ML18046A724
| ML18046A724 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 06/17/1981 |
| From: | Mount R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| EA-81-018, EA-81-18, NUDOCS 8106180440 | |
| Download: ML18046A724 (34) | |
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June 17, 1981 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BbARD In the Matter of
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CONSUMERS POWER COMPANY
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(Palisades Nuclear Power Facility) )
Docket r~
(EA81.;.~
NRC STAFF'S RESPONSE TO UTILITY WORKERS UNION OF AMERICA'S "REPLY BRIEF IN SUPPORT OF REQUEST FOR HEARING...
11 On March 9, 1981, the Director of the Office of Inspection and Enforcement issued an "Order Confirming Licensee Actions to Upgrade Facility Performance" to the Consumers Power Company, the licensee of the Palisades Nuclear Power Facility. 46 Fed. Reg. 17,688 (Mar. 19, 1981)
(copy attached).
In a petition of March 31, 1981, filed before the Commission, the Utility Workers Union of America, AFL-CIO, and its Michigan State Utility Workers Council (hereinafter "the Union") requested a hearing on the overtime restriction imposed by the Order.
On May 29, 1981, the Commission referred the Union's request for a hearing to an
- Atomic Safety and Licensing Board l/ [hereinafter the "Board"] and directed the Board to decide whether the Union's request for a hearing should be granted.
l/
The Board was to be appointed by the Atomic Safety and Board Panel Chairman.
Licensing
\\:>507
- J Two pleadings have previously been filed before the Commission in this matter and are pertinent for the Board's decision here.
On Apri 1 20, 1981, the NRC Staff fi 1 ed its "Response to Ut i 1 i ty Workers Union of America's Request for a Hearing." Y On May 28, 1981, the Union filed a "Reply Brief in Support of Request for Hearing.... " 11 The Staff hereby responds to the Union's "Reply Brief"~ 41 Because the Union does not have the requisite "standing" to demand a hearing as a matter of right and because a discretionary hearing would neither concern the health and safety mandate of the NRC nor be a wise use of agency resources, the Board should deny the Union's request for a hearing on*
the Order.
y In its April 20, 1981 filing, the Staff demonstrated that the Union did not possess the requisite standing so as to legally entitle it to a hearing under section 189a. of the Atomic Energy Act.
In addition, the Staff identified several reasons why a hearing should not be ordered as a matter of discretion. *The Staff incorporates herein the views expressed in its pleading of April 20, 1981.
The Staff's filing of April 20, 1981 was, in accordance with section 2.714(c) of the Commission's Rules of Practice, an answer to the Union's request for a hearing.
The Commission's Rules of Practice do not specifically provide for "Reply Briefs" to Staff answers to hearing requests.
Although characterized as a "Reply Brief", the Union's filing of May 28, 1981 is more appropriately viewed as an "amended petition to intervene" under section 2.714(a)(3) of the Commission's Rules of Practice.
Considering the Union's "Reply Brief" to be an "amended petition to intervene", the Staff's response is an answer as permitted by section 2.714(c) of the Commission's Rules of Practice.
I.
PROCEDURAL SETTING As the Director's Order of March 9, 1981 emphasizes, the Office of Inspection and Enforcement has cited Consumers Power Company for a number of violations of regulatory requirements at the Palisades facility over the past several years.
The licensee's recent perfonnance in the inspection categories of reactor operations and radiation protection received a "below average" rating in the NRC's Systematic Appraisal of Licensee Perfor~ance (SALP).
This troublesome history was compounded on January 6, 1981, when an electrical repainnan failed to follow procedures during a surveillance test and thereby isolated the two 125-volt battery banks
- which are required to be operable if the primary coolant system is above 325°F.
On the basis of these various incidents and the SALP evaluation, the Director detennined that "major changes in the licensee's management controls are necessary to assure that the licensee can operat~ the Palisades facility without undue risk to the health and safety of the public".
46 Fed. Reg. at 17,688.
Bef6re the Director issued an order, the licensee agreed to take short-and long-term actions to improve its performance and enhance protection of public health and safety in the operation of the Palisades facility.
The licensee met with NRC Region III representatives and presented a program of intended short-term actions to enhance safety and performance while the licensee's major* long-term actions were developed and implemented.
Because of the importance to public health and safety of the licensee's fulfillment of its commitments, the Director issued the Order confirming the licensee's commitments. Y The Union seeks a hearing to challenge a provision of the Order (V.B.) which restricts, in the interest of proyiding greater assurance of optimum operator performance, the overtime that may be worked by licensed operators.§../ At issue for the Board's resolution is whether a union th.at alleges injury as a result of a restriction on operator overtime hours imposed in an NRC enforcement action, but does not allege a reduction in y
As described in the text of the Order, the Director's Order was a "confirmatory order", i.e., the Order reflected the licensee's prior consent to be legally bound by the restrictions it proposed on its license.
The licensee's consent to the entry of an order constitutes a waiver of hearing, of all right to seek Commission and judicial review or to contest the validity of the* order, and the order has the same force and effect as an order made after hearing.
See 10 C.F.R. 2.202(e).
The Staff uses confirmatory orders to ensure tha"fl"icensee commitments are made binding, enforceable requirements of a license.
The* use of confirmatory orders is encouraged by Commission policy.
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), CLI-80-lO, 11 NRC 438; 441 {1980)..
It should be noted that on April 8, 1981 the licensee requested that if a hearing were to be held at the Union's behest, the licensee be allowed to participate as a party.
&/
The provision reads in pertinent part as follows:
"Extended overtime on the part of licensed operators shall be avoided by restricting the overtime for licensed operators as fol lows:
(1)
No more than 4 overtime hours in any 24-hour period; (2)
No more than 24 overtime hours in any 7-day period;
( 3)
No more than 64 overtime hours in any 28-day period."
45 Fed. Reg. at 17,689.
facility safety as a result of such restriction, is entitled to a hearing to challenge that overtime restriction on non-safety related grounds.
For the reasons set out below, the Union is not entitled to a hearing under these circumstances.
II.
THE UNION HAS NOT ESTABLISHED THE REQUISITE STANDING SO AS TO BE ENTITLED TO A HEARING UNDER THE ATOf1IC ENERGY ACT A.
In order to bring a claim before the NRC, a potential litigant must establish its standing to bring such claim by showing an injury-in-fact to a particularized interest of the litigant that is arguably within the zone of interests protected by the Atomic Energy Act.
In enforcement cases, as in licensing cases, this Commission applies
- judicial concepts of standing in determining rights to a hearing under section 189a. of the Atomic Energy Act.
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2j, CLI-80-10, 11 NRC 438 (1980); Wisconsin Electric Power Co. (Point Beach, Unit 1), CLI-80-38, 12 NRC 547 (1980).
In the context of an enforcement action such as this Order, it must appear (1) that the petitioner has been or may be injured in fact by the Director's Order and (2) that the petitioner's affected interest is arguably within the zone of interests protected by the Atomic Energy Act.
Public Service Co. of Indiana, supra at 439; see also Portland General Electric Co. (Pebble Springs Nuclear Plant, Units l & 2),
CLI-76-27, 4 NRC 610, 613 (1976).
The "injury-in-fact" test has been
.described as a question of "wh_ether a cognizable interest of the peti-tioner might be adversely affected if the proceeding has one Qutcome
'* rather than another.
11 Nuclear Engineering Company, Inc. (Sheffield, Illinois Low Level Radioactive Waste Disposal Site, ALAB-473, 7 NRC 737, 743 (1978).
The interest that is allegedly affected must be of a parti-cularized, specific nature and not be merely a general broad public interest that happens to be of concern to the potenti~l litigant.
Id. at 741-743; Allied General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420, 421-423 (1976); Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-536, 9 NRC 402, 404 (1979).
Finally, it is well established that an injury which is purely economic in character is not an interest within the "zone of interests" protected by the Atomic Energy Act.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2),
CLI-76-27, 4 NRC 610, 614 (1976); Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239, 242 (1980); Long Island Lighting Co. (Jamesport Nuclear Power Station; Units 1 & 2), ALAB-292, 2 NRC 631, 637-38 (1975).
B.
The interests alleged by the Union do not serve as a sufficient basis for standing in this proceeding.
There would appear to be little dispute between the Staff and the Unior. that judicial concepts of standing, i.e. the 11injury-in-fact 11 test and the 11.z:one of interests" test, are the appropriate measures to apply in determining whether the Union has a right to a hearing in this proceed-ing. 1/ Rather, the dispute focuses on the application of these particular l!
See Union's "Reply Brief in Support of Request for Hearing.*.
11 May 28, 1981, at 5-6 [hereinafter "Union's Reply Brief"].
'* tests to certain alleged interests of the Union Bl that the Union claims serve as a basis for its standing in this proceeding.
As more fully explained below, each of the three interests put forth by the Union as a basis for standing *fail in some critical respect to meet either the "injury-in-fact" test or the "zone of iMere~ts" test.
- 1.
The.maintenance of "contractually protected employment rights" is an economic interest and therefore not within the "zone of interests" protected by the Atomic Energy Act.
As its first basis of standing, the Union argues that the operators it represents have "a real and s~bstantial interest in the maintenance of contractually protected employment rights." 91 The Union recognizes that this is an economic interest, but characterizes it as a "specific, particularized, and contractually-mandated interest.".l.Q/ As a result, the Union claims that this interest is not "an economic interest of the generalized or diffuse sort claimed by power company ratepayers, which have 'frequently held [sic] to be not cognizable before this Commission." lll The Union's argument the.n is apparently that economic
~/
Some of the interests articulated by the Union would appear to be interests held directly by the Union itself, as opposed to the workers it represents.
Id. at 6.
J_Q/
Id.
.ll/ Id.
interests, to the extent that they are specific and not generalized, can serve ~s a basis for standing in NRC proceedings.
The argument propounded by the Union simply does not hold true under analysis.
NRC cases that hold economic interests to be outside the "zone-of-interests" protected by the Atomic Energy Act have not made such holdings contingent upon the specific or generalized nature of the economic interest asserted. 111 The Atomic Safety and Licensing Appeal Board, in denying intervention status to a petitioner who alleged potential hann to real estate investments, has stated flatly:
"Moreover, it is now settled that an interest which is purely economic in character does not confer standing to intervene under the Atomic Energy Act.**. "
Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239, 242 (1980). lll In sum, whether particu-larized or generalized, economic *interests are not within the "zone of interests" protected by the Atomic Energy' Act.
Moreover, several cases that have held economic iriterests to be out-side the "zone of interests" protected by the Atomic Energy Act have done It is not altogether clear why the economic interests alleged by the Union are any more "specific" than those alleged by ratepayers.
In any event, even assuming arguendo that the Union's interests are more "specific", there is no basis to say that economic interests that are specific in nature can serve as a basis for standing in NRC proceedings.
The Allens Creek Board recognized that economic-interests may be a-sufficient basis for standing under the National Environmental Policy Act (NEPA), but only when such economic interests are associated with impacts on the environment.
Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239, 242 (1980).
See also Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2),"""°ALAB-413, 5 NRC 1418, 1420-21 (1977).
The Union has not alleged at all any environmental effects associated with its alleged interests in this case. Moreover, the Union's request for a hearing is sought under section 189a. of the Atomic Energy Act and not under NEPA.
" so in circumstances outside the ratepayer context.
In Allens Creek, supra, the asserted economic interest was the loss in value to potential real estate investments of the litigant. The potential economic loss that a seller of fossil fuels might suffer as a result of competition from a nuclear facility has been found to be outside the 11zone of interests" protected by the Atomic Energy Act and therefore not a sufficient basis upon which to allege stand-ing.
Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-292, 2 NRC 631, 638 (1975).
Similarly, a corporation's interest in protecting its business reputation and avoiding possible damage claims has been held not to be wtihin the 11zone of interests" protected by the Atomic Energy Act.
Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-342, 4 NRC 98, 105-106 (1976).
Certainly the economic injuries alleged in these cases were as 11specific 11 and 11particularized 11 as the one alleged by the Union here, yet the Boards deciding those cases found the various economic injuries alleged to be insufficient grounds upon which to base standing.
The Virginia Electric and Power Co. decision is particularly instructive.
In that case, Sun Shipbuilding and Dry Dock Co. (Sun Ship) had supplied pump supports to VEPCO, the facility licensee.
When the supports were found to have defective welds, VEPCO replaced them with supports made by another man-ufacturer and sued Sun Ship for breach of contract.
Sun Ship sought inter-vention in the operating licensing proceeding for VEPCO's North Anna facility, -- ------
claiming that it had additional infonnation which called into question the integrity of the supports.
The Atomic Safety and Licensing Appeal I
Board found that "Sun Ship's asserted 'concern' for the safety of the facility stems entirely from its interests in protecting its business reputation and avoiding possible damage claims."
Id. at 105-106.
Although recognizing that this was an injury-in-fact, the Board held that such an injury was outside the "zone of interests" protected by the
- Atomic Energy Act. Id. at 106.
Similar to the argument with respect to "specific" economic interests the Union seeks to advance here, Sun Ship had alleged that it did satisfy the "zone of. interests" test because of its "direct connection" with the facility.
Id.
The Board rejected this distinction and carefully pointed out that
"[w]hether the 'zone of interests' test has been satisifed does not depend, however, upon how concrete or speculative the threat of injury may be.
Instead, once again, the
- pivotal inquiry in applying that test is whether, assuming the existence of a reasonable possibility of hann to an interest possessed by the would-be intervenor, that interest can be* said to be among those interests which Congress was protecting or regulating.".l1J Id. at 107.
l.!1 The actual ruling in the VEPCO case was deferred pending resolution by the Commission of the question of whether judicial concepts of standing were the appropriate standards to apply in detennining he~ring and intervention rights in NRC proceedings.
The Commission, in Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613-14 (1976), made clear* that judicial concepts of standing were the appropriate measures to use. The VEPCO Appeal Board then held that Sun Ship had no right to intervention as a matter of law and adopted its reasoning from its initial deferred decision as the basis for its holding. See Virginia Electric & Power Co.
(t~orth Anna Power Station, Units 1 and 2), ALAB-363, 4 NRC 631, 633 (1976).
The VEPCO Board has thus rejected any argument that economic interests, even when "directly connected" to a particular facility (or, by way of analogy to the Union's case, "specific" in nature), can serve as a basis for standing in a proceeding involving that facility.
In short, the Union's admittedly economic interest in mantaining contractually protected employment rights is an interest that is not within the "zone *of interests" protected by the Atomic Energy Act and therefore can not serve as a basis to request a hearing as a matter of right.
- 2.
The workers' "interest in having a voice in decisions designed to address the maintenance of safe conditions within the nuclear facility" has not been "injured-in-fact" by the Director's Order.
The second interest alleged by the Union to have.been injured by the Director's order restricting overtime hours is the workers' "interest in having a voice in decisions designed to address the maintenance of safe conditions within, the nuclear facility at which they are employed." l.. ~/
As evidence that such an interest exists, the Un1on cites Part 19 of the Commission's regulations and claims that the Commission, by promulgating these requirements, "has specifically recognized the speci a 1 safety concerns inherent in employment whereby workers engage in activities licensed by the Commission."..!.§./ The Staff has no quarrel with all of this; however, the Director's Order in no way harmed such interests.
Ji! Union's Reply Brief at 6.
.1§!
Id. at 7.
NRC cases make clear that in order to have standing to challenge a Commission or Staff directive, the challenging party must have an interest that has suffered an "injury-in-fact" as a result of the Commission or Staff directive)l/ that to establish an "injury-in-fact",
a potential litigant must show that its alleged interest might be "adversely affected if the proceeding has one outcome rather than another;" lB/ and that a generalized or broad public interest in a problem is not a sufficient basis upon which to establish any "adverse affect" fro1;i the outcome of an NRC proceeding.121 Like the ACLU's interest in Allied General Nuclear Services, supra, Mid-~nerica's interest in Nuelear Engineering Co., Inc., supra, and UCS's interest in Virginia Electric & Power Co., supra, the Union's interest in having a voice in safety-related decisions affecting the Palisades facility is a generalized interest or concern in safety shared by all members of the public and is therefore not an adequate basis for standing in NRC proceedings.
The Union has not in any way particularized how this interest stands to be "adversely affected" by the outcome of the 111 Portland General Electric Co., *supra p. 5, at 613.
_llil Nuclear Engineering Co. 1 Inc.~ supra p. 5-, at 743.
111* Id. at 741-743; Allied General Nuclear Services~ supra p. 6, *at 421-23; VTrginia Electric & Power Co., supra p. 6, at 404.
proposed hearing the Union seeks.
Presumably the Union seeks to protect its voice in safety-related decisions affecting the Palisades' workers so that the safety of those workers is enhanced.
It is important to recognize however, that the Union has not in any way alleged that the restriction on overtime hours has made the facility less safe. Thus, any concern the Union has for the safety of its workers has been preserved--not adversely affected--by the Di rector's Order.
In fact, the only way that an "adverse affect" could possibly occur to the Union's interest in having a voice in the safety-related decisions affecting its workers would be for a hearing to be ordered on the overtime restriction.
In that hearing, the Union would be taking a position that would be at odds with its
- expressed concern for safety in that it would be seeking to eliminate the restrictions on overtime, a position that, if sustained, would have in the Staff's view an "adverse affect" on safety. 201 20/
As a part of its discussion with respect to its interest in safety-related decisions affecting the Palisades workers, the Union states that the Commission "should not overlook the potentially dangerous effect on employee morale and performance that may be the result of ignoring or failing to adequately consider the safety-related suggestions and perceptions of highly trained and experienced nuclear facility per-sonnel." Union's Reply Brief at 8.
Certainly this comment cannot be intended to suggest that if a hearing is not granted here, the safety-related performance of the Palisades operators would be degraded~-
Rather, this comment is best viewed as simply a recharacterization of (Continued)
---~--
As a final note, it should also be pointed out that the protections afforded nuclear facility workers by Part 19 of the Commission's regulations will still be available to the employees represented by the Union regardless of whether a hearing is granted here.
Thus, the Union's interest in safety as manifested in these regulations. has of co.urse not been affected at al 1, much less adversely affected, in any way by the Director's Order, nor could this interest be adversely affected by the outcome of any proceeding con-c~rning the overtime restriction. Whether the Director's position regarding restrictions on overtime hours is upheld or not, the protections of Part 19 are still available to the Palisades workers.
Because the Union's interest in having a voice in. safety-related decisions affecting the Palisades workers has not been "injured-in-fact" by the Director's Order, that interest cannot serve as a basis for standing to request a hearing on the Director's Order.
- 3.
The "physical proximity of workers in nuclear facilities to radioactive operations" is not a sufficient basis to establish standing in NRC proceedings in the absence of any allegation that safety-related or environmental concerns will be adversely affected by the proceeding.
As a third basis for standing, the Union has alleged that "the simply physical proximity of workers in nuclear facilities to radioactive 20/ Continued -
the Union's argument that it has an interest in having a voice in safety-related decisions affecting the Palisades workers.
As described in the text, such an tnterest is not a sufficient basis for standing. Moreover, the Commission and the Staff do not ignore safety-related suggestions from any source.
operations, standing alone, sufficiently establishes the requirements for Union standing." W This view represents a misreading of the cases that have established the "physical proximity" test for standing.
Undoubtedly, those who live within close proximity of a nuclear facility are presumed to have a cognizable interest so as to assert stand-ing to participate in proceedings concerning that facility. Virginia Electric & Power.co~ (North Anna Nuclear Power Statiori, Units 1 and 2),
ALAB-522, 9 NRC 54, 56 (1979).
However, it is important to recognize that the "close proximity" test only raises a presumption of standing. If the potential litigant has not been "injured-in-fact" or has not suffered an injury to an.interest within the "zone of interests" protected by the Atomic Energy Act, then the litigant can not rely on a presumption of*
standing.
Put another way, what is really "presumed" by the "close proximity"
- test is that the potential litigant will in fact be able to show an injury to an interest protected by the Atomic Energy Act.
If he or she cannot,
- then the presumption fails.
At least two cases show that even under the "close proximity" test, a potential litigant must demonstrate an injury to an interest protected by the Atomic Energy Act.
In denying a petition to intervene in an NRC licensing proceeding by an association of lawyers, the Atomic Safety and Licensing Appeal Board discussed the Virginia Electric & Power Co.
decision and included the following observations:
.fl/ Union's Reply Brief at 8.
"The alleged fact that there are Guild members who live in the general vicinity of the Allens Creek site does not alter matters.
To be sure, persons who live in close proximity to a reactor site are presumed to have a cognizable interest in licensing proceedings involving that reactor.
Virginia Electric & Power Company (North Anna Nuclear Power Station, Units l and 2), ALAB-522, 9 NRC 54, 56 (January 26, 1979).
But there is no like presumption that every individual so situated will deem himself potentially aggrieved by the out-come of. the proceeding (an essential ingredient of standing).
Some may and some may not.
Because of this consideration, the petitioner organization in North Anna did not and could not content itself with the simple assertion that it had members living in the shadow of the facility there in question.
To establish its representational standing, it additionally supplied the statement of one of those members, which explicitly identified the nature of the invasion of her personal interest which might flow from the proposed licensing action.
11 (footnote omitted)
Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 393 (1979).
In a similar vein, the Atomic Safety and Licensing Board has stated:
"In proceedings involving license applications, the Appeal Board has ruled that a petitioner who resides or is employed in geographic proximity to a reactor site, and who has expressed concerns over reactor safety or environmental impact, can be fairly presumed to have an interest which might be affected by construction or operation of a reactor." (emphasis added)
Dairyland Power Cooperative (La Crosse Boiling Water Reactor), LBP 26, 12 NRC 367, 373 {1980).
Thus, the Union cannot assert standing in this case by virtue of the "close proximity" test unless it can also show that it has an inter-est protected by the Atomic Energy Act (a "cognizable interest") that has been adversely affected by the Director's Order in a way that is environmentally or safety-related.
As described earlier, the Union of course has not demonstrated such an interest. It is again important to emphasize that the Union has not alleged that the Palisades facility is less safe as a result of the Director's Order. Instead, the interests the Union describes are either outside the "zone of interests" protected by the Atomic Energy Act or have not been adversely affected by the Director's Order.
As a result, the "close proximity" of the workers represented by the Union to the Palisades facility is not itself a basis upon which to presume standing to request a hearing.
In summary of Part II of the Staff's brief, judicial concepts of stand-ing ~1ill be applied to detennine whether the Union has a right to a hearing under section 189a. of the Atomic Energy Act.
Those concepts require a potential litigant to show an "injury-in-fact" to an interest that is within the "zone of interests" protected by the Atomic Energy Act.
Because the interests asserted by the Union are either outside the Atomic Eriergy Act's "zone of interests" or have not been "injured in fact", the Union does not have a right to a hearing as a matter of law to challenge the Director's Order restricting overtime hours at the Palisades facility.
III.
THE UNION'S INTEREST IN "MAINTAINING VALUABLE EMPLOYMENT RIGHTS" IS NOT AN INTEREST PROTECTED BY THE DUE PROCESS CLAUSE OF THE CONSTITUTION, AND THEREFORE, THE CONSTITUTION DOES NOT MANDATE A.
HEARING IN THIS CASE.
The Union has argued that it possesses an interest in "maintaining valuable employment rights anq benefits arising out of its contractual
1' relationship with the licensee". 221 The Union characterizes this interest as a "property right", 231 and as a result, claims that the Constitution of the United States requires the NRC to grant the Union a hearing when the NRC takes action that allegedly affects this "property right".* 24/
Simply put, the Constitution in no way guarantees the Union any right to a hearing on the Director's Order restricting overtime hours.
The Fifth Jlinendment of the Constitution of course states that "no person shall.*. be deprived of life, liberty, or property without due process of law." This clause has long been interpreted to mean that an individual must be afforded ~n opportunity to be heard by the Government when the Government takes action that affects a 1 i fe, 1 iberty, or property interest.
See,~' Grannis v. Ordean, 234 U.S. 385, 394 (1918); Mcveigh v. United States, 78 U.S. 259, 267 (1870).
The crucial task, however, is to detennine those interests that are defined as life, liberty, or property interests such that they are deserving of due process protection.
In the context of defining property interests that merit due process protection, courts have 22/ Union's Reply Brief at 4.
23/ Id. at 5.
24/
Id. at 4-5.
- looked to the Constitution itself, 251 English common law.principles, 261 and, more recently, the notion of "legal entitlements" 27/ as sources of property interests.
"Legal entitlements" are created either by federal or state statute, 281 or by "mutually explicit understandings" 291 between the government and the individual claiming the entitlement.
Absent some effect on a prop~rty interest as defined by these various sources, the Due Process Clause does not serve as a basis upon which to establish.hearing rights.
Denying a hearing to the Union does not in any way conflict with any of these tenets of due process described above.
Indeed, section 189a. of the Atomic *Energy Act and the hearing rights it affords to individuals who have been adversely affected by Commission action are the very embodiment of due process. Thus, to the extent that a hearing is not required by section 189a. of the Atomic Energy Act, 3o/ the Union has been afforded all the process that it is constitutionally due.
In addition, the Union's interest in "maintai.ning valuable employment rights" does not rise to the level of a property interest protected by the 25/ See Tribe, American Constitutional Law, p. 507 (1978).
26/
Id.
27/
Board of Regents v. Roth, 408 U.S. 564, 577 (1972).
28/
Id.
29/
Perry v. Sindennan, 408 U.S. 593, 601 (1972).
30/
See text at Part II, supra.
Constitution.
Presumably this interest is manifested in the "right" to work overtime.
The "right to work overtime" is of course not guaranteed by any specific constitutional provision or by principles of English common law.
Furthermore, the Union has no legal entitlement to overtime hours.
No federal or state statute affords the workers represented by the Union with a guarantee of overtime hours.
Moreover, any expectation the workers have to overtime hours has certainly not been fostered by any "mutually explicit understanding" between the NRC and the Union.
Indeed, the understanding that exists between the NRC and the workers represented by the Union is best described as one in which the workers will not be able to undertake any activities, including overtime work, to the extent that such activities adversely impact on safety.
As a final note, the cases relied upon by the Union do not support its argument that the Due Process Clause of the Constitution entitles the Union to a hearing in this case.
The Staff recognizes of course that the NRC "enjoys no special position or privilege that can justify an abridgement of constitutional rights to due process.
Union of Concerned Scientists v.
Atomic Energy Commission, 499 F.2d 1069 (1974)." [sic] l1I Furthermore, Fuentes v. Shevin, 407 U.S. 67, 80 (1972) does, as the Union indicates, state that "parties whose rights are to_be affected are entitled to be 31/ Union's Reply Brief at 4.
'1
- heard.
11 321 The key question, however, is whether any constitutionally guaranteed rights of the Union have been affected by the Director's Order.*
These two cases clearly do not state that a Union has any constitutionally protected right to work overtime.
Moreover, Board of Regents v. Roth, 408 U.S. 564 (1972) and Klein v.
Califano, 586 F.2d 250 (3d. Cir. 1978) are more supportive of the Staff's view than of the Union's.
The Roth case is most instructive.
In seeking to define "property interests", the Supreme Court stated in Roth:
"Gerta in attributes of 'property' interests protected by procedural due process emerge from these decisions.
To have a property interest in a benefit, a person clearly must have more than a unilateral expectation of it.
He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily under-mined.
It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.
Property interests, of course, are not created by the Constitution.
Rather, they are created and their dimensions are defined by existing rules or understandings that stern from an independent source such as state law - rules or under-standings that secure certain benefits and that support claims of entitlement to those benefits."
Board of Regents v. Roth, 408 U.S. 564, 577 (1972).
The Klein Court made clear that "the underlying property interest must derive its source from state or federal statute or rule **..
11 Klein v. Califano, 586 F.2d 32/
Id.
250, 257 (3d Cir. 1978).
Thus, because the Union's asserted interest in protecting overtime hours is not derived from a statutory source, or from any understanding between the NRC and the Union, the Union has not established any "property right" to overtime hours that has been impacted by the Director's Order.
Since no property right of the Union's has been affected, the Due Process Clause does not require a hearing in this case.
IV.
THE UNION SHOULD NOT BE GRANTED A HEARING AS A MATTER OF DISCRETION A.
The Commission's Order of.May 29, 1981, does not ask the Board to decide whether a discretionary hearing should be held.
The Union has argued that even if it is not entitled to a hearing as a matter of right, it should be granted a hearing as a matter of discre-tion.
Although the Commission undoubtedly could have ordered a discretionary hearing in this case, it did not choose to do so.
Fu:thermore, there is no indication in its order of May 29, 1981 that the Commission intended to confer upon this Board the rarely used authority to grant.a discretionary hearing.
The Commission's Order of May 29, 1981, referring the Union's request for a hearing to the Atomic Safety and Licensing Board stated that the Board was "to decide whether the Union should be granted a hearing.
If the Licensing Board determines that a hearing is required, it should conduct a hearing."
The phrase "should be granted" is most appropriately read in context with the word "required" in the following sentence of the Commission's Order.
That is, the Commission has asked the Board to decide whether a hearing should be granted by directing it to determine whether a hearing is required in this case.
Indeed, by using the word "required", the Commission's Order makes clear that the Board is not to consider the issue of a discretionary hearing.
As support for this reading of the Commission's Order, the use of discretionary hearings in past Commission practice should be considered..
The. use of discretinarY hearings is rare in general,_ and unheard of in the context of an NRC enforcement action.
The Commission has emphasized that, to the extent possible, NRC enforcement resources are better utilized when not dire~ted to the conduct of hearings.
The *corrrnission has stated that "public health and safety i.s best served by concentrating inspection and enforcement resources on.actual field'
- inspections and related scientific and engineering work, as opposed to the conduct of legal proceedings.
This con-sideration cqlls for a policy that encourages licensees to consent to, rather than contest, enforcement actions."
Public Service Company of Indiana (Marble Hill Nuclear G~nerating Station, Units 1 and 2), CLI-80-10, 11 NRC 438, 441 (1980).
In addition to thi~
concern for Inspection and Enforcement resources, it should also be remembered that the Commission is concerned with applying all agency resources in the area* where they are most-needed, -which currently *is*-in-
*----~-
the conduct of licensing and not enforcement proceedings.
Given these concerns, it is inconceivable to suggest that the Commission, without any clear directive so stating, wanted the Board to consider whether a dis-cretionary hearing should be held in this licensee-consented enforce-ment action.
B.
A discretionary hearing is, in all events, not appropriate here.
Even if the Board were to conclude for some reason that it had been directed by the Commission to decide whether to grant a discretionary hearing in this case, it would be inappropriate for the Board to grant one here.
The Staff's position with respect to a discretionary hearing has been set forth in its "Response to Utility Workers Union of Jlrneri ca' s
. Request for a Hearing, April 20, 1981, p. 6-10, and is incorpora~ed here.
In addition, the arguments set forth by the Union in support of its view that a discretionary hearing should be held are without merit.
The Union first argues that it "has a significant and singular ability to contribute in a substantial manner as to the effects of overtime and other working conditions on safety in plant operations". 331 It should again be emphasized that the Union has not alleged that the Palisades facility has been made any less safe as a result of the Director's Order restricting overtime hours.
Thus, any "contribution" the Union would make to the record would be to non-safety related issues.
The Union's "contri-bution.'~ woulci fo~us on _intere~ts that have not been "injured-in-fact" or that are outside the "zone of interests" protected by the Atomic Energy Act.
'}]_/
Union's Reply Brief at 10.
.e Interests that are insufficient to establish a right to a hearing as a matter of law likewise do not weigh in favor of granting a discretionary hearing.
See The Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-11, 7 NRC 381, 387-388 (1978), affinned, ALAB-470, 7 NRC 473 (1978).
Thus, because the Union's interests are not safety related interests, they can not serve as a basis for holding a discretionary hearing.
Moreover, it certainly is not appropriate, nor necessary, to conduct a hearing to determine whether the restriction on overtime hours r11akes the Pali sades facility "too safe 11 As a second reason for granting a discretionary hearing, the Union contends that "neither the licensee nor the Commission possess an interest in protecting the Union's rights.... " 34/ To the extent that the Union's 11rights 11 are related to safety, there is no evidence that the NRC has not represented these rights.
Indeed, the restriction on overtime hours was
. ordered for the very purpose of protecting and enhancing safety at the Palisades facility.
To the extent that the Union's "rights" are not related to safety, it is true - and irrelevant - that such rights would not be represented by the NRC because such considerations would be outside the NRC's mandate of protecting the public's health and safety.
A potential litigant is required to make a particularly strong showing before it can be granted a discretionary hearing when, iD the absence of the 34/
Id. at 10-11.
potential litigant's request, no hearing would be held on the matter.
See Tennessee Valley Authority (Watts Bar Nuclear Plant, Units l and 2),
ALAB-413, 5 NRC 1418, 1422 (1977).
In the absence of the Union's hearing request, no hearing would be held on the Director's Order since the facility licensee has consented to the imposition of that Order. Because the Union has not established any good reason, much less a strong one, to hold a discretionary hearing in this case and because there are a number of good strong reasons not to, the Board should refuse to order a dis-cretionary hearing on the Director's Order restricting overtime hours.
V.
THE UNION'S ARGUMENT WITH RESPECT TO THE BASIS OF THE OVERTIME RESTRICTION DOES NOT
- BEAR ON THE QUESTION OF STANDING The Union's final argument is that the overtime restrictions imposed by the Di rector's Order were more restrictive* than the Cammi ss ion's general standards and were "made without adequate consideration, reason, or basis." 351 This contention does not bear upon the issue of standing, but rather goes to the merits of whether the Director's Order should ultimately be upheld.
Before a contention relating to the merits of an action can be reached, a potential litigant must establish its standing to allege such a contention.
Warth v. Seldin, 422 U.S. 490, 498 (1975); Sierra Club v. Morton, 405 U.S. 727, 731-32 (1972). As shown throughout this brief, the Union, of course, has riot established any basis for standing in this case.
Thu*s, any 35/
Id. at 2, 11.
argument about the basis of the Director's decision is irrelevant to the question of standing-and can not serve as a basis for granting the Union's request for a hearing. 36/
Apart from this fundamental failing, it perhaps should be noted in passing that the Staff does not accept the view that the Director's Order was imposed without any basis.
The restriction on overtime hours was imposed to ensure that the safety of near-tenn operations at the Palisades fac.ility would not be adversely impacted by the special long-tenn changes required at Palisades (as necessitated by the incidents described at pages 3-5 above). Further, the Staff feared that the licensee might increase the overtime hours worked by the Palisades operators,in order to fully.implement the long-tenn changes and to offset any hours that might be lost through operator attrition.
As a result, in order to ensure that*the overall safety of the facility would be protect_ed, the Director ordered*that the restriction on operator overtime hours be imposed. - Contrary, then, to the Union's I
36/
In support of its argument, the Union states:
- "Government officials, including this Commission are constitutionally required to minimize such
- risks of error and unfairness whenever it [sic]
conducts procedures which may threaten established rights and interests. Jacksonville Shipyards, Inc.
- v. Perdue, 539 F.2d 533, 546 (1976)."
- union's Reply Brief a~ 12.
The Staff does not, bf course, contest this view.
Again, however, the relevant question is whether-there are any "established rights and interests" possessed by the Union that have been affected by the Director's Order and that are within the purview of the Commission's charter under the Atomic Energy Act.
No such rights have been established by the Union.
' position, the Director's Order rested on sound footing in that it was based upon the unique safety-related circumstances in existence at the Palisades facility.
VI.
CONCLUSION For the reasons discussed in this brief, the Board should not grant a hearing in this proceeding.
The Union has not established a legal right to a hearing and the holding of a discretionary hearing would be wasteful of the. Commission's resources and would concern primarily matters beyond the Commission's purview.
Therefore~ the Union's request for a hearing should be denied.
Attachments:
As Stated Dated in Bethesda, Maryland this 17th day of June, 1981.
Respectful)y submitted, Ronald E. Mount Counsel for NRC Staff
I i.
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I 17688 Federal Re~ster Er.ecutive ~gal ~.ector at the 1 e
- ddrcss. If a he&:-
- is requ'5ted b) a pt-aon other thar.
~e licensee. that person shell des:rte. in accordar:ce with 10 CFR 2..714: ](:?).the nat~e of the person's interest a d the manner 1r.
~*hich that inleres! ' affe-cted by this Order. Any requestror a.fteor:'ng shell not stay the imme ote efjectfreness of this order.
If a hearing ia re
~ested b)' a person who has an interes effected by this Order. the Comr:ii~ ion will i56ue an order designating *te time and place or
&11y such hearing I a hearing is held.
the issue to be con
- der-ed at 1:Jch hearing shell be:
Whether License*..._o. 3'.'~11--09 should be modifie.i'as set forth in section lJIB of this re er.
Dated at Belht>s~a.
~a!'}*la:id th11 6th day of Mardi 1981.
For the Nuclear Re
'a1ory Comm.inion.
Vic1or Stello. Jr..
Director. Office of Ins
~ction and Enforcement.
lf'11 Clo< l'l-1419 F"drd )-\\
IUl *"'I
.. ~""" COO( 7~1*
(Docile! Ho$. 50-3
~ 50-37'1 Commonwealth EJison Co.;
-Availability of Safety Evaluation Report for La SalliCounty Station, Unlt1 1 and 2 Notice Is hereby 'Hn that the Office of !'l;uclear Reactor egulatior. has publi!>hl'd its Safei E\\'aluation Rl'por1 on the proposed opt~a ti on of the La Salle County Statici.. l!nits l a~c :. lo be locatl'd in BrooiJ:eld Townst:ip. Lo Salle County. Ulinot. Notice of receipt of the application f
~ facility opera Ung
.licl'nses subr.-.ittec \\'the
- Commonwealth Edfon Company v.*as published in the FeJeral Re-gister on lune 9. 19i7 (4: FR 95'."6).
The repor1 is bei 'referred to the Ad\\'isor)' Committ'* on Reactor Safeguard& and is,in~ madl' B\\'Bilabll' er the Commission* Public Documl'nt
- Room, '1717 H Stre. NW.. Washington.
DC. ZOSSS. and at e lll1nois Valley Community Colll'~. Rural Route =1.
Oglesby. lllinoia 15346 for in~pection and copying. The il>por1 (Documl'nt No.
NUREG-os19J ca a!so be purchdsl'd. et current ratee. fro. the National Technical Inform ion Sen*ice.
D1:partment of Co.merce. s:a.s Port Royal Road. Sprir. ~1eld. Virgin;e :::.:!161.
Dott>d at ~1h~1da uryland thi' 13th de)'
or M.rc.h t98l.
I Vol. 46. No. S3 I Thursda\\'. March 19. 1981 I ~otices I Docket Ho. 50-255, Uceriw Ho. DPR-20.
EA 81*111 Con~mers Power Co. (Palisades Nuclear Power Facility); Order Confirming Licensee Actions To Upgrade Facility Perlormance I
Thl' Consumers.Po~*er Company (the
.. licensee"') is the holder or Pro\\'ision&l Operating License No. DPR-20 (C:e Mlir.ense") whic:b authorizes the operation of the Pel:sades Nuclear Power Facility (the "facilit;") at a 1lead)* 1tate reactor core power ll'\\*el not in ucess of 2..530 megawatts thermal (rated po\\'>*er). The license was issul'd for !en than full power !"*els on Man:h 24 and No,*ember 20. l9i'l end September l. 1972 and for full po~*er on October 16. 19':"2. The facility. a pressurized light water mociersted and cooled reactor (P\\\\"RJ. is located at the licensee'* site in Co..-ert Township. Vu Buren County. Michigan.
n Over the past &e\\*eral years. this facility hes been cited for a number of viole tion& of regulatory requirements.
The items for each )*ear from 1975 through 1980 are shown* in the attachment to th~.Order. A3 part of the SR C's Systematic Appraisal of Licensee's Performance {SALP). a meeting was held,,.;th licensee m;inagement on t-;o..-ember 24. 1980 to discuss the results of the appraisal for the period September 1. 1979 to September 1. 198.'.l. Inspections conducte-d during this penod di~losed a total of 41 items or noncompliance.
Escalated enfort.ement action,,.*as taken on two occasior:s. On one OCCi:SSion. r.io\\*ember 9. 1979. an order
.modifying the license wu issued and a civil penalty of S4S.O.OOO was proposed for a continuing violation of containment integrit)* and related procedural violations. The ci,*il pl'nslf)*
action is bl'ing conlestl'd by the licer.see. lhough the licer.see has admitted the underlying procedural
\\*iolations. On the other occasion.
September 16. 1980. a S16.CXXJ c1\\*il pena!t)* lfl.*as proposed (which was 1ubsequently paid by the licensee) for t,,..*o separate h*ents rel;illr:g to per*onnel en-on lfl.'hich in\\'Ol\\'ed Dlis,*ahing safety*related equipment. As DI On January e. 1981. an elr:ct:-ical re?ainnan did not follow proce:~~~s
~*hen conductir,i a sun*eil~ance tes:.
This caused the two lZS-\\'ol: ba'.te:--.
bant.110 be isolated in \\'iolatio:'l of ihr Limiting Condition for Operat10:-: i:i Technical Spl'cificatior. 3.7.1.f. 1-ia:l there been a loss of offsitl' power. fr.!"~e might not ha\\'e been powe~ &\\'aii&bie fur operation ofsafet).. related eq;;1?:Tien! a~
the plant. This condition ellistec for one ho~ while the plant lfl.*as ope~a:i:'I~
Short-term correcti..-e actions were adcfressed in an l.mmediate Actic-:-:
Letter. dated )anua0-* 9. 196:. to th<>
licensee from the ?l."RC Regier: ill o!f1ct:
rv The recent personnel error desc~ibe..!
in Section 111. wher: evaluated w1t."i ti':e undesirable le\\*el or rl'l?".lla:o:-y performance as discussed in Secticr. I~.
indicates that rr.ajor changes i."I t.~e license.e's management cont.""Jls a~e necessar;* to assure that the lice:'lsee c.an operate the Palisades facih:y lfl.*ithout undue risk to the hea~:r. a:-:d safety of the public. At thl' re:;ues: o~ ~-L licensee. representeti\\'es of Regio:-: lil and the licensee's mana2ement me: o;;
Februar;* 18. 1981. The lice:-:see presented a plaMed proF~am of intended actions to essu..-e lha: t!-:e Palisades facilit)' will ope~ate wi:ho;;t undue risk to the health arid safe!\\ of lhe public while rnejor. lo:'lg*te:7:1
- act1or:s are imp:ementec:! to up~ade th facility pe:iormance. The Re~io~ 111 represen:ati\\'es emphas:zed tl':a: i: is
~uential that broac:!. s!~i!1ca:'lt chan;es in the licensee's control o! beer.sec acti\\'ities accompany lo:-:g*term operation of the facil1*y. Region Ill represe:'lta ti,*es ce 1,;t1o:'led the _licensee that these chan2es m;;st be carried c~;---
in a time!;* fash;or. without ad\\'erse:)
impacting lhe safety or near*term operations. In a letter to RPgion Ul dc;:e:
February 23. 1961. e:'ld in a tele;:>!-:,or.e conse:--.*atior. on March 3. 1961. be:v. te~
Mr. R. F. Heishman of the !"."RC Rei;:;.:;:-:
Ill office and M.r. D. F. Hoffr:lan or't~e
r
~.
~.
1 * ~
.L i *,
~...
licer:se!'e tof'?o:ate staff. the lice-pro\\*idrd add:tio:'la! commitmen19 rel11ec to sher:* and long-term impronme:its in t~.e ~:,;a!ity of opr:a::ons at the Pa:isaces facility.
6eca1,;se the licensee bas comr.'litted to tal..e acti::>ns lis:ed in the l:n:ne:iia!e Action Le:ter of Jan:.;a:-y 9. 1901. w~:ch are conf.r~ed in a clarified and re\\'ised form ir.Section V.A of this Orde:. a:-:d bec.a1:se the licensee has corr-"'!'l.itted to other supp:emental acticns. as confirmed in Sections V.B and C of this Orde:. tr.ere is reaso:-:able assurar::e that t!-.e p.,;;~adEs fac:i!it)* ca:'I be ope:a:ed safe\\ in the r.ear*te::;:.
Howe\\ er. continued o;ieration over the Jong*le::-n req:.ii:es sig:-:;ficc.nt char:ges in the licensee's co;;:rol of licensed ecti\\*ities. as desc::ibed and confirmed in Seclio:-; V.D of t:::s Order. AccorL'lg!y. l haH dEte:-T:':.ineu t.l.:a: these coir.mil:-nEn:s are rei;:.ii:ed in the interest or pub!ic hec.1th ar.: sa!e:y ar-.:!.
therefo:e. sl:odc be cor.t.r.ned by a:'I immediate!;* e!fecti\\*e crder.
v ln \\'iew or the foregoir:g. P'J.."SUant to Section 16l:iJ of :he A:o:-n:c Energy Act or 19j.; as a::-:e:')ded. and t.':e Commission's re...-.;la:;cns in 10 CFR Part Z ar.d 10 CF'R Fo;t 5-0. ii is he~e~v orderf'd e!fect1\\'e iir:mediateh* ti.at:
A. The licer:see sha!J conli~ue to o~rale under the followir:g rro\\'ision!
""hich are a clar:fied a:"ld ~\\'ised fonn of
- the pro\\*i9ions of the lrr:rr~diate Action Letrer issued Janua:-j.* 9. 1921:
- 1. The lice:i~ee s!:a!: conduct an audit ofp!anl operatior:s da:!y by a corporate l!'lar.agement rl'p~ese:-::ati\\'e. This represent a li\\'e rr.ay be any Consur:iers Pov.*er Company er:"lpio} ee from wi:hin the E.'lel"FY S;,;;-p!y De;is:-~"'!'lent holdi..-.g at leas! the title of S:a!f En~ir:eer or its
~quivalent.
- 2. A cocimillee comprised of a me:nber of corporate managErr.en! (in addition lo the CDrpora!e re;>:"t'ser.tative referenced in ite:r. 1 a bo\\'e ). a Se:-:icr Reactor Opera to~. and anot!:er qualified indi\\*idua! sha!i rl'\\1ew. prior lo u&e. all Technical Specification surveiilance proced1::es to sssu:e tr.at:
- a. Ea c.h procedure is e;iecifical!y identified as beinE: safe:y-related. or 89 having the po1ent1al 10 a!iect safety*
related equipment
- b. A1:thonza1ion to perfonn v.*ork is l'equi~.d from pl~nt rr.~naizeJ!le:'lt.:
- c. Special nollfic.ation of wo:lo.
performed ie made lo the S!-.i!t Super*isor;
- d. System conditio~ to perlo:-:n work are defoned;
- t. Minimum personnel tkill*level is defined.and
- r. Retum-to-nonnal verification requiremen11 are specified.
Credit can be taken for the tt\\;ew perlormec! in response to the ~RC's t.;oumber 9. 19:"9 Order.
A Prtsidenl for Nucfear Operations W appropriate correcti\\'e actions to pre\\*enl recurrence.
The director of Rt>gion Ill may rela:.. o*
termina le ar.y of the preced1ne?
conditi.,ns in "-"ritir.g for ~ood e.at:sc.
- 3. The licensee 1hall rein*trucl a!l peuoMel v.*ho perfo;-m ea!et)**related wo~k or other work in vi:al areaa of the impo:"1ance of strict aciherence to
- procedures and the necessity for per!crr.ance of all assig:"led duties in a disciplined and professional maMe::.
- 4. The licer.see el:all "e:ify by a second qualified ind1\\1dual. that all acti\\itiu invoh*ing t.J;e manipulation of safety-related ci:-cuits or sys1e1:1s outr;ide the cont:ol room ha\\*e been COJ":";pleted aa required. Qualified ind1\\,di;als v.ill be de&ig;:ated by t."ie '
Plant General Manager for the 1pecific tas:..s.
- 5. The llcensee shall review the 1pecific circuitry in\\*olved in the January
- 6. 1981 nent to determine if control room indicetio:'ls a!e req~ired to s~ow
"*hen an abnormal line-up exists.
.r-.;ecessary circuit rr.odi!icatior.s will be perfor::ied on a sc:hed.:.le to be agreed lo by Reg? on m of the !\\"P.C.
The Director of Region DI may relax or lennir:ate ar.y of the p:eced!::s conditions in "-:-iting fo: good cause.
B. u:ended O\\'ertime on the part of licensed operators shall be avoided by restricting the on:1ir:ie for llc.ensed operato:-s as follows:
(1 J ~ o more ti: an 4 overtime holU'S in any 2.;.hour period; (2) r-;o i:r.o:-e than 2~ o\\*ertime houn in a::y 7~ay period; (3) r-;o more tha.'1 &;; O\\'ertime hours in any ~S-day period:
The Director of Region m IT.ay relax or terminate an)' of the prec:edi::g concilions in "~tir.g'for good cause.
C. A corpora:e te\\'iew team shall pe:for.o independent re\\;ews of ea!ery-relatec! e\\*ent& 't'l'hic:h are reportable 89
- Licer.aee E\\*ent Reports per Tec:.h.."1ical St'eci!ication 6.9 and which al"e cau!ed by pe!"i:m.oel erro:-s or proced;.;:al inadequacies. The re\\iew tea:::i ahall be chaired by the Ci:ainnan of the Safety enc! Audit Re\\1ew Bea.rd. Serving on the re\\'iew team *hall be one member
- boldi!'lg at least the ti:!e of Staff Eng;neer or it& equi\\'alent, from each of the following depa!t.-nents: Q\\;ahty Ass1,;rance--~uc:ear operations:
Nuclear Services Department.: and Nuclear Acti\\'ilies Department.
These me=-.be:s and t.\\,.eir tt;>lacerner::s shali be se:ected suc:.h u-.al the tea::: shall ha\\'e e:..perienc.e and u.pertise in qualil)' asso.:rance. plant operation' and plant systems.
for each occurence rHiewed. the team 1hall recommend to the Palisades Plant General Manager a:id the Vice D. the licensee 1t:a!I 1u!::~i! to ti:e Director of Region III of Llie !\\"RC. "*it!'::~
30 days of this Orde:. a comprehensiH pain or action tr.at v.;1; er.su.:-e sumcie:-:t contro?s "*ill be ir.'l~le:-ner::ec! to pre\\'e:-.t recur.er:ce of \\*ah*ir.g and syste::i
- misali&--7.e:'lts and other c;-e:ationsl erroa si~::a~ to those aet fc:-..1.: i:i Sections 11 ar:d Ill abo\\'e. The plan sh:l incl::::!e a descri;:ition o! t.1.:e a::tio::s to be taken. rec;1,;:r!d irnpe:::-;en::ng staff a:-:d their qual:!icationr;. docu:r.e:-:taton rcc;:.:i:-emen!s. and the plar.*s s:hedule Y*ith impo:"'ta::t milestor:es. Tr.e milestones s!-iall not be c~.a:-:;-ed wi:!':c:.;t prior "-Titter. ap~roHI by the D::-ec::c~ of Region 111. The p!an &!':a:: i::::l:.:de al leut the elements iterr.:zed below.
- 1. A.'l independent out~1de coT!sul:a::t hired by the licensee shal: e\\'aluate ci::-:enl C:"ianizatior.a! res;>or:sibil::ies.
manage:nen: cont.ro!s. 1:c:~f.::f. leH!s and co;:i;:iete:ice. trai.:'Ur.g a::c retraini::;
progra:ns. communi:atior.s. a::=
ope:atir.g practices bo:...li at t.ie fac:il:'.y ar.d t!'le corporate o!!ice. n...:s cons:.;!:::-::
shall be directed to rr.o ~e.
recof:..menc!ations for cha:-.ges in t':c afo~e:nentione:l areas tha: wi!l assist :~.L*
licensee in t:-.eetir.g ~"RC re~:.;ire:-ner.:s.
The liter.see 5!-Jall au brr.it s cq:.y oft.°".':.'
indepcnc:!ent e\\'BIOla:ion to the D:re::tc:
o!.ReFiO:') III.
- 2. The licensee shall re\\'iew. e\\'a)1,;a:r and modi!;-. as necessa:")" pre~e:-;:!::
appro\\"fd sa!e~y/re!ate::! i:::ocec:.;:es a:;=
the p:oc:ess used in t"ie.develo;:>:TJent a~:i appro..-al of t.iese proc:ed*~:-es to e:-:s1,;:-e that p~erequisites. precaut1cns a:-:d li:r.itc.ti;:;:-:s nece&sa:-y to safe o;icra:io::
of the facili:;* are in:l1:de :!.
- 3. The liceosee shall re\\'iew. e\\'aka~e end modi!;*. as nec:essa:-y. th prog*a~
for lrair.ing a:id ret.rainir-i of pe~sc:.ne!
(lic:e::sf'd e:'lc u."'llicensed) :.r:vo!vec i:i eafcty/relatec acti\\ilies ir. v:ta! a:eas to ens~.He that the pro~ar:i adequate!y edd:esses t.iese activi:ies.
- 4. The licensee &ha!! review and e\\'ah.:ate the adec;:.:acy of the c~e::t plant opera lions ata!f. inclucing lic:er:sd opera:ors and aer.ior ope:ators. lo.sa:e:;,*
perfo:m the necessar)* plant ope:ation
- functior.s.
- 5. The licensee shall es~e~Esh mei!!-.ires. inc:iuding *in:er.:1\\*es a::d c;s::i;:ir.a:; action. to :=-.::>*a:e pe:-sor.nel ali:;ere:ice to sch1inistrath*c cor.lrols a:ic! sa!e:y/re!a!ec p:-oced:.::es.
6 The lice::see r;ha!l develop and implerr:ent a eyster:i of a.:c:!s by managemen: ~preser.lati\\*es aimed ;it
- -~ *.
J -.
17690 F.-dera! R~i.ster I Vol. 46. No. 53 I Tbursda\\', March 19. 1981 I Notices assuring conformance lo pro
!'H and
,
- con1inued adherence to changes which result from the re\\*iews ider.t;f;ed in items \\'.0.1 lhrO\\lgh v.o.. 4 abo\\'f.
\\'I An)"l:>erson "*ho bas an iZ'lterest afftcled b)* this Order rr.ay req:.iest a hraring on this Order wiL":in ::s cays or ils issuance. A request fo!' a hear:r.g 1hdll be 1ubmit1ed to the Se::relarv. U.S.
1'uclear Regulatory Co~--:iission. -
Washir.gton. D.C. 20555. A copy of the request shall a!so be 5ent tot.lie f.11.ecuti\\*e Let?al O;!'ecto!' at the same add!'ess.lf a hearir.g is requested by a per~on other thi!n the Jicen5ee. that person shall describe ir. accordance
"'ith 10 CF'R 2.7H(al(::J tJ-.e nature of the person's in:e!'est and the rr.anne~ in "hich that intertst is a!!'ected by this Order. A."1)' request for a ht-c.ri::g.shall not Sli!}' the i::'lmed;ate effecti-.*eneu of thi~ Ordp*
If a he,*..,!! is reques:ed b) a persor.
"*ho hra~e::t.
either in the co:...-se or a hea~;r.g o~ a:-:y othtr ti:ne. a;-prop!'iate action v.ill be lisken b) the Director.
F.flecti' e date: Marc;h 9. 19Bl. Bethe.d...
t.la~ylond.
for the Nuclear Re(t:.ilator; Commission.
\\'ictor Stello. fL, D1r1*::1.'.*. O:"'ice of lnspecr1o:i c.-:
£11forcemenL
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11'11 Iv 11,..11 r.1~ >-1M1. 1 *~.rn:
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!Docket No. SO.{ 61 Georgia Powe Co.. et al.; Issuance of Amendment t Facility Operating Ltc:ense Tht V.S. ~ur 'ar RP~u!.:.tor~
Cor.i:-1:*!'~10n p!:\\' eo~.~.ass1or.l hJS ii:.-urd Amendr. *nt :\\o. 23 to Facilit)
Ope~eting Ucer.se *o. fli:PF-5. iuueo lo Ceo~ia Po.... *er Co.pany. Oglethrope Po.... *er Corporatio Municipal Electric Authority of Ceo~' a. end Cit\\* of Dalton. Georgia."'.ich re"*iie°d the license and Techn
- al Specificatior:ffor ope!'ation of the [cfwin L Hatch Nuclear P:ant Unit So. Z (t* facihi~*J located in Appl!ng County. C*orgia. The
~rnendment ii effeJ:;\\*e.. of its date or issuance.
This amend.-nen deletes e satisfied license condition a~d re\\*ise1 the Technical Specificmionr; to add Limiting Condilions for Opetation and Sur\\'eillance Requir'frne*nts for the l)'&lem to monitor tJe outpul of the poy,*er supply for thl Reactor Protection System. This ameni!rr.enl also corrects an identified def:ciebc\\' in the s;>ecifications for thi AC in\\'erter usociated with thetw Pressure Injection System.
The applicatioc f r the amendment complies "*ith the s a.ndards and requirements of th~Atomic Energy Act of 195-4. as amenc!e4 (the Act). and the Commission's rule~ and regulations. The Commission hu mi de appropriate findings 15 require4 by the Act and the Commission's Nit-; and regulations in 10 CFR Chapter I. v.*l:...ii::h are eet forth in the llcense arnendmer. lPrior public notice or t.hi~ amendmen:. *a& not required since the amendmeiit does not in\\*olve a significant hazards/consideration.
The Commissior.f.as deterr:ii.-ied that the issuance or thi~.amendment will not result in any signif;~ant en\\*iron:r.en!al impact and that puluant to 10 CF'R 51.S{d}(4) an en\\jro !":'\\ental impact statement or negati e dedaration and en\\*ironmental imp'4:t appraisal need not be prepared in ci>nne-clion v.ith issuance or this an:f.ament.
- for further delai~ with respect 10 this action. see (1) the ae;:ilication for amendment dated Octo!:>er 15. 1980. as supplemented ~o"*mber 11. 1980. (:?)
A.."nenrlment No 23 fo License t-.:o. ~l'F-
- 5. and (3) the Comdssion's related Safety Evaluation.111 of these items a.-e l\\&ilable for publilnspection at the Commission'* Pub[; Document Room.
1717 H Street. K\\\\'. \\\\'11shington. O.C.
and at the Arplir:g ounty Public Llbrar}". Parker Str
- t. Baxley. Georgia 31513. A copy of itr.s (:?) and (JJ rr.a):
be obti!ined upon n> uest acidressd to the U.S. Nuclear Re
!atO:')'
Commission. Wash; ;:ton. D.C. 20555.
Attention: Director. *i-.*ision of Licensing.
- oa :ed 11 8.>thetda. P.
T)*land. thi* 6th d">
ur 1.1.rch 1901.
For the Nuclur R :.ilator)' Commiuior.
Robel1 "" Rrid.
Cltir,'. Operotin~ RP :to~ Bronclt No. 4.
D1l'll1on of Liuns1.
au*.,I (C>odl't No. SO.
Maine YankM omic Power Co.:
ls.suance of Am.ndment to Facility Operating Licerf-e The U.S. Nucldar Regulatory Commission (the&Co:nmissio:i) has isr..ied Amendml*.t l'o. s~ to facii1!\\
Operating Licen~ !'\\o. DPR-36. issu~::! :.
Maine Ya=:kee A mic Po\\**er Co!':'::->2!'. *.
which rnised Te :inical Speci:'ica :1:!".>
ror operation or t. < Maine Ya::~e('
Atomic Power Ste. :on (the fad::y) localed in Llncoln ountv. Ma!ne Tr.:-
amendment is eff tiye as of t.'1e dote c:'
issuance.
The amendmen! onsists of ad*Lrio::s lo the Technical S
- ifica lions tc pro\\*ide ~reater as~rance tha:
redundancy ir. dec:h heat remo\\*a!
c:apabilit}* y,*jJJ be iaintained in a::
modes or o;>eratio.
The applic.a!ion r the am<?n;!..":':e:-;t com;>lies with the f.andarc!s a:-.:i req':Jiremen\\s of thf Atomic E:1e:-n A::
of 1954. as amendtf (the Acl). a:1: L":e Co:nmission's ruieC and regula!1*:::-:s. T!".c*
- Commission has "1=ide appropr;c. '.e findings as requir~* by the Act a.oo:: e:~
Commission's rule and regula tio:-.s i:: ~:
Cf'R Cha;:iter I. wh hare set for:!-: i:: :~.;
license amendmen Prior public no:;:e of this amendmen!1. *as not reqi;:~ed 1iZ'lce this amendlT'.!>:"11 does not invoin* n 1ig."lif1cant hazard~ considera t:o:-:.
Tne Cotnr.lissio~has deter:m.-:e-: t.!-.3' the issuance.of th:~ arr.enci~ent "':.! r.:'.
re&ult in any signi.il:ant em*iro:-.:":"le:::,;:
impact anc! that puh:;ant to 10 CTR 51.5(d)(4) an env~~"Tlental ir.:pa:t statement er. negatt*e declarat:c:-, a:-.:
en\\ironmental imq:t appraisal ne-t>d not be pre;>a~d in fonnectio:i ""1t!'l issuance of this arr.rndr.;er. !.
f For further de!a!'.5 wi:h resp<?ct 10th:~
action. see (1) the at-?i1ca1.Jor. for amenri~ent dated 0-:tober 3. 190.0. r:~
A:nend:nent No. >4~o Lice:ise,o. D?~-
- 35. and (3) the Cor.,r:ss1on*s le!!ers d,ated June 11. 1952 rnd ~larch 5. 1~1 All of these i:e~s are nail a bl<? for pub!ic ins;:><?ctlon 21 the Co:::"'.:-:-:1ss::-~ *~
Pi.ibhc Doc:uc:ient R~om. 171? H S:.:e~'.
,...W.. \\\\'ashin~!or.. le. and at the Wiscasset ~ublic L :-ary Associatio::
High Street. \\\\'isc:a. ~t. Maine. Ac~:-"
of items (:!1 and (3! lrd\\ be obtc::--.~..:*
upor. request a:ici:et:e.d to L'ie L.S Nuclear Regulator; ~ommissio::.
y
/.... ; :
51 Ge-**I Offices: 212 West ~ichlg*n A11enu*, JKklOn, Michig8n *9201
- ArN Cod* 517 788*1366 April 8, 1981
... ="-'*C:r.A*J U.S. Nuclear Regulatory Commission Washington, DC 20555 DOCKET NO. 50-255 LICENSE NO. DPR-20 EA 81-18 PALISADES PLANT
Dear Sir:
Judd L. Bacon Mllugi"I Allune~
Consumers Power Company recently received a copy of a petition for hearing.
in this docket, filed under cover of letter dated March 31, 1981 on behalf of the Utility Workers Union of America, AFL-CIO, and its Michigan State Utility Workers Council.
The petitioners seek partial vacation of the Commission '_s March 9, 1981 Order Confirming Licensee Actions to Upgrade Facility Performance.
If the Commission decides that the UWUA request for hearing should be granted, the Company desires to participate in the proceeding as a party.
Documents filed in this proceeding should be served on the undersigned.
CC:~xecutive Legal Director U.S. Nuclear RegulaLory Commission Theodore. ~achs, _ ~sq Marston, ~achs, Nunn, Kates, Kadushin
& O'Hare. P.C.
D\\i\\f f;- Of
~ ' o LFL -i.o ~ 1 O
. \\)
\\
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
CONSUMERS POWER COMPANY I
Docket No. 50-255 (EA 81-18)
(Palisades Nuclear Power Facility).)
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the above-captioned matter.
In accordance with§ 2.713, 10 C.F.R. Pa.rt 2, the following information is provided:
Name Address Telephone Number Admissions Name of Party Ronald E. Mount Office of Executive Legal Director U. S. Nuclear Regulatory Commission Washington, D. C. 20555 (301) 492-8651 Supreme Court of the State of Ohio NRC Staff U. S. Nuclear Regulatory Commission Washington, D. C. 20555
~-~C":...~~
Ronald E. Mount Counsel for NRC Staff Dated at Bethesda, Maryland this 17th day of June, 1981.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD "In the Matter of CONSUMERS POWER COMPANY (Palisades Nuclear Power Facility)
)
~
)
)*
Docket No. 50-255 (EA 81-18)
CERTIFICATE OF SERVICE I hereby certify that copies of NOTICE OF APPEARANCE and NRC STAFF'S RESPONSE TO UTILITY WORKERS UNION OF AMERICA'S "REPLY BRIEF IN SUPPORT OF REQUEST FOR HEARING...
11 in the above-captioned'proceeding have been served on the follow-ing by deposit in the United States mail, first class, or as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 17th day of June, 1981.
Atomic Safety & Licensing Board Panel*
U. S. Nuclear Regulatory Commissio~
Washington, D. C. 20555 Atomic Safety & Licensing Appeal Panel*
U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Samuel J. Chilk*
Secretary of the Commission.
U. S. Nuclear Regulatory Commission Washington, D. c. 205.55 Judd Bacon, Esq.
Consumers Power Company 212 W. Michigan Avenue Jackson, Michigan 49201 Theodore Sachs, Esq.
Marston, Sachs, Nunn, Kates, Kadushin & O'Hare, P.C.
1000 Fanner Street Detroit, Michigan 48226 Docketing & Service Section*
U.S. Nuclear Regulatory Commission Washington, D. C. 20555
~~-~-.~~
Ronald E. Mount Counsel for NRC Staff