee burdens.

Participants in the public workshop also expressed a related concern that the NRC sometimes treats letters from members of the pul:>lic to the NRC as

§2.206 petitions regardless of whether the writer actually intended to file a formal petition.

Increased informal communication between the Staff and members of the public writing to the NRC -- ~

asking the writer if a §2.206 petition was intended -- could alleviate this concern.

The NRC should not, however, create f onnal procedures for meetings involving the Staff, licensee, and petitioners, licensee responses under oath pursuant to 10 C.F.R. §50.54(f), or public discussions of issues raised in the petition.

Informal use of these practices depending upon the particular circumstances surrounding a petition might improve interaction between the petitioner and the Staff.

In many cases, this type of informal interaction already exists.

For example, licensees often provide unsolicited responses to

§2.206 petitions.

However, institutionalization of meetings or responses under oath would create a significant drain on Staff and licensee resources and would not offer any offsetting increase in safety.

In addition, any new regulatory requirements concerning §2.206 procedures might be interpreted as n1aw to applyn to a given case and thereby subject Directors' denials of petitions to judicial review (see Section II.D below).~

~

Greater Los Angeles coun. On Deafness v. Baldridge, 827 F. 2d 1353, 1360 (9th Cir. 1987)

(Department of Commerce regulations requiring Department official to "make a

prompt investigation whenever a compliance

review, report, complaint or any other information indicates a possible failure to comply" constituted law to apply for reviewing court).

~

.a.l.a,Q, Wallace y.

Christensen, 002 F.2d 1539, 1552 n. 8 (9th Cir. 1986) (en banc);.Abdelhamid Y, Ilchert. 774 F.2d 1447, 1450 (9th Cir. 1985).

Mr. Samuel J. Chilk August 31, 1993 Pages B.

Focusing On Resolution Of Safety :Issues Rather '1'han On Requested Enforcement Action The Staff background discussion paper examined two options to refocus the §2.206 petition process towards resolution of safety issues, rather than specific enforcement actions.

The first option raised in the paper was that if the Staff decides that an issue of some importance has been raised, and the Staff decides that it should make additional inquiries, inspections, or investigations, the petition could be granted with the actual outcome of the additional efforts left open.

According to the background paper, this would serve to acknowledge the legitimacy of the petitioner's concerns.

The Staff should not, however, leave open the outcome of a petition simply to acknowledge that issues were raised by a petitioner.

§2.206 petitions request that the NRC take specific actions, such as shutting down a plant or modifying or revoking a license.

Thus, postponing a final determination would place a licensee in the difficult position of not knowing for extended periods of time whether a particular license provision is valid or, indeed, whether a plant may be operated at all.

This uncertainty would complicate licensee planning efforts and result in significant expenditures that might not otherwise be necessary.

The second option examined in the background discussion paper would involve a

c~ge in the regulation permitting petitioners to request that the Commission consider a safety issue or issues, alleging violation of a Commission rule or policy, rather than requesting a specific enforcement action. According to the paper, this would de-emphasize the enforcement implications of a petition and focus on more general safety concerns.

There is no need, however, to promulgate additional regulations to permit a petitioner to ask the Coi:mnission to consider general safety issues.

Petitioners could more appropriately address generic issues by filing a petition for rulemak.ing under §2.802, or by informal means, such as a letter to the Staff.

In addition, §2.206 petitions already often raise gene~al safety concerns in the context of requesting enforcement action, and the NRC may effectively act on these safety concerns, even though it denies the specific relief requested in the petition.*

The recent Thermo-Lag petition provides a notable example of this.

Finally, as previously noted, additional regulatory requirements could be interpreted as triggering judicial review of Directors' denials of petitions.

Mr. Samuel J. Chilk August 31, 1993 Page 6 C.

Categorizing Petitions And Allocating More Resources According To Importance Of Issues Raised, Providing An Internal Review Process Por Directors' Decisions The background paper noted that one option being considered by the Staff would be to establish internal criteria for determining the level of effort and the types of proced~res to be used on each petition. In addition, for the category of petitions which the Commission has determined raise the most significant issues, the paper stated that the Staff might consider explicitly amending §2.206 to provide some type of internal review of the Director's decision.

The NRC should not formalize the §2.206 process in this manner.

As the Staff stated in the discussion paper, a

"disproportionate" amount of time and resources are already spent coordinating decisions on §2. 206 petitions. In addition, the Staff indicated in the public workshop that safety issues -- including

§2.206 petitions are categorized depending upon safety significance utilizing the same standards and procedures as for all issues before the Staff. Thus, formal categorization of petitions would further divert limited Staff and licensee resources from other direct regulatory responsibilities, such as processing license amendment requests, inspection and enforcement activities, research, and promulgation of regulations. The three categories of petition proposed by the Staff~ are too inflexible to account for the complex range of technical and regulatory issues that may be raised by a petition.

The Staff must have the flexibility to address each petition individually and expend the appropriate level of etfort.

In particular, the NRC should not amend §2.206 to provide for internal review of Director's Decisions, or, as some public interest groups have recormnended, to provide for Atomic Safety and Licensing Board (*ASLB*) review of these decisions.

There is no need for such review.

With its combination of regulatory experience and technical expertise, the NRC Staff is the organization most qualified to decide upon §2.206 petitions.

A

!I The background discussion paper divides petitions into three categories:

(1) those that merely raise issues and cite information previously evaluated by the NRC Staff; (2) those that raise a significant issue or issues with regard to a specific licensee; and (3) those that raise large significant unresolved generic safety issues affecting one or more licensees.

Mr. Samuel J. Chilk August 31, 1993 Page 7 subsequent review by persons less qualified would only add to the time and resources spent on petitions without offering any corresponding safety benefit.

Furthermore, ASLB judges should not review Director's Decisions.

The ASLB panel was designed specifically to rule only after the compilation of an exhaustive administrative reqord and a hearing, rather than to consider enforcement decisions and compile such a record itself. Thus, the ASLB panel, while containing both legal and technical judges, should not be put in the position of second-guessing NRC Staff determinations regarding the myriad of factors including decisions concerning complex technical matters and resource allocation considerations -- that inform a decision to enforce or not to enforce.

In

addition, during the public

workshop, Staff representatives stated that the NRC Office of General Counsel

("OGC") reviews Directors' Decisions to ensure that the Staff has adequately addressed issues raised in petitions.

Thus, there is already an informal review of Staff determinations under §2.206.

Finally, as explained in detail below, any regulatory change specifying a formal review process or categorization of petitions could potentially constitute 8 law to apply" in a given case and thereby subject Directors' Decisions to judicial review.

Such a result would consume Staff time and would impose further costs on licensees with no countervailing benefit.

D.

Judicial Review Qf 12,206 Petitions The Supreme Court has recognized for over a century that an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion and presumptively unreviewable.~

The Court has noted that such enforcement decisions are unsuitable for judicial review because they involve factors within the peculiar expertise of the agency, such as resource allocation considerations and technical expertise, and because *an agency generally cannot act against each technical violation of the statute it is charged with enforcing. nW With respect to §2.206 Heckler Y, Chaney. 470 U.S. 821, 105 s. Ct. 1649 (1985);

United States Y, Batchelder. 442 U.S. 114, 99 s. Ct. 2198 (1979); united states v. Nixon. 418 u.s. 683, 94 s. ct.

3090 (1974); Vaca v, Sipes. 386 U.S. 171, 87 S.Ct. 903 (1967); confiscation Cases, 7 wall. 454 (1869).

Y Heckler v, Chaney. 470 u.s. at 831, 105 s. ct. at 1656.

Mr. Samuel J. Chilk August 31, 1993 Page 8 petitions in particular, courts have generally found that Director's Denials are within the NRC's enforcement discretion and therefore judicially unreviewable.ZI Chairman Selin, in his introduction to the public workshop on July 28, 1993, reiterated his opposition to judicial review of §2.206 petitions requesting enforcement action, noting that agency enforcement decisions in general are not subject to such review.

The NRC should avoid promulgating regulatory changes to the petition process that would provide specific, formal standards or procedures for review of §2.206 petitions.

One of the bases of the Supreme Court's Heckler v, Chaney holding that enforcement decisions are presumptively unreviewable was that Congress had provided no "law to apply.a~

That is, Congress did not indicate an intent to circumscribe agency enforcement discretion or provide meaningful standards for defining the limits of agency discretion.V Several U.S. Court of Appeals decisions_ subsequent to Heckler v, Chaney have found that agency regulations could provide a court with "law to apply 8 and thereby subject agency decisions to judicial review.w

Thus, when considering ZI

.1.21 Se.e,.e..,_g_,_, Safe Energy coalition v, NRC, 866 F.2d 1473 (D.C. cir. 1989); Massachusetts v, NRC.

878 F.2d 1516

( 1st Cir. 19 89).

Nonetheless, Congress is currently considering legislation that would amend Section 189 of the Atomic Energy Act (*AEA*) to provide for judicial review of

§2.206 petitions.

{,S,e,g_

S.1165,

• Nuclear Enforcement Accountability Act of 1993,

• proposed by Senator Joseph Lieberman (D-Conn.) on June 24, 1993.)

The NRC should oppose this legislation.

It is unnecessary, and would result in placing costly burdens on licensees and, ultimately, utility ratepayers.

As Chairman Selin stated at the public workshop on July 28,

1993, the NRC already has an extremely thorough inspection and enforcement regime, and Congress should not single out the NRC for review of enforcement decisions.

Heckler Y, Chaney. 470 U.S. 834-35, 105 s. Ct. 1657.

~

Greater Los Angeles Coun. on Deafness Y, Baldridge.

827 F.2d 1353 (9th Cir. 1987); Wallace v, Christensen, 802 F. 2d 1539, 1552 n. 8 (9th Cir. 1986)

(en bane) ;

(continued... )

Mr. Samuel J. Chilk August 31, 1993 Page 9 regulatory changes, the NRC must take into account the possibility that creating a more formal, structured process could restrict its enforcement discretion and subject Director's Decisions to review by the courts.111 III.

CONCLUSION AND RECOMMENDATIONS The §2.206 process has worked well in the past and does not need significant modification.

However, informal measures to enhance public participation may be desirable. Such measures could include increased communication between the Staff and petitioner, and/or providing petitioner with correspondence related to issues raised in the petition.

In addition, the NRC might clarify the procedures that it currently follows in reviewing §2.206 petitions and update petitioners as their requests for enforcement action move through each step of th~ §2.206 proces~.

The NRC should not, however, make any formal changes to its §2.206 practice, including provision of an independent review of Director's Decisions, categorization of §2.206 petitions, or a modification of NRC regulations governing the petition process.

These steps are unnecessary, and would divert scarce Staff and Licensee resources from other important regulatory responsibilities.

W ( *** continued)

• Respectfully submitte Mark J. Wetterhahn Mark J. Hedien WINSTON & STRAWN Abdelhamid Y, Ilchert, 774 F.2d 1447, 1450 (9th Cir.

1985); State Bank of India Y, NLRB, 808 F.2d 526, 536 n.

12(7th Cir. 1986); Hill v. Group Three Hous. Dev. com,,

799 F.2d 385, 394-95 (8th Cir. 1986).

.111 If the NRC does decide regulatory changes are necessary, any new regulations should plainly protect ag.ency discretion. ~

Webster v. Doe, 486 u.s. 592, 602 n. 7, 108 S. Ct. 2047, 2053 (1988).

~

~

.J,....,

Nuclear Information and Refotiic~*,*s~rvice 1424 16th Street, N.W., Suite 601, Washington, D.C. 20036 (202). 328-0002 *

• August 27, 1993 COMMENTS ON NUCLEAR REGULATORY COMMISSION'S REVIEW OF THE 2.206 PROCESS Recognizing the need to strengthen meaningful public participation in identifying and mitigating safety issues at operational nuclear power plants, Nuclear Information and Resource Service (NIRS) offers the following comments on the Nuclear Regulatory Commission's Review of the 2.206 process.

Judicial Review of the 2.206 Petition First and foremost, NIRS supports a provision for the judicial review of any Nuclear Regulatory Commission (NRC) denial of a 2.206 request that is based on material evidence that reasonably demonstrates a significant noncompliance with the terms of the license and/or activities by the licensee that pose significant health and safety hazards to the public.

NRC has argued that because it is an enforcement agency, and since no other federal enforcement agency is subject to judicial review, that it is inappropriate to subject NRC to judicial review. In fact, as Commission Chair Ivan Selin addressed the issue before Senator Joseph Lieberman's Subcommittee on Clean Air and Nuclear Regulation June 30, 1993 hearing on S.1165, it is a matter of "honor" that NRC not be subjected to such unfair treatment.

To the contrary, NIRS submits its complaint filed August 18,- 1993 with the}-.JRC Inspector General regarding NRC mishandling and denial of the NIRS 2.206 petition on Thermo-Lag 3 3 0-1 fire barrier material. The complaint alleges NRC favoritism and protectionism of the manufacturer of the fire barrier material resulting in the o'ngoing noncompliance of 10 CFR 50 Appendix R, "Fire Protection Program for Nuclear Power Plants" as installed in seventy-nine U.S. nuclear power plants. The NIRS complaint is presented in context of the current investigations by a Federal Grand Jury into product claims made by the manufacturer and investigations by both the Inspector General and the House Energy and Commerce Committee's Oversight and Investigation Subcommittee into the lack of NRC oversight.

100% recycled paper 1971 - ~

15 years of service to the grassroots environmental movement OCT 1 1993 Acknowledged by card..................................

.S.,;1_1r,1 *: * ="' * *: ': ' ":\\*!"*i:Y ( r,!'t.1:¥,!SSIC>~ *

..,(.. ~~:*_... :

~ _ ~*~r~-

... '>: ~~:.c;:~;d c;- *,: : : ~ ! ~~~- ~--:-*.:r. :~.:-r/.nY c*r* :. !-7~ -:~i:1/,*~~,:;:-:~"':... ~;~*

In another example, the U.S. General Accounting Office Report to the Chairman, Subcommittee on Oversight and Investigations, Committee on Energy and Commerce "Nuclear Safety and Health: Counterfeit and Substandard Products Are a Governmentwide Concern" (GAO/RCED-91-4, October, 1990) states in its principle finding that "the NRC is deferring its regulatory responsibility." The report goes on to state that "the magnitude of the problem, cost to the taxpayers, and potential dangers resulting from using such products are not known."

It is the NIRS position that NRC because of its dual responsibilities to both an increasingly economically burdened industry and an ever more safety minded public could welcome the inclusion of judicial review in the 2.206 process as an opportunity to restore its accountability.

Increasing interaction with the petitioner It is our experience that the petitioner under the current 2.206 process has little or no reciprocal interaction with the NRC process. Again using the example of the Thermo-Lag petition, rather than being regularly notified about issues, meetings, etc; germane to our petitions, and being included in them, NIRS had to learn about them on our own, and interaction was generally between NRC and industry, with no inclusion. The only NRC communications with NIRS regarding theThermo-Lag petition were decision notifications.

NIRS submits that the NRC can increase the interaction with the 2.206 process by placing the petitioner on a NRC service list to receive all relevant public documents, including but not limited to information notices and bulletins, generic letters, SECY s, Operating Reactor Event Briefings, and other NRC information pertinent to the petitioner's issue, such as public meeting notices. NIRS recognizes that this might place an economic burden on the NRC to absorb all the copy cost of documentation and postage. Consequently, the fall back would be to place the petitioner on a service list that would include notification of issuance ofNRC documentation with information on accessing the information at a NRC Public Document Room or placing an order for documentation through the NRC PDR copy service. The computer experienced petitioner could also be given retrieval access through the NRC computer network.

Focusing on resolution of safety issues rather than on requested enforcement action The resolution of public safety issues raised by 2.206 petitions is paramount to both the petitioner and the regulator. In our real world, however, resolution often requires enforcement.

NRC has already demonstrated a reluctance or inability to enforce implementation of safety issues as documented by NUREG-1435 Supplement 2 "Status of Safety Issues at Licensed Nuclear Power Plants" (December, 1992). In light of the significant lack of implementation of identified safety issues, NIRS comments would focus on strengthening NRC enforcement actions, in that NRC must carry and use a much bigger stick to implement meaningful resolution of licensee safety issues.

The 2.206 process is phrased in limiting terms of the requested action, i.e. "to modify, suspend, or revoke a license, or for such other action as may be proper." While requests for license modifications, suspensions and revocations should remain among the options open to petitioners,

we believe the 2.206 language should be broadened to encourage a focus on resolution of safety issues rather than the current focus on requesting imediate shutdowns. For example, there is currently no legal basis for a petitioner to request (for a hypothetical example) that portions of electrical wiring used in 3 reactors be replaced during each reactor's next refueling outage because it has been proven faulty. Instead, the petitioner must request the more drastic stop of shutdown or license modification. (Of course, without judicial review, there is little legal clout behind the process at all). This could make the 2.206 process both less controversial and more meaningful for all parties.

Categorizing petitions and allocating resources according to importance of issues raised NIRS recognizes that the 2.206 process is focused on safety related issues. Petitioners generally do not submit non-safety related petitions.

NIRS submits that the obvious problem with NRC categorizing petitions and allocation of resources according to importance of issues raised is contingent on which interests are prioritized first: public safety or the economic interests of the nuclear industry. Industry and regulator are currently looking at the elimination of issues marginal to safety based largely on the economic burden compliance with safety regulations place on the industry. On the other hand, a significantly large portion of the public sector lacks confidence that NRC will consistently prioritize legitimate issues of public safety over the economic interests of licensees.

The NIRS Thermo-Lag 2.206 is again a case in point. NRC staff relegated the petition on the defective fire barrier into a catagory defined as not a significant safety issue. NRC staff declared that compensatory measures were adequate so that the "continued operation does not pose an undue risk to the public health and safety." 1 NIRS argued strenuously that fire watches do not constitute an adequate substitute for passive fire barrier systems, nor do they comply with regulations. In so doing, NIRS contends that NRC staff prioritized the industry's economic interests by the continued operation of 79 nuclear power plants over public safety and compliance with fire safety regulations.

NIRS submits that an independent review mechanism needs to be incorporated into the 2.206 process. Initially perhaps, the NRC Inspector General's office could review the petitions pending congressional approval of judicial review.

Respectfully submitted, Paul Gunter Nuclear Watchdog Project 1 Partial Director's Decision Under 10 CFR 2.206, DD-93-03 (2-01-93), p.14.

Nuclear Information and Resource service 1424 16th Street, N.W., Suite 601, Washington, D.C. 20036 (202) 328-0002 August 18, 1993 Mr. David Williams Inspector General U.S. N.R.C.

Mail Stop EW542 Washington, DC 20055

Dear Mr. Williams:

NIRS is filing a complaint to your office regarding the Nuclear Regulatory Commission Director's Decision DD-93-11 issued June 25, 1993 and Notice of Issuance of the Final Director's Decision issued May 23, 1993 and the Partial Director's Decision Under 10 CFR 2.206 issued February 1, 1993 denying the NIRS petitions on the controversial fire barrier material Thermo-Lag 330-1, manufactured by Thermal Science, Inc.(TSI).

NIRS asserts that the NRC, in denying the NIRS petitions under 10 CFR 2.206, has acted to prematurely close the proceedings on issues brought forward in the petition while many of those issues remain open and/or are unimplemented safety items before the Commission. Current NRC compensatory actions for the faulty fire barrier at 79 nuclear power plants are inadequate to guarantee the public's health and safety. It is also our concern that a number of issues raised in the petition are not currently being addressed with remedial or enforcement action by the regulator and the industry and have been dismissed without action. We further contend that the NRC Commissioners and Staff have exhibited undue and inexplicable favoritism toward Thermo-Lag and its manufacturer, Thermal Science, Inc., (TSI) to the point that the agency's actions have driven one major competitor out of the nuclear business, and have resulted in the apparent approval of "fixes" to the Thermo-Lag problems that would result in direct benefit and profit to Thermal Science, Inc., whose unethical and perhaps illegal actions caused many of the problems in the first place. NIRS contends that these issues remain valid concerns to public health and safety.

In summary, the following issues remain open items or inadequately addressed:

Favoritism. It cannot have gone unnoticed by either the NRC Commissioners or Staff that there are competing fire barrier materials which have passed the basic ASTM E-119 test and other 100% recycled paper 1978 ->> 1993 15 vef\\TS of service to the grassroots environmental movc:nent

independent tests as well. Yet the NRC seems determined on changing its regulations, considering exemptions from regulations, approving fire barrier configurations with 2, 3, even 5 times the amount of Thermo-Lag originally specified, with the apparent intention of approving the use of Thermo-Lag as a fire barrier regardless of regulatory requirements.

This position is in spite of the NRC Inspector General's report of August 12. 1992. which flatly stated that TSI had used indeterminate tests to back up its claims that it met NRC fire barrier regulations, and that TSI had conducted and overseen its own tests at an unqualified laboratory where TSI itself approved its test results or, as seems apparent, conspired with testing facility personnel--including top-level management--to approve test results.

It is NIRS position that TSI has proven itself either unable or unwilling to adequately protect the public health and safety, and is thus unfit to remain a supplier to the nuclear power industry. For this reason alone, the NRC should order the immediate removal of all Thermo-Lag products from commercial nuclear power plants.

However, it has become obvious that the NRC Commissioners and Staff are more concerned with protecting TSI than they are with protecting the public health and safety. Despite the fact that Thermo-Lag has been proven through repeated testing not to meet existing fire protection regulations, the NRC has not ordered its removal.

While competing products have demonstrated their ability to meet existing fire protection regulations through widely-recognized independent testing, including passage of the ASTM E-119 test, the NRC has acted not to encourage the use of competing products, but to encourage testing of "enhanced" Thermo-Lag configurations (which generally require the use of 2-5 times as much Thermo-Lag as originally specified), thus bringing greater profit to TSI at the expense of its competitors.

e*

Further, the NRC has acted to actually weaken independent testing criteria (E-119) when the only possible beneficiary is TSI, and its product Thermo-Lag, since competing fire barrier products already have passed this rigorous test. This NRC initiative has implications not only for the commercial nuclear power industry, but for nearly every use of fire barrier materials. In its zeal to protect TSI, the NRC is essentially endangering millions of Americans who live in apartment buildings, work in high-rise office buildings, etc. This demonstrates a remarkably callous and cavalier attitude toward public health and safety with again, only one possible beneficiary, Thermal Science, Inc.

The NRC's favoritism toward TSI has been so overt and damaging to TSI's competitors and the free enterprise system that TSI's largest competitor, the 3-M Company, recently announced that it will no longer supply the nuclear industry with nuclear-grade fire barrier material, since it cannot afford the cost of documentation to prove safety when TSI's documentation is being paid for by the federal government and the nuclear power industry (through the trade association NUMARC) in an NRC-approved testing program. The fact that the NRC continues to procrastinate and defer their regulatory role to NUMARC is demonstrated by the comments of James Taylor in a May 4, 1993 letter to NUMARC President Joseph Colvin underscoring NRC "commitments to

Congress" (i.e. Chairman. John Dingell's House Energy Subcommittee on Investigation and Oversight) that the Thermo-Lag problem would be taken care of by the NUMARC testing program. "Thus it is essential that we understand the scope and timing of the industry testing program... (for) long term corrective actions," wrote Taylor,1 in a clear indication that the NRC--the regulatory body--was awaiting instruction from NUMARC, an industry trade association, to respond to Congressional inquiries about the progress of the Thermo-Lag testing program.

We also raise serious questions about the ethics of allowing Thermal Science, Inc. to be a major contributor to the NUMARC "independent" testing program of The1mo-Lag, since it was the TSI tests, discredited by the Inspector General, which led to the widespread use of Thermo-Lag despite its tested ineffectiveness.

NIRS thus submits that the NRC's activities--in the denying ofNIRS' petitions and subsequent actions, have been driven by an inexplicable, unwarranted, and. we believe, potentially illegal favoritism toward Thermal Science, Inc. at the expense of TSI's competitors.an.d the public health and safety. Such favoritism has no place in the federal government and must be rooted out and eliminated by independent public investigators such as the NRC Inspector General.

In addition to the above complaint, there are a number of technical issues which the NRC Commissioners and Staff have not adequately addressed.

Combustibility of the fire barrier material remains an open item. NRC acknowledges that Thermo-Lag is combustible. Yet the NRC does not address in response to the NIRS petition that the fire barrier material in fact represents an installed fire load in areas required to be free of combustible materials. 10 CFR 50 Appendix R specifically requires "Separation of cables and equipment and associated non-safety circuits of redundant train by a horizontal distance of more than 20 feet with no intervening combustibles or fire hazards" (Section G.2.d.) and "Separation of cables and equipment and associated non-safety circuits of redundant trains by a noncombustible radiant energy shield." (Section G.2.f.)[Emphasis added] Furthermore, Branch Technical Position CMEB 9.5.1 requires all fire barrier materials to be made of noncombustible materials.

The regulations are clear: combustible materials are not allowed in areas near vital electrical cables, yet~ test of which NIRS is aware indicates that Thermo-Lag is indeed a combustible material.

There remains the discrepancy between the NRC Information Notice 92-82 "Results of Thermo-Lag 330-1 Combustibility Testing" findings that Thermo-Lag is combustible and the NUMARC Thermo-Lag Combustibility Assessment Program finding that Thermo-Lag "can be considered a non-combustible" as presented at the NUMARC/NRC Thermo-Lag meeting 6/28/93.

"NRC Impatient With NUMARC Work on Generic Solution to Thermo-Lag Woes,"

Inside N.R.C., May 17, 1993, p.1.

Combustion Toxicity of Thermo-Lag remains an open issue in so far as the NRC has failed to adequately explain the discrepancy in findings between the Promatec Final Report CTP I 099 referencing Southwest Research Institute Final Report No. 01-88 I 8-IO I and evaluation by Southwest Certification Services as presented in the NIRS petition versus the NRC independent toxicological evaluation. This contention was dismissed by NRC without addressing the underlying question as to why these reputable testing laboratories came up with different results regarding the concentrations of hydrogen cyanide, carbon monoxide and ammonium resulting from the combustion of Thermo-Lag. The NRC Staff cannot merely deny NIRS' petition based on its O'Nn test results, without explaining why its test results are different, or controlling over NIRS' submitted evidence.

Am pa city Derating remains an open issue with regard to the effects of TSI underestimating the ampacity derating figure for Thermo-Lag installations on cables and cable trays. While an NRC Special Review Tean1 recognized that a nonconservative ampacity derating could be instrumental in the installation of inappropriately sized cables which in turn could suffer premature cable jacket and cable insulation failure, NRC dismissed the contention in the NIRS petition by concluding that a sufficient margin exists to preclude any immediate safety concern. NIRS remains concerned that these Thermo-Lag installation errors, occurring in most cases over ten years ago, are causing electrical cables to operate with a diminishing safety margin, and with no regulatory remedy in sight.

Further concern is warranted by the failure of NRC to address the correlation of the ampacity derating problem and "Potential Cable Deficiencies of Certain Class 1 E Instrumentation and Control Cables" as identified in Information Notice 93-33. IN 93-33 alerts licensees to the potential failure of instrumentation and control cables due to premature thermal and radiation aging. Without merit, NUMARC does not plan to share with NRC an industry-wide information survey on how extensively the faulty cable jacketing is in use, nor does NRC, at present, appear to be inclined to demand this information. NIRS contends that the combined effect of Thermo-Lag ampacity derating errors and IE cable deficiencies are factors that neither the NRC nor NUMARC have factored to determine the postulated safety margin.

It should be of additional concern to the NRC that postulated tests performed by NUMARC are with new cable and are not indicative of aged cable found in existing nuclear power plants.

Seismic issues have not been adequately addressed by NRC and subsequently have been dismissed. NRC dismisses NIRS contentions that Thermo-Lag may not perform its fire barrier function for safe shutdown earthquakes (SSE) and may even act as a shear severing cables and shattering cable trays. NRC acknowledges that TSI has not performed seismic tests of prefabricated panels, but instead has referenced a TSI independent consultant's computer-based seismic analysis of Thermo-Lag. All other manufacturers of electrical envelop systems have performed actual seismic qualification tests. Only TSI has been allowed to function with an engineering evaluation report based on computer modeling.

While NRC rejects the NIRS contention that the material may shear cables and shatter cable trays during an earthquake, NRC acknowledges that Thermo-Lag "may crack or crumble into a powdery material or small fragments under an SSE." NRC fails to address the results of the disintegration of the material as a protective fire barrier for the safe shutdown cables and cable trays in the event of a fire caused during or after a SSE. NIRS acknowledges that a strict reading of the regulations does not require that fire barrier materials function during an earthquake. Jt is well-known, however, that fires are the most damaging after-effects of earthquakes, and often cause more damage than earthquakes themselves. We believe it unthinkable that the NRC would, in this instance, hide behind a legalistic reading of the regulations, and fail to offer the American people protection from nuclear meltdown induced by earthquake-initiated fire.

NRC also fails to address the consequences of the use of fire suppression systems and the increased water solubility of Thermo-Lag as a "powdery material" dissolving into the sump.

Hose Stream test failures have not been adequately addressed by NRC. NRC has acknowledged that Thermo-Lag barriers have failed hose stream tests and that cables may be damaged by thermal effects of the fire if the barrier fails as a result of a hose stream. NRC further commented in the February 1, 1993 response to the NIRS petition that "the NRC staff will require the successful completion of a hose stream test in fire barrier qualification." This has now apparently been requalified to mean that a fog nozzle test is sufficient to qualify the material. NRC Chairman Ivan Selin stated to a Congressional hearing that Texas Utilities hasn't proven they can pass the solid stream test, yet has allowed the acceptance criteria to exclusively_ use the fog nozzle test, an admittedly weaker test.

While NRC General Counsel William Parler acknowledged, in a March 1993 Commissioners' meeting, that the NRC cannot use the Texas Utilities fog nozzle tests on a generic basis without public comment, it is evident that the NRC is leading an effort to change ASTM testing criteria, not only for nuclear plants but for all fire barrier uses, to allow use of fog nozzle rather than the more realistic full hose stream tests. NRC personnel have attended ASTM committee meetings with the explicit mission of encouraging such a change--again, with the only possible beneficiary being TSI, since other materials already have passed the more rigorous full hose stream tests. As described by 3-M Company representative Richard Licht in House Energy Subcommittee on Oversight and Investigations hearings March 3, 1993, the full hose stream tests are essential to replicate not only the effects of fire-fighting water, but also the effects of fire barrier aging, fire-induced missiles attacking the barrier, and other unforeseen, but realistic circumstances. In any event, the NRC has no business using its funds and personnel to attempt to change basic ASTM tests to benefit a single commercial nuclear supplier, and those utilities which have purchased that supplier's material. This, again, represents rank favoritism, and a cavalier attitude toward public safety which extends even beyond the NRC's nuclear arena.

Fire watch programs do not constitute an appropriate short term substitute for a passive fire barrier system. The 1988 to 1991 four year average of fire events at U.S. nuclear power plants involving ignition and flame or smoke was 35.25 events per year and 2.94 events per month.

2 2

SECY-93-143, "NRC Staff Actions To Address the Recommendations in the Report on

Events have ranged in severity, but include such accidents as the 3/02/89 fire which rendered both fire pumps inoperable at Peach Bottom, the 10/09/89 hydrogen fires at Shearon Harris which burned for 2 1/2 hours, and the Maine Yankee Main Generator fire on 4/29/91 which was allowed to bum out after 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br />. In answering the NIRS petition, NRC acknowledges that fire watch personnel can not act as physical shields but NRC fails to adequately address how fire watch programs compensate for this specific task. In some cases, passive fire barrier protection is assigned to the specific task of protecting cables and cable trays that are behind walls or otherwise inaccessible to fire watch personnel.

Fire watch programs do not constitute adequate short term or long term compensatory actions.

As documented by 24 Licensee Event Reports since 1984 and over 100 Violation Notices since 1979, fire watches are subject to a host of problems. A short list of identified areas of concern includes;

-missed fire watches due to miscommunication, personnel error, and management deficiencies

-inadequate training of fire watch personnel

-inattentiveness on fire watches and personnel observed sleeping on duty

-falsification of fire watch records and logs

-vandalism of plant property by fire watch personnel.

In conclusion, we acknowledge that the 2.206 process has a remarkably high Commission denial rate; for that reason, we recently participated in a Commission-sponsored workshop on this process, much of which was devoted to our Thermo-Lag petitions. This case, however, "takes the cake," and is a perfect example of "missed opportunities," as NRC Chairman Dr. Selin described the 11-year history of the NRC handling of the Thermo-Lag 330-1 issue in his report to the Subcommittee on Oversight and Investigations with the House Committee on Energy and Commerce on March 3, 1993.

It is our understanding that the Commission decision to deny the NIRS petition was largely based on the relief requested by the petitioner with particular emphasis focused on "the immediate suspension of the operating licenses of all nuclear power plants which use the material Thermo:-Lag as a fire barrier, until the Thermo-Lag is removed and replaced." In fact, NIRS requested, as a perfectly reasonable alternative (although not a legal alternative under the current 2.206 process), "Alternatively, NIRS requests that the NRC order each reactor to remove and replace its Thermo-Lag during its next refueling outage."

In denying the NIRS petition without adequately answering the issues brought forward by the petition, the NRC has closed out an opportunity for our informed involvement in addressing the multiple problems created by the continued installation of Thermo-Lag in 79 nuclear power plants. Admittedly, in the transcript of the NRC public workshop on the 2.206 process held on the Reassessment of the NRC Fire Protection Program," Re-assessment of the NRC Fire Protection Program, February 27, 1993, Enclosure 1 "Safety Significance of Nuclear Power Plant Fires," Appendix G, H, and J.

July 28, I 993, Jack Partlow, Associate Director for Projects, Office of Nuclear Reactor Regulation, in responding to a NIRS concern that the Thermo-Lag 2.206 had been denied prematurely, Mr. Partlow responded "On the specific Thermo-Lag issue, to the extent the petitioner has continuing information to bring to the process, I agree with you. We may have closed it out too early, to the extent Lhat you might continue to have meaningful information to bring to the process." 3 The NRC resolution of the Thermo-Lag problem continues to trend towards protectionism and favoritism of the manufacturer of an inferior fire barrier product rather than mitigating the identified inadequacies resulting from its use. Why has NRC not simply required TSI to comply with the original El 19 standard? Why does the NRC not require Thermo-Lag to meet the same critieria competing products already have met? Instead, it is becoming more apparent that the NRC is conducting its investigation of TSI so as to rewrite the fire protection standards to accommodate an inferior product and indeed provide for the installation of additional Thermo-Lag as the resolution. This can only result in a weaker standard and the exemption of nuclear power plants from meaningful fire protection regulations. This is pure and simply favoritism, by a federal agency toward a single supplier, that has a serious effect on the public health and safety. It is immoral, unethical, and possibly illegal. We urge the Inspector General to take every action to ferret out the cause of this favoritism, to require the NRC Commissioners and Staff to enforce their own regulations, and to take every action necessary to protect the health and safety of the American people and their environment.

Sincerely,

rJ0,1f~

Michael Mariotte Executive Director 3

Official Transcript of Proceedings, "Review of the 2.206 Petition Process," July 28, 1993, p. 187-189.

COMMENTS OF PUBLIC CITIZEN'S CRITICAL MASS ENERGY PROJECT Introduction The Commission has initiated a review of its regulation and practices governing 2. 206 or "show cause petitions. The purpose of the review is purportedly to ensure that the process is an effective, equitable, and c1:ediiile n.echanisn-, for c;:1G public to prompt the NRC to investigate and resolve the potential health and safety threat raised by the petition.

In the Commission's background paper the staff identifies three broad areas of potential improvement:

1) increasing interaction with the petitioner;

2) focussing on resolution of safety issues rather than on the requested enforcement action; and

3) categorizing petitions according to importance of issue raised.

Furthermore the review of the 2.206 process raises questions as to the objective of the process and whether the process is meeting this objective.

Public Citizen participated in. the Commission's workshop on the 2. 206 process in which there was unanimous agreement among citizen petitioners that the process does not work. Public Citizen welcomes the opportunity to help improve the 2.206 process.

Our specific comments follow.

THE PROCESS FAILS TO PROVIDE AN EFFECTIVE, EQUITABLE AND CREDIBLE _MECHAN7SM FOR THE PFBL IC TO ENSURE.. THE SAFE AND ENVIRONMENTALLY SOUND OPERA.i 'ION OF A NUCLEAR POWER PLANT.

Once a nuclear reactor has been licensed to operate the ability of the public to participate in the regulation of that reactor is practically non existent.

The only opportunity for the public to question the operation of a nuclear reactor is through a 2.206 or "show cause" petition.

Under the Commission's regulations, any person may file a request to institute a proceeding pursuant to section 2.202 to modify, suspend or revoke a license or for such action as may be proper.

(10 CFR 2.206)

Unfortunately, it has been the practice of the Commission to summarily deny citizens petitions.

(j)

OCT 1 1993 Acknowledged by card..................................

215 Pennsylvania Avenue SE

• Washington, D.C 20003 * (202) 546-4996

• FAX (202) 547-7392

-=,-

21

@ Printed on Recycled Paper

Between 1985 and the end of 1991, the NRC staff issued 93 directors decisions on "show cause" petitions regarding nuclear reactor safety. The NRC staff rejected every petition. In only one

case, involving the Yankee Rowe

reactor, has the commission exercised its jurisdiction over a "show. cause" petition and reviewed the staff's decision. (Curran, The Public as Enemy: NRC Assaults on Public Participation in the Regulation of Operating Nuclear Power Plants, Union of Concerned Scientists, April 1992, p.

24.)

In a 1990 case, Nuclear Information and Resource Service v.

NRC, the Commission attempted to argue that the public's right to bring a "show cause" petition was an adequate substitute for the public's right to a hearing under section 189 (a) of the Atomic Energy Act.

However, Commission attorneys failed to come up with a single instance in which a show cause" petition raising safety concerns b ~d been granted since the e3rly 1980s.

In testimony given a year later, the Nuclear Regulatory Commission admitted that it had allowed only two hearings in r esponse to 321 requests under section 2. 206 in the more than 10 years that the regulation had been on the books. (Hearings Before the House Subcommittee on Energy and Power. House Committee on Energy and Commerce, 102d Cong., 1st session, May 8, 1991, p. 743 -

744). This hardly constitutes an effective, equitable and credible mechanism.

By the Commission's own admission, it is evident that the NRC has almost always denied to the public that which it is expressly authorized to seek under the regulations -- proceedings against the licensee. In its defense, the Nuclear Regulatory Commission has argued that "show cause" petitions have been granted in whole or in part about 10 percent of the time because they result in some regulatory action being taken.

This claim is impossible to substantiate.

Since the NRC failed to institute a proceeding against the licensee, there is no public record.

The Union of Concerned Scientists has studied the Commission's handling of 2. 206 petitions.

The study found that, even in the rare instance where the Commission did not reject the "show cause' petition, little if any meaningful public participation occurred.

UCS found that the NRC followed a "pattern of delaying (a) ruling on the petitioners requests for hearings until it could make a plausible claim that its own, private interactions with the licensee had yielded sufficient improvement to justify denial of the hearing requests." (Curran at p. 15.)

The Commission's stated goal in this review is to determine whether the 2.206 process is an effective, equitable and credible mechanism.

Public Citizen believes that the problem with the process is not there is no mechanism by which to raise safety issues but that the Commission lacks the will to use it.

2

Under the Commission's regulations, any person may file a request to institute a proceeding pursuant to section 2.202 to modify, suspend or revoke a license or for such action as may be proper.

(10 CFR 2. 206)

Rather than institute a proceeding which the petitioner has requested, the Commission circles its wagons with the licensee to formulate a plausible rationale for denying the petition.

If the Commission were truly concerned with affording the public an "effective, equitable and credible mechanism" it would institute a proceeding under 2.202.

INCREASED INTERACTION WITH THE PETITIONER WILL NOT ENSURE AN EFFECTIVE, EQUITABLE AND CREDIBLE MECHANISM FOR ADDRESSING SAFETY ISSUES RAISED IN THE 2.206 PETITION.

While increased interaction between the NRC and the petitioner would be welcomed it will not provide for an effective, eq1.1j table and credible mechanism fen.-

addressing safety issues raised in the 2.206 petition.

As acknowledged in the NRC' s discussion

paper, the Commission's handling of 2.206 petitions fosters the appearance that "while there is little opportunity for the petitioner to participate in the resolution of issues the petitioner has raised, the licensee has a much greater opportunity to become involved and influence the decision process.

Increasing interaction with the petitioner will not address this problem.

While the petitioner will have more information, they will still be excluded from the process.

The NRC suggests that the petitioner could be placed on the service list for all communications regarding issues raised in the petition.

The petitioner could be allowed to attend meeting *with the licensee and the staff. Furthermore, the NRC has suggested that the petitioner be allowed to respond to any submissions by the licensee regarding the issues raised in the petition.

While these suggestions would be welcomed by the petitioner they fail to ensure an efficient, equitable and credible mechanism for addressing issues raised in the petition.

The suggested practices would enhance the public's understanding of the NRC's handling of the petition and thus the Commission's credibility, but they do nothing to address the inequity of the process.

The petitioner is still an outsider to a process which* is dominated by the NRC ~nd the licensee.

The petitioner's presence at meetings is not the same as public participation. The petitioner has no procedural rights and no chance for judicial review of the NRC's handling of the petition.

Information about the process is not the same as having access to it.

Without the ability of the petitioner to substantively participate in the process, the NRC will not have an equitable mechanism for handling the safety issues raised in the petition.

3

FOCUSSING ON RESOLUTION OF SAFETY ISSUES RATHER THAN ON REQUESTED ENFORCEMENT ACTION WILL NOT SOLVE THE PROBLEMS ENDEMIC TO THE 2.206 PROCESS.

The NRC suggests changing the 2.206 rule to allow petitioners to allege a violation of a commission rule or policy rather than request a specific enforcement action, i. e., to modify, suspend or revoke a license.

The NRC states that the underlying significance of the 2. 206 petition is to bring issues of potential health and safety impact to the attention of the commission.

Public Citizen believes that petitioners are interested in more than merely bringing issues to the attention of the NRC. The petitioner requests the commission to institute a proceeding to modify, suspend or revoke 2 license. ~etitioners want not only to raise potential safety issues but to participate in a process that will see them resolved.

Concentrating on the underlying safety issue rather than the specific enforcement action requested would result in further removing the petitioner from the process which they initiated.

Resolution of the safety issue is the goal but there must be a consistent process in which the petitioner can participate on an equal footing with the licensee. By NRC focusing on resolving the underlying safety issue, the petition could be denied or left in some regulatory limbo while the agency and licensee concentrate on justify ing further operating of the nuclear reactor.

Petitioners file a 2. 206 based on what they perceived as v iolations of the

license, NRC regulations or technical specifications. Most serious petitioners cite the NRC's code of federal regulations and the actions which they believe constitute the infraction. They are looking for the NRC to enforce its own regulations and not allow nuclear reactors to operate outside of their licenses.

Unfortunately it seems as though many petitioners take the regulat i ons more seriously than do the NRC or the industry.

We have learned through the NRC's workshop that there is a hierarchy of regulation. Yet this is not made evident in the regulations.

Further c0: ~usion is caused by the double standard imposed by the NRC before and after a nuclear reactor is licensed.

The NRC takes the position in the licensing stage that compliance with regulat i ons constitutes safety and then once the plant is licensed the NRC shifts to a different standard based on its hierarchy. This results in the NRC allowing nuclear reactors to operate outside of regulations.

4

The NRC has acknowledged that it has a

hierarchy of regulations based upon safety. The NRC should communicate this hierarchy to the public so that petitioners don't' waste their time and effort attempting to enforce regulations which the Commission and staff consider to be of lesser importa~ce.

CATEGORIZING PETITIONS AND ALLOCATING RESOURCES ACCORDING TO THE IMPORTANCE OF THE ISSUE FAILS TO ADDRESS THE PROBLEMS IN THE 2.206 PROCESS.

In the 2. 206 workshop, NRC' s Jim Partlow acknowledged that the NRC already performs a sort of triage on 2.206 petitions. However, this does not ensure that the NRC provides an efficient, equitable and credible mechanism for addressing safety issues raised in the petiti0n.

Fer i:ri.stanc:e the NRC gave 3. high priority to the 2.206 petition filed by the Nuclear Information and Resource Service (NIRS) regarding the use of Thermo-Lag fire barrier. However, the NIRS petition was denied prior to the resolution of several significant safety issues including the potential combustibility of a material that is supposed to act as a fire barrier.

As noted above, Public Citizen believes that the problem with the process is not there is no mechanism by which to raise safety issues but that the Commission lacks the will to use it. Under NRC regulations, any person may file a

request to institute a

proceeding pursuant to section 2.202 to modify, suspend or revoke a license or for such action as may be proper. (10 CFR 2.206)

The NRC can best ensure an efficient, equitable and credible mechanism for addressing safety issues raised in the 2. 206 petition by instituting the requested proceeding.

We thank the Commission for the opportunity to participate in the workshop and to comment on this most important subject.

Respectfully Submitted August 25, 1993:

~~

Staff Attorney Critical Mass Energy Project 5

Georgia Power Company 40 Inverness Center Parkway Post Office Box 1295 Birmingham, Alabama 35201 Telephone 205 877-7122

~~-5ro~E~RuL; PB 2 C. K. McCoy Vice President, Nuclear Vogtle Proiect Docket Nos. 50-321 50-424 50-366 50-425 Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, O.C. 20555

( 5' a:: ~ ({__ 3 L/? 1-'7 August 27, 1993

.\\

Georgia Power the southern electric system l

HL-3446 LCV-0134

\\9 DOCKETED

1. *-f,

AUG ~ 13 1993 Attn:

Docketing and Service Branch

'.;... ~ \\

i.. I c~c:~t,::*lG &

\\,/

S=RVICE BqANCH

/ -...":-

Si:C*/-NilC

\\,}.,

~

~-.. **

• 1

• Comments Regarding the NRC Staff's Review of the'*'-(_ * * -

<, \\ ~;/

10 CFR Section 2. 206 Process

~----.L~.:::..----: -

( 58 Federal Register 34726 of June 29, 1993)

Dear Mr. Chilk:

I.

INTRODUCTION On June 29, 1993, the Nuclear Regulatory Commission (NRC) invited comments on its review of the 10 C.F.R. Section 2.206 process.

58 Fed.

Reg. 34,726.

The Nuclear Utility Management and Resources Council (NUMARC) has submitted comments in response to the NRC's invitation.

Georgia Power Company endorses NUMARC's comments and herein provides supplemental comments based on Georgia Power's experience, as a licensee, with the 10 C.F.R. Section 2.206 petition process.

In sum, we believe the NRC's current process for receiving and addressing Section 2.206 petitions strikes the appropriate balance between (1) affording interested members of the public an opportunity to raise potential safety issues and request enforcement action associated with licensed activities, and (2) providing the NRC with the flexibility necessary to carry out its statutory mandate to protect public health and safety.

Initially, while we believe it is appropriate for the NRC to examine the Section 2.206 process and consider methods for enhancing public participation, based on our experiences and the information contained in the Commission ' s Background Discussion Paper (NRC Paper), there is insufficient evidence to warrant substantial changes to 10 C.F.R.

Section 2.206 or the NRC policies and procedures implementing that rule.

In particular, the NRC Paper, as well as the Federal Reg ister notice, state that the review was undertaken most notably because of the "long-standing criticism by citizens groups and some members of Congress, primarily because most Section 2.206 petitions are denied."

NRC Paper at 2; 58 Fed. Reg. at 34,726.

Considering the primary goal OCT 1 1993 Acknowledged by card..................................

Georgia Power, \\

700775 U. S. Nuclear Regulatory Commission Page Two of the Section 2.206 process -- the identification and correction of safety deficienciesl -- it does not follow that the process is flawed merely because a small percentage of the petitions are granted.

One would expect few safety deficiencies to be uncovered by such petitions when the NRC and licensees have extensive programs and methods for ensuring public health and safety. Indeed, it should be a rare occurrence when these processes fail to identify and resolve conditions that could create a substantial safety question.

Nevertheless, Georgia Power Company strongly supports the Section 2.206 process' goal of providing interested members of the public with an opportunity to raise potential safety issues with the NRC and to request that action be taken thereon.

To that end, we offer below our specific observations regarding the current Section 2.206 process.

I I.

DISCUSSION As a preliminary matter, we note that the NRC Paper gives no consideration to the potential resource burden upon licensees which might arise from changes to the Section 2.206 process.

While recognizing that "the reality of shrinking rather than expanding [NRC]

resources" mandates that the evaluation result in a "more effective Section 2.206 process with equal or fewer resources" (NRC Paper at 3-4), the NRC Paper does not express an interest in ensuring that the costs of any proposed changes be justified based on an increase in nuclear plant safety.

As discussed in Georgia Power Company's comments below, the current Section 2.206 process already incorporates many of the suggestions discussed in the NRC Paper. Georgia Power submits that further modification to the Section 2.206 process to increase public participation is not warranted as it will increase costs for plant operators, as well as the NRC Staff, without a commensurate increase in safety.

lBased on the comments at the NRC's July 28, 1993, workshop on the Section 2.206 process, it appears that some public citizen groups consider the primary goal of Section 2.206 to provide a mechanism for any member of the public to obtain a full adjudicatory hearing on the safety concerns they raise.

We submit that such a position mischaracterizes the purpose of the rule and evidences an inappropriate agenda - one based on a philosophical opposition to nuclear power in general.

Georgia Power, \\

U. S. Nuclear Regulatory Commission Page Three A.

Increasing Interaction Between the Petitioner and the NRC Staff The NRC Paper offers several options for increasing interaction between the Staff and petitioners. The suggestions, for the most part, can be implemented without any formal change to the existing Section 2.206 process. This has been demonstrated in the case of a Section 2.206 petition filed with respect to Georgia Power's Plant Vogtle.

In that case, there was (and continues to be) extensive interaction with the petitioners including, fo~ example, the following:

1.

Petitioner was interviewed on several occasions (some of which were transcribed) by the NRC with respect to a number of allegations which he brought to the NRC.

(Because the petitioner raised safety issues with the NRC which were later incorporated into a Section 2.206 petition, his concerns were initially handled as allegations. )

2.

Georgia Power Company was required to response, in writing and under oath, to the Section 2.206 petition and its supplements.

3.

Petitioner was provided a copy of each of Georgia Power Company's responses.

This process directly resulted in the petitioners filing a supplemental petition.

Thus, as the NRC Paper notes, procedures for increasing the interaction between the Staff and petitioner are currently in use. It follows that no formal change to the current process is necessary for the NRC Staff to continue this practice in appropriate cases. Indeed, the NRC Staff should have some flexibility to decide which Section 2.206 petitions are necessary and appropriate for such increased interaction techniques.

Of course, Georgia Power Company discourages any increased interaction techniques which would impose a substantial burden on licensee resources.

For example, the NRC Paper notes that a disproportionate amount of NRC Staff time and resources are spent coordinating Section 2.206 petition responses.

In response to this, the NRC Paper, at 10-11, discusses shifting responsibility to the licensee to respond to extensive information requests, and perhaps meet with the petitioner in "informal public discussions," without regard for the time and resource burdens placed on the licensee.

As in the case of NRC Staff resources,

this practice would be inappropriate to the extent it would require an inordinate amount of licensee time and resources.

This is especially true for the majority of Section 2.206 petitions which raise issues that are either already known to, and being resolved by, the NRC and the licensee or are unsupported and frivolous.

Georgia Power 700775 U. S. Nuclear Regulatory Commission Page Four B.

Focusing on Resolution of Safety Issues Rather Than on Requested Enforcement Action This area of inquiry is, in our opinion, the most important contained in the NRC Paper.

Section 2.206 provides the public with a mechanism of raising potential safety issues for prompt action by the NRC.

As stated above, its fundamental purpose is the identification and resolution of potential safety issues.

Under limited circumstances, an adjudicatory proceeding may result. However, as stated above in n.l, based on some comments of public citizen groups at the NRC's July 28, 1993 Section 2.206 Workshop, it would appear that these groups are more interested in the latter rather than the former.2 Increasing the opportunity for a full adjudicatory hearing in the Section 2.206 process will wreak havoc on the licensee, as well as NRC Staff resources.

This, rather than the resolution of safety issues, would appear to be the goal of those who insist on adjudicating any safety issue raised in a Section 2.206 petition, no matter how small.

An appropriate focus on the resolution of safety issues will achieve the purposes of Section 2.206 while minimizing the perception that petitioner's safety concerns are being summarily dismissed by the Staff.

One problem with the current Section 2.206 process is that petitioners often ask for extreme sanctions (e.g., shutdown of the plant) based on alleged improper actions by a licensee.

Such "requested relief" is often out of line with the alleged safety deficiencies, even if such allegations were 100% accurate.

The result is often a denial of the petitioner's requested relief because the petition did not raise a significant public health and safety issue.

Nonetheless, the NRC Staff and the licensee would have addressed and resolved any of the safety issues raised in the petition which are found to be substantiated.

Of course, any decision regarding enforcement action with respect to those allegations which were substantiated, appropriately rests exclusively with the NRC.

2see e.g., comments by Ms. Susan Hiatt, Director of the Ohio Citizens for Responsible Energy, to the effect that meaningful public participation under Section 2.206 can only be achieved through citizen-initiated adjudicatory hearings (Tr. at 95-96) and comments by Mr. Martin Malsch, NRC Deputy General Counsel, summarizing a Union of Concerned Scientist study that concluded the appropriate purpose of Section 2.206 should be to provide the public with a formal, public hearing on any matter or safety issue raised by a petition (Tr. at 55).

Georgia Power,,\\

700775 U. S. Nuclear Regulatory Commission Page Five Georgia Power Company agrees with the suggestion of the NRC Paper that the NRC decision on a Section 2.206 petition should focus on the safety issues raised by the petition.

In this regard, the Director's Decision could de-emphasize the granting or denying of the specific enforcement action requested by the petitioner.

For example, instead of concluding that a petitioner's request for the NRC to order a plant shutdown is denied, the responsible NRC director could simply state that the petition's allegation was either substantiated or not substantiated and then state that the NRC wiil take enforcement action, if applicable, consistent with NRC's enforcement policy.

C.

Categorizing Petitions and Allocating More Resources According to the Importance of Issues Raised Categorizing petitions as suggested by the Staff (NRC Paper at 12-13) appears to be the current, albeit informal, approach to allocating Staff resources.

We recommend that the Staff continue with this informal approach, without adopting specific procedures and inflexible criteria for segregating petitions.

Additionally, in Georgia Power's opinion, there is room for improvement in the length of time required by the NRC Staff to resolve Section 2.206 petitions.

The Staff is to complete its review in a "reasonable time." However, the Staff view of what is a "reasonable time" does not necessarily coincide with that of the licensee or, for that matter, the petitioner.

The length of the Staff's review time directly impacts licensee resources and has an effect on the public's perception of the licensee's competence.

In order to further conserve licensee (and NRC Staff) resources, as well as to ensure timely resolution of the petitioner concerns, the NRC Staff should consider what is a "reasonable time" for all concerned, and strive to meet that time frame.

This approach would avoid extended periods of inaction which frustrate licensees and, in some cases, inadvertently provide the petitioner with an unintended remedy.

In other cases, extended periods of inaction apparently frustrate petitioners.3 D.

Providing For a Formal Review Process for Director's Decisions The NRC's existing procedures, whereby the Commission has the authority to review Director's Decisions, provide adequate review of such decisions. Judicial review is inappropriate because it invades the authority of the NRC to take appropriate enforcement action which it 3This issue was raised as a concern at a July 15, 1993 hearing held by the Senate Subcommittee on Clean Air and Nuclear Regulation.

Georgia Power, \\

700775 U. S. Nuclear Regulatory Commission Page Six deems necessary, within its sole discretion. This would disturb a fundamental precept of agency enforcement authority applicable to all government agencies with enforcement authority.

See Heckler v. Chaney, 470 U.S. 821 (1985).

As aptly discussed at length in that case, an agency's decision not to prosecute or enforce... is a decision generally committed to an agency's absolute discretion.

This is attributable.. to the general unsuitability for judicial review of agency decisions to refuse enforcement.

The reasons for this general unsuitability are many.

First an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise. Thus, the agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agencies overall policies, and indeed, whether the agency has enough resources to undertake the action at all.

An agency generally cannot act against each technical violation of the statute it is charged with enforcing. The agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities....

Id. at 831-32.

Furthermore, there is no credible evidence to suggest that judicial review will improve upon the disposition of issues raised in the current Section 2.206 process, while it is certain that it will increase costs and create substantial delays in ultimate resolution of the issues raised.

II I. CONCLUSION Georgia Power Company submits that, on the whole, the current Section 2.206 process has served as a credible, equitable and effective mechanism for the public to raise potential safety concerns to the NRC

Georgia Power,,\\

700775 U. S. Nuclear Regulatory Commission Page Seven for resolution.

The process allows any person to raise any issue to the NRC, without regard for the petitioner's legal standing or his basis for the concern, for NRC investigation and resolution.

NRC experience to date demonstrates that the current process is serving its goal of identifying, and causing the resolution of, safety issues which had not previously been addressed by either the licensee or the NRC.

While few petitions have identified significant safety questions, this is an indication that licensees and the NRC Staff are adequately protecting the public health and safety rather than an indication that the Section 2.206 process is broken.

Concerns about the Section 2.206 process which have been expressed to the NRC appear to be grounded in a desire for more public involvement in the process.

As discussed above, informal procedures are available within the current Section 2.206 process which will enhance public participation in the Section 2.206 process without creating a significant increase in the resource burdens on the NRC Staff and licensees.

Substantial modifications to the process to provide for increased public participation will not yield a significant safety benefit and are, therefore, not warranted.

Should you have any questions, please advice.

Respectfully submitted, CY.JJtf, C. K. McCoy CKM/CRP cc:

Georgia Power Company J. T. Beckham, Jr., Vice President - Plant Hatch J. B. Beasley, General Manager - Vogtle Electric Generating Plant H. L. Sumner, Jr., General Manager - Plant Hatch

u.

K.

D.

u. s.

L.

B.

HL-3446 LCV-0134

s.

N. s.

s.

D.

D.

R.

Nuclear Regulatory Commission, Washington, DC Jabbour, Licensing Project Manager - Hatch Hood, Licensing Project Manager - Vogtle Nuclear Regulatory Commission, Region II Ebneter, Regional Administrator Wert, Senior Resident Inspector - Hatch Bonser, Senior Resident Inspector - Vogtle

Southern Nuclear Operating Company Post Office Box 1295 Birmingham, Alabama 35201 Telephone (205) 868-5131 Ot,CKET NUMBER f r,O OSED RULE PR 2 ---*

• C~f-F R_ 3'1'7l.}

.. \\

Dave Morey Vice President Farley Project Southern Nuclear Operating Company Docket Nos.

50-348 50-364 Mr. Samuel J. Chilk Secretary of the Commission Au gu s t 27, 1993 U.S. Nuclear Regulatory Commission Washington, DC 20555 ATTENTION: Docketing and Service Branch Comments on the southern electr,c system

\\~---*

-~.,,,,.,..

J,

• ,/

DOCKETED

'-"~- /

-.l I._:J

\\

AUG 2 7 1993 DOCKETING &

{ Co I

~'/\\ SERVICE BRANCH 1/'-'

SECY-NRC

/

2*.

.*\\<o

.. (..,\\~.--~/

"Section 2.206 Petitions Requesting Institution of a Proceeding to Modify, Suspend or Revoke a License, or for Such Other Action as May Be Proper" (58 Federal Register 34726 of June 29, 1993)

Dear Mr. Chil k:

A representative of Southern Nuclear Operating Company has attended the workshop "Section 2.206 Petitions Requesting Institution of a Proceeding To Modify, Suspend or Revoke a License, or for Such Other Action as May Be Proper," published in the Federal Register on June 29, 1993.

In accordance with the request for comments, Southern Nuclear Operating Company is in total agreement with the NUMARC comments which are to be provided to the NRC.

In addition to the comments by NUMARC, Southern Nuclear Operating Company requests the Commission to consider the cost effectiveness of any proposed changes to the 2.206 process. Statements at the public workshop were virtually unanimous that the underlying safety issues raised by 2.206 petitions are being addressed carefully by the Staff.

Even though some commentators expressed dissatisfaction that petitions were not granted as frequently as they wished, there was no suggestion that reasonable assurance of protecting public health and safety is undermined by the current 2.206 process.

This means that any enhancements or refinements of the process can legitimately consider the increased regulatory burdens imposed on power reactor licensees. A balance should be struck between any proposed changes to the 2.206 process and any increase in regulatory burdens so the utility customer does not unfairly bear the cost of a new 2.206 process without a concomitant enhancement of safety.

OCT 1 1993 Acknowledged by card..................... "'"'"""'

'~. t.:~:C:..,, -.. 1' J.~7 :~'{ C'X1i.1iSSIOt-.

!i(:';,.

. E ~.::1: 1,\\: G::OiON

~*:;i.. :--=*1!****;1: ;1*\\f-TA~Y c:-r- *,: ;~~ c:;;.:~.. :~:*~*Jr~

F,,;r;;ur'* i,*.-~! __ __ C(/1 /'1) ) f-u-.lLJ o >'\\.-,f--p-7 /93 C,:_../*,! ~ :~*.: *,..*, --*-*

I

U. S. Nuclear Regulatory Commission Page Two There should be, also, a system of checks and balances that protect both the licensee and the petitioner from abuse of the 2.206 process.

Undoubtedly, there are incidences where a petitioner pursues a secondary motive besides one associated with public health and safety.

Should the Staff determine that this is the case, then the Staff should act swiftly to dismiss the petition. Should a licensee somehow abuse the 2.206 process, the NRC has ample authority to take appropriate action.

Should you have any questions, please advise.

DNM/JDK cc: Southern Nuclear Operating Company R. D. Hill, Plant Manager Respectfully submitted, tJ7l ~~

Dave Morey U. S. Nuclear Regulatory Commission. Washington. D. C.

T. A. Reed, Licensing Project Manager, NRR U. S. Nuclear Regulatory Commission. Region II S. D. Ebneter, Regional Administrator G. F. Maxwell, Senior Resident Inspector

ooc1<ET r ;UMBER PR 2 PROPOSED RULE-=-=-==.--r--

(58-"F ~ 3'i11.--6 NUCLEAR MANAGEMENT AND RESOURCES COUNCIL 1776 Eye Street. NW

• Suite 300

• Washington.DC 20006-2496 (202) 872-1280 Robert W. Bishop Vice President &

General Counsel Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ATTN:

Docketing and Service Branch RE:

Notice of Workshop August 27, 1993

• 93 AUG 27 P12 :30 l,

Section 2. 206 Petitions Requesting Institution of a Proceeding To Modify, Suspend or Revoke a License, or for Such Other Action as May Be Proper; 58 Fed. Reg. 34726 (June 29, 1993)

Dear Mr. Chilk:

On behalf of the nuclear industry, Nuclear Management and Resources Council (NUMARC)1 submits the following comments on the 10 CFR § 2.206 process. These comments respond to the June 29, 1993 Federal Register notice (58 Fed. Reg. 34726).

The June 29 Federal Register notice stated that the NRC was initiating a review of its regulations and practices governing petitions filed pursuant to 10 CFR § 2.206. As a part of its review, the NRC held a workshop on July 28, 1993, to allow interested individuals and groups to voice their opinions and concerns regarding the objectives of the § 2.206 process, its effectiveness in meeting those objectives and what, if any, revisions should be made to the process. NUMARC and several members of the nuclear industry bar2 participated in that workshop. The workshop provided a valuable forum for 1NUMARC is the organization of the nuclear power industry that is responsible for coordinating the combined efforts of all utilities licensed by the NRC to construct or operate nuclear power plants, and of other nuclear industry organizations, in all matters involving generic regulatory policy issues and on the regulatory aspects of generic operational and technical issues affecting the nuclear power industry. Every utility responsible for constructing or operating a commercial nuclear power plant in the United States is a member of NUMARC. In addition, NUMARC's members include major architect/engineering firms and all of the major nuclear steam supply system vendors.

2Participants were Messrs. Maurice Axelrad (Newman & Holtzinger), Robert Bishop (NUMARC), Joseph Gallo (Gallo and Ross), James Miller III (Balch & Bingham), Jay Silberg (Shaw, Pittman, Potts & Trowbridge), and Mark Wetterhahn (Winston & Strawn).

OCT 1 1993 Acknowledged by card........ ;.........................

ti'\\*:::-

[**.:

~.. '.

I

Mr. Samuel J. Chilk August 27, 1993 Page2 the NRC staff to explain its approach to the § 2.206 process and to better understand the differing perspectives of the participants.

The nuclear industiy views this issue as one of great importance. The NRC's review of its regulations and practices governing petitions submitted pursuant to 10 CFR

§ 2.206 is a useful assessment and should assist the Commission in determining whether it is adequately carrying out this aspect of its regulatory responsibilities. The discussion during the workshop made clear that the § 2.206 process satisfies its purpose of providing a structured means by which any member of the public may bring to the attention of the NRC a potential safety concern and request that the NRC take enforcement or other action in response. At no time during the workshop did members of the public, public interest group representatives or government representatives claim that they or their constituencies were impeded from bringing potential safety issues to the attention of the NRC.

The major complaints expressed by several of the workshop participants appeared to be that petitioners were not kept abreast of the NRC's ongoing actions undertaken in response to their petitions, NRC reviews of§ 2.206 petitions were performed by the same individuals whose decisions were the subject of the § 2.206 petitions and thus were not independent. Some individuals also expressed concern about the NRC's failure to institute proceedings when requested and about the la~k of judicial review of NRC decisions denying § 2.206 petitions. 3 However, no information has been presented from which the agency could reasonably conclude that safety issues raised by petitions, which should be the ultimate concern of those who submit and review them, are not comprehensively addressed under the current process. The NRC subjects § 2.206 petitions to rigorous technical analysis and dispositions the petitions through a detailed, written response to the issues raised.

3Tbe NRC designated judicial review of Director's Decisions of§ 2.206 petitions as a topic outside the scope of the workshop. Although the industry opposes judicial review on § 2.206 petitions, these comments do not address the basis for the industty's position. The industry's views will be clearly stated in comments submitted to the Subcommittee on Clean Air and Nuclear Regulation of the U.S. Senate Committee on Environment and Public Works. During the June 30, 1993, subcommittee hearing, Chairman Selin and the representatives of Nuclear Information Research Service discussed at length the subject of judicial review of§ 2.206 petitions.

\\

Mr. SamuelJ. Chilk August 27, 1993 Page3 The § 2.206 Process Adequately Meets Its Objective The objective of the § 2.206 process is to provide members of the public with an easily initiated mechanism to direct the NRC staffs attention to licensee operating actions, practices or conditions which do not conform with regulatory requirements, or other safety concerns, and to request NRC enforcement action thereon. The § 2.206 process as presently implemented, meets this objective.

In providing this structured process to focus the NRC's attention on a particular issue, a petitioner is given wide latitude in presenting his or her concerns. The current regulation allows "any person" to bring any matter of concern with respect to a licensee to the attention of the NRC. That is, any member of the public may submit a § 2.206 petition without meeting any requirement for standing or for the issue's safety significance. It is without exaggeration to say that a § 2.206 petition may be submitted on no more than a post card with a bare description of the concern and the requested action.

In practice, a petitioner need only provide sufficient information for the NRC to llllderstand the potential issue for which enforcement action is sought. The lack of a standing requirement or other formal requirements unquestionably facilitates the public's ability to have its concerns considered by the NRC and, if warranted, to have them serve as the basis of enforcement or other NRC action.

The fact that § 2.206 petitions result in few hearings or orders does not mean that the safety concerns underlying the petitions are given short shrift or that the agency's decision-making process is flawed. Chairman Selin, in his opening remarks at the workshop, articulated this thought:

... [W]hat percentage of all petitions* are granted? It doesn't seem to me to give the answer unless you know how many of the petitions are meritorious, unless you have a way of finding out how many of the petitions have affected agency actions even if they were not formally granted. (Tr. at 5-6)

The numbers of § 2.206 petitions denied have been cited to support the proposition that the § 2.206 process is not functioning propetly. Such an isolated numerical focus upon the number of petitions not resulting in the requested action distorts the significance of the § 2.206 process and ignores the many other mechanisms and processes in place to bring safety issues to the Commission's attention. We believe that the relatively high number of petitions denied is evidence of the fact that the principal ways of protecting the

Mr. Sam.uelJ.Chilk August 27, 1993 Page4 public health and safety are indeed functioning effectively. In numerous instances, although a § 2.206 petition is denied, the underlying safety issue has been evaluated and the requested relief has either already been granted or is no longer necessary. The value of the public input process provided by § 2.206 should be measured by whether the issues raised are timely and adequately addressed, not by whether a hearing, enforcement action or other formal action is instituted. The industry's efforts to ensure safe reactor operation, coupled with the NRC's pervasive regulatoiy process, have resulted in timely identification of safety issues and their resolution by licensees and/or the NRC.

The§ 2.206 process is intended to allow the public to bring their post-licensing concerns to the NRC. It was not designed to be, is not, and should not be the primary means by which the NRC is made aware of potential safety issues. The process under § 2.206 was deliberately adopted in addition to the many other processes and mechanisms employed for this purpose. For exam.pie, licensees have extensive operational, surveillance and review program.s. These are the most effective mechanisms for identifying and resolving safety issues at a plant and for bringing significant safety issues to the Commission's attention. Also, the NRC assigns at least one, and often two, resident inspectors at each reactor site and conducts routine and special inspection programs and audits involving all safety aspects of the plant and its operation. Further, various program.s are maintained by reactor licensees for employees and contractors to identify safety issues to the licensee. The NRC also has a program. for employees and contractors to bring safety problems directly to the agency ( either personally or anonymously) and have the allegations processed through the NRC's Allegation Management System. 4 In addition to the processes just described, the public has other meaningful opportunities to participate in the oversight of licensees' activities: a member of the public may be present at the numerous public meetings the NRC holds with licensees each year, may initiate and participate in rulemakings, may, if certain procedural requirements are met, request and participate in a hearing on any license am.endment, and may submit concerns directly to the NRC through the agency's Allegation Management System. Thus, it is unsurprising that in the vast majority of cases, the safety concerns identified by the public were already known to the NRC when the petition was submitted.

4To the extent it is relevant to a discussion of§ 2.206, we believe that the Allegation Management System is effective. It is properly viewed as complementary to, and was not intended to be a substitute for, the§ 2.206 process.

Mr. Samuel J. Chilk August 27, 1993 Page5 Additional Independent Review Of Director's Decisions Is Not Warranted The § 2.206 process accomplishes its objective not only because it is accessible even to an individual unsophisticated in the workings of government, but also because those at the NRC knowledgeable about the particular technical issue are assigned to review it and to provide a reasoned decision for the determination about whether or not to take enforcement or other action. A § 2.206 petition is referred to the director of the NRC office responsible for the subject matter of the petition. The staff reporting to that director reviews the petition, including an analysis of relevant facts, and provides a detailed response. The director either institutes the requested enforcement or other regulatory action against the licensee, or advises the petitioner of the basis for the

• petition's denial. The Commission reviews the disposition of each § 2.206 petition to determine whether it is necessary to engage in a more formal review, which may be undertaken by the Commission on its own motion.

Criticism was levied by some at the workshop that there may be some inherent bias by the NRC reviewers because their decisions are the subject of a § 2.206 petition.

The basis of this criticism may in fact be dissatisfaction with the result of the NRC's review of a particular § 2.206 petition rather than any real concern over whether the staff put forward a good faith effort to address the petition. A suggestion was made at the workshop that the process be revised to incorporate an additional independent review of

§ 2.206 petitions by other NRC personnel including, possibly, an Atomic Safety and Licensing Board.

The industry opposes such a revision for several reasons. First, the NRC staff assigned to review the petition are likely to possess the most k+nowledge about the particular issue. It is not sensible from either a resource allocation or safety standpoint to reserve one or more individuals who are the most capable to perform the initial assessment so that they may later perform the independent review. Second, and following from the first, the independent reviewer or reviewing body ( e.g., a licensing board) will not have the same level of expertise on the issues that are the subject of the petition that the initial review team had. In that case, there is no reason to believe that an independent review would provide additional value in the safety determination. Third, from both a cost and safety perspective, it would not be an effective use of NRC resources to assign personnel to perform an independent review if they are more appropriately assigned to other significant safety issues. Fourth, the system to evaluate and respond to § 2.206 petitions already includes internal NRC reviews of§ 2.206 petitions. These reviews should eliminate the possibility of bias influencing the

Mr. Samuel J. Chilk August 27, 1993 Page6 evaluation of and response to a petition. Fifth, even assuming such an independent review is desirable, it will not be effective unless the reviewer or reviewing body is also provided with authority to overrule or amend the initial decision on the petition. If such authority is not provided, and a different conclusion is reached by the independent reviewer, a mechanism for conflict resolution must be instituted. This would add another infrastructure to an already burdened regulatory system. Finally, an additional internal NRC review would certainly increase the time required to reach a disposition of the concern underlying the § 2.206 petition, and might result in a compromise of the protection of public health and safety.

Suggested Enhancements To The § 2.206 Process In determining whether the 10 CFR § 2.206 process ought to be enhanced, one must again return to the purpose of the regulation. As noted above, the regulation's pmpose is to provide the public with an opportunity to bring safety concerns to the NRC and have those concerns evaluated and, if warranted, acted upon. These procedures, however, were deliberately made part of the NRC's enforcement process, an area where the NRC is entitled to exercise its informed discretion. The agency is appropriately provided discretion in this context because the most effective use of its resources will always be dependent upon the specific circumstances involved. As the NRC investigates an issue raised by a § 2.206 petition, the agency has and should have many alternatives available to it. It is appropriate for the NRC to be able to determine what course to follow based upon a number of factors, including prior licensee and NRC actions on the issue, the merits of the allegations contained in the petition, the relative safety significance of the concerns raised in the petition, the most appropriate means of resolving the perceived concerns, and the most efficient use ofNRC and licensee resources. Such decisions are and should remain within the agency's informed discretion because the basis for these decisions necessarily involves a combination of judgment about the facts at hand as well as agency expertise and experience.

Although the§ 2.206 process is easy to set in motion (no standing requirement, only a bare description of the concern is necessruy, etc.), the industry supports NRC action to make the § 2.206 process better understood by the public. Any steps to make this process better understood should be implemented in full recognition of the fact that

§ 2.206 petitions are part of the NRC's enforcement process and, therefore, that the ultimate decision whether to take enforcement action in a particular case must lie within the agency's discretion.

Mr. Sam.uelJ.Chilk August 27, 1993 Page7 The industry supports enhancements to achieve greater communication between the petitioner and the NRC as the NRC evaluates and responds to the petition. For example, the NRC could assign a specific identifier to the petition for the purpose of tracking documents related to its disposition. The agency also could identify a contact person within the NRC and provide that person's phone number to the petitioner. Further, to ensure accuracy in framing the potential safety issue and its resolution, the NRC could meet or otherwise communicate with the petitioner to ask clarifying questions if necessary for the NRC to fully understand the safety concern and the requested action.

Such discussion should provide additional assurance to the petitioner that the NRC understands the petitioner's concerns. Also, the NRC could ensure that the petitioner and the licensee receive a copy of correspondence among the parties and the published NRC documents developed in response to the petition. Finally, the NRC could provide that information to the petitioner and the licensee on some periodic basis.

In response to the dissatisfaction expressed at the workshop regarding the petitioner's opportunity to remain involved in the § 2.206 process, the petitioner could be notified and made aware of the opportunity to attend any NRC/licensee meetings held to evaluate the issues that are the subject of the petition (while observing appropriate safeguards for proprietary information). If the NRC then believes that information in its possession is sufficient to make a detennination on the petition, certainly it is within its discretion to do so. U: however, the NRC believes more information is needed, the NRC could, in its discretion, provide an opportunity for the petitioner and the licensee to provide additional information.

The§ 2.206 Process Should Not Be Made More Formal The NRC's Background Paper asks whether it may be appropriate to increase the formality of the NRC's interactions with licensees on a § 2.206 petition ( e.g., increased use of 10 CFR 50.54(f) information requests). The industry believes that steps to increase the formality of the process are not necessary and would be counterproductive.

It would make this aspect of the enforcement process overly formal and would divert NRC resources without achieving any commensurate safety benefit Moreover, licensees provide voluntary responses to § 2.206 petitions and readily cooperate with the NRC by providing additional information to the agency if requested. More formality within the

Mr. SamuelJ. Chilk August 27, 1993 Page 8

§ 2.206 system would serve no useful purpose. Indeed, at the workshop a representative of the state of Massachusetts noted that fonnaliziog the§ 2.206 process would not do anything to change the outcome or make the staff more accountable:

I would certainly hope that if you were to institute an independent office or if there was to be adjudicatory review...! would expect that the results would be little different from what they are today, because I think that the staff does try to - does view themselves as being accountable and does try to do a good job.

(Tr. at page 243.)

It has also been suggested that the NRC should develop and use formal criteria to categorize § 2.206 petitions. We believe that the agency should not do so. It is not necessary and would be wasteful and counterproductive. The NRC already has internal mechanisms for categorizing the petitions and assigning a priority to them and their underlying safety concerns. This is also an area where the agency's ability to use its informed discretion should be left undisturbed.

Conclusion The industry believes that the NRC's process for handling § 2.206 petitions effectively provides the public with an opportunity to request that the NRC review and take action on a perceived concern. Nevertheless, we endorse the enhancements suggested in these comments. We believe that they will effectively address many of the concerns identified. In light of our view that the § 2.206 process achieves its objective and that no increased safety will derive from any revisions to make the process more formal, no such efforts are necessary.

Mr. Samuel J. Chilk August 27, 1993 Page9 NUMARC would be pleased to discuss these comments with NRC personnel and to respond to any questions they may have regarding the industry's position on the current areas of the 10 CFR § 2.206 process where modification may be appropriate.

MAU R ICE AXELRAD (202) 955-6626 NEWMAN & HOLTZINGE R, P. C.

ATTORN E YS AT LAW 1615 L S TRE ET, N. W.

WASHINGTON, D.C. 20036-5 61 0 TELEPHONE : (2 02) 955 - 6600 FAX : (20 2 ) 872 - 0581 August 27, 1993 Samuel J. Chilk, Secretary U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Attn:

Docketing and Service Branch Re:

Comments Regarding§ 2.206 Process

Dear Mr. Chilk:

In the Federal Register notice of June 29, 1993 (58 Fed. Reg. 34726), the Nuclear Regulatory Commission requested comments regarding its review of its regulations and practices governing petitions filed under 10 CFR 2.206.

In response to such request, we are pleased to submit the enclosed "Comments Regarding the§ 2.206 Process" on behalf of:

Arizona Public Service Co.

Florida Power & Light Co.

Houston Lighting & Power Co.

Illinois Power Co.

Iowa Electric Light & Power Co.

Southern California Edison Co.

Texas Utilities Electric Co.

All of these comp9nies hold NRC operating licenses for nuclear reactors and believe in the importance of an effective

§ 2.206 process for use by the public.

As shown in the enclosed comments, the§ 2.206 process has met its objective of providing the public an effective, equitable and creditable mechanism to bring to the NRC ' s attention concerns that a facility is not operating in conformity with applicable regulatory requirements, or other safety concerns, to request action on those concerns, and to obtain a reasoned decision from the agency in response to those concerns.

Although some potential enhancements have been identified, primarily with respect to interactions between the NRC and OCT 1 1993 Acknowledged by card..................................

' *'* :.:i

,..,, li.! *s*(l

NEWMAN & HoLTZINGER, P. C.

Samuel J. Chilk, Secretary August 27, 1993 Page 2 petitioners, there are no indications of any significant flaws in the S 2.206 process.

Accordingly, we urge the NRC not to adopt any changes that would further formalize the process and divert scarce NRC and licensee resources from other tasks that are more important to safety of operations.

Sincerely yours,

~c~

Maurice Axelrad

/tg

Enclosure:

As Stated

NEWMAN & HOLTZINGER, P.C.

COMMENTS REGARDING S 2.206 PROCESS In its Federal Register notice of June 29, 1993 (58 Fed. Reg. 34726), the Nuclear Regulatory Commission (NRC) announced that it was initiating a review of its regulations and practices governing petitions filed under 10 CFR 2.206.

As the first step in that process it held a public workshop on July 28, 1993 where participants from citizens' groups, industry and government could exchange information on the objectives of the S 2.206 petition process, its effectiveness, and, what, if any, revisions should be made to the process.

To help focus discussion at the workshop, the NRC issued a Background Discussion Paper which outlined the scope of the review, provided background information on the S 2.206 process, and identified several broad categories of potential improvements for discussion at the workshop.

The Federal Register notice established an agenda for the workshop which focused on the four areas of principal interest to the Commission, i.e., whether the S 2.206 process was meeting its objectives and three broad areas of potential improvements in the process (increasing interaction with the petitioner; focusing on resolution of safety issues rather than on requesting enforcement action; categorizing petitions according to importance of issues raised).

The first four sections of the comments below address the four areas identified in the*Federal Register notice.

The last two sections of the comments (1) address an extraneous subject (judicial review) that was briefly discussed during the open portion of the workshop -agenda, and (2) summarize our principal conclusions regarding the S 2.206 process.

1.

Perspectives On The S 2.206 Process -

What Are The Objectives Of the S 2.206 Process?

Do The Current Procedures And Process Meet These Objectives?

What Is The Relationship Of The S 2.206 Process To Other Mechanisms For The Public to Identify Safety Problems?

The objective of the S 2.206 process is to provide members of the public an effective, equitable and credible mechanism to bring to the Commission's attention'concerns that a facility is not operating in conformity with applicable regulatory requirements, or other safety concerns, to request agency action on those concerns, and to obtain a reasoned decision from the agency in response to those concerns.

In our view, the S 2.206 process meets its objective and functions effectively.

The process is readily available for use by the public and facilitates the filing of petitions.

A petitioner is not required to make any showing of standing or affected interest.

The petition itself can be very simple.

The petitioner need only identify a requested action1and state minimal facts that would provide grounds for the action.

In practice, the petitioner need only provide sufficient information so that the NRC can understand the safety concern to be reviewed.

Review of the petition is assigned to the NRC office with programmatic responsibility for the subject matter of the petition.

This assures that the most knowledgeable and expert resources within the agency will perform the review.

It also assures the most effective use of the agency's resources.

If the petition is denied, in whole or in part, the NRC provides the petitioner a carefully reasoned, detailed decision summarizing the basis for the agency's decision, including related actions that may have be-en taken by the licensee or the NRC and the reasons why the action requested by the petitioner is not warranted.

Although formal review of the decision by the Commission is discretionary, each Commissioner, with the assistance of his/her staff, examines each decision to determine whether more formal review is warranted.

i As discussed in the workshop, some enhancements in the S 2.206 process would be useful.

For example, as discussed in Section 2 below, some improvements could be made in interactions between the NRC and petitioner_s.

But there has been no showing of any basic flaw in the S 2.206 process, and major changes are not warranted and would be counterproductive.

Criticisms of the S 2.206 process because it has historically resulted in few formal enforcement actions or formal hearings are mistaken.

Since the vast preponderance of S 2.206 petitions involve issues that have been or are already being addressed by licensees and the NRC and rely on licensee or NRC documents, it's understandable that few petitions would result in formal actions.

When additional action is warranted, it is usually undertaken voluntarily by the licensee.

If the S 2.206 process were, in fact, to result in a significant number of formal hearings or enforcement actions, that would be an indicator that the overall NRC regulatory process is not functioning effectively.

There is no merit to the argument that additional hearings should be provided through the S 2.206 process in order to attain more public credibility for the process.

Such action would unnecessarily divert scarce NRC and licensee resources that are better spent in assuring safe operations of facilities.

It would result in overjudicialization of the§ 2.206 process rather 2 -

than the achievement of sound technical resolution of safety concerns.

Both the Background Issues Paper and the agenda in the Federal Register notice questioned the relationship between the S 2.206 process and other existing mechanisms to bring safety problems to the Commission's attention.

The most effective mechanisms for identifying and resolving any safety problems at a plant, and for bringing any significant problems to the NRC's attention, are a licensee's extensive operational, surveillance and review programs.

Literally hundreds of thous~nds of issues are_ routinely identified and resolved each year through these standard programs.

The NRC inspection program, which includes at least two~

resident inspectors stationed at each reactor site and frequent inspections by Regional and Headquarters personnel, is another effective mechanism for identifying any safety problems.

In addition, most reactor licensees have a formal program (such as Hotline, Safeteam, Speakout, etc.) under which current employees of the licensee or its contractors, exiting or former employees, and members of the public can bring safety problems to the attention of the licensee.

These programs provide a mechanism under which individuals can identify concerns anonymously or in confidence, if they prefer.

Similarly, employees or members of the public can bring safety concerns directly to the NRC, where they are handled under the NRC's allegation management system.

Allegations are assigned to the appropriate office oi region of the NRC for processing, and are assessed for safety significance to permit ranking and resolution in a timely manner.

The licensee is often requested to address the area of concern, subject to NRC audit, in order to minimize expenditure of NRC resources.

Allegations are tracked to resolution and the alleger is informed of the close-out.

The allegation management system is an effective process which is complementary to, but not a substitute for, the S 2.206 process.

The public also has other opportunities to participate in oversight of a, licensee's activities.

An interested person can request a hearing on any license amendment.

Any member of the public can request and/or participate in rulemakings.

If an order has been issued, an interested person can request a hearing on whether the order should be sustained.

Thus, it is apparent that S 2.206 is not the primary mechanism for bring safety concerns to the Commission"s attention, but rather a back-up to other effective means of identifying issues.

Section 2.206 petitions frequently consist 3 -

of a reiteration of matters that were previously disclosed and addressed as a result of licensee programs, the NRC inspection system or the allegation management system.

Accordingly, as previously noted, it is understandable that few§ 2.206 petitions would result in additional formal NRC actions.

2.

Potential Revisions To The S 2.206 Process:

Increased Interaction Between The NRC Staff And The Petitioner Although the NRC effectively addresses concerns raised in S 2.206 petitions, it is apparent that some petitioners are dissatisfied with their ability to participate in the process and with the information that they receive as to the progress of the NRC's review.

We would urge the NRC to take reasonable steps to improve its interaction with petitioners.

When a petition is accepted, the NRC should inform the petitioner of the identity of an NRC contact at the working level who can respond to any inquiries by the petitioner 1as to the status of its petition.

In addition, if resolution of the petition will be prolonged the petitioners should be periodically informed as to the progress of the NRC's review.

It is important that the NRC clearly understand the requested actions and the petitioner's supporting grounds.

If necessary in order to achieve such understanding, the NRC should ask the petitioner clarifying questions or meet with the petitioner, as appropriate.

Although the NRC indicated at the workshop that its internal procedures call for providing the petitioner with copies of NRC-licensee correspondence relating to the petition, it appears that this practice has not been followed uniformly.

The NRC should assure that the petitioner receives such material (unless it is of a proprietary nature).

If the NRC holds meetings with the licensee relating to the petition, the petitioner should be provided an opportunity to attend as an observer.

Subsequently, th~ petitioner should have an opportunity to address any additional information relating to the petition that has been provided by the licensee in its correspondence or meetings with the NRC.

A corollary to keeping the petitioner better informed is to assure that the licensee is fully informed regarding the petition and its progress.

A licensee should receive copies of all correspondence between the petitioner and the NRC and be provided an opportunity to attend any NRC-petitioner meetings as an observer.

The licensee should also be given an opportunity to address any additional information that has been provided by the petitioner in its correspondence or meetings with the NRC.

4 -

In its discussion of increased interaction with petitioners, the Background Discussion Paper mentioned possible consideration of increased formalization of interaction with a licensee, such as requesting licensees to respond to issues raised in the petition under S 50.54(f).

Such formalization of the relationship with the licensee is unnecessary and would be counterproductive.

Many licensees already provide voluntary responses to petitions.

When requested by the NRC, they readily cooperate in providing any additional information desired by the NRC without the need for a formal request.

Formalizing the obtaining of information from licensees relating to S 2.206 petitions would waste resources and would imply, contrary to existing practice, that voluntary cooperation by licensees has been insufficient to meet NRC needs.

3.

Potential Revisions To The S 2.206 Process:

Shift The Focus Of S 2.206 Petitions From A Specific Enforcement Action To The Exploration And Resolution Of The Underlying Safety Issue Any member of the public who wishes to raise a safety issue, without requesting a specific enforcement action, can readily do so outside of the S 2.206 process.

Presumably such issue would be addressed by the NRC under its allegation management system, would be tracked to resolution and the member of the public would be informed of the close-out of the issue.

However, it does not seem that this would be a substitute for the present S 2.206 process that enables a member of the public to request an enforcement action and to receive a reasoned decision on his/her request from a responsible NRC official.

Nevertheless, even though the S 2.206 process hinges on a petitioner's request for action, it should be possible to shift the focus of the NRC responses to emphasize how the underlying safety issue has been addressed, rather than on whether a formal hearing has been granted or a formal enforcement action taken.

As previously discussed, the effectiveness of the S 2.206 process should be judged by whether safety concerns raised in petitions have been fully and timely resolved, and not by whether additional formal hearings. or enforcement actions were required to achieve such resolution.

Although the NRC does seek to explain its rationale in its S 2.206 decisions, it appears that the public may still not fully understand that the basic purpose of the process has 'been satisfied through resolution of the underlying safety concern.

The NRC should strive to make this point more explicit in each of its S 2.206 decisions.

5 -

4.

Potential Revisions To The S 2.206 Process:

Establishing Categories Of Petitions According To Significance Of The Issues Raised And Specifying Different Levels Of Internal Review According To These Categories The Background Discussion Paper mentioned the possibility of establishing internal NRC criteria for categorizing petitions in order to determine the level of effort and the types of procedures to be used on each petition.

Particularly in view of the limited number of S 2.206 petitions filed each year, tihere appears to be no need to establish such criteria.

There is no indication that the NRC has misapplied its resources in dealing with S 2.206 petitions or_has failed to consider petitions adequately.

In fact, discussion at the workshop indicated that S 2.206 petitions may get expedited treatment beyond that warranted by the safety significance of the issues raised -- which may be understandable in view of the public involvement.

The screening of petitions and assignment of resources are typical functions that should be performed by agency management through the exercise of discret~on based on the specific circumstances involved.

The process should not become overformalized through the establishment of criteria.

Such criteria may even be counterproductive, since they might cause delay or diversion of resources because of potential disputes regarding appropriate categorization.

There was extensive discussion at the workshop about the possibility of establishing some type of internal review of NRC decisions on S 2.206 petitions.

The principal reason cited appeared to be a concern about the credibility of an NRC decision when a S 2.206 petition is reviewed by the same NRC personnel who were responsible for previous evaluations of the safety concerns.

In our view, establishing routine NRC internal review of S 2.206 petitions is wholly unnecessary and would constitute a wasteful diversion of NRC resources.

Each S 2.206 decision is reviewed informally by the Commissioners, with the assistance of their staffs, who can readily determine whether any particular decision is sufficiently significant or questionable that a second review might be useful.

If such question arises, the Commissioners obviously have the discretion to decide on an ad hoc basis what type of additional NRC review should be conducted.

Concerns about having review of S 2.206 petitions performed by the same individuals who performed previous evaluations are without foundation.

These are technical questions decided by professionals, with oversight from multi-levels of review within the agency.

Since these professionals are competent to decide without bias the thousands of issues that arise each year in the course of reviewing amendment requests, inspection reports, and enforcement actions, they are certainly 6 -

I able similarly to act competently in the review of S 2.206 petitions.

The establishment of routine internal reviews of S 2.206 decisions would not be an effective use of NRC resources.

Since the most knowledgeable and expert NRC personnel are assigned to act on the S 2.206 petition, it is doubtful that other personnel assigned to a review of the S 2.206 decision would add significant technical insight to the decision.

Moreover, assigning personnel to such review would divert scarce NRC resources from regulatory functions that would contribute more effectively to safety of operations.

Similarly, retaining additional personnel or consultants simply to perform internal reviews of§ 2.206 decisions would be a wasteful diversion of NRC funds.

It can always be argued that a second opinion has some value, but there is no reason to believe that, in the absence of specific circumstances where the Commission so determines, NRC S 2.206 decisions would benefit from such additional review.

The suggestion was made at the workshop that NRC internal review of S 2.206 decisions could be performed by the Atomics Safety and Licensing Board or the Office of Commission Appellate Adjudication, perhaps on an informal basis.

In our view, this suggestion is even less worthy of consideration than a technical internal review within the NRC Staff.

Regardless of how this review were structured, it would transform a process for the technical resolution of safety concerns into a legalistic process, which is not a desirable mechanism for addressing technical questions.

Such a process would be even more wasteful of NRC and licensee resources, with little likelihood that it would contribute significantly to the soundness of the ultimate technical decisions.

5.

Judicial Review Although not part of the overall topic of actions that could be taken by the NRC to improve the efficacy of the§ 2.206 process, the subject of judicial review of NRC denials of§ 2.206 petitions was briefly discussed during the open portion of the agenda at the workshop.

Accordingly, we are providing some brief comments on that extraneous subject.

For many of the reasons that were expressed by Chairman Selin both at the workshop and in his recent testimony on S. 1165, "Nuclear Enforcement Accountability Act of 1993," we are strongly opposed to judicial reviewability of denials of S 2.206 petitions.

The courts have held that the enforcement decisions of Federal agencies, except in limited circumstances, are within the agency's discretion and not subject to judicial review.

Such holding is soundly based on the fact that in making enforcement decisions, an agency like the NRC must have the discretion to 7 -

weigh such factors as whether a violation or other safety concern exists, the safety significance or seriousness of the particular violation or concern, actions that have already been taken or are being taken by the licensee and/or the NRC, priority of the violation or concern as compared to other issues that are being or could be addressed by the licensee and/or the NRC, and availability of NRC resources and their appropriate allocation.

Such discretionary decisions within the expertise of an agency should not be subject to judicial review.

The judicial decidions denying reviewabiiity of enforcement actions apply uniformly to federal agencies.

There is no reason why the NRC should be singled out to have its enforcement decisions subject to judicial review.

In fact, in light of the comprehensive regulatory program implemented by the NRC, which is unmatched by any other Federal agency in its breadth and thoroughness, there is even less justification for making NRC enforcement decisions subject to judicial review than there would be for any other agency.

In addition, although NRC representatives at the workshop indicated that the NRC has not changed its practices regarding S 2.206 petitions since courts have held NRC decisions unreviewable, we are concerned that under current circumstances the NRC would feel compelled to develop a more extensive record if its decisions became judicially reviewable.

This would additionally escalate and focus disproportionate attention and NRC resources on the relatively small number of allegations raised in S 2.206 petitions, without regard to their actual safety significance.

The Commission may also be inclined to formally review more decisions in order to minimize the possibility of subsequent judicial reversal.

These additional efforts would not only divert NRC efforts from attention to more

'important safety issues, but would increase regulatory costs chargeable to industry in license fees.

I Section 2.206 has provided an effective process for NRC to review and respond to enforcement petitions and there has been no showing that petitions have been treated improperly or that significant safety issues have not.been properly 1addressed.

The burdens that would arise from judicial reviewability should not be superimposed on the S 2.206 process in the absence of a demonstration that current practices are inadequate. -Although, as discussed above, some enhancements of the S 2.206 process should be considered by the NRC, there is no basis for singling out the NRC for judicial review of its decisions regarding requested enforcement actions.

8 -

6.

Conclusion.a The S 2.206 process has proven to be an effective mechanism for the public to raise safety concerns before the request action and obtain a reasoned decision from the NRC.

process can readily be initiated by any member of the public

NRC, The and is implemented by knowledgeable, responsible NRC personnel.

There is no indication that underlying safety issues identified in S 2.206 petitions have not been soundly addressed and resolved.

Although few formal hearings or enforcement actions have resulted from S 2.206 petitions, this does not reflect any deficiency in the S 2.206 process.

To the contrary it demonstrates the effectiveness of the numerous other licensee and NRC programs, which are the primary mechanisms for routinely identifying and resolving safety issues.

The S 2.206 process could be enhanced through improved interactions between the NRC and petitioners and increased emphasis in NRC decisions on how the underlying issues raised in the petition have been addressed and resolved.

However, any changes that would further formalize the S 2.206 process are**

unnecessary, would be counterproductive and should be avoided.

In the absence of any showing of a significant flaw in the process, no change should bEr adopted that would divert scarce NRC and licensee resources from other tasks that are contributing to safety of operations.

9 -

• 93 COMMENTS OF OH IO CIT I ZENS FOR RES PONS IBLE ENERG~\\Lr INC.

( '.' OQ!{E")

ON "REVIEW OF THE 2.206 PETITION PROCESS," 58 FED. t REG,. ' 34726 (JUNE 29, 1993)

OCRE commends the NRC for initiating this review of the petition process under 10 CFR 2.206.

OCRE is pleased that the NRC con-ducted a workshop on this matter on July 28, 1993.

It is OCRE's opinion that the workshop was extremely productive and informa-

tive, and helped illuminate the deficiencies in the 2.206 proc-ess.

OCRE hopes the NRC will consider and implement serious reforms to the 2.206 process so that it can be a meaningful forum for public participation in the post-construction era.

I. Importance of the 2.206 Process Filing a

petition under 10 CFR 2.206 is the only process for formal public participation after a nuclear power plant is li-censed.

It is the only process by which members of the public can raise issues when new research calls the safety of a nuclear power plant into question, when plant operational performance is below

par, when whistleblowers uncover deficiencies or viola-

tions, when operating events reveal unforeseen failure modes or vulnerabilities, or when external phenomena occur which exceed the plant's design basis.

Several regulatory trends within the NRC in recent years place even more importance on the 2.206 process.

First, the license renewal rule, 10 CFR 54, relies on the assumed adequacy of the current licensing basis, rather than conducting a thorough reexamination of the CLE as part of license renewal application review, with an opportunity for a public hearing.

The only issue which can be raised in the public hearing for license renewal is aging degradation unique to license renewal.

Any citizen concerns about the adequacy of the CLE must be raised through a 2.206 petition.

Second, the NRC is encouraging the relocation of items from the plant Technical Specifications to internal plant documents, where they can be changed at will by the licensees, under the 10 CFR 50.59 process, without seeking an operating license amendment.

The NRC has issued six Generic Letters (see attachment) on remov-al of items from plant Tech Specs.

In addition, the new standard Tech Specs will result in the relocation of approximately 36%

of current Tech Specs to internal plant documents.

The end result of this trend is that the universe of potential operating license amendments, and thus, the opportunities for a public hearing, is greatly diminished.

Citizens are left with the 2.206 process for raising issues related to changes in the items so removed from the Tech Specs.

1 OCT 1 1993 Acknowledged by card..................................

r.it,._ I-,.- : 1:l"i~t* / "'.< J *; t ;_. ~:

},.U\\ *_;_.~;C-~*,:_; ::.

~ ~ :.~-~;. ". ~: :~0 NOll~Y;:~ 3;J j1.:.::.>': *.: t,;"!.! :.. t.. C}{J

.t-Jorss1vwlo'.) 1-.cJ~!.L' r.r,-;*:1L...:,-~~-.::;. "uJ *~u

Third, 'the 1990 revisions to 10 CFR 72 which allow the onsite storage of spent nuclear fuel in dry storage casks approved under a general license also diminish the opportunities for an adjudi-catory hearing on this issue.

See 55 Fed. Reg. 29181 (July 18, 1990)

Any site specific concerns must be raised through the 2.206 process.

As the permanent disposal for high level waste is a moving target, and as spent fuel pools at the reactor sites are filling up, the use of onsite cask storage will

increase, and accordingly, citizen concern will increase as well.

As more and more issues are shunted to the 2.206 process, instead of the license amendment process, it is imperative that this process be reformed so that is a meaningful procedure.

II.

Purpose of the 2.206 Process OCRE believes the purpose of the 2.206 process should be to provide a meaningful forum in which citizens can raise health and safety issues.

OCRE would place the main emphasis on the word "meaningful. "

The 2. 206 process should primarily be a due proc-ess mechanism equivalent to the procedures available to the public before plant licensing and equivalent to the procedures available to other entities after plant licensing.

It is illustrative to compare citizens' rights before and after licensing.

For example, consider the Thermo-Lag issue.

Suppose the problems with Thermo-Lag had been discovered in 1981 instead of 1991.

Then, intervenors in the pending operating license cases could have filed contentions on Thermo-Lag.

Considering the severity of the issue, the contentions would have most cer-tainly been admi'tted.

Then the intervenors would be entitled to discovery.

If the matter survived summary disposition, the intervenors would participate in a hearing in which they could present oral and documentary evidence and cross-examine witness-es.

They could file proposed findings of fact and conclusions of law with the Licensing Board.

If the Board's decision was ad-verse to the intervenors, they could appeal the case within the agency.

They could also seek judicial review of the NRC's final decision.

Now, since the problems with Thermo-Lag were not disclosed until

1991, when the licensing proceedings for almost all' existing plants had long since been concluded, members of the public have only the 2.206 petition for raising concerns about Thermo-Lag.

The 2.206 process contains none of the procedural mechanisms available to intervenors in a Subpart G hearing.

Under 2.206, there is no discovery, no hearing, no proposed findings, no agency

appeal, and no judicial review.

By no stretch of the imaginatilon could the 2.206 process be considered equivalent to the procedural mechanisms available in the initial licensing proceeding.

When contrasted with the opportunities for public participation in pre-operational licensing proceedings, it is not unfair to say 2

that citizen-initiated participation rights effectively cease after a nuclear power plant starts operating.

This hardly makes sense, since that is precisely when a reactor becomes hazardous.

Why is there a difference in the procedures available to the public before and after licensing?

Clearly with issues like Thermo-Lag, the only difference is that of timing: when the issue was discovered.

If the issue is discovered before the nuclear plant is

licensed, then citizens have hearing rights.

If discovered after the plant is licensed, then citizens have no hearing rights.

Is Thermo-Lag less of a problem because it was disclosed in 1991 instead of 1981?

Clearly, no.

Are nuclear power plants less dangerous when they begin operations than when they are under construction?

Obviously not.

Is public partici-pation less important after a nuclear power plant is licensed?

OCRE believes it should not be.

The present situation is patent-ly absurd.

Upon issuance of the plant operating

license, the site boundary truly becomes an "iron curtain" within which public participation is excluded.

An examination of the opportunities for formal public participa-tion in the regulation of operating nuclear power plants reveals that meaningful opportunities are extremely limited.

Such oppor-tunities may be classified by the way they are initiated:

NRC Staff initiated, licensee initiated, and citizen initiated.

NRC Staff initiated proceedings are enforcement proceedings.

In such proceedings the licensee has a right to a hearing.

However, a court has ruled that citizens have no right to intervene if the licensee does not seek a hearing.

Bellotti y__ Nfill, 725 F.2d 1380 (D. C. Cir. 1983).

(Ironically, the court in Bellotti found that the petitioner was not left without a remedy, that remedy being the 2.206 petition.

At the time of that decision, 2.206 denials were reviewable, and the court relied on that fact.)

Licensee initiated proceedings are operating license amendment proceedings.

These are the only proceedings in which there is a

clear right to a hearing under section 189a of the Atomic Energy Act.

However, the scope of the proceeding is strictly limited to the subject matter of the specific amendment under consideration.

Unlike 2.206 petitions, however, final NRC decisions on operating license amendment proceedings may be appealed to the U.S.

Courts of Appeals.

The only mechanism available for citizens to initiate proceedings is a

petition under 10 CFR 2.206.

This regulation allows any person to file a petition with the NRC Executive Director for Operations seeking the institution of a proceeding to

modify, suspend, or revoke a license, or for such other action as may be proper.

However, this process does not provide a

meaningful mechanism for public input.

There is no right to a hearing on a

2.206 petition.

The decision is issued by the NRC Staff, not by an independent Licensing Board.

The vast majority of 2.206 petitions are denied.

Petitioners may not request Commission 3

review of a Staff denial of a 2.206 petition.

Finally, Judicial review of NRC denials of 2.206 petitions is not available.

When compared in this manner, the 2.206 process is again clearly unfair.

The NRC has the right to initiate a proceeding, the licensee has this right, but citizens are left with the woefully inadequate 2.206 petition.

With regard to the fact that the vast majority of 2.206 petitions are denied, comments were made at the July 28th workshop that it is inappropriate to play a numbers game; it is necessary to look to the merits of the petitions.

Certainly it is not credible to assume that all of these petitions were meritorious and should have been granted.

However, nor is it credible to assume that virtually all of the 2.206 petitions the NRC receives are lacking in merit.

Many of these petitions are submitted by highly knowl--

edgeable and respected petitioners, such as the Union of Con-cerned Scientists and state governments.

Some, such as OCRE's seismic petition regarding the Perry Nuclear Power Plant (see DD-88-10),

are based on the reports of qualified experts.

With other petitions, such as the one submitted by NIRS on Thermo-Lag, the NRC has tacitly acknowledged the merit of the issue by con-tinuing to pursue the resolution of this open item with industry, albeit without the participation of the petitioners, because their petition was denied as supposedly lacking in merit.

The lack of meaningful public participation opportunities after nuclear plants are licensed is inconsistent with the NRC's "Principles of Good Regulation," which states that "nuclear regulation is the public's business, and it must be transacted publicly and candidly.

The public must be informed about and have the opportunity to participate in the regulatory processes as required by law... "

As the D.C. Circuit Court of Appeals has made clear, "Congress vested in the public, as well as the NRC

Staff, a role in assuring safe operation of nuclear power plants."

Union Q.f Concerned Scientists Y....... NRC., 735 F.2d

1437, 1447 (D. C. Cir. 1984) (emphasis added).

We do not have a rational regulatory process when a

licensee cannot correct a

typographical error in its plant Technical Specifications without seeking an operating license amendment, complete with Federal Register notice and the opportunity for a

hearing, while there is no right to a hearing on serious issues such as Thermo-Lag, Rosemount transmitters, motor operated valve problems, station blackout, etc.

The 2.206 process must be reformed to create a process in which citizens have meaningful participation rights.

III. The Lack of Judicial Review A recent development which has made the 2.206 process even less meaningful is the lack of Judicial review. This is based on lower court application of a 1985 Supreme Court case which interpreted 4

the Administrative Procedure Act.

Specifically, 5

U.S.C.

701(a) (2) denies judicial review for those matters "committed to agency discretion by law."

Instead of confining this prohibition to those matters explicitly committed to agency discretion by law, the Supreme Court in Heckler y_,_ Chaney, 470 U.S. 821 (1985) expanded this provision to those implicit cases in which the governing statutes are so broadly drawn that no manageable stand-ards exist for judicial review, or "no law to apply."

While Chaney did not deal with atomic energy law, three circuits have applied its holding to 2.206 denials, finding that neither the AEA nor the applicable NRC regulations provide law to apply.

MASSPIRG Y....... NE.C., 852 F.2d 9 (1st Cir. 1988); Arnow Y.......

tIBc.,

868 F.2d 223 (7th Cir. 1989); s..af.§. Energy Coalition Qf. Michigan Y.......

NRC.,

866 F. 2d 1473 (D. C. Cir. 1989).

The lack of judicial review has made the NRC completely unac-countable in its decisions on 2.206 petitions.

The lack of judicial review enabled the NRC to evade serious consideration of OCRE's 2.206 petition concerning the Perry Nuclear Power Plant which raised serious concern, based on the report of an expert seismologist, on the seismic design of that facility.

Since the NRC knows that it will never be subjected to judicial

scrutiny, it does what it pleases with 2.206 petitions, which means that the vast majority of them are summarily denied.

This lack of accountability is best revealed by the dialogue which took place during oral argument in OCRE's attempt to obtain judicial review of the Perry seismic case. (The court, within a

week after oral argument, dismissed case due to Chaney and its progeny; QC.RE_

"!L... N..R.C., 893 F. 2d 1404 (D. C. Cir.

1990).)

Judge Buckley posed the following question to NRC staff counsel:

"Suppose the earthquake that occurred was a magnitude 6, and that the petitioner had six world-class seismologists, and that the NRC's decision was clearly incorrect; would that be reviewable?"

The NRC attorney replied, "No. "

It is interesting that prior to Chaney, 2.206 denials were con-sidered reviewable, and the courts routinely reviewed them.

See, e.g., Illinois y_._ lilill., 591 F.2d 12 (7th Cir. 1979); Porter County Chapter Qf. tfill. Izaak Walton League Qf. America y_,_ NEQ..,

606 F.2d 1363 (D.C. Cir. 1979); Rockford League Q.f. Women Voters Y.......

N.RC..,

679 F.2d 1218 (7th Cir. 1982); Seacoast Anti-Pollution League Qf.

fura. Hampshire y_,_ liRQ., 690 F.2d 1025 (D.C. Cir. 1982); County Qf.

Rockland Y...... NE.C., 709 F.2d 766 (2nd Cir. 1983). Only after Chaney did the NRC conveniently start advancing the unreviewability argument.

OCRE believes that the NRC truly took advantage of Chaney to evade accountability.

Congress has stated that the hearing process is intended to serve "a vital function as a forum for raising relevant issues regard-ing the design, construction, and operation of a reactor, and for providing a means by which the applicant and the Commission staff Q.a.Il ];& he.l.d accountable for their actions regarding a particular facility.

(T)he hearing process is essential to obtain 5

public confidence in the licensing process which is needed if the nuclear option is to be preserved."

H.R. Rep. No. 22, Part 2, 97th Congress, 1st Sess. 11 (1982) (emphasis added).

With no right to a hearing under 2.206, and no judicial it is clear that the NRC is accountable to no one in is tion of operating reactors.

review, regula-OCRE supports the restoration of judicial review for NRC denials of 2.206 petitions.

This can be done legislatively, and there is currently pending in Congress a bill which would accomplish this.

It could also be done administratively.

Although the adverse case law (Chaney and its progeny) does exist, the NRC could, the next time a petitioner tries to obtain judicial review of a 2.206

denial, not file a motion to dismiss based on Chaney.

The NRC could support the petitioner's position that the case is reviewa-ble.

Professor Davis is of the opinion that Chaney is bad

law, an aberration, and will not long endure.

Kenneth Culp Davis, "No Law to Apply," S-9.Il. Diego LsR Review, Vol. 25: 1, 1988.

The NRC could speed its demise by exercising leadership in urging the Supreme Court to revisit Chaney, much as the Justice Department in the Reagan and Bush administrations advocated the overturn of RQ.e_ ~ ~-

In addition, the NRC could amend its regulations to clearly provide "law to apply."

Since manageable standards for judicial review would then exist, Chaney's mandate would not extend to the NRC.

Although 0CRE supports judicial review in 2.206 cases, we recog-nize that it is not a panacea, due to the highly deferential standard of review which the Courts have established.

See, e.g.,

Baltimore Ga.a and Electric GQ....... y_.,._ N.B.D.C., 463 rr. S. 87 (1983)

(the NRC is making predictions "at the frontiers of science" and the Courts must be extremely deferential).

Therefore, OCRE supports administrative reforms as well as the restoration of judicial review.

IV. Remedies While OCRE certainly supports the suggestions for improvement of the 2.206 process contained in the NRC's background discussion paper, OCRE feels that they do not go far enough.

The root cause of the problem is the fact that the NRC Staff is the decisionmaker in 2.206 decisions.

Every 2.206 petition alleges at least implicitly, and in some cases explicitly, that the Staff has failed to properly exercise its responsibilities.

Predictably, the Staff's response is defensive of the status quo.

This problem was clearly explained by Ms. Jane Fleming at the July 28th workshop.

Tr. 25-26, 251.

Is it reasonable to expect the NRC Staff to objectively view a

petition which criticizes the Staff's performance?

Obviously 6

not.

This is really a separation of powers issue, and the remedy is review by an independent tribunal within the NRC.

The present provision for sua sponte review by the Commission is inadequate.

Petitioners must have the right to seek review and to receive it.

The ideal entity within the NRC which would serve as the inde-pendent tribunal for reviewing 2.206 decisions is the Atomic Safety and Licensing Board Panel.

As explained by Mr. Lee Dewey, counsel for the Licensing Board Panel, at the July 28th workshop, the Licensing Board Panel has the legal and technical expertise to review these cases.

Tr. 255-256.

Indeed, the Licensing Boards evaluate similar complex technical issues in initial li-censing and license amendment proceedings. There is no reason why they would not have the expertise to review 2.206 cases.

To continue the hypothetical example cited earlier, if the problems with Thermo-Lag had been discovered in 1981 instead of 1991, the Licensing Boards would have considered contentions and conducted hearings on Thermo-Lag in licensing proceedings.

It would be ridiculous to assert that the Licensing Boards could properly evaluate the Thermo-Lag issue in an operating license case but are unable to do so in reviewing a 2.206 decision.

Moreover, members of the Licensing Board Panel have expertise in due process of law, a concept which desperately needs to be inserted into the 2.206 process.

As an independent tribunal which is not involved in preparation of the Staff's 2.206 deci-sion, the ASLB Panel will not have the bias inherent in having a

Staff person evaluate a petition which criticizes the Staff's work (perhaps the work of that very individual).

The ASLB Panel is more appropriate for this review than is the Commission.

The Panel has the personnel resources and technical expertise that the Commissioner offices lack.

Reviewing every 2.206 decision at the petitioners' request would create too great a burden on the Commission.

A suggestion was made at the July 28th workshop that the Office of Commission Appellate Adjudication should perform this review function.

Tr.

252-253.

Under 10 CFR 1.24, this office has a

very limited role and actually acts in an advisory and opinion writing capacity to the Commission.

In addition, it is OCRE's understanding that the personnel and resources of this office are very limited.

Another suggestion was made at the workshop that the Office of Inspector General should conduct this independent review.

Tr.

230.

This office likewise has a limited role and limited re-sources.

OCRE believes that the ASLB Panel is the ideal entity to conduct reviews of 2.206 decisions.

The Panel has the technical exper-tise and the procedural expertise in conducting fair hearings.

Significantly, the Panel already has the personnel in place to perform this review function.

With the diminished caseload in the post-construction era, the Panel is an under-utilized re-7

source in the NRC.

It is also within the Commission's statutory authority ASLB Panel in this manner, as Section 191 of the AEA the Commission to "delegate to a board such other functions as the Commission deems appropriate."

to use the authorizes regulatory OCRE would propose the following revisions to the 2.206 process under this review scenario:

The "front end" of the process (from the filing of the petition to the issuance of the Director's Decision) would proceed much as it does now, with these exceptions:

(1) there is much more interaction and communication between petitioner and the NRC Staff; the petitioner is to be "in loop" in any interactions between the NRC and the licensee earning the petition.

the the con-(2) the petitioner has the absolute right to reply to any re-sponses to the petition filed by the licensee, or, in the case of generic issues, industry groups such as NUMARC, INPO, or owners groups.

No Director's Decision is to be issued before the peti-tioner has had the opportunity to reply, and all responses and

replies, of both the petitioner and the licensee, shall be con-sidered and evaluated by the Staff in preparing the decision.

The NRC Staff should remain in communication with both the peti-tioner and the licensee to determine whether further responses are forthcoming.

The petitioner also has the right to supplement the petition should new relevant information be discovered.

The "back end" of the process, from issuance of the Director's Decision to final agency action, is as follows:

Within 30 days after issuance of the Director's

Decision, the petitioner may seek Licensing Board review of the record in the 2.206 case.

This is to be done by filing a notice of appeal with the ASLB Panel Chairman.

Upon receipt of a notice of appeal, a Licensing Board, consisting of an attorney chairman and technical members having the appro-priate areas of expertise, is appointed.

Within 45 days after the_appointment of the petitioner should file a statement with the copies to the Director and the licensee, petitioner believes the Director's Decision Licensing Board, the Licensing Board, with explaining why the is in error.

The Licensing Board would then review the record in the 2.206

case, which consists of the 2.206 petition (and any supplements or amendments thereto), any responses to it filed by the licen-see, any replies to these responses filed by the petitioner, the Director's Decision, and the petitioner's statement of appeal.

The Licensing Board should afford the parties (being the peti-8

tioner, the NRC Staff, and the licensee) the opportunity to file additional written statements with the Board.

The Licensing Board would have substantial discretion in fashion-ing whatever informal procedures it deems, necessary for the resolution of the case.

These procedures would include confer-ences with the parties, oral argument, and the use of alternative dispute resolution techniques.

At the conclusion of the Licensing Board's review of the 2.206 case, the Licensing Board will issue an opinion either affirming the Director's Decision or referring the matter to the Commission recommending the institution of a formal proceeding or other such actions as may be appropriate.

The Licensing Board's opinion should thoroughly explain the basis for its decision and recom-mendations.

If the Licensing Board does not affirm the Director's Decision, but refers the matter to the Commission, the Commission should issue an opinion in the case within a reasonable time.

Before rejecting any recommendation of the Licensing Board, the Commis-sion shall give the parties the opportunity to conduct oral argument before the Commission.

If the Licensing Board affirms the Director's

Decision, the petitioner may request Commission review of the 2.206 case.

Commission review in such situations shall be entirely discre-tionary.

In either case, the decision of the Commission shall be final agency action in the 2.206 case.

OCRE believes that these procedures would provide the account-ability now missing in the 2.206 process.

These procedures would also provide an opportunity for meaningful public input.

They would enhance the credibility of the 2.206 process and of the agency.

V.

Other Matters A.

Labeling Misc. Correspondence as a 2.206 Petition; Consolida-tion of Petitions As stated in the July 28th workshop, OCRE has strong objections to the NRC's current practice of labeling correspondence, includ-ing postcards, as a 2.206 petition when no mention of that regu-lation was made by the author of such correspondence.

OCRE believes that persons who want the NRC to consider their concerns under the formal 2.206 process should be familiar enough with the NRC's regulatory program to cite the regulation.

If there is any doubt about the petitioner's intentions, the Staff should contact the petitioner to determine his or her wishes 9

regarding treatment as a 2.206 petition.

OCRE's concern is that petitioners, such as OCRE, that do a

thorough Job in researching and documenting their 2.206 petitions will be prejudiced by the NRC's prior consideration, as a 2.206 petition, of general correspondence on the same issues which may be poorly researched and documented.

Despite Staff protestations to the contrary at the July 28th workshop, the NRC does in fact apply a "res Judicata" standard, even if not specifically articu-lated as such.

For example, in the Director's Decision on the Perry seismic case, DD-88-10, the staff repeated its earlier conclusions set forth in its 1986 SSER 10 for

Perry, without addressing or refuting the new evidence in the petition based on the report of an expert seismologist.

Another example is PRM-50-49, a petition for rulemaking filed by OCRE on the exemp-tion rule, 10 CFR 50. 12.

The NRC denied this petition, and did not even publish a notice of it in the Federal Register for public

comment, a highly unusual move, on the basis that the issues raised in OCRE's petition had already been considered and resolved in the 1985 rulemaking on 10 CFR 50. 12 and in the back-fit rule remand rulemaking. (*)

OCRE also objects to the consolidation of 2.206 petitions without the consent of all petitioners involved.

In DD-86-4 regarding the Perry Nuclear Power Plant, OCRE's 2.206 petition was consoli-dated with a petition which was poorly written and unfocused.

OCRE's petition addressed the seismic issue only.

The other petitioner addressed the seismic issue and over a dozen other matters.

The Director's Decision mainly addressed the other petition and lumped OCRE's concerns in with it.

In fact, the Director's Decision even included a statement that both petition-ers claimed that the January 31, 1986 earthquake had damaged the Perry plant.

OCRE never made such a statement, although the other petitioner did.

OCRE believes that this consolidation damaged our case.

Certainly, the fact that such a

statement appeared in the Director's Decision is evidence that the NRC Staff did not thoroughly read OCRE's petition.

OCRE is especially concerned with the NRC's willingness to paint both petitioners with the same brush.

The NRC's inability to distinguish a

quality petition from one decidedly lacking in quality suggests that the agency has basic disrespect for members of the public.

Not every person-who is critical of the nuclear industry is a flake.

(*) The NRC claimed that no purpose would be served by soliciting public comment on issues already resolved in recent rulemakings.

However, this standard is not applied uniformly to all petition-ers.

Shortly after the NRC published the final revisions to 10 CFR 20 in May 1991, the NRC published for comment in the Federal Register a

notice on PRM-20-20, which raised issues already considered and resolved in the recent Part 20 rulemaking.

10

e B.

Standards for Operating Plants: Safety or Regulatory Compli-ance As discussed at the July 28th workshop by Ms. Leslie Greer (Tr.

115), the NRC apparently uses a double standard before and after licensing.

In the licensing proceeding compliance with regula-tions is required and is the standard of safety.

After a plant is operating, regulations can be violated but the NRC considers the plant safe anyway.

OCRE believes that a single standard should be used both before and after licensing.

That standard should be compliance with all regulations.

In a licensing proceeding, an intervenor cannot argue that, even though the plant complies with the regulations, it is still unsafe.

That is considered to be a challenge to the Commission's regulations, prohibited by 10 CFR 2.758.

Nor can an applicant claim a plant is safe anyway even if not in compliance.

Twenty years ago the Appeal Board clearly articulated that safety means regulatory compliance:

As a general rule, the Commission's regulations preclude a

challenge to applicable regulations in an individual licensing proceeding.

10 CFR 2.758.

This rule has frequently been applied in such proceedings to preclude challenges by intervenors to Commission regulations.* Generally, then, an intervenor cannot validly argue on safety grounds that a reactor which meets ap-plicable standards should not be licensed.

By the same

token, neither the applicant nor the staff should be permitted to chal-lenge applicable regulations, either directly or indirectly.

Thus, those parties should not generally be permitted to seek or Justify the licensing of a reactor which does not comply with applicable standards.

Nor can they avoid compliance by arguing

that, although an applicable regulation is not met, the public health and safety will still be protected.

For, once a regula-tion is adopted, the standards it embodies represent the Commis-sion's definition of what is required to protect the public health and safety.

In short, in order for a facility to be licensed to operate, the applicant must establish that the facility complies with all applicable regulations. If the facility does not comply, or if there has been no showing that it does comply, it may not be licensed.

It bears repetition that, under the principles we have set out above, it cannot be argued that, even though the reactor does not comply with the criteria, it should receive an unrestricted full-power, full-term license on the ground that there is reason-able assurance that it can operate without adversely affecting the public health and safety.

Such an argument might be factual-ly supportable, but would constitute an indirect attack on the applicable Commission regulations.

Again, the point to be made 11

is a simple one: reactors may not be licensed unless they comply with all applicable standards.

Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station),

ALAB-138, 6 AEC 520, 528-9 (1973).

See also Maine Yankee Atomic Power Company (Maine Yankee Atomic Power Station), ALAB-161, 6 AEC 1003, 1009 (1973) ("the sine qua non of adequate protection to public health and safety is compliance with all applicable safety rules and regulations promulgated by the Commission").

This is the standard which should apply after the plant is li-censed as well.

This should be the standard against which 2.206 petitions are Judged.

If the violations alleged in the petition are found to be true, then the petition should be granted and appropriate enforcement action taken.

Codification of this standard could provide "law to apply" which would enable the courts to review the Director's Decisions.

Curiously, the Appeal Board,- did not accept a "two-track" scheme of regulations as was mentioned by Mr. Marty Malsch at the July 28th workshop (Tr. 88).

The Appeal Board did not classify some regulations as necessary for adequate protection, while some are going beyond adequate protection.

The Appeal Board clearly stated that compliance with all. regulations is mandatory.

To repeat, "once a regulation is adopted, the standards it embodies represent the Commission's definition of what is required to protect the public health and safety."

Vermont Yankee at 528.

VI. Conclusion OCRE urges the NRC to carefully consider all the comments made at the July 28th workshop and made in writing.

It is essential that the 2.206 process be reformed so it is a meaningful mechanism for public participation in the regulation of operating reactors.

The NRC needs to enter a new era in which adversarial relation-ships with the public are replaced with a spirit of partnership with the public in the pursuit of safety.

Respectfully submitted, Susan L. Hiatt Director, OCRE 8275 Munson Road Mentor, OH 44060-2406 (216) 255-3158 12

GENERIC LE'1-1-ERS ON REMOVAL OF ITEMS FROM TECH SPECS

• 88-06 Removal of Organization Charts from Technical Specifications Administra-tive Control Requirements (3-22-88)

• 88-12 Removal of Fire Protection Requirements from Technical Specifica-tions (8-2-88)

• 88-16 Removal of Cycle-Specific Parameter Limits from Technical Specifications (10-4-88)

• 89-01 Implementation of Programmatic Controls for Radiological Effluent Technical Specifications in the Administra-tive Controls Sectionof Technical Specifica-tions and Relocation of Procedural Details of RETS to the Offsite Dose Calculational Manual or the Process Control Program (1-31-89)

• 91-01 Removal of the Schedule for Withdrawal of Reactor Material Specimens from Technical Specifications (1-4-91)

• 91-08 Removal of Component Lists from Technical Specifications (5-6-91)

NEW STANDARD TECH SPECS: APPROX.

36% OF CURRENT TECH SPECS WILL BE RELOCATED TO INTERNAL PLANT DOCUMENTS, CHANGED THROUGH 50.59

§k~,,_,,,,,,,,,, ~~vo/~,ta (})

~

o/ tk ~

'!Jene,,aJ J

SCOTT HARSHBARGER ATTORNEY GENERAL (617) 727-2200 Samuel Chilk

(!Jnb~g>~

PA~ ~

02-108--1698 August 26, 1993 Secretary of the Commission United States Nuclear Regulatory Commission Washington, D.C.

20555 Attention:

Docketing and Services Branch

Dear Mr. Chilk:

• 93 fl!lfr: 27 ti,-

/;10 :4 0 I appreciate the opportunity to comment on the Nuclear Regulatory Commission's ("NRC") background discussion paper on the Review of the §2.206 Petition Process.

I agree that it is appropriate for the NRC to reevaluate the process and its effectiveness.

As the primary formal method for members of the public to request NRC review of potential safety problems at licensed facilities, the process serves two important purposes.

First, it provides a means for the NRC to learn of potential safety problems.

In addition, it serves as the primary formal mechanism for members of the public to raise concerns about specific safety issues at nuclear facilities.

The criticism alluded to at page one of the background paper is primarily focused on the latter function of the §2.206 petition process.

In general, the NRC's record of processing §2.206 petitions has led to a perception by the public that the NRC is unresponsive to such petitions.

The backgrounp paper at page 2 implies that this perception is engendered by the fact that only one out of ten petitions filed with the NRC is granted i n whole or in part.

Background paper p. 8.

However, the perception that the NRC is 11nresponsive tb §2.206 petitions springs not merely from the fact that such petitions are regularly denied, but also from the method in which petitions are processed prior to their denial.

OCT 1 1993 Acknowledged by card................................ N

f j i "/,_; '" $ ~~ ~*.I * ~ ~ -

~ ~ * *,]

/.,C,~';'; :".~ ~-*_1: :"' : :_.;.....

~ :! *r:,

The background paper is correct in noting at pages 8-9 that in many, if not most, instances the only communications that a petitioner receives from the NRC is a letter acknowledging receipt of the petition along with a copy of the Federal Register notice to that effect and, sometime later, a decision by the Director denying the petition.

In the meantime, there are often extensive communications between the NRC staff and the licensee on issues raised in the petition.

Background

paper p. 9.

The petitioner is not privy to such interactions and is, therefore, not in a position to contribute his/her views on the representations made by the licensee to the NRC staff.

The one-sided interaction between the NRC staff and licensee contributes greatly to the perception that the NRC is unresponsive to public concerns.

Certainly, instituting modifications in the process such as putting the petitioner on the service list, allowing the petitioner to attend NRC staff meetings of the licensee, and allowing the petitioner to respond to submissions by the licensee would help to alleviate the concern that the present §2.206 process is one-sided.

Background paper p. 11.

However, the NRC should also in its review consider instituting some sort of hearing where the petitioner could present his or her concerns personally to the NRC personnel assigned to review the §2.206 petition.

While the NRC should consider holding adjudicatory hearing on §2.206 petitions, even a mechanism that would allow a less formal type of hearing would be an improvement over the present means of processing such petitions.

Another factor that undermines public confidence in the

§2.206 petition process is the lack of independence in the review process.

As the background paper notes at page 9, often the NRC staff involved in the review process are already familiar with the issue raised in the petition since the facts i n the petition are drawn from NRC documents.

In many i nstances, the NRC staff have already signed off on an issue that is the subject of a §2.206 petition prior the petition being filed.

When such a petition is denied, it is perceived the NRC staff is rubber-stamping a decision that has already been reached.

The NRC staff is viewed as locked into the i nitial judgment and having to uphold it or being at risk of r aising questions about their professional judgment as it was i nitially exercised.

Even giving full marks to the professional integrity of the NRC staff, there is a natural bias for people who have reached a conclusion to be drawn to t he same result when they have confidence in their original judgment.

Given the limitations of NRC personnel resources, it may not be possible t o have a fresh team of experts assigned to every §2.206 petition where members of the staff have already

reached a conclusion on an issue.

However, in reviewing the

§2.206 process consideration should be given to incorporating a mechanism that will afford an independent review.

One option for changing the §2.206 petition process that is discussed in the background paper at pages 11-12 is to focus on resolving safety issues rather than taking enforcement action.

This appears to be what already occurs in large part.

Apparently, the prime focus of the NRC staff in reviewing

§2.206 petitions is whether a significant safety issue is raised.

See transcript of July 28, 1993 Hearing on §2.206 Petition Process at p. 82-87.

The identification of a regulatory violation in a petition does not necessarily mean that the petition will be granted because the NRC will permit plants to operate outside of its regulations.

Hearing Tr. p.

83.

However, the NRC staff's focus on safety has not enhanced the credibility of the §2.206 petition process because is not linked to any objective criteria.

Indeed, whether a petition is granted appears to ultimately turn upon the staff's subjective judgment as to whether a significant safety issue is raised.

In evaluating changes to the §2.206 petition process, the NRC should consider adopting objective criteria for when a petition will be granted.

One obvious criterion that may be considered is compliance with the NRC's own regulations.

In licensing decisions the NRC has taken the position that compliance with its regulations ensures safety.

Public Service Company of New Hampshire, et al., (Seabrook Units 1 and 2), 31 NRC 197, 213-217 (1990).

In the interest of consistency, it would seem appropriate to apply the same standards for when enforcement action will be taken after licensing.

At the same time, consideration should be given to adopting a means to impose optional sanctions to those which are sought in the petition.

For the above reasons, I believe that it is appropriate that the NRC consider rule changes for §2.206 petitions.

Changes to the process could lend greater credibility to the process, and in turn, enhance the credibility of the NRC.

Sincerely, Leslie Greer Assistant Attorney General Environmental Protection Division

NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 ooc,~J~f&-01 J USNHC

• 93 JUN 23 P12 :21 I

l.

§ 2.206 Petitions Requesting Institution of a Proceeding to Modify, Suspend or Revoke a License, or for Such Other Action as May Be Proper; Workshop AGENCY:

Nuclear Regulatory Commission.

ACTION:

Notice of Workshop.

SUMMARY

The Nuclear Regulatory Commission (NRC) is initiating a review of its regulations and practice governing petitions under 10 CFR § 2.206.

The first step in that process will be a public workshop where participants from citizen's groups, industry, and government can exchange information on the objectives of the

§ 2.206 petition process, its effectiveness, and what, if any, revisions should be made to the process.

The workshop will be held in Bethesda, Maryland, on July 28, 1993, and will be open to the public.

DATES:

Wednesday, July 28, 1993, from 8:45 am to 5:15 pm at the Holiday Inn Bethesda, 8120 Wisconsin Avenue, Bethesda, Maryland.

Phone: (301) 652-2000.

As discussed later in this notice, the workshop discussions will focus on the issues identified in the background discussion paper developed by the NRC staff.

The Commission will accept written comments on the background paper from the public, as well as from workshop participants.

Written comments should be submitted by August 27, 1993.

ADDRESSES:

Send written comments on the background discussion paper to:

Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555.

ATTN:

Docketing and Service Branch.

Hand deliver comments to 11555 Rockville Pike, Rockville, Maryland between 7:45 a.m. and 4:15 p.m. on Federal workdays.

The background discussion paper is available from Francis X.

Cameron (See "FOR FURTHER INFORMATION CONTACT").

FOR FURTHER INFORMATION CONTACT:

Francis X. Cameron, Special Counsel for Public Liaison and Waste Management, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington D.C. 20555, Telephone: (301) 504-1642.

SUPPLEMENTARY INFORMATION:

Background

The§ 2.206 petition is the primary formal method for a member of the public to request Commission review of a potential safety problem with an NRC licensed facility, outside of a licensing or

3 rulemaking proceeding.

Any person may file a petition under 10 CFR § 2.206 to request that the Commission institute a proceeding to modify, suspend, or revoke a license, or for such other action as may be proper.

This process provides the public with a mechanism to raise issues of concern, which must then be reviewed and addressed by the Commission's staff.

Except as specifically provided in the regulations, each§ 2.206 petition is reviewed by the appropriate major program Office Director, who must either initiate the requested proceeding or issue a formal Director's Decision providing a specific disposition of the issues raised in the petition within a "reasonable time."

If the Director finds that the petition raises a substantial safety question, an enforcement order will be issued or other appropriate action taken, within the Director's discretion.

The§ 2.206 Petition Process Review and Workshop.

The Commission has approved the initiation of a review of its regulations and practice governing petitions under 10 CFR § 2.206.

The first step in this evaluation process will be a public workshop where knowledgeable affected interests will share their advice and recommendations concerning the§ 2.206 process with the NRC staff.

In addition to providing an opportunity for representatives. of affected interests to comment on the § 2. 206 process, the workshop will also provide an opportunity for participants from citizens' groups, industry, and government to

4 exchange information on the objectives of the§ 2.206 process, its effectiveness, and what, if any, improvements could be made to the process.

The Commission believes that, whatever the ultimate outcome of the Commission's evaluation of the§ 2.206 process, this educational aspect of the workshop will be valuable for all participants in terms of fostering a better understanding of the§ 2.206 process.

The NRC has not re-examined the§ 2.206 process in any systematic way since this provision was added to the Commission's regulations in 1974.

In addition, this process has been the subject of longstanding criticism by citizens' groups and by some members of Congress, primarily because most§ 2.206 petitions are denied.

Therefore, the Commission believes that it is time to evaluate the§ 2.206 process and to determine whether any changes should be made to that process.

This evaluation is also consistent with current Commission efforts to enhance public participation in the Commission's decisionmaking process.

The purpose of this review is to ensure that the§ 2.206 process is an effective, equitable, and credible mechanism for the public to prompt Commission investigation and resolution of potential health and safety problems.

In addition, given the reality of shrinking rather than expanding resources, the Commission believes that the evaluation of the§ 2.206 process must consider ho~ to achieve a more effective§ 2.206 process with equal or fewer resources.

5 The broad focus of the Commission's review of the§ 2.206 process is to determine whether§ 2.206 has proven to be an effective mechanism, for not only bringing potential safety problems to the Commission's attention, but also ensuring that the Commission has been responsive in evaluating any such potential safety problems.

The review of the§ 2.206 process will address such questions as:

What is the objective of the§ 2.206 process?

Is it meeting this objective?

How can the§ 2.206 process be improved?

Is this the most effective mechanism to bring safety problems to the Commission's attention?

What other mechanisms exist, such as, for example, the allegation management system, for bringing safety problems to the Commission's attention?

How are these different from§ 2.206 both in objective and procedure?

The workshop will not only focus on these broad issues, but will specifically address the procedures that the Commission uses to evaluate§ 2.206 petitions.

The staff has identified three broad areas of potential improvement to the§ 2.206 process which are discussed in more detail in the background discussion paper:

1.

Increasing interaction with the petitioner; 2. Focussing on resolution of safety issues rather than on requesting enforcement action; and 3. Categorizing petitions according to importance of issues raised.

Workshop Format The workshop format is based on a "roundtable" discussion of the

6 relevant issues by invited participants and representatives of the NRC staff.

The workshop discussion will be guided by the workshops issues paper and the agenda set forth below.

The NRC has invited representatives from a broad spectrum of affected interests who are knowledgeable on the§ 2.206 process.

Participants have been invited from citizen groups, industry, state government, and federal agencies.

The workshop is open to the general public and time has been set aside for comment and questions from the audience.

A member of the NRC staff will serve as the facilitator for the discussion.

A complete transcript of the workshop will be taken.

Workshop Agenda.

8:45am 9:00am 9:30am 9:45am 10:00am 10:30am 10:45am Welcome Francis X. Cameron, Office of General Counsel, NRC Opening remarks Dr. Ivan Selin, Chairman, Nuclear Regulatory Commission Workshop format - objectives, agenda, groundrules Participant introductions -

name, affiliation, concerns Historical overview of§ 2.206 Martin G. Malsch, Deputy General Counsel, Office of General Counsel, NRC Break Introductory discussion: Perspectives on the§ 2.206 process -

What are the objectives of the§ 2.206

11:40am 12:00pm 1:00pm 1:30pm 1:45pm 2:45pm 3:00pm 3:15pm 4:00pm 4:15pm 4:45pm 5:15pm 7

process? Do the current procedures and process meet these objectives?

What is the relationship of the§ 2.206 process to other mechanisms for the public to identify safety problems?

Public comment Lunch Potential revisions to the§ 2.206 process: Increased interaction between the NRC staff and the petitioner Public comment Potential revisions to the§ 2.206 process: Shift the focus of§ 2.206 petitions from a specific enforcement action to the exploration and resolution of the underlying safety issue Public comment Break Potential revisions to the§ 2.206 process:

Establishing categories of petitions according to significance of the issues raised and specifying different levels of internal review according to these categories Public comment Open agenda item for other issues Schedule for completion of the evaluation of the§ 2.206 process Closing remarks from participants

8 Background Discussion Paper.

The NRC staff has prepared a background discussion paper which will be provided to each potential workshop participant.

Additional copies will be available to members of the public in attendance at the workshop.

Copies will also be available in advance from the NRC staff contact identified above.

In addition to the comments on the background discussion paper provided at the workshop, the Commission also invites written comments on the issues, as noted under the heading "DATES".

Dated at Rockville, MD this o2J~ay of June

, 1993.

For the Nuclear Regulatory Commission.

J

yle, Secretary of the Comm1ss1on