CLI-82-16, Order CLI-82-16,denying Commonwealth of Ma 820217 Petition to Intervene & Request for Hearing Re IE 820118 Order.Stated Concerns Beyond Scope of Proceeding.State of Ma Not Entitled as of Right to Any Formal Hearing
| ML18047A709 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 07/30/1982 |
| From: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| To: | MASSACHUSETTS, COMMONWEALTH OF |
| References | |
| CLI-82-16, EA-81-063, EA-81-63, ORDER-820730, NUDOCS 8208030302 | |
| Download: ML18047A709 (6) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Nunzio J. Palladino, Chairman Victor Gilinsky John F. Ahearne Thomas M. Roberts James K. Asselstine
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- sERVED JUL 3 0198Z In the Matter of BOSTON EDISON COMPANY (Pilgrim Nuclear Power Station)
ORDER CLI 16)
Docket No. 50-293
. ( EA-81-63)
On January 18, 1982, the Office of Inspection and Enforcement issued.an Order. modifying the operating license for the Pilgrim Nuclear Power.Station, a Boston Edison Company (BECO) facility in Plymouth, Massachu~etts. The order provides that "[c]ontinued operation of the Pilgrim facility requires significant changes in Boston.Edison Company's*
control of licensed activities." It requires the Company to develop and*
implement "a comprehensive plan of action that will yield an indepe.ndent appraisal of site and corporate management organizations and functions, recommendations for imp"'rovements in management controls and oversight, and a review of previous safety-related activities to evaluate compliance with NRC requiremer:its.
11 Order Modifying License Effective Irranediately, Docket No. 50-293 (J~nuary 18, 1982) at 6, printed at 47 Fe.d. ~
4171 (January 28, 1982). (hereinafter, 110rder 11 ).
On February 17, 1982, the Attorney Gener~l for the Commonwealth of Massachusetts filed a Petition w~th the Corrmission seeking to intervene
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2 in a proceeding for modification of the Pilgrim operating license.
In support of his petition, th~ Attorney General alleges a non-discretionary right to intervene in the proceeding, pursuant to section 189a of the Atomic Energy Act, prior to any further NRC action
_with respect to the January 18, 1982 order.
For the reasons set forth below, we deny his request.
As a matter of law, section 189a does not provide a non-discretionary right to a hearing on ~11 issues arguably related to an acknowledged enforcement problem without regard to the scope of the enforcement action *.actually proposed or taken.
In order to be granted leave to intervene, one must demonstrate an interest affected. by the action, as required by 10 CFR 2.714. **BPI v. Atomic Energy Commission, 502 F.2d 424 (D.C. Cir. 1974). The scope of the action initiated by the Commission.may be limited and defined by the Corrmission.
The Commission may limit the issues in enforcement proceedings to whether the facts as stated in the order are true and whether the remedy selected is supported by those facts. Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), CLI-80-10, 11 NRC 438, Q
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at 441-42 (1980).*/ The order in this case_*limits the scope of a proceeding in this way.
It-states that in a hearing the issue would be whether, on the basis of matters set forth in the Order, the Order should be sustained. Order at 9-10.
In this case,_ the Attorney Genera 1 asserts four concerns with respect to the Order:
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In that order the Commission stated-the legal and policy considerations in suppo_rt of this view, 11 NRC 438, 441-42
[footnotes omitted]:
The reasons for this are simple.
We believe that.public health and *safety is best served by concentrating inspection and enforcement*resources on actual field inspections and related scientific and engineering work, as opposed to the
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cond~ct of legal proceedings; This consideration calls for a policy that encourages licensees to consent to, rath~r than contest, enforcement actions. Such a policy would be thwarted if licensees which consented to enforcement actions were routinely subjected to formal proceedings possibly leading to more severe or different enforcement actions. Rather than consent and risk a hearing on wh~ther more drastic relief was called for, licensees would, to protect their~wn interests; call for a hearing* on each enforcement order to ensure that the possibility of less severe action would also be considered. The end result would *be a major diversion of ~~
agency resources from project inspections and engineering investigations to the conduct:of hearings.
In our view cases such as Moog Industries [v. FTC, 355 U.S. 411 (1958)], clearly permit an agency to adopt a policy which avoids such a result.
Finally, the NRC already provides a separate procedure, under 10 CFR 2.206, for any interested person to seek enforcement actions beyond those adopted.
Furthermore, in appropriate cases enforcement orders may provide a broader scope, as has already been done in certain orders related to the Three Mile Island N~clear Station. The order in this case, however, was limi.ted to the issues noted above, an~ as such would not grant standing to parties seeking additional remedies.
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4 (1) Without participating in the review of BEC0 1s proposed corrective actions, the public can have no *assurance that continued operation of the facility will not jeopardize their health and safety. Petition at 3; *
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If the NRC requires the wrong, or insufficient changes in BECO's management systems and controls, an existing threat to public health and* safety will continue; (3) If NRC fails to require timely management changes this threat will continue; and (4)
If B_ECO fails to properly implement necessary manag~ment changes this threat will continue indefinitelY.. Attorney General's Brief at 5.
These concerns. are beyond the scope.of the proceeding.
The Attorney General does not oppose the issuance of the Order nor does he raise in his petition or brief any suggestion that it is unsupported by the facts it sets forth.
Indeed, far from disputing the facts set forth in the Order, the Attorney General* recites them to sh.ow the need for NRC action. Attorney General 1s petition at_3.
If anything, the Attorney General suggests that these facts not only support this Order but also support further NRC action. Consequently, the At'torney General is not entitled a? of right to any fonnal hearing in the proceeding* with respect to these concerns.
Nor do we believe that, under the circumstances, a discretionary hearing should be held.* See Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2~,
CLI-76-27, 4 NRC 610, 616 (1976.).
The NRC staff will give full and fair I,
5 consideration to any of the Attorney General's expressed concerns regarding future actions in this case, and we believe that this informal process will prove to be a satisfactory way of resolving those concerns.
If for any reason the Attorney General believes his concerns have not
-received adequate.attention or he desires more formal consideration of them, he may file a request for further enforcement action pursuant to_
10 CFR 2.206. Should any Commission analysis or information in a 2.206 petition show that the NRG-ordered modification program has not been either sufficient to address the problems or properly responded to by the licensee, the licensee bears the risk of further qction as appropriate.
In this way, the Corrmission believes-that ~he public hea 1th. and safety has been properly and adequately protected by its actions.
The Attorney General's request for a hearing is therefore denied.
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Corr.mis£ioner Gil~nsky dissents and would grant the petition.~-
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Had Commissioner Gilinsky been present, he would have affirmed his prior vote.
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- .*i It is so ORDERED.
Dated at Washington, DC, this 30th day of July, 1982.
6 For the Cornmissior:
Acting Secretary of the Commission