ML19340C592

Decision 78-1556 Etc,Upholding All Aspects of NRC Decision Not to Initiate Proceedings for CP Revocation

ML19340C592
Person / Time
Site:	Bailly, 07801556, Crane
Issue date:	09/06/1979
From:	U.S. COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
To:
Shared Package
ML19340C591	List: ML19340C590 ML19340C592 ML19340C593
References
TASK-TF, TASK-TMR 78-1556, 78-1559, 78-1560, 78-1561, NUDOCS 8012110364
Download: ML19340C592 (19)

Text

...

. =:.

~

=

~

~

Y.7..

"~

=:..

("'.

Notice: This opinion is subject to formal revision before publication

=: :..

in the Federal Reporter or U.S. App.D.C. Repor*.s. Users are requested

,~~

to notify the Clerk.of any formal errors in order that corrections may be made before the bound volumes go to press, nur

. : ~.:

.n...

31151P2161afPB 6DHrf nf 1pprals

=

. FOR TIIE DISTRICT OF COLUMBIA CIRCUIT

f

"::::f d.

=

No. 78-1556 f'

PORTER COUNTY CHAPTER OF THE IZAAK WALTON 1.EAGUE 3.

' )

OF AMERICA, INC., ET AL., PETITIONERS E.

g

=

j THE NUCLEAR REGULATORY COMMISSION AND j

THE UNITED STATES OF AMERICA, RESPONDENTS

~

P'l NORTHERN INDIANA PUBLIC SERVICE CO., INTERVENOR 2

,y

- =:.. ~

j.

No. 78-1559 THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER

.=::

V,

. THE NUCLEAR REGULATORY COMMISSION AND THE UNITED STATES OF AMERICA, RESPONDENTS

?

NORTHERN INDIANA PUBLIC SERVICE CO., INTERVENOR

~

~ "~

10.

Bills of costs must be filed within 14 days after entry of Judgment. The court looks with disfavor upon motions to file bills of costs out of time.

~

.:2

}

~

.u:.

L

.g p

,g 8012110 3": ::I' :::.:

? *.;""

=..

1

.=

'.'"l:

=

No. 78-1560 he Ef_

THE CITY OF GARY, INDIANA, PETITIONER 1:

• ??::E V.

=

lff THE UNITED STATES NUCLEAR REGULATORY COMMISSION AND THE UNITED STATES OF AMERICA, RESPONDENTS

s

• E M

NORTHERN INDIANA PUBLIC SERVICE CO., INTERVENOR nu..n n.nn

==

5 No. 78-1561 F:5 THE LAKE MICHIGAN FEDERATION, PETITIONER 2 ::.*G

--g.

v.

h THE UNITED STATES NUCLEAR REGULATORY COMMISSION j

AND UNITED STATES OF AMERICA, RESPONDENTS 5

NORTHERN INDIANA PUBLIC SERVICE CO., INTERVENOR 2

g:

+

..~..

=

,.c..

E Petitions for Review of Orders of the j

Nuclear Regulatory Commission

- =

g s

5g

}

Argued. June 7,1979 Ju 6 ent entered

.._z

. Decided S.eptember 6,1975

, this date

... " ~

C' Robert J. Vollen, Attorney, with whom TVilliam J. Scoll,

" ~ ' '

~

Attorney General of the State of Illinois, Robert L. Gra-ham, Attorney, Russell R. Eggert, Dean Hansell, Susan

.n=.

==::

=

2,";,-

u.Mt l.2*2

':2~.

ll.* *

' 2".

'.'.7 :.

'.. ;.[.'.

.s 3

N. Schulcr, Assistant Attorneys General, and Richard L.

c:=

5.

Robbins, Att'orney, were on the brief for the petitioners.

hk Peter G. Cranc, Attorney, United States Nuclear Regu-1.E latory Commission, with whom James L. Kelley, Acting General Counsel, Stephen F. Eilperin, Solicitor, Anthony

5 C. Liotta, Acting Assistant Attorney General, and Nancy E

Firestone, Attorney, Department of Justice, were on the EE brief for the respondents.

~

{@r

... =

.5 Charles A. Horsky, Attorney, with whom Maurice Axcl-rad, were on the brief for intervenor Northern Indiana T

Public Service Company.

'.)

Michael I. Swygert, Attorney, also entered an appear-g ance for appellant The City of Gary, Indiana in case No.

}

78-1560.

. =...

}

Before LEVENTHAL, ROBB and WILKEY, Circuit Judges.

~~"

5 Opinion for the Court filed by Circuit Judge LEVEN-THAL.

5 LEVENTHAL, Circuit Judge: These petitions for review

~'"

5 filed by environmental and citizen groups and state and local governments 2 brings to this court a challenge to the E:

procedure by which the Nuclear Regulatory Commission

.2.,

d (NRC) passes on a request to institute an adjudicatory b5 proceeding to suspend and revoke a permit to construct a

~

=

nuclear power plant.

1i The Div.etor of Nuclear Reactor Regulation rejected requests to initiate a proceeding to revoke the construc-

i, tion permit granted to Northern Indiana Public Service Company (NIPSCO, or the Company) for its Bailly

?...,

Nuclear Generating Facility. The requesting parties filed

• In addition to the parties named in the caption, the peti-i"#

tion in No. 78-1556 is joined by Concerned Citizens Against Bailly Nuclear Site, Inc., Businessmen for the Public Interest, c.i.?"

f:

Inc., and three named individuals.

': 9.

l:

~

~

l=

1:

2-

. t;:.

.... =,::

I.

==..:.=

.v-s

+

mm

=

~

_.T~~~"""

'+

n=nri... - "

2---

.. ~........

.7 l

'=~

n,

i

=;

~~"

~:.-.

g._.

c.

4

-- =..

ll,".

= ::=ii-Z-2 3

a petition for review with the Commission.: On April 20,

=

x= E "

E 1978, the Conimission :ntered a memorandum and order

~

=E u==.

n g

declining to disturb the Director's determination. Peti-o-

g tioners challenge this order on two grounds. They assert s

that the Atomic Energy Act of 1954 8 (the Act) requires z =:

.==

g that the Commission institute a proceeding whenever evi-5 dence not available when the construction permit was

-i issued casts serious doubt on the safety of reactor design.

=i They further contend that the discretion whether to insti-k tute such a proceeding may not be lodged in the NRC s

staff, which participated in the initial construction permit

" " ~

~~"

~

proceedings in favor of the application, as this violates

==

-=

y due process as an impermissible combination of functions.

~

E Finding the Commission's procedure to comport with

~

2 statutory and constitutional requirements, we affirm.

=

I The Company applied in 1971 for a construction permit 1*^..l~..

~

for its Bailly facility, to be located on the southern shore of Lake Michigan near Gary, Indiana.' Following safety

- - =

4 8 By a rule change adopted after the filing of these petitions,

--15=. = _

the Commission no longer entertains petitions.for review of denials of enforcement requests. 42 Fed. Reg. 36239-40

_.=

(1977) (codiAcd at 10 C.F.R. s 2.206(c)(2) (1979)).

Z....

• Pub. L. L.83-703, 68 Stat. 919.

• The complex process established by the Atomic Energy Act and NP.C regulations for the licensing of commercial

=

nuclear electrical generating facilities has often been de-i scribed. See Vermont Yankee Nuclear Power Corp. v. NRDC,

- 435 U.S. 519, 525-27 (1978) : Power Reactor Development

"~~

i Co. v. International Union of Electrical Workers, 367 U.S.

- ~ "="

=:

396, 403-07 (1961). Briefly outlined, a utility seeking to build l

and operate a nuclear plant must first obtain from the NRC

?"T.".....

a construction permit and then, once construction is complete, an operating license. In the construction permit step, an initial filing by the utility is followed by a rigorous safety

~

analysis by both the Commission staff and the Advisory

=. =:

.m.

i

.h.=5

..-.....=...=E==--

=:.==5

===:

==5 2.

"~~~ ~ ~ ~ ~ ~ ~ "

.=

=

5

.;.. L....

E and environmental reviews, the Commission staff took the

"=1 ="

u_..

position in hearings before the Atomic Safety and Licens-ing Board that the application should be approved. Fol-

=

=

5 lowing favorable Board action, the permit was issued on

.._.5=

".i May 1,1974.

T=.'3:.

..,.==r II:

As of August 31, 1978, the construction of the Bailly

~

~~

2 facility was less than one percent complete.8 The issuance i

of the permit led to litigation in the Seventh Circuit by 5

three petitioners now before this court, with successful m..._..

u.a 2.

requests for stay of ' construction pendente lite.'

==

g In November and December,1976, shortly after the termination of the Seventh Circuit litigation by the Supreme Court's denial of certiorari, the Requests under-t..

r~

lying the present petitions for review were filed with tne s

NRC. They alleged that "new facts, new evidence, and legal developments" occurring since the iuuance of the

... 1.

]

permit now required its revocation.' Among these new

=-.

T.T.~.L 5,

Committee on Reactor Safeguards, an independent body. The

==

===:--

5 staff also undertakes the environmental review required by the

~

National Environmenm1 Policy Act. An Atomic Safety and

~

c2 Licensing Board then conducts an adjudicatory hearing, and

"~~

renders a decision which is appealable to the Atomic Safety

~

=

=

c'.,!

and Licensing Appeal Board. Essentially the same procedure

~.. ' -

..+

g is repeated when the utility applies for an operating license.

E 8 Nuclear Regulatory Commission, NUREG 0030, Construc-

- - -"=

tion Status Report: Nuclear Power Plants, vol.1, no. 9, pt.1,

.. f.:.== = :

at 4 (Sept.1978).

"= Fit; i

8 Porter County Chapter of Izaak Walton League of Amer-

-==

u$:=$2 ica,'Inc. v. AEC, 515 F.2d 513 (7th Cir. April 1,1975), set

====

~ ~ ' = = -

9, aside the Commission's decision on a ground unrelated to the

"

~

issues now pending. The Supreme Court reversed and re-

~~

~

manded. 423 U.S.12 (1975). On remand, the Commission order was upheld,533 F.2d 1011 (7th-Cir.1976), cert. denied,

~. -

429 U.S. 945 (1976). The Seve.;th Circuit's stay pending us judicial review was entered on October 16, 1974, when only

" " " ~ " - ~

..u preliminary excavation work had been done.

7 E.g., Supp. App. at 14 (petition of. Porter County Chap-

^

ter et al.).

:.

=

.. =

n

.=.

.' [.,

~

==

z=

""~

::

~

="l I-u:.

1.

.- 22.:

6 fl developments were changes in construction costs, fuel O

costs, fuel availability, the Company's financial strength

==

= =...

and the anticipated need for the power to be gencrated at

~~~

Bailly, as well'as intervening legislation, court decisions

==

and government reports. The allegation now being high-lighted (though it was not prominent in the Requests) is

"-".=::

the claim that new evidence raised substantial questions concerning the ability of the General Electric Mark II reactor's containment vessel to withstand the pressures

.=.

generated in certain types of nuclear accidents.5 The source material for this contention came from the staff itself, which, in letters to the Company, had indicated

' " " " ~

that design problems might be present. The staf! had u:::

initiated its inquiry when General Electric advised the

;."

==~

Cornmission in 1975 that new tests had raised the con-

' " " ~ " " "....=.:.....

cern that it had previously underestimated the forces F

= ~ =.

which might be exerted on its Mark II containment under certain conditions.

_..g.

8 The recent incident at the Three Mile Island facility in Pennsylvania has made common knowledge of the function

=-

=

of the reactor containment vessel. The Mark II containment

-=

resembles a cone sitting atop a cylinder. The cone, nlled with boils water and produces steam to turn turbines that generate

~

"""f.'.5."

air, houses the reactor core, where the nuclear chain reaction

~

electricity. The cylinder is half-nlled with water, creating a

...=.. ::::

" pressure suppression pool" that would be used to condense steam and absorb energy in the event of a nuclear accident.

In a " loss of coolant accident," such as the rupture of a pipe, T

steam would be released into the cone, from which it would

=

flow through a large number of pipes into the suppression pool. Similarly, an accident causing the shutdown of a turbine would necessitate the diversion of the pressurized steam driv-ing the turbine. In that case, " safety release valves" located within the cone on the main steam line would open, and the

~ ~""'

steam would be piped into the pool. In both situations, the in'teraction of gases and water would exert forces on the con-

~,,.

"~~"

tainment structure. What precipitated the present concern was the discovery by General Electric during testing of a New Mark II model that it had previously underestimated the T--

~

pressures that might be generated in those situations.

~

--+

..a..

p:,

^

= =...

... ~.

~

~

~ " " '

22ks' : '.

=

=.:.. = :.

l?

== :.C:

>.=

E 7

EL....

= ;.

["""---

=....

The Requests were referred to the Director of Nuclaar Reactor Regulation and rejected on April 15,1977. As 6""

"7l

""=2 to the safe.ty question, the Director noted that the NRC staff was pursuing the matter on a generic basis with

==

==-

General Electric and the utilities which proposed to con-

"'=

"f..12 struct reactors with the Mark II containment. He ac-

55 cepted the staff's conclusion that NIPSCO's response to b" ""'

staff inquiries, which adopted General Electric's re-sponses, were adequate at the construction permit stage.

"l.?.

Any unresolved problems could still be considered at the

~"

' " = =

g- ""

proceedings for operating licenses for Bailly and the other facilities. J.A. at 17-21.

In its April 20,197S, memorandum the Commission

~

~

J.ii

' rejected the objection based on the NRC staff's par:ici-

====;

y=:

pation as a party adversary to petitioners in the con-

~ ::

struction permit proceedings. 7 N.R.C. 429 (1979). Be-g.3 cause the Director's consideration of the petitions was not an adjudication, the separation-of-function prohibi-

=

J.":

tions of the Administrative Procedure Act (APA)* and gl~

Commission regulations a did not apply. The Commission -

~

~

found petitioners' implicit premise that the stafi's posi-

+3 M{,5 tion prior to issuance of a construction permit rendered

~. :_. "=

=m

=7 -

G it incapable of impartial regulation following issuance

=5 of the permit to be " contradicted by the structure of E

nuclear regulation established by the Atomic Energy Act

~'" ""~ '

ff and by twenty years experience implementing that stat-2" I"

ute." The Commission also dismissed claims that the

]:

Director's decision was procedurally defective:

a=.,

Contrary to petitioners' assertions, he is not required to accord presumptive validity to every assertion of

...:l:

fact, irrespective of its degree of substantiation, or "E. 4 to convene an adjudicatory proceeding in order to

- = =.. -

25

• determine whether an adjudicatery proceeding is 2..:

' 5 U.S.C. ! 554 (1976).

.. = -.

8 2* 10 C.F.R. { 2.719 (1979).

O".. "..

.... 2::

[_ ::^..

+

.y._.

y,4

,_4,

....... ~....

8

, =..

warranted. Rather, his role at this preliminary state f

~

5:':E...

is to obtain and assess the information he believes necessary to make that determination. Provided he h

= " -

9 does not abuse his discretion, he is free to rely on a variety of sources of information, including staff

2 analysis of generic issues, documents issued by other

=5 agencies, and the comments of the licensee on the

~g:: ;;: =

p.:

factual allegations. Once that inquiry and assess-

==

i.i.i ment have been made, t_he stand:Eltd qnli L 3

U ja determini,rdtjgrjo isfyuJbqw_ c;tm.t.oder y

~~

is... wnetner "sn'stanual health or safetv _ismgp 5.

o jf thavei Nen rag.... Laj mere mspute over

" =. -

. y; G

factual issues does not suffice."

Id. at 432-33, quoting Consolidated Edison Co., 2 N.R.C.

~

173, 176 (1975). Finding no abuse of discretion, the

'.I~~ ::

s

=

Com. mission declined to disturb the Director's ruling.

~

.......... = =.,

5

................... ~

p h

== :..

We do not accept petitioners' contention that the Act mandates the institution of proceedings to suspend and

"=. h5

[

t F

revoke the construction permit whenever evidence not

"~;..;

l available at the initial permit proceedings raises " serious, pp-

-..===

unresolved safety questions." Pet. Brief at 29.

p.':.

We do not understand the Commission to deny the

!f!. E 7

5 basic relevance of safety considerations in deciding p= --"~

whether to institute proceedings, nor to claim unfettered

"~"

yia discretion under the Act to choose not to institute pro-

==

==

==

ceedings. Rather, the Commission asserts that the nature E.

'"=

==

r

.of the requisite safety showing is shaped by the require-

~... =....

~~~~"'

ments of the statute and that the determination whether '

- =~

the safety questions raised necessitate initiation lies, in

~

.=

the first instance, within the discretion of the Commis-

.._"~

7;.,,.... '"

~ ' " ~ " " '

sion's enforcement arm, the NRC staff.

~

=

~

Petitioners point to two sections of the Act in support ll.~.T ~~"

of their position. Section 186 of the Act," provides that e:

.-E

'" Section 186(a) provides:

"~~"

Any license may be revoked for any material false statement in the application or any statement of fact re

~

7

• 2 p.

- - ~ -... - -

-~

23.

3,.-

....%l.:

g C'22

~

=

~..=: +ii.

= =.:

=e---

==:.

=

. lI.

any license, including a construction permit, may be re-1.

.m.

voked for reasons "which would warrant the Commission to refuse to grant a license on an original application."

~~~

i The section also makes the formal adjudication procedures of the Administrative Procedure Act applicable to any

"=

. revocation proceeding.2: Section IS9(a) permits any

~

interested party to demand a hearing in a revocation

~~

r proceeding.28 These sections define the substantive stand-

,===

ards and the procedures that govern a proceeding once it 6:...

is begun. They do not define the conditions under which I....,y.

a proceeding must be instituted.

=

=

Petitioners also cite certain snippets of legislative his-

{$

tory for the proposition that Commission proceedings are to'be conducted in the open.2' That history, however, only

==

.==.

= =..

.~.=.==.,.;,.,

quired under section 2232 of this title, or because of con-

==

ditions revealed by such application or statement of fact or any report, record, or inspection or other means which

~ '

would warrant the Commission to refuse to grant a license on an original application, or for failure to con-

.~

'"=

struct or operate a facility in accordance with the terms n

of the construction permit or license or the technical specifications in the application, or for violation of, or failure to observe any of the terms and provisions of this

-..m.u.; ""

~

chapter or of any regulation of the Commission.

42 U.S.C. s 2236(a) (1976).

22 Section 186(b) provides that section 558(c) of the APA,

==

5 U.S.C. s 55S(c) (1976) shall apply.to revoking any license.

==

Section 558(c) provides, in truth, that an agency shall adhere to the procedures for adjudications specified in 5 U.S.C.

si 556, 557 (1976) for any revocation proceeding, and also

~

requires additional procedures, such as according the licensee

'~

".~

-~

~~~

the opportunity to rectify the difnculties that caused institu-tion of the revocation proceeding.

28 42 U.S.C. ! 2239(a) (1976).

2* See 100 Cong. Rec. 9999-10000,10002 (1954); 103 Cong...

~~

==-

Rec. 4093-94 (1957).

=..

a u

.'.7::

,("

.. ~.': *f";. ".2:

~

=;= -.. - -

1.

+

d 1

3 i

10 explains and fortifies the requirement that such proceed-It ings as are begun shall be formal, public hearings.

does not specify when these proceedings ast be initiated.

I2 The subject of initiation of proceedings is covered by

~

-~

Commission regulations and decisions. The regulations lodge in the various staff directors (c.g., the Director of

==

==

E Nuclear Reactor Regulation) authority to initiate show cause proceedings to modify, suspend or revoke any

==

==

Iicense.10 C.F.R. ! 2.202 (1979). The regulations also provide that any person may request the appropriate director to institute a proceeding. The requesting person

z.

x=

=

must specify the action he seeks and set forth facts form-

==

ing the basis of the request. The Director must respond within a reasonable time, either by initiating a proceed-

[6 ~

2 ing or by advising the requesting person of his reasons for not doing so. Id. ! 2.206.

- """1 E=Em

=

The Commission has interpreted ! 2.206 to require

]

issuance of a show cause order when " substantial health

........"~~".7 or safety issues" have been raised. Consolidated Edison p

Co., 2 N.R.C.173,176 (1975). As the Commission's brief t:

indicates, the nature of the showing of substantiality I?

[..

x=

depends upon the requirements of the outstanding license.

ij{

~ ~ ~ ~ '

.:=.:::

This discriminating approach fairly reflects the statutory h!........

{

standard providing for revocation for reasons which 6""""

..M "would warrant the Commission to refuse to grant a d

license or an original application."

E

=

Under this analysis, the presence of unresolved safety n

=u=.

issues does not' require revocation of a construction per,,

,,[_

In Power Reactor Development Co. t'. International mit.

Union of Electrical Workers, 367 U.S. 396, 39S (1961),

the Supreme Court rejected the proposition that the

"~~

Atomic Energy Act required the Commission to make

!u "the same definitive finding of safety of operation as it s

admittedly will have to make before it licenses actual

""". _. =' F(-9:.e operation of the facility." Thus, while a utility must

.,.i.,

demonstrate " reasonable assurances" that a ' proposed'

,,, n rn

=

.~

c.

j j

.=

"ZZ

...y -

":=:.v :..,.;;.,

l

=

11

=..

plant can be operated safely before it may obtain an 5..

operating license,10 C.F.R. ! 50.57(a) (3) (1979), the J:

unrcsolved safety questions do not require denial of a

=

-.:n construction permit. NRC regulations require only a 5c

" reasonable assurance" that the safety questions will be E

resolved prior to completion of construction. That find-ing must be based on a judgment that the technical in-

~~"

":2-Q formation needed will be available in time, when the

~

!f final safety analysis report is prepared at the operating

,. = a license stage, and that the utility has begun the research and develcpment necessary to resolve the safety problem.

~~'

id. I 50.35(a) (1979).

==

=

Generally speaking, the law gives agencies wide dis-f.a.

cretion to determine the means of administration of

=

pertinent regulatory standards, the techniques of inter-7.7.7"

~~"

pretation, application, filling in of details, and enforce-ment." The agency is not bound to launch full-blown proceedings simply because a violation of the statute is

=2.:...........

claimed. It may properly undertake preliminary inquiries

~

"."'i""~

n in order to determine whether the claim is substantial enough under the statute to warrant full proceedings.

g.-

The appropriate agency official has substantial discretion

~

=.

="

E to decline to initiate proceedings based on this review, at d"

least where, as here, he gives reasons for denying or de.-

. " T" "'" f

"~ '

?=l ferring a hearing." The NRC procedure here accords

==

.=_

is with these precepts.

.. =.

C

" As the Supreme Court has recently emphasized with reference to agency choice of procedures:

I""

Absent constitutional constraints or extremely compelling 2.

circumstances the administrative agencies should be free 9

i.3 l to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to dis-p&)

Ffe charge their multitudinous duties.

E Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.

519,543 (1978).

="2 555 "Sec Dunlop v. Bachowski, 421 U.S. 560 (1975); North-

.""": "..,: c.

ern California Power Agency v. FPC,168 U.S. App.D.C. 288, 292,514 F.2d 184, I?S (1975); City of Lafayette, Louisiana

'~~u_u. ; ~ %;;;..,.

2:

==r nun *

.e e

,, t.:

.6;.

22-

.. 7

"'"~

. = =:

i 10 I

I,:

We find no conflict in this result with EDF v. Ruckcl-

~p.

shaus,142 U.S. App.D.C. 74, 439 F.2d 5S4 (1971). This l

court there held that the Secretary of Agriculture could 5

not refuse to institute formal administrative proceedings

.2

~; =

to suspend or cancel the registration of the pesticide DDT

......~~~

.....5 once he determined that "a substantial question about the safety" of the pesticide was present. But the court recognized that it was for the Secretary to make the

.=

initial determination as to the existence of "a substantial

""15 question" of safety and specifically noted that he could 7

"of course, conduct a reasonable preliminary investigation

.5=

before taking action under the statute." Id. at 85. SDF

~-

v. Ruckclshaus found a duty to begin proceedings, once jii the Secretary found substantial safety questions, in view p

"f.....

"~~"

du of the current and imminent dangers to the public health

.=.;

'of allowing continued use of an unsafe pesticide. In the b

case of a construction permit for a nuclear power plant,

(:

~~

5 however, permitting continued construction 'of the plant F:

==

l despite unresolved safety questions does not of itself pose (f.

~~....

any danger to the public health and safety. Before the E

j license is granted to operate the plant there will be ad-

[a i-5.'.'

~

judication proceedings. Any interested party may re-quest a hearing. In such an operating license proceeding

[]7 gg:" l...:

unresolved safety questions will be considered. A positive

=

=a finding of reasonable assurance of' safety is a prerequisite f."

.i.7 to issuance of the operating license. We do not. ignore j.i appellees' fear that the inertia generated by completion p)

~ = " ^':

~ ~ ~ ~

F

.==:

of a nuclear plant, with the massive investment it repre-sents, will sway the licensing authority from faithfully

[".

~

~

carrying out its mandate ta_ protect the p'ublic safety, if necessary by denying an operating license. While that'

~

~

v. SEC,147 U.S. App.D.C. 98, 454 F.2d 941 (1971), af'd aub nom. Gulf States Utilities Co. v. FPC,.411_.S 747.

U (1973).

The result we reach bere is congruent with that of the Seventh Circuit in Illinois v. NRC, 591 F.2d 12,13-16 (7th

-=..

Cir.1979).

". " " =..

1==

-."1

~::=,

.i

r.

e

.;;;. u 13 contention may have practical force in some instances,

.;.=

a court may not transform a projected tendency to inertia

~~

into a presumption of infidelity to duty. Sec Power Rc-

=

actor, supra,367 U.S. at 414-10. It is not the public, but the utility, that must bear the risk that safety questions

.=

it projects will be resolved in good time, may eventually prove intractable and Icad to the denial of the operating 5.5.2""""...

=

license.

".. =

In this case, the Director recognized the seriousness of

= ' -

the design problems identified in the Mark II contain-ment. As already noted, the staff had begun its consid3ra-

~.....,

tion of the problem before petitioners incorporate:1 a

' reference to it in their revocation requests. Based on the continuing generic effort by the staff to ensure resolution of the problem by General Electric and the utilities," the 2;;

"~

=.::: =:

... '. ~ ".

" The staff has undertaken separate programs for each of

"""E the problems identified, sec note 5 suptc. The initial programs are described in a report to Congress, Nuclear Regulatory

5. :.

='

~~~

Commission, NUREG 0410, NRC Program for the Resolution of Generic Issues Related to Nuclear Power Plants (Jan.1,

~~.. _..

1978). As to the " loss of coolant" pr'oblem, the staff pre-

~ "-

scribed dh immediate program to identify the maximum pos-

~

sible pressures that an accident might generate, and to de-

~~

velop conservative " design criteria" to handle such loads. A j

long-term program will seek more refined knowledge of possi-ble loads, so that later plants using Mark Il containments will not have to be over-designed for safety. Task No.. A-8, at i...

1.......

~ ~"

1-2. As to the " safety release valve" problem, the report

~2" describes programs directed at four separate technical issues relating to the problem. Task No. A-30. A more recent re-

.n

~

port, NUREG 0487, Mark II Containment Lead Prograni Load.

Evaluation and Acceptance Criteria (Oct.1978), details the

=:

results of the short-term program for the loss of coolant prob.

Iem. The report concludes that suflicient information exists

~== ":. '

to establish conservative loads for the individual Mark II facilities nearing completion. It recounts the modifications

~

undertaken to meet the problem, including reinforcement of

~

?~

containment structures, and redesign of various piping and

.. n l

l l

.=::

.=

.w..

L 14 S-l..

Director found no contradiction of the standards of 10 C.F.R. s 50.35(a),. requiring reasonable assurance of a h

resolution. The record before us does not establish that b

the actions of the staff thus far were other than a conscientiods response to the problems that have been identified.

The challenge by petitioners is in procedural terms---

~

that since the safety question had not yet been resolved a hearing was required now, i.e. in a revocation pro-F

]

ceeding. Before an initial construction permit can be M

transformed into an operating license there is a procedure E

for public hearing, and challenge to any safety questions Es that have not been resolved. In the context of this case,

@f the Director and Commission did not abuse t"ir discre-E9 tion in failing to require an interim public hearing in a 5

proceeding to revoke the initial construction permit.

In-

=..

5.:

III

[

We turn to petitioners' alkgations of impropriety in f"f allowing the Director of Nuclear Reactor Regulation to dispose of the requests for institution of revocation pro-i-

=u

==.

y ceedings. Petitioners contend that the NRC staff (and, ii

_ ~

by extension, the Director) are inherently biased due to y

~~~....

the stafi's earlier earlier advocacy of the Bailly construc-g -' ;..

tion permit and its continuing investigatory function.

[f Petitioners have dropped the claim made at the admin-Ei!

istrative level that the Commission's procedures are pro-

[9

=.

hibited by the APA's strictures against combination of

==

equipment in the pressure suppression pool and other systems.

Id. at 11-15. Because of its incomplete state, Eailly will pre-r sumably benefit also from the products of the long-term program.

E Cf. Minnesota v. NRC, U.S App.D.C.

F.2d b

~

f:

(No. 78-1269,5/23/79) (no need forindividual adjudi-cations of issues that may appropriately be resolved in generic proceedings).

n..

=

. f.

O L.

l 15 decisionmaking and p-esecutorial or investigative func-tions." That provision applies only to formal adjudica-l

=f..

tions." But petitioners nonetheless assert a violation of j

=,,

due process guarantees becaus'e "the Staff has acted as

_ u=

the judge of its own case." Pet Brief at 22.

' "]..

Even as to adjudications, the ecmbinatwn in one ad-

==

=""

ministrative body of adjudicative with other functions z.

violates constitutional guarantees only when the combi-nation " poses such a risk of actual bias or prejudgment

==

that the practice must be forbidden if the guarantee of due process is to be adecuately implemented." Withrow

'I

..;,,.=

t. Larkin, 421 U.S. 35, 47 (1975). See also Hortontille Joint School District No.1

v. Hortonrille Education Ass'n, 426 U.S. 482 (1976) ; FTC v. Gement Institute,

.=

.

333 U.S. 6S3, 700-03 (1947). Any claim of inherent bias

==l:

~

must " overcome a presumption of honesty and integrity z.J.

=]==:

in those serving as adjudicators." Withrow v. Larkin, 421 U.S. at 47. In Withrow, the Court rejected due proc-ess contentions where a state professionallicensing board had exercised both investigatory powers and the power to

~

=

suspend a license based on the facts developed.by.the

==

investigation. The Court's decision reflected keen aware.

~

ness of the substantial problems raised by combination of

~.i

. =..

functions, but also the perception that solutions could not T.T be confined by a rigid rule:

= u"

[L]egislators and others concerned with the opera-tions of administrative agencies 'have given much attention to whether and to what extent distinctive

"' ~

2."* '

administrative functions should be performed by the same persons. No single answer has been reached.

E;"

=

j Indeed, the growth, variety and complexity of the administrative vxesses have made any one solution

=r

=== r-

='

highly unlikely.

9 Id. at 51.

==

~

" 5 U.S.C. ! 554 (1976).

" E.g., Hercules,.Inc. v. EPA, U.S. App.D.C.

, 598 F.2d 91,117 (1978).

ic.

="

+

l."Nol.

..A*.

P'

~-

222

)-

1.

4*

4 16

{.6 There are contents in which even in a formal rule-p making proceeding, sibling to an adjudicatory proceeding, I

an oSicial with judicial responsibilities may have access

[O

~~

to assistance from the staff. Hercules, kc. v. EPA,

[

-. = =

5.

U.S. App.D.C.

, 59S F.2d 91 (1978) But we do not i

_ = "

pursue that line of doctrine, for it is a key feature of tais

==......;

case that the members of the staff who are petitioncrs'

=..

target were neither judicial officers nor making the de-

==

cisions in adjudicatory proceearngs. ror this reason we

1... ' ~

find totally inapplicable the cases cited by petitioners in which an individual member of a body-making the

=1 =;"

1.....

decision in an adjudicatory proceeding was diqua!ified

~ " ' " ~ ~ ~

T because of prior participation in the matter in an investi-

!:..i gatory or adversary role. American Cycnamid Co. v.

f-

"_. = ".

FTC, 363 F.2d 757 (6th Cir.1966) ; Amos Trcat & Co.

I"..

v. Sec, 113 U.S. App.D.C. 100, 306 F.2d 260 (1962);

L:...

~.eu..:.Lg; Trans World Airlines v. CAB,102 U.S. App.D.C. 391, 254 Y-

=

F.2d 90 (195S). Without stating whether this was legally

r...

~.wn..._..

.. = _

required, we take note that in the very case before us

[

~ ~

~~

NRC Commissioner Rowden recused himself from partici-f-

==

pation in the Commission's order of April 20,1978, be-cause he had been a member of the NRC staff in the

t...

Bailly construction permit pr'oceedings.

h-

=

The contention of petitioners is evocative of a mono-M

==n=r --

=rar u i

lithic assumption that once members of a staff have taken E':i

~

""l.5.

~

a position, (a) their view is forever fixed and (b) it will E"

!!T infect other members of the agency with regulatory re-sponsibilities. As appears from Withrote v. Lerkin, how-

[5 ever, there is a distinction between claims of " structural"

=EU=G bias, against which there is a strong presumption, and

=

=

individual bias. See 421 U.S. at 50-51 n.16. And Withrote

-.... ~

[

dismissed the due process objection even where functions

~

L:

were combined in a body composed of the same persons.

.. = = = - -

' Petitioners distort matters by assuming that the de-o cision whether to institute proceedings is a " contested matter" in which the Director acts as the " judge." Such

=,,

~

"~"

=. =....

i.?EI::

w

~

v

,_,...j...;:::

': ' ~

n'=

=

~

"~-

.=

.;.3.;:

g

I 17 a view does not take account fully of the manifold activi-ties of the staE. The s:ad's functions occupy a bread range, enecmpassing preliminary inves:igations of license applications, participation in licensing proceedings, moni-

==

~"

toring compliance following issunnee of the license, and, a

if necessary, initiation of enforcement procedures. The common denominator is the application of expertise to

==

=

a preliminary sizing up of a situa: ion before a procedure

=

is set in train to culminate in a decision in an adjudica-

=

=

tive proceeding by an independen: decisionmaker. There

==

=

is no requirement of the duplication of stafs for each of these preliminary functions. The limited number of

~1.

l availab!e experts might preclude such a course in any l

event. But there is more to it than that. The point is

...~~1 that the various preliminary functions are interrelated and their eficient discharge is aided by staf?'s familiarity

==

.=

with developing situations. The staf!'s expertise is cen-tral and integrative. This is an inherent part of the con-cept of agency exper:ise.

c.=

The importance of having the benefit of this expertise does not disappear simply because a petition seeking agency action is filed; at all points, the staff's pre-

~~..=......;;.=.

liminary judgTnent remains vital to effective regulation.

I Petitioners do not deny the relevance of these factors;

=

indeed, they endorse the role of the staff in licensing and

" - " ~ ~

enforcement except for the particular circumstances

... :

where a request for s:sfi reconsideration in the light-of

==

new evidence is made by outsiders. Wnether the reexami-

~ g,...

nation is triggered from within or outside the agency,

= u.

I the essential nature of the staff's function is the same;

-l to undertake a preliminary investigation and reach a judgment, based on the applicaticn of administrative

~ ~l= =

knowledge and expertise, as td whe;her action is re-

"===

quired. The law does not require that the Commission b~e deprived of staff administration because of the spec -

"W _.:=.

ulation that a judgment of the past may preempt the if=i=-

.:= :-

.:=

y..:

.:.=...

i

=

.=

. =

.=:

9.

L

= = =

...)'

i Ii I

l 18 y_.

h fu+mre." The due process clause makes a basic assump-x::

E tion of intellectual integrity in assessing a whcle record h

in the light of new information. So far as appears, the

=

context of' this Act and experience under it, is con-

[

=

=

sistent with that assumption;" nothing cefere us re-

""=

i quires a special legal barrier te the staff's role.

[

. ; _7 n=

==

=..

The NRC staff has responded to the safety concerns a

that were initially identified by the inanufacturer. The

==

safety questions will ultimately be tested in adjudicative proceedings when the operating license is under consid-f===.n.

~~

eration. That is the safety-assuring procedure that Cen-E

1. =-

gress has devised after due reflection. We have been

_G cautioned against projecting a legit 4stive intent to insert

@in - -

==

additional procedural requirements in the field of atomic I.;

==l~"....

energy regulation, notwithstanding the transcendent im-l' un. =

portance of the subject-matter, because this is a field h.

=

that receives the intense and continuing attention of the legislators and their staffs, and the courts must give

[".

===--

particular deference to the legislative balancing of the substantive and procedural considerations. Fermont Yankee Nucicar Power Corp. v. NRC, 435 U.S. 519, 558

[?".

(197S)T As to the constitutional contentions of peti-

[?'

~

. = =. =.

tioners, the principles already announced by the Court f

are dispositive. We are unpersuaded by petitioners'statu-E1".i.I.:=

=

E.......

=.:.

2o Cf. Richardson v. Perales, 402 U.S. 3S9, 410 (1971)

(separation of functions claim " assumes ~ too much and would _

=-

bring down too many procedures designed, and working well, for a governmental structure of great and growing ccm-

='i,.

,.1.

" The Staff har in fact recommended the institution of pro-

==-

~

ceedings to revoke a construction permit, even though it had

==-

earlier supported the grant. Consumers Power Co., 7 A.E.C.

~.....

n.:C 7 (1974); Union Electric Co., Docket Nos. 50-483, 50-4SG (Aprir3,1978) (Order to Show Cause why construction per-

"~ ~ J mit should not be sospended).

, nnn

=c.._====-

H..

";Fn

?...

'll(([

Q

==26..

. :n-

=

,_ a..

I

- u::

19

"~"

f E'

z tory and constitutional cla.ims that the Commission must

=. <

3 move at once either to conduct a proceeding to revoke the

..: i construction permit or to assign that problem to a dif-

=

ferent staff for consideration.

,_ )

Afinned.

i

=pu

..n "

7 g

7.**.~.

.i

'.21.*.":.".,

o 1[

'I t

'. "l%:1.1: ~.

i j.

..I F

.,f a

l

~~'

~'-

~

.... a.

n 22::

=i=H.

="

.+.r

=

_ee-,i-w.

,...,,,-.m,,-.wo,m.e-...,-.