HL-3446, Comment Supporting Proposed Rule 10CFR2 Re Review of 2.206 Process

Comment Supporting Proposed Rule 10CFR2 Re Review of 2.206 Process

ML20056G349
Person / Time
Site:	Hatch, Vogtle
Issue date:	08/27/1993
From:	Mccoy C GEORGIA POWER CO.
To:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
References
FRN-58FR34726, RULE-PR-2 2.206, 58FR34726-00006, 58FR34726-6, HL-3446, LCV-0134, LCV-134, NUDOCS 9309030029
Download: ML20056G349 (8)

Text

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AUG-27-1993 14:45 FROM SOUTHERN.NJCLEAR.DPER.CO. TO 913015043200 P.02

• Georgia Power co-ca9y 40 inver ess Center Pcrowey --

Post Offee Box 1295 Bermnram. t.iabama 35201 -,!'K 4g IcieDhone 205 B77-7*22 C.K.uecoy OiB'FR 3'1716)

Georgia Power n{

Vce Pee?' Cent, Nsciear vore P'on August 27, 1993 "*"""**'"

Docket Nos. 50-321 50-424 HL-3446 50-366 50-425 LCV-0134

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Mr. Samuel J. Chilk c Secretary of the Comission ccy.m '.-

U.S. Nuclear Regulatory Comission -d.

Washington, D.C. 20555 ,- 'M

- ,;,a : 0 <-.m Attn: Docketing and Service Branch . 3MQ.[cy ['

'"Wome ,

Comments Regarding the NRC Staff's Review of the .

10 CFR Section 2.206 Process -'

(58 Federal Recister 34726 of June 29. 1993)

Dear Mr. Chilk:

1. INTRODLETION On June 29, 1993, the Nuclear Regulatory Comission (NRC) invited coments 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 coments in response to the NRC's invitation.

Georgia Power Company endorses NUMARC's comments and herein provides supplemental coments 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 Comission'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 rul e.

In particular, the NRC Paper, as well as the Federal Reaister 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 9309030029 930827' PDR PR f)h IJ 2 5BFR34726 PDR m

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U. S. Nuclear Regulatory Comission Page Two ,

of the Section 2.206 proct ,s -- the icentification and correction of safety deficienciesl -- it does not follow that the process is flawed l

merely because a small percentage of the petition; are granted. One

. would expect few safety deficiencies to be uncovered by such getitions  ;

I when the NRC and licensees havo extensive programs and methoos for  ;

ensuring public health and safety. Indt ?:1, it should be a rare j occurrence when thesa processes fail to identify and resolve conditions ,

that could create a cubstantial safety question.

, Nevertheless, Georgia Power Company strongly supports the Section 2.206  ;

i 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 tak;n tr.areon. To that end, we offer below our  !

specific observations regarding the curent Section 2.206 process.  !

j l II. DISCUSSION l l

1 As a preliminary matter, we note that the NRC Paper gives no j consideration to the po',antial resource burden upon licensees which  !

might arise from changes to the Section 2.206 process. While 1 recognizing that "the reality of shrinking rather than expanding [NRC] l l

re+1rces" mandates that the evaluation result in a "more effective Seaton 2.206 process with equal or fewer resources" (NkC 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 l l nuclear plant safety. As discussed in Georgia Power Company's coments ,

below, '.he current Section 2.206 process already incorporates many of i the suggestions discussed in the NRC Paper. Georgia Power submits that l further modificatien to the Section 2.206 process to increase public  :

particfpation is not warranted as it will increase costs for plant  !

operators, as well as the NRC Staff, without a comensurate increase in l safety.

l 1Based on the coments at the NRC's July 28, 1993, workshop on the Section 2.206 process, it appears that some public citizen groups I consider the primary goal of Section 2.205 to provide a mechanism for 1 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.

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Georgia Povaer ezL6 U. S. Nuclear Regulatory Commission Page Three A. Increasino Interaction B_etween 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, for 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.) l

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

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

This process directly resulted in the petitioners I 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 i no formal change to the current process is necessary for the NRC Staff j 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.

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Georgia Powerkh i

U. S. Nuclear Regulatory Comission page Four j B. Eocusino on Resolution of Safety issues Rather Than on Recuested Enforcement Action l 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 t of raising potential safety issues for prompt action by the NRC. As  ;

stated above, its fundamental purpose is the identification and  !

resolution of potenti..1 safety issues. Under limited circumstances, an adjudicatory proceeding may result. However, as stated above in n.1, based on some coments of public citizen groups at the NRC's July 28, 1993 Section 0.206 Workshop, it would appear that these groups are more r 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 l purposes of Section 2.206 while minimizing the perception that petitioner's safety concerns are being sumarily 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 4 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 I; with the NRC.

l 25 ee e.g., coments 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 coments by Mr. Martin Malsch, NRC Deputy General Counsel, sumarizing 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).

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AU3-27-1993 14:48 FROM SOUTHERN. NUCLEAR.OPER.CD. TO 913015043200 P.06 Georgia Powerkn U. S. Nuclear Regulatory Comission 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 will take enforcement action, if applicable, consistent with NRC's enforcement policy.

C. Catecorizine Petitions __and__Allocatino More Resources Accordina to

_the Importance of Issues Raised Categorizing petitions as suggested by the Staff (NRC Paper at 12-13) appears to be the current, albeit iniormal, approach to allocating Staff resources. We recomend 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 HRC 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. Providino For a Formal peview Process for Director's Decisions The NRC's existing procedures, whereby the Comission 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 3T his issue was raised as a concern at a July 15, 1993 hearing held by the Senate Subcomittee on Clean Air and Nuclear Regulation.

AUS-27-1993 14:49 FROM SOUTHERN. NUCLEAR.OPER.CO. TO 913015043200 P.07 Georgia Power b 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. . . .

Lda, 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 cost' and create substantial delays in ultimate resolution of the issues raised.

111. CONCLUSION Georgia Power Company submits that, on the whole, the current Section 2.205 process has served as a credible, equitable and effective mechanism for the public to raise potential safety concerns to the NRC

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Georgia Power u( j U. S. Nuclear Regulatory Comission Page Seven j for resolution. The process allows any person to raise any issue to I the NRC, without regard for the petitioner's legal standing or his l basis for the concern, for NRC investigation and resolution. NRC experience to date demonstrates that the current process is serving its l goal of identifying, and causir.g the resolution of, safety issues which j had not previously been addressed by either the licensee or the NRC. .,

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

Concerns about the Section 2.206 process which have been expressed to l 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 j participation in the Section 2.206 process without creating a i~

significant increase in the resource burdens on the NRC Staff and licensees. Sibstantial modifications to the process to provide for  :

increased public participation will not yield a significant safety  !

benefit and are, therefore, not warranted. l l

Should you have any questions, please advice. j Respectfully submitted. l C. K. McCoy CKM/CRP cc: Georcia Power Comoany 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. S. Nuclear Reaulatory Comission. Washinoton. DC K. N. Jabbour, Licensing Project Manager - Hatch D. S. Hood, Licensing Project Manager - Vogtle U. S. Nuclear Reculatory Comission. Reaion II S. D. Ebneter, Regional Administrator L. D. Wert. Senior Resident Inspector - Hatch B. R. Bonser, Senior Resident Inspector - Vogtle  ;

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HL-3446 LCV-0134 TOTAL P.08-

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Southem Nuclear Operating Company ,

the southern electiscsystem REGULATORY, ENGINEERING, AND ENVIRONNDRAL SERVICES i

DATE: S[2'7[93 l

NUMBER OF PAGES: _ 9 (Excluding Cover Page)  !

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