ML19249A158

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Continues 790727 Discussion of Startup proceeding,30-day Deadline of 790702 Order & Proposed Order to Extend Deadline
ML19249A158
Person / Time
Site: Crane 
Issue date: 07/24/1979
From: Bickwit L
NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To: Gilinsky V, Hendrie J, Kennedy R
NRC COMMISSION (OCM)
Shared Package
ML19249A130 List:
References
REF-10CFR9.7 790730, NUDOCS 7908210089
Download: ML19249A158 (27)
v • d • e


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Leotiard Bickwit, ~ Jr., General Counsel

SUBJECT:

MI-1 PROCEEDING This paper continues the discussion of the Three Mile Island Unit No. 1 proceeding which the Cocsission last discussed on Friday, July 27, 1979.

We have included a discussion of the 30-day deadline in the July 2,1979 order and have included a draft Order ex ending that deadline.

We have also su==arized the results of Friday's discussion including, in these cases in which ag eenent was reached, the language approved and, in cases where agreement was not reached, the options which are still under discussion.

Finally, as renuested in the Friday meeting, we have included discussion and options for some of the_ points which were not fully discussed in our July 26, 1979 memorandus en this subject.

I.

The 30-Day Deadline in the July 2 Orde On July 2, 1979 the Cc

'ssion directed that IMI-1 remain shut dcwn until after a hearing and that a further order would be issued within 30 days specifying the basis of its concerns with regard to TMI-1.

Since then the Ccemi.Ssion has met receatedly to draft that further order which vill enumerate those' concerns and'specify the procedures for the recuired hearing.

At the July 27 meeting the Chairman asked OGC to draft an c der extend-ing the.1-day deadline en the assumption that the further order wculd not be cenpleted by Wednesday, August 1, 1979, 30 days after July 2.

~4e believe there are two options for such an order.

One option would be a simple c der extending time for the further order until Friday, August 10.

We have no legal concerns about such an c:cer although, as you have been previously advised, at some peint the S:ther order may becc=e so reacte in rice f:ce the July 2 c: der as to cause proble=s.

We recc==end issuance of such an order and have attached a draft.

CONTACTS:

Stephen S. Ostrach, GC, X-43224 t42 095 Richard 5. Mallery, GC, X-416c5 r

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a:Th;e.-second-option 'would.be.to. issue-sa further order which does _

set"forth the con 2 Erns whichinderlay' the July 2, 1979 order, T

_. but that vould postpone the promulgation of the procedures for the TMI-l' hearing 6ntil'a third order is issued.

We believe that the Commission is in substantial. agreement on its con-cerns, 'and ~that;eaching agreement.dn language might well be

.possible Jy7ednesday1. 2ven if such. agreement is reached, how-._

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~ '.everi. we believerthat 1ssding three - separate orders on 'IMI-l

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-.CArestartaculd be-more conducive to confusion than clarifica-ti'on.

We believe-the-Commission would be well advised to continue-its present course of work on the TMI-1 order and set August 10 as a realistic goal for completion of work.

II.

The July 27, 1979 Meeting A.

Cocmission Review of the Licensing Board Decision At the July 2 meeting the Cor:: mission agreed to adopt a two-phase p ccess for considering the Licensing Board's decision.

Adjudicatory review of the Board's decision would follow the normal course (although there would be no intermediate review by the Appeal Board).

However, the Co 4 ssion agreed to decide whether to re=ove the #-ediate effectiveness of its c dar, and thus to permit restart of "MI-1, on a separate and faster crack.

We believe that the following language embodies your agr..eement :

If the Licensing Board should issue a decision authorir-ing resumption of operation upon completion of certain specific actions by the licensee, and subsecuently if staff certifies that those actions have been completed to its satisfaction, the Com4 ssion will decide within 35 days after such certification whether this c der shall re=ain i= mediately effective.

Any motions relating to the lifting of 4-ediate effectiveness must be received by the Secretary of the Co= mission within 10 days of issuance of the certification, and any responses to such

=otions =nst be received by the Secretary 7 days later.

The Co 4 ssion shall issue an order lifting the i= mediate effectiveness of this order, or any provisions of this order, if it deterrines that the public health, safety c: interest no longer require tha: this order or such provisions remain i==ediately effective.

'Ihe Con =ission's decision on that question shall not affect its direct appellate review of the =erits of the Board's decision.

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The follows.ng language reflects The Comm4 ssion agreed that'cormal precedures for cross-exaMnation the agreement:

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_f.In the codduct of this proce,eding. the Licensing Board

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T receiv.s. all information necessary to a thorough inves-tigation and resolution of the questions before it.

However, it should use its authority under 10 CFR

2. 757 to prevent any undue delay to the proceeding resulting from any cross-examination not required for the full and true disclosure of the facts or from other sources mentioned in that section.

C.

Discovery By a vote of 2-1-1 the Cocsission indicated a p eference for the first discovery option listed below.

Coc=issioner Ahearne indicated that he preferred the second option and Com=issioner Bradford preferred the third.

We have added language to the second and third options to clarify that it will be an accept-able response to a discovery request to state that the material in question is available in the public compilation of documents and_ to provide sufficient information to allow it to be located.

Tenta:1velv Aceroved Ootion The Co=sission has determined tha: the extraordinarv amount of information that is and will be cade publ'iclv available as a result of the various investigations of' the Three Mile Island accident that are now underway makes it unnecessary to apply to this proceeding the discovery procedures in sections 2.740-2.742 of the Cc= mission's regulaticas.

"ihis information, which is being gathered bv the licensee, by NRC staff, by the Cornission s Soecial Inquiry, by the President's Co* ssion and by sev'eral Congressional co=mittees will far exceed in death and breadth the information publicly available in 'anv normal CoWssion proceeding, and exceeds that which would likelv be uncovered through even the most extensive use of dis-covery procedcres.

Accordingly, in several locations,

including the Co=nission's Public Document Room and the 21I Local Public Document Rocc in Harrisburg, the Con-nission will =aintain and continucusly urdate ec=oilaticas of all publicly available informatica en' the Thre'e Mile Island accident and related =atters, and it will also persi: informal access to NRC staff considerations of the

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' Any party ' wishing to employ the discovery procedures in 10 CFR 2.740-2.742 vill have to satisfy the Licensing Board that the information sought is clearly relevant to the

... proceeding, is not available in the data compilation and

.. that permitting disco.very will not result in undue delay

. or impose an undue burden on 'any party.

Second Ootibn

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The provisions for pre-hearing discovery set forth in sections 2.740-2.742 of the Commission's regulations shall apply to this proceeding.

Furthermore, in several loca-tions, including the Commission's Public Document Rootn and the TMI local Document Room in Harrisburg, the Commission will maintain and continuously update a compilation of all publicly available information on the Three Mile Island accident and related matters,.ind it will also permit informal access to NRC staff considerations of the issues involved in this hearing in the canner in which such access is per=itted in reactor licensing proceedingc.

It shall be an adequate response to any discovery request to state that the information or document requested is avail--

able in the public compilation and to provide sufficient information to locate the document or information.

More-

- over, as provided by 10 CFR 2.740(c) and 10 CFR 2. 740(d),

the licensing board =ay, and when appropriate, should, in the interests of justice, limit the extent or control t.he sequence of discovery to prevent undue delay or i=posinion of an undue burden on any party.

Third Occion "he provisions for pre-hearing discovery set forth in sectione 2.740-2.742 of the Co= mission's regulations shall apply to this proceeding.

Furthermore, in several loca-tions, includin; the Co==ission's Public Cocument Room and the TMI Local Ducu=ent Room in Harrisburg, the Commission will maintain and continuously update a c.capilation of all publicly available information on the Three Yd.le Island accident and related =atters, and it will also pernit informal access to 2C staff considerations of the issues involved in this hearing in the manner in which such access is permitted in reactor licensing proceedings.

It shall be an adequate response to any discovery request to state that the information or docu=ent requested is avail-able in the public ccmpilation anc to provide sufficies:

information to locate the docunent or infor ation.

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842 098

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Satisfactory. Completion 'of Required Actions m... w.

The Commission agreed tia staff certification of satisfactory

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completion of actions required by the Board should be governed by procedures similar to those employed in a contested operat-ing license proceeding.

We believe the following language which 1

"'~ bodies :s modeled after 3and refers to the OL regulations en-that agreement: 7

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?:ior to issuing its decision the Board shall have authority to require staff to inform it of the detailed steps staff believes'necesaary to implement actions the Board may re-quire and to approve or disapprove of the adequacy ed such With respect to any uncompleted items the Board measures.

shall have authority si=ilar to that provided in 10 CFR

50. 57 (b) to take such actions or to i= pose such limitations or conditions as it believes necessary to protect the public.

health and safety:

Provided, that, as provided elsewhere in this order, restart shall :o be cernitted until satis-factory ccupletion of all unecepleted short-term acti.ons.

E.

h ediate Effectiveness of Long-Te s Actions The Co

  • ssion did r.ot agree on a resolution of this matter.

optionc Two were discussed at the meeting:

the first proposedi by Cocsissioners Kennedy and Bradford, the second by Commissioner Ahearne.

The fiist option would not require the licensee to begin work 4 ediately on i=plementing the long-ters actions and would perni the Board to set a date for their completion based en the time after restart allowed to other 3&W facilities re-quired to perform stailc: long-ters actions.

The second c7 tion would be to make !.:cediately eff ective an order requiring licensee to i=plecent all long mers actions that

he of other 3&W facilities and would prov'.de tha:

are now recuired tern actions are required of other facilities they would beden other long-required of U.I-1.

W have also added a third optics whicn would recuire the licensee to begin work on the long-term actions no:

but woulc cake restart conditional en a scard finding that licensee had i=plemented those actions as p cmptly as practicable the and would permit the Board to recc==end tha:

an app:cpriate amount of :ime if those actions had notbe delayed restar:

been so i plemented.

As a practical =atter, we believe this would be equivalen:

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o i==ediate effectiveness, but since work wculd be dene enly if the licensee chose, i missi- "

-"e posture of c derinz wc:k d ne while atvould avoid placing the Com the sa e tire it was deliberating en wae:ner to perni the facility to Operate again.

he licensee and the public in a ma.nePut another way, it would allocate risk be simila: to the way in which it would be allocated fo: the short-tern actions.

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~ case the licensee-could choose not to implement the actions in the

-hope.of persuading the Board c: the Cocsission that they ought not to be required.

In each case, the result of a failure to convince the Board or the Cocsission would be a delay in restart.

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First Ootion The portions of tS!.s c der requiring the taking of long-

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term actions are not i= mediately ef.ective.

In its Initial Decision the Board shall set a date by stich the long-term actions it requires must be completed and it shall be guided to the extent applicable by the am..:; of operathg time other licensees were allowed to compiece similar long-term actions.

Second Occion Those portions of this order which require the licensee to take long-term actions as to which the Cor:'.ission had issued i=ediately effective orders against other licen-sees are hereby made i= mediately effec:ive.

If the Com-mission issues i==ediately effective orders against other licensees imposing requirements with respect to other long-ters actions, it will, to the extent appropriate in the circumstances, issue i= mediately effective orders against the licensee in this proceeding.

Third Occion Those long-term actions as to whic.h the Co==ission had issued i==ediately effective orders against other licen-sees =ust, e?!ective 4 ediataly, be perfor:1ed as promptly as practicable as a condition to :estamt.

If the orders agains: other licensees imposing requirements w.th respect to other long-term actions, it wil.1, to the extent appropriate in the circumstances, issue orders,

effective i= mediately, to require tha: such other actions be performed as promptly as practicable as a condition

o restart.

If the Board deter =ines that operation can be resured upon completion of certain specific short-term actions by the licensee, it shall consider the extent r.,

which the licensee has acted to i=plenent the long-ter:

actions described above.

If it finds that the licensee has moved to implement those actions as c._ror: lv. as t..ac-

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t s na,t i recc==end resur:t.on c: creration upon cenple:icn of :he short-term accihns.

If il canno: take such a finding, it shall recc=end that operation be resu=ed at a date that it believes app:cpriately ref'.ects the importance of the action involved, the time los 82 100

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. because the licensee di'd not implement the long-term actions as'promptly as' practicable, and the overriding need to provide adequate protection of the public health and safety.

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III. RemaiMng Issues

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S[ecificity c,f Iss'ues Enumerated, Atribution to Com-mission or Staff and Treatment of Generic Issues 1.

Acknowledgement of Actions as Tentative As the title above indicates, this subject contains a number of topics.

The options discussed here are not necessarily mutually exclusive since they address various areas of potential concern.

The first option would be to leave the substantive list of con-cerns and required actions essentially as it was proposed by staff and to include in the order language such as :

The above list of actions required is p cvisional and has been based on recocmendations given to the Co-ission by NRC staff.

It may be supplemented or modified by the Board as a result of the evidence presented at the hearing, and it does not represent the fixed or final views of the Cot =21s sion.

Other conforming lan6uage would replace existing draft language elsewhere in the drart.

2.

Removal of Specific Mention of Remedial Actions Alternately all discussion of specific actions, either long-or short-term, would be removed from the order.

The concerns alone could be listed and it could be stated that these had led the Co

'ssion to order operation not to resume until a hearing at thich the Board could pass on the necessity and sufficiency of renedial actions proposed by staff and other parties.

We believe such an order would be legally defensible since the Co~'4 ssion is obligated only to explica: t and defend the concerns sich have led it to prohibit operation.

At least un:11 after a hearing the Cec =ission is not itself required, even en a tentative basis, to set out sa: actions would be sufficien: to al'.eviate those concerns.

This opuion could be i=ple ented by deleting all discussion of acticas " rom the c der (pages 3-8 of the July 25 draft order circulated by CGC) and by adding such language es :

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-. ~ Based on the ab6Ve; the Co 4 ssion has determined that operation not bedesumed at TMI-l unless and until the Cocmission has determined that those concerns have been resolved.

A hearing shall be held by an Atomic Safety and Licensing Board which shall be on the necessity and suffi-ciency of specific remedial actions proposed by staff and

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other. parties to resolve those concerns.

On the basis of

. that hearing, it will be determined whether operation will be permitted.

If so, it will be further determined what actions will be required as a condition to ' restart and what additional actions, if any, will be required after restart is permitted.

It should be noted that, under this option, no long-term require-ments can be made i= mediately effective.

3.

Removal of all Generic Actions A third option would be to cull the lists of concerns and short-and long-term actions to extract those which ara. essen-tially generic from those which are wholly or largely singular to UI.

The order would provide that a hearing would be held on the TMI-specific issues and that EI would be treated. in the same fashion as similar facilities with respect to generic issues.

Perhaps the easiest way to proceed would be to list in the. order all contemplated actions for TMI-1 and provide that those later handled generically would be deleted by subsequent order.

In that case, the issue of " sufficiency of required actions" would have to exclude those questions which a e handled generically.

The =ajor advantage of this proceeding is that this would p e =i: generic issues to be resolved en a ::uly generic basis free of the delays and difficulties inherent in adjudication.

Furthermore, this would re=ove the possibility that incon-sistent results would be reached by different licensing boards in different proceedings.

The two disadvantages are that it would require the generic actions to be i=plemented by rule-

=aking rather than by more informal means as staff would prefer and also that it would mean the removal of issues from adjudica-tion to wha: nay be perceived as the less rigorous process of rule =aking.

This optica could be implemented by including in the order language such as:

842 102

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July 30, 1979

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IIhe Cocnissi~on"is cons'idering imposing g'eneric require-ments as a result of the Three Mile Island accident.

If any such generic action is taken and the Co* ssion deter-mines that such action impinges upon any of the matters in controversy in this proceeding, the Cocaission shall issue a separate order removing such matter from the hearing or

. taking other appropriate action.

1-3.

Procedures for Determining Khether to Consider

" Psychological Distress" in the THI-1 Troceeding The Com=ission has tentatively agreed that the question of whether to consider psychological distress (and resulting physical conse-quences) in the TMI-1 proceeding will not be resolved in this

. order, but will be decided after interested parties have had an opportunity to brief the implications of the Ato=lic Energy.k:0 and NEPA.

There are several options for such a process.

The three major =atters that must be addressed are the stage of the TAI-l hearing at dich this question will be resolved, who will resolve it, a.d secher the procecding will continue while it is unresolved.

1.

When Will the Issu Se Resolved?

The issue could be addressed by p :oviding in this order for the fil'ing of expedited briefs and directing a procpt decision.

This would per=it a decision within 30-45 days after the order was issued.

The second option would be for the psychological distress issue to be addressed at the time the acceptability of other contentions is ruled upon.

3.e last practical stage wculd be the initial decision after the hearing is cecpleted.

We recor=end the second option.

It would not be practical to try to resolve this issue before the proceeding is underway.

Parties wil1 not have been admitted or consolidated, and some time should be allowed to them to focus on the sole case before requirin5 them to address one issue.

Conve:sely we believe postponing the decision whether to accept this centention until the initisi decision stage is unwise.

To keep open the option to accept it, it wculd be necessary to ad=it a

nsiderable volu=e of evi-dence on this po#--

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  • k e centention ulti=a:ely is not accepted, considerable hearing nice will have been wasted.

By resolving :he psychological dis::ess issue at the ccatentien stage, parties w'.11 be able to deal with it at the stage a which they are engaged in sini'.2: activities fer the other cententiens being raised.

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v, The three options are the Licensing Board with normal Commission review, the Board ~with provision for expedited Commission review, and the Commission itself directly.

We believe that the first option would make the consequences of an error too great since an erroneous decision could either vitiate the usefulness of the record..c. lead to substantial unnecessary prolongation of the

~The ch'oice between the second and the third options is hearin'g.

more difficult and requires consideration of several factors not now known.

For emple, if evidence or testimony is offered on this matter, it would be preferable for the Board to take it and make an initial decision.

However, if the issue is pre-sented solely as a legal and policy matter, it would be more appropriate for the Co 4 ssion itself to address the matter.

We reccc=end that you defer the choice between the second and third options by leaving the issue to the Board.

The Board would be given instructions to certify the question, and the briefs and record on point, to the Cocsission for interlocutory decision either before or after making a recocmended decision on the catter, as it deems appropriate.

As a general catter,

certification can be appropriate whether or not the 3 card has reco= mended or ruled on the issue.

3.

Should the ?:oceeding Continue While the Psychological Issue is i'uresolved?

A case can be made that resolution of the psychological dis-tress issue will affect how other issues w'.ll be presented, and thus that the proceeding should be delayed

, await resolu-tion of the issue.

However, we believe that the activities necessary in the initial stages of the proceeding co no re-cuire resolution of the psychological distress issue any more than they require other possible contentions to have been resolved.

4 Draft I.anguage The options we have recccsended could be embodied in the order by inclusion of language such as :

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. While, the issue of' psychological distress and physical consequences resulting solely from such distress is a matter of real and substantial concern, the Cow ssion has not determined whether it is an appropriate matter to be raised in this proceeding.

Any party wishing to raise this subject as a.contenti~, or as an aspect of a sep-arate contention, should brief the Atomic Energy Act and

' National Environmental Policy Act issues he believes appropriate to the Board as part of the contention accept-ance process set out in the Commission's regulations.

'Ihe Board should then certify that issue to the Commission for final decision prior to the issuance of its prehearing conference order pursuant to 10 CFR 2. 752(c), either with or without its recommendation on that issue, as it deems appropriate under the circumstances.

C.

Financial Qualifications In view of the substantial concern that the licensee and others have expressed publicly abcut its financial well-being in the afte ca:h of the accident, and since there have been unproven allegations that financial considerations =ay have led the licensee to put 5.I-2 into service before it otherwise woulci have,' we believe the Commission should accept staff's recem-mandation to make financial qualifications a short-term issue in the hearing.

If it does so, there are two ostions for proceeding further.

First, it could be provided that financial

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qualifications will be judged by the " reasonable assurance" standards set forth in 10 CFR 50. 33(f) for approving operating license applications.

This is presumably the le. vel of quali-fications that a licensee must =eet during the entire time he holds a license, and so it logically could be amplied to this licensee now.

However, use of this standard and use by staff of the procedures currently used to apply that standard vill mean : hat financial cualifications will be a =afc issue in discovery and will require more than a few hearing days to be devoted to it.

The second option would be to direct the Board Oc employ the CL financial qualifications criteria, but also to attempt to develop and employ new procedures that will reduce the time and ca:erwork burden that would otherwise be created.

In SECY 79-

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299 the staff has proposed substantial revisicas to curren:

ccedures for determining financial qualifications and in that hacer staff suzgests that substantial time and resources could he' saved in this area.

Accordingly, there may be censiderable roc = for improve =ent in present financial cualifications pro-cedures.

A direction to the Board that it is free to develo:

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new procedu:es, perhaps simila: to those proposed in SECY 79-299, : hat will effectively and expediticusly address the gaancial g42 tUD m

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Th'e Cc==ission 12 July 30, 1979 issue will permit,the Board to consult with staff and other parties.-as to the portions.of nor=El OL procedures that may be dropped"as unnecessary. -It is at least a possibility that this may result in el N nation of unnecessary delay.

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We recc= mend the second option discussed above.

To accomplish such a result the order should include language such as:

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In deciding;the financial qualifications issue the Board shall e= ploy the financial qualifications criteria for operating license applicants set forth in 10 CFR 50 33(f) and 50 57(a)(4).

The Board is free to atte=pt to develop, in consultation with NRC staff and the parties, appropriate procedures different frc= these e= ployed in operating license proceedings to aid it in resolution of that issue as it is presented in this proceeding.

Any such precedures should assure that all necessary and relevant infermation will be thercughly considered withcut any undue delay to the pro-ceeding and without imposing an undue burden en any party.

D.

Cc=~issicn Funding of Interventien Cc==issioner 3radford has suggested that the Cc- 'ssion censider providing intervencr funding in the TMI-l restar proceeding on issues related to psychological impacts.

This raises several issues, which are discussed below. 1/

Although the Cc==f.ssion

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has tentatively agreed that the question of whether to consider psychological i= pacts will not be resolved in this order, we have recc== ended that that question be resolved when the acceptability Of contentions is ruled on.

If funding is to be available for preparation of arguments en the acceptability cf psychological i=; acts as a contention, rather than only for preparation for hearing if the centention is accepted, then the funding questien

=ay have to be decided in this crder, er soon thereafter.

1.

Legal Authority

"-a *-- 'ssion's legal authority to fund interve=tien was discus-sed in Section XII of a January 5,1979 =etc frc= this office to the Cennissi:n on the licensing reform bill.

That me=o,Section XII cf which is attached, cencluded that the Cc--4ssicn wculd be en reasonably fir legal ground funding intervencrs without an express Cengressional appropriation.

1/

? rtions Of this discussien are drawn frc: a paper hy Jean Ar:n, CPI, entitled " Citizen Participa:icn 1: C-:ve rn-nen: Ixpense," :: te published secn in the ?utlic Ad 'nis:ra-icn ?.eview.

<n!

s'

\\JO C6 4 d

The Co==ission 13 July 30, 1979

~

Since January, Fresident Carter has directed executive agencies with the requisite authority to institute publie participation funding programs.

WeTnow of no new cases or other maj or develop-

~

ments concerning agency funding authority since January.

We conclude that the Co==1ssion's authority to fund. intervenors remains reasonably firm.

2.

.Should Funding Se Provided?

There is perhaps more need to ensure full public participation on the issue of psychological i= pacts than on other issues before the hearing board.

Neither staff nor the licensee has any particular expertise in the matter.

If, as a practical matter,

  • he burden is on intervenors to de=cnstrate s1 n'.ficant psycho-5 sogical i= pact, rather than on the applicant to show no signifi-cant impact, adequate preparation by intervenors will be particu-larly important, and cross-examination will be less adequate as a substitute.

Moreover, since the issue is one of how the surrounding

~ ~**y will react to restart, interested =enbers of the co==un-ity =ay be better qualified to present such a cat:ter than staff or applicant.

On the other hand, delays that may be caused by ir.plementing a funding progra= =ay be troublesc=e here, where the Comm* ssion is concerned with reaching a decision rapidly.

The decision cade here en funding will inevitably tend to set a precedent for other future decisions the Cc= mission =ay =ake concerni.ng a non-statutory funding progra=, and there =ay be tco little time here to reach a consensus on how the many details of a funding prcgram should be handled, without unduly delaying the proceeding.

3 Who Receives Funding? 2f Tnere are several possible sets of criteria.

a.

The licensing refo:n bill criteria, which rese=ble those in the FTC's statute.

Those criteria are:

1.

the intervenor's interest in the matter; 11.

that the intervention wc:uld nct occur er its effectiveness would be sil:nificantly limited in the absence of funding; 1/

In this and subsequent funding-related issus-s, the section On intervencr funding in the Cc- 'ssicn's l' censing refern till may be help ful, p a-ti:212:17 in suggestin;; resciuti:n f issues w"'-"

=~a n00 discussed here.

4 O

() % L-k I

Q

n.e Co-ssion 14 a u-.y 3 0, 1979 iii. that the intervenor's participation is likely to lead presentation of argn=ents R arNor views that would not otherwise have

~ 'Ibeen. presented; and

-iv.

-that presentation of such views is

.likely to be necessary in order that a fair determination be made.

b.

The crite$ia f. cm Senator Kennedy's bills on intervenor funcing and the pending 'oills on

-the Tegulatory reform.

To qualify a party must:

1.

represent an interest which could con-tribute substantially to a fiar deter:nination, considerating the natu e of the issue and the need to represent balanced interests; and 11.

show that its ecencaic interest in the cutcome is small or tha: it lacks su'ficient resources to participate effectively without a subsidy.

c.

The GESMC criteria: that a party (i) shew that it could make substantial centribution to the proceeding, and (ii) show that it would be unable to participate effectively without assistance.

d.

The Consission could dispense with criteria and determine that it will make some a:ncunt available to cc::= unity cr public interest groups for a study of psychological impacts.

The hearing board would require participants avecating that significant impacts will cccur to =ake a single consolidated propesal for a study.

A study et the other side of the issue might also te fu.ded.

This would be similar to the Department of Agriculture 's decision to contract with the Consu=er Federa-tien of Anerica to present censumer views of certain proposed USDA regulations.

See Chamber of Cc=merce v.

USDA, D.D.C. Civil No.

70-1515 (October 10, 1,075) (upholding Ocntract).

e.

Discussion We think that the Cen.issicn's experience with the GESMO criteria has shewn that they do not werk well, as the twc ccrponent s tand 4n.

e mr -

iuo U

m

The Cc mission 15 July 30, 1979 F

. 8 olbe mutua?.ly exclusive.

As between the

,. ' ~ -

- : first two sets 'of criteria above, those in

. the proposed licensing bill have the advantage that the Cc= mission has carefully considered them and agreed en them.

The second set would be easier to =eet and perhaps easier

- to administer.

~ The 'fobrth arrangement would dispense with criteria and definitely provide for one or perhaps two studies.

It dispenses with one major delaying factor - selecting and imple-menting eligibility criteria.

This may be justified by the rather unusual nature of the issue involved.

We cannot say whether this arrangement would work for other proceedings, but we do not think the Cc= mission needs to choose a set of general criteria, designed to be workable in all cases, in order to fund intervenors in this case.

4.

Timing Cf Payments Payments may be made either before er after the hearing.

?ayment after the hearing allows the Scard (or the Cc=nissien) to assess Obe party's contribution before payment is made.

This tends to assure that funds will not be wasted.

Payment before the hearing would have to be based en a proposal for study and expected expenses, which would be more difficult to evaluate than an actual contribution.

However, it =ay be r.eces-sary if truly impoverished grcups are to make a substantial aff"--=-*ve case.

The difficulties of assessing befcrehand whether a valuable centribution can be =ade might be alleviated sc=ewhat by making progress payments based on prel* ' nary results.

5

'iho Decides?

Several decisions will have to be made if funding is provided, such as whether funding criteria are met, whether payment should be before the hearing, and the arount cf paynent.

These r.ay be

' y the Hearing 3 card, by the Cc==1ssien af ter recc=rendation

-eda Of the 3 card, er by the Cc--* ssion directly.

Since the prcgram will surely be controversial, the Cc nissicn may prefer Oc make the initial decisien itself.

This may be cu..bersc=e, however, e'

--= = card can =cre readily take evidence er call for submissicns.

Tc -he ex:en: that the Cc- 'ssion can previde sufficien

_ruidance, j y)

The Cennission

~ 16 July 30, 1979 it c.an request a reco== ended _ decisien or an initial decision from the' Board.

Like the decisionin whether to accept psychological distress as an issue, the Cc==1ssion may wish to avoid the normal decision and appeal process and have funding decisions certified to it with or without a recon = ended decision.

Attachments:

1.

Draft Order 2.

Section III of OGC Memorandum of Jan' ry 5,1979 cc:

GCY OPE e.

i

UNITED STATES OF AMERICA NUCLEAR REGLLATORY COMMISSION CCP.filSSIONERS:

~

M.'.

v~~~

~

.i.

.g._,.._

g-Joseph M. Hendrie, Chair. nan ~

Victor Gilinsky

--- T

~ '-

Richard T. Kennedy

~

Petar A. Bradford John F. Ahearne

)

In the Patter of

)

)

METROPOLITAN EDISON COMPANY

)

Docket No. 50-289

~

)

(Three Mile Island Nuclear Station,

)

Vait No. 1)

)

i

)

ORDER Cn July 2,1979 the Cemmission issued an Order directing that this facility remain in a shutdown conditten pending further crder.

It provided that it would also issue a further order vithin. thirty (30) days speci,fying in detail the basis for its concerns, and the prece.dures to govern further preceedings in this matter.

The Ccemission has made substantial progress toward issuing that further order, but has not yet cocpleted reschdon of all of the legal and technical issues involved.

Accordingly, ' the Com-mission has fcund it necessary to extend the period of time in which te issue that ceder until Friday, August 10, 1979.

It is se CROERED.

Fcr the Ccemission 9

5.EUEL v. C.iiL K Secretary of the Cemissien Dated at '.dashine'en, DC, this cay o#

1979.

'O 2 fjl

ATTACHMENT B e-a 9

XII.

FUNDING OF INTEFENORS

. = - -

.-T.

..m.

A.~

Background

7.

~

The general question..of the desirability of intervenor funding in NRC proceedings has been thoroughly discussed in the Commission 's,ls76 deci$1on terminating its I-ulemaking on funding =/ and elsewhere.2/

A section en funding was included in the draft licensing bill developed by the Ccend.ssion in September of 1977 (5 194).

Tc provide a centext for this controversial. issue, it

=ay be useful to review some of the legal history concern-ing intervencr funding, as it has affected NRC and ether federal agencies.

.=_

In'Mspanse to a request from NRC, the Compt:rclier General ruled in February 1976 that, under the Commission's appropriations fer "necessary expenses," it has tna statutcry authorit" to facilitate public participation in it:.: proceedings by

)[l]j{t

.p f

gi f using its own funds to rei: burse intervencrs lif[ L

[J.

j y

when (1) it believes that such participatien 7

is required by statute or necessary to repre-rent adequately opposing points of view cn 1

-he matter, and (2) when it finds that the intervenor is indigent er otherwise unable L

E!

Nuclear 5.erulatery Cennission '(Financial Assistance to Parti:1. cants in Cc mission ?rceeedings ), Dk :. ' *o. FR-2,

':L:-75-23, i N.C 294 (Nevsncer 12, 1976).

2/

Letter frc= Chairman Hend-ie Oc ?epresentative Sa'"aC '

g, 0Iwe

. m*

==,

e m

e s

.. ;=..

842 1j2

~

~~~~'....'*......:i=~:-

=::: =:".==

~

~

, [ ~f =

-- "~h2!: -- ~;..."~~~

Y

XII-2 9

td bear the financiaO'dosts of partkelpation in

~

the proceedings.3/

" T' The opinion noted, howe.ver, that legislation would be desirable.4/

a

.. The Com'ssion relied substantially en the quoted lan5uage in its 1976 funding decision.

In a later opinion, the Comptroller Genen2 clarified this and other decisions on funding intervenors U/

~

While cur decisien te NRC did refer to partici-pation 'oeing " essential," we did not' intend to imply that participation must be absolutely indispensable.

We wculd agree with Censu=ers Union that it would be sufficient if an agency determines that a particular expenditure fer participation "can reasonably be expected t.o contribute substantially to a full and fair determination of" the issues before it, even thcush the expenditure may not be " essential" 1

in the sense thet tha issues cannot be decided at all without such participation.

Our previous decisicos, ray be considered =cdified to this extent.P/

+/

7 Oc=ptroller General, Costs of Intervtntien -- Nuclear

?.egulatcry Cc: mis,sion, file 3-92233 at 7 (February 19,

,sto).

i!

id. at 3.

  • /

4 The Cccptrc11er General had previcusly found that his ruling for N?.C was equally applicable to FCC, FTC, F' C, ICC, C?SC, SIC, FDA, I?A, and h~-ITS A.

Letter to Cen-g essman Jchn I. Moss, file 3-13C224 (May 10, 1976).

See also letter Oc Congresswenan Yvonne 3rathwr.ite Burke, file 3-139703 (September 22, 1976) (cencerning

--.e-wV

  • /

Oc:ptrclier General, Cests of Interventien -- Fecd and

ug ;4 4

' e a-' -

  1. a 3-139703 a: 5 (Cece:ber 3, s

,Iw ).

E=

s

...s.....-..a~mee.4 ge

XII-3 se Cn June

-30, 1977, the second Circuit: in Greene County IV

=-

rej ected 'the Comptroller General's rationale and ruled that:

the F?C had no statutory authority to pay the expenses of intervenors in its proceedings.7/

It concluded, with little I

discussion:

^--

-~

In light of the Supreme Court's very broad f

language in Alyeska Piceline Service Co.

E v.

Wilderness Society (421 U.S.

240, 257 i

(1975)), that " absent statute er enforceable centract, litigants pay their own attorneys'

[

fees", a finding that the Federal Power Cem-i nissien is enpowered to reimburse intervenors i

for their legal expenses must await appro-3 priate Congressional action.1/

F i

Later that year, the Cor-*ssion determined, based r

1rgely en this case, that it would not fund participants F

in the Uranium Fuel Cycle (Table S-3) rulemaking.1/

s i-

, Cn March 1,1978, the Cffice of Legal Counsel of the r

t Department of Justice informed both CA3 and DCT that Greene

[

t Ccunty did not preclude them frca dete =ining whether they j

?

t-had explicit or implicit statutcry authority to pay expenses b

r i~j

[-

Greene County Planning Scard v. ??C, 559 F.2d 1237, (2d i

Cir. 1977) (en banc), reversing in par: 559 F.2d 1227 E

(C-reene County III), cert. d enied, 4 6 U. S. L. '4 3514 E

(February 21, 197c).

/

-a.

-., 2c.

_g c.

s

/

letter frc= Samuel J. Chilk tc Helene linker, NROC I

September 26, 1977, regarding Ii?.DC's Petiticn for i

Recensideration cf the Cennission's Ruling Rec;ening the Hearing on the Urani:n Fuel Cycle; see SECY-77 255 2: 3 (August 23, 1377); Transnuclear. 2n:.

(1c c-E._ri che d Uranium Experts Oc EURATC.".dencer.;atiens), 6."RC Sc3,

,e w m..-a-

>. men

('

9 T

e

.a B+h.h.6"*"-'

m m

XII-4 m=.

ibr.U

. of. intervenors in. their proceedings.10/

The Justice Depart-y

. - r

. -. -. r.. --

ment reasoned that Greene County construed only the Federal

~

Power Act and thus bound no other agency (except possibly FIRC, as legal successor to'F?C).

It also concluded that the court's opinion was not so broad as to preclude other E

ag'encies from funding participants, in part because the opinion gave great weight to the FPC's views that it lacked j

t statutory authority.

[

t On October 10, 1978, in a carefully researched opinion,

[

r the District Ccurt for the District of Columbia found that L

t the Departnent of Ag-iculture possesses 1 711ed authority to fu.d, by contract, a consumer group's participation in

[

I its rulemaking.

Cha=ber of Commerce of the United States v.

-.t Decartment of Ar-iculture, Civil No. 78-1515 (October 10,

[

1978).

It found that the Greene County ccurt based its E

r E.

decision largely on ??C's views and in essence :efused to j

recuire ??C to fun participants because of ??C's distaste L

for doing so and its view that it lacked authcrity.

L A number of agencies have instituted, prepcsed, or considered prcgrams to reimburse pa"ticipants ' expenses, j

FTC and I?A have statu:crily-based prcgra=s fer agency 5

~e

j t

letters from John M. Har:cn, Assistan: Atterney General, i

Office of Legal Counsel to Phillip J. Eake s, fr.,

5 General Ccunsel, CA3, and to Linda Heller Ka.-, G eneral

[

n.

.-.., s =. _, 3

...a m g...a cw s

...-3

., a s.

~

I

.e mees em 64z 115

~

...me, me.a

.o ene

<mmmenes e-.m eme. em4

... me u, gen e, w e epege oM ga,4

..m ae., w e maae e

XII-5 l

rulemaking proceedings.

L No other agencies have explicit f

- e:.

. _ _ -._ _ statutory authority to fund participants.

i 3

y-However, the National Highway Traffic Safety Administrati (NHTSA) has i

.cn had an active pr'ogram since January 1977 and i

. the National Oceanic and.Atmospherie' Administration (NOAA) promulgated E

. final rules for such a program in April 1978.

t The Consumer I

Product Safety Commission (CFSC) has procul E

gated interin rules for financial ecmpensation; I

the CA3 has published f

proposed rules; and FDA and FCC have published h-advance notice of proposed rulemakings. E h

The Departnent of Agri-t.

culture has directed its agencies to consider -'

5.

unding as one neans of enccuraging and increasing public par ti E

cipation in their proceedings.

The questica of implicit statutcry authcrit

. y for agencies to fund intervencrs has not been finalJy a

Lr 7ne nest authoritative judicial decision settled.

[

t Greene County en the subject h

is against such authorit E

y.

Ecwever, we believe that Greene Councy is prcperly construed na f

t as the Cffice of Legal Counsel and D.C.

rrowly, f

District Ccurt in f

,,/

32 3ricf histories of and statute::'y and Federa1 ?

cita:icns for these programs are given in a.

.egister b

sional nesearch Service report availabla

_ Congres-

'- ~- C O C.

43 Fed. ?.eg.

5 50988 (Nevenber 1, 1978).

=

=

.dh b

G m

842f 1&16

.=

4

,, gym.see6.-...;...f..

,.. ~.

. = -

-_.i.

XII-6

==

--g-.

="

,^

the Chamber of Commerce,.s - -. case'have done..

~

The best legal arguments, and the positions taken by several other federal

...y agencies, favor implicit authority to fund.

Th.e Commission would be on relatively, if, not entirely, firm legal ground if.it-~ decided to institute a funding program without explicit st'atutory authorication.

3.

Need for Lecislation Since the Cc= mission can properly interpret the Atomic Inergy Act to confer i=plicit statutcry authority to fund

'ntervencrs, further legislation would not be ne cessary to authorice a funding program (leaving aside, of c.ourse, the

{

need Oc obtain funds for such an initiative th cush the i

.t routine budget process).

Ecwever, even though the cow s-t sien has implicit authority, funding legislation =ay be

}-:

desirable.

This issue is discussed in the Cc mission's decision terminating its rulemaking on funding cited in note 1, above.

"he Cem'ssion there thought tha_

a deci-sien Oc fund the presentation of private views should be ade by Ocngress.

S.e Cc=ptroller General also suggested that legislation "would be advisable [:c set ferth] the parare ers of such financial assistan; and che-scope and

"~/

1; li 1:ations on the use of appropriated funds

  • /
=

Contrc11er General, Cests of Interven:icn -

';uclear i

Regula: cry Cc.ission, sucra n.

3, at 5.

-t

\\ es 84.<2-I.,

I/

=.

...... =...

_.W XII-7 e.

a Issues C

. -. --. y :..

.%._=.

= - - -

m.=

(1)

Scoue

~

Should a funding program be a pilot program with a definite expiration _date,'it permanent NRC program, or a Government-wide program?14/

In its draft licensing bill the Ccmmission settled on a pilot program as did the Administration.

The Udall draft resolution also preposed a pilot program.

Chair m Hendrie and Cc =issioner Kennedy have indicated their view that funding in Cetsission proceedings could best be acccmplished through a general funding bill applicable to all agencies, such as Senater Kennedy's bill, S. 270. 2j

.+

(2)

State croceedins;s Should a funding prevision require or merely pe_ it scates conducting NEPA or other delegated licensing pro-ceedings to provide intervencr funding in these proceedings using federal grant money?

Alternatively, should a funding prevision be linited to NRC proceedings, with ne mentien of sca:e prc ngs and no provision for f edera1-s: ate granr-for incervencr funding?:6/

The NRC draft bill (5 ic3 and

~

/

See Memo frcn Chairman Udall to renbers of the Ecuse Sub ec--~* -== cn Inergy and the Knvirennent encitled

":ssues Paper for August 14 Meeting," dated Augusc 1:.,

7 0 7. 0,

=~ *'

c-.

.=j r

  • :ter Oc Seiberling, sucra n. 2, at 2.

7

=4 e

  • * ' ~
/

5 Udall Issues Paper, sucra n.

12, a: 2^-22

~84?

118

      • 7
.'.'u.

-... -............--.-lEl.'*"-~

--*~=I"'~-=*"-Y

- - ~ ~ - " * - ' - ~ 'T-

~

' - * - * * ' ~ '

  • *Y

~~-'

' " * * * * - ~ - - " * " - ~

..ee.

O

X11-8 m :-

..,;. alternate) and the. Administration. bill ($ 195) provided. for

=

NRC Erants to states for interveno [ funding, but did not i

E require them.

Chairman IIendrie has indicated his view that 5

=

since the proposed federal. program is a trial or pilot i

2-program, it seems reasonable to permit but not require E

m.

states to fund intervenors.17/

Coc=issioner Bradford has E

F e

c indicated that "intervenor funding should be a possibility E

T for NEPA proceedings delegated to the Sta.tes."18/

F (3)

Cc==ission croceedings

.=

n what types of Cc= mission proceedings should funding p

, c/

=

be available?:4 The Cc==ission's draft till appears to have f=

previded for funding in all licensing proceedings and in all s

e rulemaking proceedings in which an cral hearing is held i

a.

($ 194(a)(1)).

The DOE draft bill excluded export licensing F

E preceedings and gave the Commission sole discretion to E

extend the funding program to rulemakings (5 197(a)(1)).

h

=c Rulemakings, as ec= pared to lic.ensing proceedings,

-j 6

generally cover =cre generic, policy-criented issues and i

E

-/

E letter frca Chairman Hendrie to Cengressman Dingell, July 19, 1978, question 22(A) (forwarding responses to E

questiens-in Ccngressman Dingell's letter cf June 29, t

_19 ~r ?. ).

-::7 Letter fre Cc :issioner 3radferd :: Ccngressman Dingell, Cc cter 13, 1973, at 2, ques ' en 22 ( A)

?

(ferwarding additienal responses Oc Ccngressman Dingell's questiens).

g p

3

.-i 2

Cdall Issues Paper, sucra n, 14, at 2--25 n*

=

T h

842 119

_m

XII '

s G-m-.

p

~~*-V=5*

attract better financed _1.ntervenor groups which are bet;er able to make an affirmative case, rather than relying on cross-examination.

C1 ear distinctions can be drawn between rulecaking and licensing f.or funding purposcs, but they do not all suggest that rulemakings are less appropriate for funding.

Indeed, GESMO -- a rulemaking -- is the only con-crete proceeding the Commission has proposed for funding to date.

Finally, une legislative hearings the Cc "ssica cay hold in ex;crt proceedings 20/ would not seem su"ficiently lengthy cr burdenseme to require funding to achieve adequate oublic participation.

(4)

Criteria

~

- Who qualifies for funding?

There are great and subtle variations among the funding criteria in the NEC draft bill, the Administration bill (H.R. 11704 and S. 2775), the Kennedy Gcvernment-wide funding bill (S. 270) and the new-defeated a=endnent to the NRC Autheri:ation Act. b The major 20/

Nuclear Non-?rcliferation Act of 1978 $302(c ),

42 U.S.C.

2155a.

"J ' /

r' See Letter frc: Representative Seiberling :c Acting Chai=an Oilinsky, April 3, 1973.

A g1

.s..e

. ~ _ ~

  • T.*:'**...

. L " :.. "

. ' ' _ -..... '. ~.. =. '. '.....

. - - - - -----.---~----------.::.- ~

' * ~ ~ ~ ~ - - - - - -

~ ~ -

"~~

XII-10

.Y.i-

. differences pertain to fli1ancial need tests.

They include

,~

w u. -p = -

g.

a)

Whether a petitioner for funding must show

~

that it "does not have reasonable access to alternative sour.ces of funds."22/

b)

Whether the main need criterien should be that "effectivenessforintervention)wouldbe significantly limited in the absence of funding" (DOE and NRC drafts) or that the petitioner does not have sufficient resources to " participate effectively" without funding (Kennedy bill and authcrication amendment).

[

c)

Whether, in lieu of (b) above, it is sufficient 5

+

to show that the petitioner's economic interest in the outcome of the proceeding is small cenpared

+

tc the cost of effective participatien (Kennedy bill ?.nd authorication anendnent).

The et'ier criteria in the NRC draft bill do no: seem to be substantially nere rigerous than the criteria for admission as an intervening party.23/

??/

2

=r

~E draft 5 1C7(b)(2) enly.

See discussien in le:cer fren Hendrie to Dingell, surra n.

17, c u e s cien 2 3.2..

il, Le::er fron Hendrie to Dingell, sucra n.

17, ques-0i00 223.

e y

s u.,

o n _)

g 4 L-

-- - -. -. -

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