ML19220C944
| ML19220C944 | |
| Person / Time | |
|---|---|
| Site: | Rancho Seco, Crane |
| Issue date: | 04/10/1979 |
| From: | Dixon P NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Kelley J, Slaggie E NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| References | |
| NUDOCS 7905160086 | |
| Download: ML19220C944 (6) | |
Text
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f("1I fo.32 O April 10, 1979 MEMORAL'DUM FOR:
James L.
Kell ?y E. Leo Slaggit FROM:
Pat D. Dixon,sr.
SUBJECT:
THE CO.*iMISSION't LEGAL AUTHORITY TO SHUT DOUN I?TEDI WELY RANCHO SECO AND OTHER SISTER PLAl~TS AS A DIRECT RESULT OF TIIE THREE MILE ISLAND II; CIDE:!T Introduction By telegram dated April 1,1979, Governc2 Edcund G.
Erown, Jr.,
of the State cf California, requested tha the Rancho Seco facility, a sister plant to the Three Mile Island facility, be shut down temporarily udtil the causes
.'f the Three ?:11e Island incident were satisfactorily identif ied.
Obviously prompted by an abundance of caution, the recuest raised the safety issue that a generic defect tay have been the root of the Three Ilile Island incident and that the t ace defect may exist in the Rancho Seco facility as well.
The legal issue thus presented is whether the Commission could properly exercise its energency powers under 10 CFR 2.202 to shut down immediately the Rancho Seco facility and other sister facilities to the Three Mile Island facility whe.re there has not yet been an ultimate determination of whether generic defects' caused the incident.
Assuting that the Commission acted to shut down the Rancho Seco facility and its sister plants, the licensee conceiv-ably could challenge the action on the basis that substan-tial evidence does not support the findinn of the Commis-
- sion, i.e., the evidentiary basis is inadequate, that the Commission Order is arbitrar,' and capricious, or that the Order was an abuse of discretion.
As the material to follow will indicate, such a challenge would probably meet with little success.
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April 10, 1979 Discussion 1.
The Agency Practice Section 9(b) of the A.P.A. (5 U.S.C 558(c)) generally provides that written notice be given of violation and an opportunity to demonstrate or achieve compliance before a suspension or revocation by administrative edict.
See also, 7 AEC 8,10 (1974).
That provision also cites specific exceptions to the general rule.
The exception that concerns us here is triggered in instances where "public health, interest or safety" issues are raised.
In such situations, '
an emergency act'.on could be instituted without notice, and the order may be made immediately effective nendine the hearinc.
7 AEC at 10; see also 7 HRC at 400. 404 (1978).
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It is well settled that under circumstances where the danger to the public is "inninent, the action taken properly does no violence to the Fourteenth Amendment.
See, (generally, Southern Railway v. Virzinia, 290 U.S. 191 1933); Lawton v.
Steele, 152 U.S. 133 (1593}.
" Imminent" risk to public health has thus become the trigger for emergency action in administrative law.
Pursuant to 42 U.S.C. 2230, 2237, 2232, the Commission regulations provide for emergency action where the "public health, interest or safety" so requires.
The Connission has utilized its emergency powers under the regu-lation sparingly recognizing that such an action is a " drastic procedure" which could " radically and summarily effect the rights and interests of others."
5 URC at 20: see also, 7 "RC at 404.
Nader v. Nuclear Regulatory Commission, 513 F.2d F
1045 (1975).
Ava11able infornation must demonstrate the need for emergency action and the insufficiency of less drastic measures."
5 NRC at 20.
Nonetheless, in instances where substantial health and safety issues have been raised, the Comnission has not been hesitant in issuing an immediately effective measure.
See, 7 AEC at 10.
"Where the informa-tion demonstrates an undue risk to public hea,lth and safety, the NRC will, of course, take prompt remedial action,,
cluding shutdown of operating facilit,1es, as it has d,in-one'in the past."
7 KRC at.405. -
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2.
In the Exercise-of Emergency Action, the Regulator Kust.
~ Consider Both the Magnitude of the Anticipated Harn.and the Likelihood That It Will Occur.
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April 10, 1979 Although no previous action of the Commission is directly on point, remedial action by the Commission in this in-stance would be a responsible exercise of the Commission's emergency powers.
Cf. Nader v. Federal Aviation Administration, 440 F.2d 292, 29E~(D.C. Cir. 1971).
In Jader, the court essentially recognised that the serious-ness of the potential danger dictates whether the regule ar has exercised its power responsibly.
Where substantial safety issues are raised or the "4mm*nent hasard" exists the Administrator would be justified in initiating an-emergency action.
See renerallg, Wellford v. Ruckelshaus, 439 F.2d 598, 601 (1971); Environmental Defense Fund v.
Ruckelshaus, 439 F.2d 595 (197X).
There remains the ques-tdon of what factors must be considered in determining whether an. imminent hasard exists justifying interim action.
In Wellford, the court reversed the Administrator's decision to refrain fron granting immediately effective laterim relief where it was obvious that the presence of substantial safety issues justified such actior.
The court detailed what factors should be considered by the Administrator when reaching the determination.that immediate suspension of the product is recuired as opposed to the ordinary cancellation proceeding.
Basing its analysis en general principles of administrative law, the court stated:
Although cancellation notices should issue as soon as the Secretary finds a substantial question con-cerning the safety of a registered product, he re-serves the suspension power for cases in which serious and irreparable harm to the public health
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is likely to occur before the conclusion of the ordinary cancellation process.
In order to apply his standard to a particular product, the Secretary must first determine what harn, if any, is likely to flow from the use of the product during the course of administrative proceedings.
He must consider both the magnitude of_the anticipated harm, and the likelihood that it will occur.
Then, on the basis of that factual determination,'he must decide whether the antici---
pated harm amounts to an " imminent hasard to the' public."
Id. 601-602.
Weighing these factors here, it can be argued with some force
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April 10, 1979 tille Island' incident in regara to the other plants of similar design, including Rancho Seco.
This is particularly true in light of the fact that the root of the problem has not yet been determined.
In sum, weighed against the gravity of the seriousness of the potential danger, Com-mission emergency action could be Justified as a responsible
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exercise of the Coc=1ssion's authority within the. meaning of Wellford, Nader, and Environmental Defense Fucd v. Ruckelshaus, suora.
3.
Courts Particularly Deler to the Discretion of the Regulator Where the Issue Is One of Interim Relief..
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It is generally recognized that cost regulatory statutes confer. broad discretion on the regula;or.
L'ellford v.
Ruckelshaus, h39 F.2d 598, 601 (1971).
More importantly, though, it is equally recognized that " Courts will par-ticularly defer to that discretion when the question at issue is a matter of interim relief."
Id.
[ Emphasis added].
See also, EDF v.
Ruckelshaus, 439 F.2d at 595 (1971);
f.~ational Air Carriers Ass'n v. CAB, 436 F.2d 185, 194, 195 (19T03~[ Emphasis added].
The NRC's statutory scheme is entitled to at least the same broad construction as statutes of.other agencies.
7 NRC at 726.
Indeed, the courts have recognized the unique degree of bread responsibility re-sposed in the NRC.
Siecel v.
AEC, 400 F.2d 778. 783 (1966).
Accordingly, if NRC exercised its emergency powers in this instance, there is no reason to believe that the action would not be within NRC's broad discretion under the Atomic Energy Act to protect public health and safety in the com-mercial nuclear field.
The courts would probably defer to that discretion.
4.
Administrative Decisionmaking On The Frontiers of Scientific Knowledge Is Subject to Less Judicial Scrutiny In Environmental Defense Fund v. Environmental Protection Agency, 548 F.2d 998 (1977), the Administrator had. utilized its emergency powers in summarily suspending the registra-tion of two pesticides pending the more elaborate cancella-tion proceeding.
The manufacturer challenged the adequacy.
of the evidentiary basis upon which the Administrator relied in impcsing the emergency remedy (we could face a similar.
challenge by a licensee). -In upholding the Administrator's action, the Court essentially found that where the continued
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April 10, 1979 use of pesticides posed a potentially " imminent hasard" to human health, an inter 1= action was justified under the circumstances, and that the standard of proof under circum-stances of this nature are less stringent than usual.
More importantly though, the Court emphasized the problem of applying substantial evidence and. arbitrary and capricious standards to " decisions made at the frontiers of scientific knowledge."
Id.
Accord, Industrial Union Department AFL-CIO v. Hodgson! 499 F.2d 467~(1974); Reserve Minine Company Environmental Protection Agency, 514 F.2d 1192 (1975);
v.
Amoco 011 Co.
- v. Environmental Protection Acency, 501 F.2d 722 (1974).
What the foregoing progeny of cases essentially indicates is that regulatory agencies need not be hindered in the decision-making process by incomplete factual determinations where there is evidence of imminent danger to the public if action is not taken immediately.
This is particularly true where the question before the agency is at the " frontier of scientific knowledge and consecuently as to them sufficient data is presently unavailable to make a fully informed factual determination.
Decisionmaking must in that circum-stance depend to.a greater extent upon policy judgment and less upon purely factual analysis."
Industrial Union Decartment ALF-CIO v. Mcdgson, 499 F.2d 467 (1978).
Few would argue that WRC is constantly faced with decisions on "the frontier of scientific knowledge".
At least, the~ courts have recognized this.
"While the regulatory agencies in most of the other fields concern themselves with establish-ing an efficient national allocation of resources
. the Atomic Energy. Commission concerns itself with promoting technical innovation in a highly experimental field."
Cities of Statesville v. AEC, 441 F.2d 962 (D.C. Cir. 1960).
In conclusion, this decision undoubtedly would be on the frontier of scientific knowledge, and thereby available information need n~t be complete in an emergency situation o
such as this where a substantial risk exists.
As Hodgson also points out, in circumstances where the available infor-mation is insufficient to make a factuti determination, it is mor.e favorable for the Administrator to blunder en the side of safety..Id. at 475 Conclusion One final note,_the argu$ents in-each of the above sections are interrelated.
For instance, we may argue that since the
" magnitude of the anticipated harm and the likelihood that
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it will occur are great," the situation therefore gives rise "o; potential inninent" harm to the public justifying imme-diate relief.
However, the argument may run into problens since no one definitely knew at the time whether the prob-.
lens at the Three Mile Island facility were Eeneric in nature.
However, the latter two arguments would save it.
As mentioned earlier, courts will "particularly defer" to the discretion of the administrator when the question is a
' matter of interim relief.
Likewise, agency discretion is even broader where the decision is at the "fronti r of.
scientific knowledge" even though the evidentiary : asis in which such a decision rests is less than what is n>rmally required.
Since our discretion would be uniquely broad under these circunstances, the courts probably would not measure our action by strict constitutional standards.
Therefore, it is reasonably clear that the extent of NBC's discretion in this matter is sufficiently broad to withstand a challenge.
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