ML20003D220
| ML20003D220 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 01/13/1981 |
| From: | Hossler D AFFILIATION NOT ASSIGNED |
| To: | Ertel HOUSE OF REP. |
| References | |
| NUDOCS 8103190617 | |
| Download: ML20003D220 (1) | |
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binding precedent:
by rulemaking or by adjudication.
Minnesota v.
N.R.C.,
195 U.S. App. D.C.
234, 602 F.2d 412, 416-417 (1979), cf., U.S.
Steel Corp. v. EPA, 595 F.2d 207, 214-215 (5th Cir. 1979l, National Welfare Rights Organization
- v. Matthews, 174 U.S. App. D.C. 410, 533 F.2d 637, 646 (1976).
In each case, the public is guaranteed some right 3/
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to be heard by the federal Administrative Procedure Act.
Agencies may not lawfully use the strategem of promulgating substantive rules in the guise of a Policy Statement to deny the public's right of participation.
Pacific Gas and Electric Co._ v.
O.S.H.A.,
U.S. App.
D.C.
F.2d
, No.
78-2221 (July 10, 1980).
The law is clear that the legal status of a Policy Statement is to be judged by its effect, not by the label which the agency chooses to attach to it.
Columbia Broadcastina System v.
U.S.,
407, 416, 62 Sct. 1194 (1942):
Brown Express, Inc. v.
U.S.,
607 F.2d 695, 700 (5th Cir. 1979); Lewis-MOTA v. Sec. of Labor, 469 F.2d 478, 481' (2d Cir. 1972).
An agency cannot escape its responsibility to present evidence and reasoning supporting its substantive rules by announcing binding pre-cedent in the form of a general statement of policy.
Pacific Gas and Electric Co.-v.
F.P.C.,
164 U.S. App.
D.C.
371, 506 F.2d 33, 38-9 (1974).
The Commission's June, 1980 Policy' Statement endorsed a new set of substantive safety requirements that were developed 3/
5 U.S.C. SS556 and 557 apply to. adjudications.. Section 553 governs rulemaking.
} 8 1 D 3 1 !) O g
as a result of the accident at Three Mile Island, Unit 2, and are contained in NUREG-0694.
It declared these require-ments to be "necessary and sufficient for responding to the TMI-2 accident," and directed its Licensing Boards that, as to those TMIrelated requirements which "sup'plement" existing regulations, their necessity can be challenged (by applicants, as a practical matter), but their sufficiency is unchallenge-able.
There can be little question, despite the delicacy of the language employed by the Commission, that those require-ments which " supplement the existing regulations by imposing requirements in addition to specific ones already contained therein" constitute, in offect, new regulations.
They have been established by the Commission as the maximum required for safety.
The Administrative Procedure Act defines a rule as follows:
the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, inter-pret, or prescribe law or policy or describing the organization, procedure, or practice re,quirements of an agency.
5 U.S.C. S551(4).
The NRC's Policy Statement is a rule within this definition.
The leading case on point is Chamber of Commerce v.
O.S.H.A.,
U.S. App. D.C.
F.2d
, No. 78-2221 (July 10, 1980).
The action under review there was promulgation by the occupational. Safety and Health Administration of a self-styled " interpretive rule and general statement of policy" without notice'or the opportunity for-public comment.
' The rule declared that an employer's failure to compensate employees for time spent accompanying O.S.H.A. inspectors on safety inspections constituted unlawful discrimination.
The court declared the rule to be legislative and thus covered by 5 U.S.C.
5551(4) rather than exempted as inter-pretive since its clear intent was to " implement the under-lying statute rather than to explain it."
Id., Sl.op. at 11.
The same rationale applies here.
After the filing of UCS's brief in the Court of Appeals, the Commission withdrew the June 16 Policy Statement and replaced it by issuing "Further Commission Guidance for Power Reactor Operating Licenses:
Revised Statement of Policy,"= December 18, 1980 (45 Fed. Reg. 85236, hereinafter
" Revised Policy. Statement.")
The Revised Policy Statement contains, inter alia, the following pertinent change in
' language:
Insofar as the second category, supplementa-tion of existing regulations is concerned the parties may challenge either the neces-sity for or the sufficiency of such require-ments.
It would be useful if the parties in taking a position on such requirements stated (a) the nexus of the issue to the TMI-2 acci-dent, (b) the significance of the issue, and, (c) any differences between their positions and the rationale underlying the Commission consideration of additional TMI-related requirements."
45 Fed. Reg. 852 38.
~
~ The clear-intent of this language is to permit the introduction of contentions related to safety issues or problems raised _by the TMI accident -and claiming that the NUREG-0737 requirements do not sufficiently address those
- issues. ~ Hence the Commission's direction that it would be useful for parties to indicate the " nexus of the issue to the TMI-2 accident," and "the significance of the issue."
(emphasis added).
The Licensing Board in this proceeding has completely ignored the meaning evidened by these words and imposed instead the requirements that a contention be tied directly to a NUREG-0737 item.
All contentions alley-ing that safety measures related to issues arising from TMI-2 but not included in NUREG-0737 are required for safety were rejected.'
After-the issuance of the Revised Policy Statement, the NRC moved for the dismissal.of UCS's Petition for Review on the ground of mootness.
The NRC claimed that the change in language " eliminated the matters complained about" by UCS.-4/
Subsequently,_the~ petitioners and the NRC filed with the court a Stipulation of Mootness, containing the following
-language:
3.
All. parties to individual licensing pro-
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ceedings are permitted by the Revised Policy Statement to challenge'the necessity for and the sufficiency of the interpretive and.
supplementary requirements addresed by the Revised Policy Statement.5/
The language of the stipulation and of the Revised Policy-Statement is consistent, neither was intended to nor 4/
Motion ~to Dismiss-of Respondents United' States' Nuclear Regulatory Commission and the United States of America,
~
Docket No. 80-1962, Jan. 15, 1981~(p. 1).
UCS et. al.
- v.-NRC et.-al.
.-5/ -
. Stipulation for. Withdrawal of. Petition as Moot, UCS
~
et.
al., Feb. 9,'1981.
. can fairly be read as containing the restriction imposed by this Licensing Board.
Had the Commission indicated that its revised Policy Statement was to be interpreted as this Board has, UCS would not have stipulated to the withdrawal of its Petition for Review.
It should be noted that when faced with very similar language permitting contentions relating to the necessity for and sufficiency of the measures recommended by the Staff for restart of TMI-1, the Licensing Board rejected a restric-tive interpretation urged by the Licensee and similar to that adopted by the Board.-6/
Instead it adopted the under-
. standing of the_NRC Staff and UCS that the test of admissibility should be the demonstration of a specific nexus between the issue to be raised and the TMI-2 accident.
Metropolitan Edison Co. '(Three Mile Island Nuclear Station, - Unit 1), LBP-79-34, 10 NRC 828, 830-831 (Dec. 1979).
The Commission has been closely monitoring the TMIl Restart hearings and has ihdicated no disagreement with the Board on this issue.
UCS has therefore reasonably relied on a similar interpretation being attached to the language of the Revised Policy Statement.
6/
"In sum, we view licensee's position to be that this Board may consider only those in-dividual factual issues, which are expressly
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stated in the Commission's August 9 order or in the' documents referenced in that order.
[W] e do not _ accept that argument. "
1*
"We believe that the charge to consider the sufficiency of the recommended short and long-term actions clearly draws-the scope of the hearing beyond the limits urged by the' licensee."
Metropolitan Edison Co. (Three Mile Island Nuclear Station,' Unit 1) LBP-79-34, 10 NRC 828, 830-831 (Dec. 1979)
_9_
Moreover, if the Revised Policy Statement were to be interpreted as this Licensing Board has, it would not
" eliminate the matters complained of "in UCS's appeal of the original Policy Statement.
On the contrary, it would be subject to the same infirmities.
It would, in effect, exclude by general rule the consideration of all TMI-related safety problems not covered by specific NUREG-0737 items.
Since the public. including the intervenors in this pro-ceeding, were not given the opportunity to participate in the development of NUREG-0737, such an approach is fundament-ally unfair.
It is also irrational.
The issue is whether TMIrelated safety problems-have been adequately addressed and the " nexus" required should be to those problems, as the Revised Policy Statement indicates, not to the items in NUREG-0737.
Conclusion For the abovestated reasons USC asks the Commission to correct the misinterpretation of its Revised Policy Statement by either accepting certification or clarifying the Policy Statement.-
BY:
Ellyn R. Weiss Harmon & Weiss 1725 I Street, N.W.
Suite 506 Washington, D.C.
20006 (202) 833-9070 Counsel for Union of Concerned Scientists Date: _ March 17, 1981
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