ML13308A867
| ML13308A867 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 03/13/1985 |
| From: | Thompson H Office of Nuclear Reactor Regulation |
| To: | Erickson M - No Known Affiliation |
| References | |
| NUDOCS 8503150351 | |
| Download: ML13308A867 (28) | |
Text
UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555 March 13, 1985 Ms. Mary C. Erickson 1C01 South Ola Vista San Clemente, California 92672
Dear Ms. Erickson:
Your letter dated January 23, 1985, addressed to Mr. Harold Denton, has been referred to me for reply. Your letter (1) protested the plan to start up San Onofre Nuclear Generating Station, Unit No. 1 without a public hearing, and (2) indicated that there are questions that need to be answered such as embrittlement.
As you are probably aware, in August 1982 the NRC issued an order which confirmed a voluntary agreemnent by Southern California Edison Company (SCE) to forego the submission of additional technical data demonstrating seismic qualification of all safety systems to 0.5g and to instead modify the facility to a 0.67g level.
This issue was raised during the NRC's Systematic Evaluation Program (SEP) for San Onofre Unit No. 1.
Following its review of additional information provided by the licensees, the staff on November 21, 1984, authorized resumption of operations having concluded that such action would not pose an undue risk to the public health and safety. In connection with this action, a hearing was requested by the Sierra Club and others. A copy of the Commission's decision of February 19, 1985, denying that request is enclosed for your information. In this decision, the Commission concluded that the order merely suspended authority to operate pending modifications to the facility and approval by the NRC to restart; no provision of the license itself was modified. Accordingly, a license amendment to restart the facility was not required and under these circumstances, a prior hearing was-not required.
The NRC staff has had the generic concern of pressurized thermal shock
("embrittlement") under review for several years. A proposed rule on pressurized thermal shock was published on February 7, 1984 for public comment (49 FR 4498).
The rule, when approved by the Commission, will be applicable to San Onofre Unit No. 1, and contains provisions requiring surveillance, reporting, actions to slow the embrittlement, analyses, and corrective actions at certain embrittlement levels. The proposed final rule is scheduled to be forwarded to the Commission for approval during March 1985.
8503150351 850313 PDR ADOCK 05000206 P
PDR PDR.
Ms. Mary March 13, 1985 In closing, it is the NRC staff's position that no open issues exist for San Onofre Unit 1 that would affect the safe operation of the plant and therefore there is no undue risk to the health and safety of the public.
I trust that this letter answers your concerns.
Sincerely, Frank Miraglia/for Hugh-L. Thompson, Jr., Director
.Di'vision of Licensing Office of Nuclear. Reactor Regulation
Enclosure:
As stated DISTRIBUTION DL #768 Central File ORB #5 Reading CJamerson JZwolinski CGrimes OELD DCrutchfield/Schum MJambor/HThompson WPaulson OELD Retyped by CSchum 3/1/85 HT pon
- SEE PREVIOUS PAGE FOR CONCURRENCE 3 / /85 DL: ORB #5*
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Docket No. 50-206 Ms. Mary C. Erickson DISTRIBUTION DL 768 1901 South Ola Vista Docket OELD San Clemente, California 92672 ORB Reading DCrutchfield/CSchum CJamerson MJambor
Dear Ms. Erickson:
JZwolinski WPaulson CGrimes Your letter dated January 23, 1985, addressed to Mr. Harold Denton, has been referred to me for reply. Your letter (1) protested.the plan to start up San Onofre Nuclear Generating Station, Unit No. 1 without a public hearing, and (2) indicated that there are questions that need to be answered such as embrittlement.
As you are probably aware, in August 1982 the NRC issued an order which confirmed a voluntary agreement by Southern California Edison Company (SCE) to forego the submission of additional technical data demonstrating seismic qualification of all safety systems to 0.5g and to instead modify the facility to a 0.67g level.
This issue was raised during the NRC's Systematic Evaluation Program (SEP) for San Onofre Unit No. 1.
Following its review of additional information provided by the licensees, the staff on November 21, 1984, authorized resumption of operations having concluded that such action would not pose an undue risk to the public health and safety. In connection with this action, a hearing was requested by the Sierra Club and others. A copy of the Commission's decision of February 19, 1985, denying that request is attached for your information. In this decision, the Commission concluded that the order merely suspended authority to operate pending modifications to the facility and approval by the NRC to restart; no provision of the license itself was modified. Accordingly, a license amendment to restart the facility was not required and under these circumstances, a prior hearing was not required.
The NRC staff has had the generic concern of pressurized thermal shock
("embrittlement") under review for several years. A proposed rule on pressurized thermal shock was published on February 7, 1984 for public comment (49 FR 4498).
The rule, when approved by the Commission, will be applicable to San Onofre Unit No. 1, and contains provisions requiring surveillance, reporting, actions to slow the embrittlement, analyses, and corrective actions at certain embrittlement levels. The proposed final rule is scheduled to be forwarded to the Commission for approval during March 1985.
I hope that this letteranswers your concerns.
Sincerely, Hugh L. Thompson, Jr., Director Division of Licensing
Enclosure:
As stated
- SEE PREVIOUS PAGE FOR CONCURRENCE DL:ORB#5*
DL:ORB#5*
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OELD*
DL:AD/SA DL:A/DIR CJamerson:jb WPaulson JZwolinski SBurns 6DDCrutchfield FMiraglia 02/12/85 02/12/85 02/12/85 02/22/85
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Docket No. 50-206 Ms. Mary C. Erickson DISTRIBUTION 1901 South Ola Vista Docket OELD San Clemente, California 92672 ORB Reading DCrutchfield/CSchum CJamerson MJambor
Dear Ms. Erickson:
JZwolinski WPaulson CGrimes Your letter dated January 23, 1985, addressed to Mr. Harold Denton, has been referred to me for reply. Your letter (1) protested the plan to start up San Onofre Nuclear Generating Station, Unit No. 1 without a public hearing, and (2) indicated that there are questions that need to be answered such as embrittlement.
As you are probably aware, in August 1982 the NRC issued an order which confirmed a voluntary agreement by Southern California Edison Company (SCE) to forego the submission of additional technical data demonstrating seismic qualification of all safety systems to 0.5g and to instead modify the facility to a 0.67g level.
This issue was raised during the NRC's Systematic Evaluation Program (SEP) for San Onofre Unit No. 1. Had SCE's-voluntary agreement not been offered and had SCE submitted data confirming the seismic qualification of equipment to 0.5g, the normal SEP seismic upgrading process would have gone forward without any necessity for a.plant shutdown order. Accordingly, the Commission concluded that the order merely suspended authority to operate pending modifications to the facility and approval by the NRC to restart; no provision of the license itself was.modified. Accordingly, a license amendment to restart the facility was not required and under these circumstances, a prior hearing was not required.
The NRC staff has had the generic concern.of pressurized thermal shock.
("embrittlement") under review for several years. A proposed rule on pressurized thermal shock was published on February 7, 1984 for public comment (49 FR 4498).
The rule, when approved by the Commission, will be applicable to San Onofre Unit No. 1, and contains provisions requiring surveillance, reporting, actions to slow the embrittlement, analyses, and corrective actions at certain embrittlement levels. The proposed final rule is scheduled to be forwarded to the Commission for approval during March 1985.
I hope that this letter answers your concerns.
Frank J. Miraglia, Acting Director Division of Licensing DL:ORB#5 DL 5
DL:ORB#5 L
DL:AD/SA DL:A/DIR CJamerson j WPau son JZwolinski rns DCrutchfield FMiraglia 85 1
/85 L-//'/85 a2./st/85
/ /85
/ /85
SUMILU STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COM SS IONERS:
Nurnzic 3. Palladino, Chairman Th7 a
. Roberts
.ames K. Asselstine Frederick M. Bernthal Lanco W. Zech, Jr.
SEVED FEB 11
- r. the Matter of
)
50JHERN CALIFORNIA EDISON
)
Docket No. 50-206
(
One fre Nuclear Generating
)
StatLion, Unit 1))
DENIAL OF PEOUEST FOR HEARING AND REOLIEST FOR STAY On December 7, 1984 the Sierra Club, the Southern California Alliance for Survival Resources Center, and Tim Carpenter
( 'Petioners") filed before the Conmssion a request for 2 hearing on an order issued November 21, 1984 by the Office of Nuclear Reactor Regulation and entitled "Contingent Rescission of Suspension" (hereinafter "November 1984 Order").
The November 1984 Order lifted the suspension of operation of San Onofre Nuclear Generating Station Unit No. I that had been imposed by an earlier NRC Staff order issued on Aucust 11, 1982. The Petitioners also requested that the Commission stay the November 1984 Order pending completion of the requested hearing, thereby shutting down the facility. The San Onofre Unit 1 nlcersees, Southern California Edison and San Diego Gas and Electric
- Company, and the NRC staff opposed the request for a hearing and Stay.
2 The petitioners filed a lenothy "Reply to Opposition" on December 18, 1984,*whereupon the Commission authorized the filing of further opposing briefs by January 9, 1985.
The staff and the licensees then responded in detail to the petitioners' "Reply to Opposition". Having carefully considered all this material, the Commission concludes for the reasons civen below that the request for hearing and the request for a stay should be denied.
- 1. Backoround San Onofre Unit 1, located on the Southern California coast near Oceanside, is one of the older nuclear generating facilities, having received an operating license in 1967. As part of a Systematic Evaluation Procram ("SEP") the staff has been re-evaluating eleven older operating plants, including San Oncfre Unit 1. In-particular, pursuant to the SEP the staff has been reevaluating the capability of the facility to withstand earthquakes. The original seismic desian basis for San Onofre Unit 1 required that the plant be able to shut down safely following a 0.5g Housner spectrum earthquake, in current terminology. See Safety Evaluation Report, Return to Service Plan, San Onofre Generating Station, Unit 1, Docket No. 50-206, November 1984
("SER").
in May, 1982, during a plant outage,.the staff became concerned because of unexpectedly high stresses reported during reevaluation of certain piping systems and mechanical equipment that San Onofre Unit 1
3 micht not meet its original 0.5g design basis.
The licensee proposed to the staff by letters of June 15 and 24, 1982 that, instead of undertaking costly analysis to reconfirm that the plant met its original 0.CC desicn basis, the licensee would instead commit to maintaining the plant in a shutdown condition until completion of a program initiated in 1973 to unrade the plant to 0.67o, which is the seismic criteria, applied to Units 2 and 3 that were later built at the same site. The staff agreed that completion of the 0.67g upgrade program would resolve staff ccncerns about whether San Onofre Unit 1 met its original design b
Accordinglv, on August 11, 1982 the staff issued an "Order Confirminc Licensee Commitments on Seismic Upgrading" (hereinafter "Aucust 1982 Order"), which required that the licensee maintain San Onofre Unit I in the shutdown condition-until odifications described in their submittal dated June 15, 1982 as supplemented by letter dated June 24, 1982 are completed ard NRC approval is obtained for restart.
47 Fed. Reg. 36058 (Aug. 18, 1982).
Since the August 1982 Order was issued the licensees have completed a substantial part but not all of the committed-to modifications. As the work progressed it appears that the costs of the modification, tocether with the costs of the extended shutdown, were found to be oreater than the licensees originally estimated.-
L.n late 1983 the licensees began to explore with the staff the possibility that,*
2The unexpected costs of an extended shutdown included a requirement by the California Public Utilities Commission that San Onofre Unit 2 either be returned to full service by January 1, 1985 or removed from the licensees' rate base.
4 consistent with NRC regulations and adequate protection of public health and safety, San Onofre Unit 1 might be re.turned to service for a limited period while the remaining upgrades needed to reach 0.67g'are being completed.
In the November 1984 Order, "Contingent Rescission of Suspension,"
the staff noted "that there is reasonable assurance that operation of San Onofre Unit I can be resumed prior to completion of the seismic reevaluation program without posing an undue risk to public health and safety."
The staff stated further "that the licensee has reasonably established the seismic capability of the systems which would provide the capability to achieve and maintain a hot standby condition in the event cf a 0.67c modified Housner spectrum earthquake.
Moreover, with respect to other systems, the staff stated that "available information indicates that the plant should withstand a 0.5g seismic event, and may even withstand larger events without substantial damaoe."
The Staff documented these conclusions in an accompanying Safety Evaluation Report (SER).
Concluding on the basis of this evaluation that public health and safety no longer required suspension of plant operation, the staff rescinded the suspension of operation imposed by the August 1982 Order, "provided that the remainder of the seismic reevaluation program and the resulting plant modification are completed by the end of the next refuelino cutaoe' or that the licensees submit an adequate justification for an extension of time. November 1984 Order at 4, 5. The plant resumed operation shortly thereafter. On December.7, 1984 the
Commission received the petitioners' request for a hearing on the November 1984 order and a request for a stay of that order..
II.
he Petitioners' Request for a Hearinc On I1he E-v eper 8r Order At the outset we are confronted by the petitioners' claim that the November 1984 Order is a license amendment and that the Commission is therefore obliged as a matter of law to offer a hearing on the order to interested persons.
Since the November 1984 Order does temporarily relieve the licensees of certain burdens imposed by the August 1982 "Order Confirming Licensee Commitments on Seismic Upgradings" and authorizes operation of San Onofre Unit I before all the conditions of that earlier order have been met, the petitioners are correct that the November 1984 Order would be a license amendment if the August 1982 in an order dated December 10, 1984 the Commission denied the petitioners' request for a decision as early as December 12, 1984 but acreed to an expedited schedule for filing responses.
On December 18, 1984 the petitioners filed a lengthy "Reply to Opposition," which greatly expanded upon their original arguments.
The Commission thereupon allowed opposing parties until January 9, 1985 to respond to this reply.
3 EC Section 189a of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2239(a), states in any proceeding under this Act, for the granting, suspending, revoking, or amending of any license...
the Commission shall grant a hearing upon the request of any person whose interest may be ffected by the proceeding.
Affidavits of the petitioners appear to establish that in all probability they would qualify as interested persons by virtue of residence and activities in the vicinity of the San Onofre facility.
Order had amended the San Onofre operating license. If, however, the conditions for further operations imposed by the August 1982 Order were not made-part of the license by that order, then the Commission can modiy or suspend those conditions simply by a subsequent order without going through the procedural steps required for a-license amendment. In short, unless the August 1982 Order was itself a license amendment, the November 1984 Order rescinding it in part need not be treated procedurally as a license amendment on which interested persons would be entitled to a hearing.
The Commission has concluded that the Aucust 1982 Order confirming the licensee's comitment to complete the 0.67g upgrade program prior to restartinc San Onofre Unit 2 did not amend the San Onofre Unit I license. Accordingly, the Commission rejects the petitioners' argument that the conditional rescission of that order must.be treated as a license amendment. The August 1982 Order in no waEy expanded the licensee's authority under its 1967 operating license, nor did it authorize or direct the licensees to take actions inconsistent with or not already authorized by its existing license.
Instead, as a detailed examination shows, the order cut back on the licensees' authority and was in effect a license suspension, an action which can be entirely 4
distinct from an amendment.
4The petitioners object to the characterization of the Aucust 1982 Order as anything other than a license amendment in part because of various asserted discrepancies between the form of the order and the reouirements of the Commission's reculations governing enforcement orders.
10 CFR Part 2. The Commission sees such discrepancies as
[Footnote Continued]
.7 The San Onofre Unit 1 operating license required that the plant be.
built.and operated so as to withstand earthquakes of 0.5g ground acceleration. The-licensees' voluntary commitment to upgrade the plant to 0.67c was in effect.a commitment to make the plant safer than its icense required.
Such an action neither contradicted the existing license nor did it in general call for additional authorization.
Similarly, the licensees' decision to keep the plant shut down during the upgrading was an action within the terms of its existing license, since a shutdown is obviously a mode of operation allowable under the Atomic Energy Act without additional authorization.
By confirming the licensees' commitment to these actions, thereby making them enforceable by the Commission, the staff's order of August 11, 1982 thus had the effect cf suspendinc the 1967 operating license, which otherwise would have permitted continued operation prior to completion of the 0.67g, upgrade, but it did not amend the license or otherwise foreclose the possibility that the licensees' oricinal authority could be prompt'y restored upon reconsideration by thE Commission or upon a finding that
[Footnote Continued]
beside the point. It does not follow that if the August 1982 Order did not meet.all the formal requirements of an enforcemen.t order, it would then have been a license amendment. This is particularly so since the order did not meet the procedural requirements for a license amendment either, e.o. the prior notice and offer of a hearino to interested persons required by section 189a of the Atomic Energy Act were not included in the order, an omission which would have required an explanation and justification if the order had been intended to amend The license. See 10 CFR 2.204. Finally, if there were defects in the form of the order, they micht or might not have been prejudicial to the licensees, but they were not so for the petitioners. Thus the peti oners have no standinc to complain of these alleged defects and hey cannot use them as a basis for transforming the nature of the order to the disadvantage of the licensees.
8 circumstances no longer warranted the additional restrictions imposed by the 1982 order.- The Commission's ability to suspend a license in this manner and later lift the suspension is a necessary part of its reculia:ory capability to act quickly in protection of health and safety, without being deterred by concern that prompt action against a licensee may prove difficult to undo later when the need for it ha;spassed.5 In sum, then, the August 1982 Order was a suspension of the San Onofre Unit 1 license. The conditions specified for lifting the suspen sion did go beyond the conditions for operation already in the license, but the order did not formally amend the license to.incorporate the added conditions. Accordingly, the staff remained free to relax those conditions if it later perceived they were excessive or no longer required.
As an exercise of that authority, the November 1984 Order 5This is not to say that it would never be appropriate to incorporate into the license a cut-back on licensee authority or imposition of new burdens.
The decision is one of agency discretion and intent, however, rather than statutory compulsion.
Thus the Commission could have chosen as a matter of discretion to put the "Order Confirming Licensee Commitments on Seismic Upgrading" into the form of an order modifying the license, including therewith the appropriate notice and oiler of a hearing to interested persons as required by Section 189a, but it is obvious from the form of the order that this was not the intention. Because of the public interest in the status of San Onofre Unit 1, at the time the August 11, 1982 confirmatory order was issued, the Director of the Office of Nuclear Reactor Regulation issued a "Letter to California Residents" describing the confirmatory order.
Nothing in this letter suggested that the licensees' commitment to extend the San Onofre outage until the 0.67 upgrade was completed was being made part of the license. Any persons believing that the commitment should have been made part of the San Onofre license could have petitioned the NRC so to amend the license.
10 CFR 2.206. The 2.206 procedure was well known to interested citizens,.who had previously'filed such petitions seeking a suspension or revocation of the San Onofre license. No petitions for an amendment incorporating the licensee's cormmitment.were received.
9 lifted the suspension, temporarily restoring to the licensees the authority they possessed under their original license. 6 It also temporarily and conditionally rescinded the new operating requirements which the staff had imposed as an act of regulatory discretion in its Aucust 1982 Order but had not made part of the license.
There is no statutory requirement for the Commission to offer a hearing on such an order. It is well established that the hearing requirements of Section 189a do not apply when the Commission lifts a suspension.
Deukrmejian v. NRC, D.C. Cir. No. 81-2035 (decided December
, 194, Slip Op. at 43.
Similarly, the categories of agency action specifically enumerated in Section 189a for which an offer of a hearing is required do not include the rescission of an order imposing extra-license requirements.
Where Congress has made the statutory Contrary to the petitioners' view, we do not see in the staff's 2984 SER any admission that San Onofre Unit 1 is now operating with a sma ler marcin of safety than its 1967 license required. Rather, it is the staff's position that in view of the extensive upgrading already achieved the margin of seismic.safety has been increased, even relative to what the staff believed that margin to be in November 1981, prior to the discovery of the high stress values which aroused the staff's concern regarding whether the original licensing basis was satisfied.
See paragraph 14 of Affidavit of Christopher J. Grimes, attached to the T'NRC Staff's Response to Sierra Club, et al's 'Reply to Opposition.
As a matter of discretion the Commission may offer a hearing prior to lifting a license suspension. This is the course the Commission fcllowed with regard to the restart of Three Mile Island, Unit 1. The Commission decision to require a formal hearing prior to TMI-1 restart was based on the particular circumstances of that case and did not establish an agency requirement for hearings on the lifting of license suspension. The Commission has generally denied such requests.
- See, e.o., the Commission's lifting of the suspension of the Diablo Canyon low power cperating license.
In the Matter of Pacific Gas and Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 anG 2, 19 NRC 953 T7984), aff'd, Deukmeiiar v. NRC, supra.
10 hearing requirements explicit, further implicit requirements should not be read into the -language of Section 189a.- "If a particular form of Comihssion acticn does not fall within one of the eight categories set forth in the section, no hearing need be granted by the Commission."
Deukmejian v. NRC, Slip Op. at 48. Accordingly, the Commission is not obliged by law to offer the petitioners a hearing on the November 21, 1984 "Contingent Rescission of Suspension."
TI.
The Petiticners' Reouest for a Stay of the Ncver~De0 U
Ord er In view of the Commission's conclusion that the November 1984 Order was not a license amendment and that the order has complied with all procedural requirements of the Atomic Energy Act, there is no ongoing proceeding with respect to San Onofre Unit 1. Accordingly, the peti tioners' request that the Commission stay the order, thereby shutting down the plant, is properly before the agency only if viewed as a petition for enforcement action filed pursuant to 10 CFR 2.206.8 Such a request for an immediate shutdown could be granted, even if a license violation could be demonstrated, only in cases of willfulness or of immediate threat. to public health and safety. See Petition for Emergency and Remedial Action. 7 NRC 400, 404 (1978) (citing the 8The provision for filing petitions for enforcement action pursuant to 10 CFR 2.206 does not accord discovery rights, although the granting of a 2.206 petition might lead to a formal adjudication in which discoverv' would be available. There being no such proceeding involving San Onofre Unit 1, the petitioners' discovery requests filed in connection with their hearing and stay request are not in order.
Administrative Procedure Act, 5 U.S.C. 558(b)).
in the present case the NRC staff has specifically found that the.operation authorized by the 9
order presents no undue risk to public health and safety.
The Commis sion finds that the staff has given a reasonable explanation of this finding in the SER and the papers filed with regard to the Petitioners' requests. Based on this material the Commission denies the request for a stay.
0 nThis being so, it is questionable whether the petitioners' claim that restart of San Onofre Unit 1 "must be preceded by an environmental review.under the National Environmental Policy Act," even if correct, wculd justify the immediate suspension of a license until such a review is performed, particularly in the absence of any attempt by the petitioners to show that resumed operation of San Onofre Unit 1 will cause environmental impacts not already analyzed by the agency. Cf.
Wisconsin v. Weinberoer, 745 F.2d 412 (7th Cir. 1984); Alaska v. Andrus, 580 F.2d 405 (D.C. Cir.), vacated in part on other orounds sub nom.
Western Oil and Gas Ass'n v. Alaska, 439 U.S. 922 (1978).
In any event, the Commission rejects the claim that the contincent rescission order required a prior NEPA analysis.
The order simply restored the status ouo prior to the 21982 suspensicn order, permitting San Onofre 1 to resume an operation with no anticipated change in the environmental impacts which were evaluated and found acceptable in a Final Environmental Statement issued in October 1973. The Petitioners have sugcested no reason why those impacts would be chanced by the November 21, 1984 order and none is apparent.
.12 CONCLUSION For the reasons gven above the Request for Hearinc and Recuest for Stay is canded.
Cormissaioner Asselstine disapproved this order and his separate views are attached.
The add4itional vie.'s of Chairman Palla.in an Cadssioners Robe-ts, Bernthal, and ech are also attached.
It is so ORDR D.
Tor the Co.ission Secretary of the Commission Dated at ashigrton, DC this 19th day of February, 1985
DISSENTIN~ VIEWS COMMI551TONERT ASSELSTINE The central legal questir F-esented by petitioners' request for F herinq s wnezar :ne Commission's November 19r "orntircent Recission of Fuspens on" is a license nndrment.
If it is an amendment, the Commission is most prcbtbly required by section 1C8 r-the Ptomic Energy Act (AEA1 to provide an oorturn'yf for a prior hearing if it cannot make a "no sniFcent hazaros consideration" findinc. Whether the Commission's November 198Z rrcr rernds the license depends upon whether the cicina sutdown order of Auoust pr?
was Pr emendment.
If the 1982 corer was rrrl'. a icense suspension and not an amendment,.then the 1986 oer merely lifts the suspension and rc oprortunity for a hearing is required. Deukmefian v. NRC, Nio 81-20-5 (D.C.
Cir. December 31, 1984).
The Commission has cnr cro that the Aucust 1982 order did not amend the San Onofre
'cense.
The Commission savs.that thc '982 order is not an amendment because the purpsrP cF the uprade to.
wais to make the ;lar.t safer and that action neither contradicted the ry'sting license nor did it call for acditirEr t.therization.
Slip Op. at 7. Wec arc told that allowinc the plant to cperate in the interim unt 1.thc upgrade is completed was within the terms f' thp Pyisting authoritv so that the recuirement in the 1982 order that the plant remain shut dowr pending corpletion was a license suspensicr, cr +
license amendment.
The Connission majority says that it has complete discret4on, then, to replx Fry Frt c' the order at any time.
SFip Op.
at F.
According to the Commission, it could have cecided tc incorporata the chance in authority -rtr:
hc-license, but again
-2 that decision is the Comnission's. The Commission has, then, according to the majority, complete discretion to label its actions as either amendments or suspensions. Slip.._p. nt 8.
I cannot acvee with the Commission's conclusions.
T
'mrpthize with the majority's desire to retpir mE.Yinun enforcement and regulatory flexibility.
1too believe that our enforcement proces should not become.freighted with overl nomplex procedural requ-rements.
On the other hand, I do not bel.ieve that the Commission has conplc.e Pnd unfettered discretion to Ceterni when procedural richtF PrrcruO to interested parties and when they co not.
I do not believe that the-Cersion is correct when it seemiricv asserts That any time the Cnmiscicr rce: eyohd existing license to require an upcrade or safety inp*!'emrt the Commission has carte blanche tc ebel that act ion an amendment or a Fuspension, and that that label is dispositive for purposes of dctermining whether the action tri gers hearing richt or +hc part oF third parties.
Unfortunatel,,
The available law on the issue of what ccnt it' a license evendmpn+ 4. -crechcOa-less than clear.
In addition, the courts do not accear to have specifically addressed the issue presc-rt ev this case.
The latest discussicn o license suspensions and amencrnert appears in the Diablo Canyon Case decideo in December 1984 by the.C. Circuit.
Deukmrejian v. NRP.
supra. The court decided that the Commission's decision to lift the suspension o-thr Dab'o Cervnn license did not trioaer hearing rights under cection 189 of the AEA. Thr court dI tot explain, however, how one dete-mines whethyr Fcrtirular Commission act'r i. an amerd=rnt
-3 or a suspension.
The court sAid only that:, "The iFt~rin cf a suspension does nothino to alter the cricinal terms of the license; irdeed, it removes a significant impediment to the enforcement of those t.erms."
Id. at 48.
The court also ppored not to object to the statemert it oucted from the
-S-hlcy-casc that an amendment is somethir.g which "granted the licensee authority tc do something that it otherwise could not have decrr urder exis:tic Futhrrity."
Deukmejian at 47.
The Diabic CanYon case appears rot tr0 eCtrESS the Situation in the San Crofre 1 case, i.e. an orde-whch requires additional measures beyond the license recu-rements. The Diablo Canyrr rourt sid that where Commission action allows a licensec to er something it is not authorized to do under.
existing licersing authority, e.c. relaxec P 'icnse requirement, that action amends the license and triocers Section !89 hearino rights. And, where the Commissior acrin susoends a license bpraucc a licensee is found not to be in corp-t.rrF with its license and ther the Comission, after determininc that the licensee is in compliance. lilts that suspension, third partis cr rrt have a stptutorv right to a hearinc.
In the latter case, th.e Commission's action in lifting the suspersicr does not create a richt to liticate the Commission's determination that the licensee is in compliance with the terms o' the suspension order.
Hnwever, the Court did not address the two ouestions relevant to the San Crofre situation:- (1) whether and under what circumstances additional, new reouircrerts beyond 1/ SholI' v NRC, 651 F.2d 760 (D.C. Cir. 198) v\\ac te rr other Crournds, 103 5.Ct.
2 7 18 1
-4 what the license requires amend the license, and (9) vhat. Comnission action w-.th regard to these rev* reouirements triggers a right to a hearing.
The Comrission urces that in the case of a safe+y impcflent whether a Ccmission ac-icn cimcrd the license or merely suspends it depends solely on Commission intent and the label the Commission attaches to the action.
There dces not aprear to be any reliable law on this subject which interprets the AEA. In SholIv, the Court indicated that Congress intended that "ny "rsinicPnt chance in the licens.inc status of a nuclear power plant" gave rise to an cpporzunity to intervene before that chance could ccU.
6 1
1 F. 2 at 791.
However, the Diablo Canyon court cast doubt on the continued validity cf that statement. The court-said that this dictum in v0y was "inadecuate prc-cedent for the proposition that any significant chance in the licensing status of a nuclear pcwer plant triggers thc procedural protection of section 289 (a)."
Deukmejiian, slip op. at 4P. The Court did not explain, however, what standard should apply for determiininc when a license is amended.
It only said thait F 'icerse FuspCrsicn does not alter the terms of the license. To the best of my krowlece, no other case interpreting the Atomic Energy Act sheds substantial licht on this isFue.
Althcugh it does not deal *with Sectior
-89 of the PEA, a case in which the C.C. Circuit interpreted the hrar 4r requirement of the Communications Act of 1934 may be helpful.
Temmer v. FCC, 743 F.2d 928 (D.C. Cir. 1984).
The Court held that where a license is granted subjec' to certain express conditions set forth in the lic nse and the reulatio-ns, anc the licensee
-5 then fails to meet those conditions. Actior by the FCC to revoke the license is not a "liccnse rdification", but rather the enforcement of the original license con. tions.. The Court said.thpt whethrr the Ticense has beer mo ified depens upon whether ace-,v action "substantially affected" u.conditional right ccr rred by the license.
Id. Pt 927-928.
The Court also said that the label attached *r the agency action was not CSDOs itivE End that a reviewing court "nust look eynrrd the form of the license document are bevnd the language emplcyed by the FCC to describe it! action."
Id. at 927.
he Tenr s'arder-is ccnsistent with the court's DiaPr Caryon decision.
I hesitate, however. +.r nk general pronouncements abcut wher an upgrade to a pla~ntz cositutes an amendment of the licen..
T am also reluctant to conclude that the staff her rc f exiblity-to alter its decisior about what chanoe is needed at some later tine. Such cr absrlut rulp could only lead to a reluctance on the part c' the staff to issue enforcement orders because t.hev f nct want to get "locked into" a prE tion.
I think this issue is bs' hradle on a case by case basis tc ensure reasonable enorcement flex-bility.
However, for lack of sonethinc b-tter 1 have used the Termer starerd as cuidance in concluding that the 1982 order for San Oncfre 1 amended the license..The order at issue here was a substantial change to a fundamertF' p.r cf the license, the seismic desicn basis.
Further, the Commission's order prohibited operatior of the facility until changes were corpleted. Thus, the order substantially affectec a concition of the license.
I therefore conrclrde that the 1982 ord-r mnendcc
.Ke San Onofre 1 license. BP
.envyr.c
- he condition that the plant remrain
-6 shut down while the modifications were 7r progress, the 1984 order amended the license again.
However. deidino that P particuIar Connicin actior is a license amendmert does not end the iruiry. We must also determine what hearing rights accruP.
A cae with some relevarca to this issue is Bellotti v NRC, 72 72d 13EC. (.C.
Cir. 19E3).
In Sellotti, the Commission issued an Order iodiFvirn License which amended Boston Edison's Pil ot.creretino license to rerur. development of a plan for reappraisal and improvement of M
- 7.
emert furctions.
The Attorney General o Ma Kcuettes petitioned to ir tervene in the enforrrcrt proceeding and asked to litigate various e
related to compliance with the Comr-s 4rr order. The Court held that th Corm<ission cnuld p nperlv eey the petition to intervene because the
- sues the Attorney General wanted to litiopte went beyond the scop of the her-Ir7 a dr'ined by the Commission's rnenment order.
The Court said:
The Commission's power to definc the Frpe of a proceedinc will lead to' the derirl c' intervention only when the Ccn-sscr a-ends P license to require additional or better sa ruc+
rasures.
Ther, me who, like petitioner Bellotti, wishes to litigate the need for still more SFPety Measures, perhaps including the closing of the faciity, will be remitted to sectier 2.206's petition procedures.
The Court says, then, that ever where the Commission amends a liccrs to rpovire additional or better safety mneasures it can -deny-hearing on that amendment to third parties.
- However, the court went on to say:
or.the other hand, the Comrissinr pnproses to amend a.
licerc to' neFO'. rpetriction upon the licensee, the scope of Lhe pro ceedino is oefined by that prennsal and section !P'(E.' pernits public
-7 participation to oppose that relaxation. The upshot ic that automatic participation at P hearinc may be denied nlv when the Commission is seekino to m~ke.a facilit'F opcration safer.
Public participation is automatic wih resnect to all Commisson actiors that are pctenialiv harmful to thp rh' health and welfare.
his lanuage is extremel rV trv Lvo if read literally suqncests that the neeW cor P hearino dr-ends upon whe+her the p-cposed agency "action" has the potential for increasirc rr derreasinc public safety; if the latter, the public has an automatic right to a heer'rq.
' that test is applied to the San Onofre I case the putVc had no right to a hearinc on the issuance cf the
.ucuct 1, 1982 order because it invo'"d a safety improvement.
The public would also have no richt to a hearinc on whether the terms of the crder had been satisfied, but would havP an autmntic right to a hearing if the NRC were to relax the rocurements of that order.
It is not cl1ar what weichct wo ought :o give the court's lancuage because it appearW to be dictum.
Also, I cannot believe that the.C. Circuit intended the arom lCi situation described above. A basis for the court's decis -io vas the desire to maintain enforcmcr.t flpxibility in the acency
.Y not encumberino the errrcenent process with numerous procedural reu'remerts.
725 F.2d at 1382.
The Court civiCusly was concerned about discouraging the use of orders because the Commission feared it.
would be "locked in".
On the other hand, the court ch'o:nlv did not mean to exclude all public particptiov on enforcement matters especially where anendments to the license were involved.
~cah, esitate to generalize becausc cf the inpact such generalizatnors could have on the acencY's enforcemert flexibility.
However, in this case.
i believe that the modifications to the license and the issues. 4rvelved are significant encuch that a relaxation of the conditions imposed by the 1982 order tricgers the hearing requirement of Section !P0. Tndeed, these issues are Cf Fvff C-ert importance that ever if a hearing" is not legally recuired the Commission should have granted a hear ar a matter of discretion.
Settinc these procedural issues to ore side,
- CLcver, I have other,
-c-procedural concerrs Fbhut the decision to allow restart of San Onofre I at ths :;ime.
Tne decision to put the -iccnr-,'s c
mi rr itments into order rm was based partly or -r Frp-ent reluctance by Southern California Edscr (SCE) to complete the upgrade in a tUr-vY menner and because of a con~crn that the plant did rMt cycr meet the existing licensing requirement that the plart meet the seismic desiqgr basis of.r..1 am unable to agree to an a'te ation of the ordpr ecaUseI do not believe these concerns have been adecuately resolved. As lono as thc plpnt is pernitted to operate,
'here is little incentive fr.- SCE to complete the upgrade.
in fact, the schecule fcr completion of the modiicz+.rs set out in the Commission's LCrtirent Recission order s~een tc require little in the way of timely completion. Further, I am extremely urrrfertable with the staff's finding that the plant is "reasonpblv likely" to wihand an earthcuake with ground motions of.5g.
This does not Fppear to be the same staeard the staff would normally apply to 4"UrS such as this.
Thus, the staff seems to be accepting a lesser margin of sn'rtv it determinino whether the plant row meets its oricinal seismir der4cn basis than it requires in other cases. This is particularly troubl1rn in view of the staff's conclusion that +he correct seismic desipn b.'ns 'or the San Onofre site is in fact
.67g rather than the.5g figure adoptcd at the time of licensing San
g
- 9
- Finally, am concerned by the fact thpt thr, mrtivating factor for the Commission's relaxation of i4. 19P? order was originallv not e determination that the charps Pre no longer necessary, but that it is too expensive to keep the plant shut-down wH they are made.
As I have said b'eore, I do not believe that he -ir.rcial difficulties of licensees shouid be a factor in our decisions whether to relax safety requirements.
Tr conclusion, 1 believe the fennission's 1982 order modified the San:
Onfre 1 license and that the 19.4 ordnr P,
a further amendment oO the license.
Section 189 of the Atnric Energy Act requires that a hearing be hed ;n this case.
I voted not to aIow restart of Unit 2 in November of 1984. and I would nno crer' the Sierra Club's request for a stay of the Commis Son's cecision.
Additional Views of Chairman Palladino and Commissioners Roberts, Bernthal and Zech in San Onofre 1 Commissioner Asselstine states in his dissent-(at pace 9 of the typed copy) that ".
the motivating factor for the Commission's relaxation of its 1982 order was originally not a determination that the chances are no longer necessary, but that it is too expensive to keep the plant shut down while they are made."
This statement is not correct. The correct and complete explanation of the Commission's position is set forth in.
its previous statement in the San Onofre 1 proceeding which has not heretofore been publicly issued:
"Considering all relevant circumstances, the Commission has.decided that the August 2982 order should not be read as having amended the license to operate the San Onofre 1 reactor. The essence of the rationale for this conclusion is:
First, the Conmmission believes that it needs the enforcement flexibility that orders give it, and it is concerned that treating the August 1982 order as an amendment will discourage the practice of making licensee commitments legally binding. Second, there is no contemporaneous informa tion which sugaests that the August 1982 order was intended to amend the license.
Indeed, the order resulted from a voluntary agreement by the licensee to forego the submission of additional technical data demonstra ting qualification of all safety systems to 0.5g and to instead modify the facility to a 0.67g. level.
Had this voluntary agreement not been offered and had the licensee submitted data confirming qualification of equipment to 0.5g, the normal SEP upgrading process would have gone forward without any necessity for a plant shutdown order. Thus, the or-der merely suspended authority to operate pending modifications to the facility and approval by the NRC to restart. No provision of the license itself was modified.
The staff is directed to handle the restart matter procedurally according to the foregoing conclusion. The staff prior.to authorizing restart must first make all of the required safety findings as it does in any other similar situation. The basis for approval of restart would be that con-.
tinued suspension of the authority to operate is no longer required adequately to protect public health and safety."
Commissioner Asselstine subsequently indicated that he did not support this Commission decision. He provided the following statement of views:
"I do not support the Commission decision to allow San Onofre 1 to return to service at this time. I am in.essential agreement with the points raised in the November 5, 1984 memorandum from the Office of the General Counsel regarding San Onofre 1 restart. Specifically, I believe that the changes to the operation and design of the plant that were included in NRC's confirmatory order of August 11, 1982 were so substantial that they must be considered an amendment to the license.
Therefore, the subsequent order relaxing those changes must also be considered a license amendment. In addition, I am troubled by the
2 -
4 Commission's reliance on the economic impact on the licensee of the California Public Utilities Commission's ruling as the basis for relaxing the safety requirements called for by the August 1982 con firmatory order.
I believe that in the context of this case, reliance on such economic-impacts to relax safety requirements is inappropriate. Finally, I am concerned about the reductions in the marcin of safety for this plant that are involved in the relaxation of the Aucust 1982 order."
The Commission has provided the following response to Comnissioner Asselstine's comments:
"The Commission believes it is important that the basis for its decision on the procedural issue concerning restart of San Onofre 1 be accurately understood.
"The action of the majority is consistent with the advice given to the Commission by its Office of the General Counsel.
That office advised the Commission, both orally and in writing at the public meeting of the Commission on November 21, that the Commission had the legal authority to decide the procedural issue (i.e., whether the August 1982 confirmatory order should be construed to be an amendment) as it chose to do as a matter of regulatory policy.
"As to the equities involved, given the California PUC order, the NRC was called upon in keeping with its broad statutory responsibilities and in fairness to the licensee, to determine promptly whether or not restart could be authorized consistent with the protection of public health and safety. While the Commission was aware of the PUC action and the need for a timely NRC decision, the resumption of operations at San Onofre 1 was authorized by NRC on the basis of a technical judgment that there is reasonable assurance that such operation during completion of seismic reevaluation does not pose undue risk to public health and safety. The Commission decision on the-procedural issue was grounded on policy considerations relevant to the Commission's licensing and enforcement responsibilities and, as noted above, the legal authority which was available in the circumstances.
"Finally, having made that lecal and policy decision, the.Commission directed that the staff, prior to authorizing restart, make all the required safety findings that it must in any similar situation. It is the Commission's understandino that staff is satisfied that all systems necessary to achieve a hot standby condition have been.
upgraded to 0.67g, thereby making the plant substantially safer than it was when originally licensed. As to the upgrade of remaining safety systems, while seismic evaluation continues, operation of San Onofre Unit 1 at this time rests on an NRC judgment similar to the judgment to be made in other Systematic Evaluation Program (SEP) cases. That SEP judgment addresses the question whether, under the specific circumstances of a particular case, operating authority must be suspended while issues concerning plant desian are addressed.
"Staff has presented to the Commission its technical judgment that, consistent with protection of public health and safety, the margi.n of safety is reasonable and adequate. to authorize restart of San Onofre 1 and that continued. suspension of operating authority is not necessary.
The Commission finds no basis upon which to contravene staff's technical finding favorable to that restart."