ML20031H539
| ML20031H539 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 10/23/1981 |
| From: | Stephen Burns NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| EA-81-018, EA-81-18, ISSUANCES-SP, NUDOCS 8110280089 | |
| Download: ML20031H539 (40) | |
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UNITED STATES OF NiERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of CONSUMERS POWER COMPANY
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Docket No. 50-255 SP (Palisades Nuclear Power Facility) )
(EA 81-18) b)
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s Stephen G. Burns Coun;el for NRC Staff October 23, 1981 8110280089 811023 J.
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-1 TABLE OF_ CONTENTS
- Page, PROCEDURAL SETTING I.
THE DIRECTOR'S ORDER....................
1 II.
THE LICENSING BOARD'S DECISION............... 4 III.
SUMMARY
OF THE VIEWS OF THE UNION AND THE NRC STAFF ON APPEAL.....................
6 ARGUMENT I.
THE NRC IS NOT REQUIRED TO GRANT HEARINGS TO PERSONS WHO SEEK VINDICATION OF INTERESTS THAT ARE NOT PROTECTED 'dY THE ATOMIC ENERGY '.CT.........
7 A.
To Establish A Right To A Hearing Under The Atomic Energy Act A Petitior.ar Must Denonstrate An Injury In Fact To A Specific Interest That Is Arquably Protected By The Atomic Energy Act 7
B.
The Union Has Not Shown That It Is Entitled To A Hearina Under The Governing Principles.......
10 1.
The Union's interest in maintair.ing
" contractually established employinent rights and benefits" has not been injured by the Director's Order.............
10 2.
The injury of which the Union complains does not affect a cognizable interest under the Atomic Energy Act...........
14 3.
The Commission's regulations in 10 C.F.R. Part 19 do not confer " standing" and do not impose additional procedural requirements on the issuance of orders............
18 C.
The Due Process Clause of the Constitution Does Not Mandate a Hearing in This Matter.........
22 II.
THE UNION SHOULD NOT BE GRANTED A HEARING AS A MATTER OF DISCRETION...................
24 r
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8
fagg A.
The Comission's Order Did Not Authorize the Holding of a Discretionary Hearing.......... 24 B.
In All Events, a Discretionary Hearing is Not Appropriate Here...,.............
26 29 CONCLUSION..............................
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TABLE OF AUTHORITIES Cases:
Page Statutes:
United States Constitution 7, 22 Administrative Procedure Act, g9(b) 5 U.S.C. 558(c)......
- l Atomic Energy Act of 1954, as amended, General References passim gl89a,42U.S.C.2239(a) 7, 21, 26 21 Federal Register Act, 44 U.S.C.1508 i
National Labor Relations Act, 10, 22 29 U.S.C. ggl41 et seq..........
Regulations:
10 CFR Part 2 Gene ra l re fe re nc e.....................
19-20 21, 27-28
- q2.202 21 g2.204 32.206 20, 25 3.714a..........................
6 2
10 CFR Part 19 General references 6, 18-21 Court Decisions:
Action on Safety and Health v.
FTC, 498 F.2d 757 (D.C. Cir. 1974) 21 Alexander v. Gardner-Denver Co.,
115 U.S. 36 (1974) 12 Association of Data Processing Service Organizations v'.'~ts.mn, 397 U.S. 150 (1970).........
8, 14 Bank of Commerce v. Board of Governors, 613 F.2d 164 (10th Cir.1975) 21 9
7 8
6 8-8 y
, ~ -
- iv -
Board of hegents v. Roth, 408 U.S. 564 (1977)...........
23 BPI v. AEC, 502 F.2d 424 (D.C. Cir.1974) 8 Connittee for Auto Responsibility v. Solomon, 603 F.2d 992 (D.C. Cir.1979),
cert. denied, 445 U.S. 915 (1980)...............
14 EE0C v.___American Tel. & Tel. Co.,
365 F.Supp.13T(Eb. Pa.1973),
aff'd and modified in part, 506 F. 2d 735 (3d Cir.1974) 12 H.K. Porter Co. v. NLRB, 397 U.S. 99 (1970) 22 Kent v. CAB _t 204 F.2d 263 (2nd Cir. 1953) 12 Klein v. Califano, 586 F.2d 250 (3d Cir.1978)..........
23 Koniag, Inc. v. Andrus, 580 F.2d 601 (D.C. Cir.1978).......
8 Local 189, Amalgamated Meat Cutters v. Jewel Tea Co.,381 U.S. 676 (1965) 12
_M_cGuire Shaft & Tunnel Corp. v. Local Union No. 1791, United Mine Workers, 475 F.2d 1209 (Temp. Emer9. Ct. App. )
cert. denied, 412 U.S. 958 (1973)...............
15 National Welfare Rights Org. v. Finch, 429 F.2d 725 (D.C. Cir.1970) 8 North American Phannacal, Inc. v. HEW, 491 F.2d 546 (8th Cir. ~1973) 21 Northern States Power Co. v. State of Minnesota, 447 F.2d 1143 (8th Cir.1971), aff'd, 405 U.S.1035 (1972) 16 0' Bannon v. Town Court _ Nursing Center, 447 U.S. 773 (1980), reversing Town Court Nursing Center v. Beal, 58E F.2d 280 (3d Cir.1978) 21, 23
' People of the State of Illinois v. NRC, 591 F.2d 12 (7th Cir.1979) 21 Perry v. Sinderman, 408 U.S. 593 (1972) 23 Porter County Chapter of the Izaak Walton League, Inc. v. NRC, 606 F.2d 1363 (D.C. Cir.1979) 21 Power Reactor Development Co. v. International Union of Electrical Workers 367 U.S. 396 (1961) 16 2
8-i
,e c
-V-Public Service Co. of New Hampshire v. NRC, 582 F.2d 77 (1s t Cir. 1978)..................
16
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Royal Typ_ewriter Co. v. NLRB, 533 F.2d 1030
( 8 th C i r. 1976 )........................
I,c Siegel v. AEC, 400 F.2d 778, 783 (D.C. Cir.1968).........
16 Sierra Club v. Morton_t 405 U.S. 727 (1972).....
29 Simon v. Eastern Kentucky Welfare Rights Org.,
426 U.ST YB (1976) 9, 11, 12 Southern Steamship Co. v. NLRB, 316 U.S. 31 (1942) 15 State of New Hampshire v. AEC, 406 F.2d 170 (1st Cir.1969) 16 Warth v. Seldin, 422 U.S. 490 (1975)................
12, 29 Administrative Decistans and Orders:
Allied General / Nuclear Services (Barnwell Fuel Receiving and Storage Staticn), ALAB-328, 3 NRC 420 (1976) 9 Atlantic Research Corp., CLI-80-7,11 NRC 413 (1980) 30 Carolina Power & Light Co., (Shearon Harris Nuclear Power Plant, Units 1-4), CLI-80-12, 11 NRC 514 (1980) 24 Consumers Power Company, (Palisades Nuclear Power Facility)
Memorandum and Order Approving Settlenent Agreement and Terminating Proceeding, ALJ.81 -
(July 14,1981) 2 Memorandum and Order Ruling on Petition to Intervene passim Order Confirming Licensee Actions to Upgrade Facility Performance (EA-81-18) 46 Fed. Reg.17688 (March 19,1981)..............
passim e
2 na
_ vi.
Order.(Commission; May 29,1981) 4, 24-26 Order (Appeal Board; Oct. O,1981) 1, 6 Consolidated Edison 09., et al.
(Indian Point Station, Units 2 & 3),
CLI-81-1,13 NRC 1 (1981), clarified in CLI-81-23 (Sept. 18, 1981) 25 Dairyland Power Cooperative (La Crosse Boiling Water Reactor)
ALAB-618,11 nht 551 (1980) 24 4
LBP-80-26,12 NRC 367 (1980) 20 Detroit Edison Co.,(Enrico Fermi Atomic Power Plant, Unit 2),
~
LBP-78-ll, 7 NRC 381 (1978),
aff'd, ALAB-470,7 NRC 473 (1978)...............
28 Edlow Int'l Co. (Agent for the Gov't of India), CLI-76-6, 3 NRC 563 (1976)..........................
8,12 Houston Lighting & Power Co.
(Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239 (1980).............
9, 15 Houston Lighting & Power Co. (Soutn Texas Project, Units 1 & 2), CLI-80-32, 12 NRC 381 (1980) 25 Long Island Lighting Co._(Jamesport Nuclear Power Station, Units 1 & 2)
ALAB-292, 2 NRC 631 (1975)..................
9, 15 Northern States Power Co. (Tyrone Energy Park, Unit 1), CL1-80-36,12 NRC 523(1980) 9, 12-13, 25 Nuclear Engineering Co. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737 (1978) 8-9, 19
_P_o_rtland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), CLI-76-27, 4 N RC 610 (1976).......................
7-8, 14-15 24, 26 i
... _ _. ~..
- vii -
PublicServiceCo.ofIndiana(llarbleHill huclear Generating Statl5'n, Units 1 & 2),
7-8, 14 CLI-80-10,11 NRC 438 (1980) 20, 24-27 Tennessee Valley Authority _ (Watts Bar Nuclear Plant, Units 1 8 ?), ALAB-413, 5 NRC 1418 (1977) 27 Union Electric Co. (Callaway Plant, Ohlts 1 & 2), ALAB-527, 9 NRC 126 (1979)...........
17 Virginia Electric & Power Co._ (North Anna Nuclear Power Station, Units 1 & 2)
CLI-76-22, 4 NRC 480 (1976) 16 ALAB-342, 4 NRC 98 (1976), decision deferred to ALAB-363, 4 NRC 631 (1976) 15 ALAB-536, 9 NRC 402 (1979) 19 Wisconsin Electric Power Co. (Point Beach, Unit 1), CLI-80-38, 12 NRC 547 (1980).............
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
CONSUMERS POWER COMPANY Docket No. 50-255 SP (Palisades Nuclear Power Facility)
)
(EA 81-18)
NRC STAFF'S BRIEF OPPOSING UNION'S APPEAL Pursuant to the Appeal Board's Order of October 8,1981, the NRC Staff hereby submits its brief in opposition to the appeal of the utility Workers Union of America, AFL-CIO, and its Michigan State Workers Counci'l (hereinafter "the Union") from the Atomic Safety and Licensing Board's Memorandum and Order denying the Union's request for a hearing on an order issued by the Director of the Office of Inspection and Enforcement. Because the Unicn has not demonstrated that it has been injured by the Director's Order or that its interest is cognizable under the Atomic Energy Act, the Appeal Board should affirm the Licensing Board's decision denying the Union's request. Moreover, the Appeal Board should affirm the Licensing Board's finding that the Commission did not delegate the authority to the Board to hold a discretionary hearing.
PROCEDURAL SETTING I.
THE DIRECTOR'S ORDER 1
The Director's Order of March 9,1981 imposed a number of 1
conditions on Consumers Power Company to ensure that the company instituted short-term and long-term improvements in its operation of the
Palisades Nuclear Power Facility.
See Ord:
Confirming Licensee Actions to Upgrade Facility Performance, 46 Fed. Reg.17688 (March 19,1981).
The Director's Order was prompted by the licensee's relatively poor enforcement history over the past few years. The Office of Inspection and Enforcement has assessed $466,000 in civil penalties against the licensee for three separate incidents involving misalignment of safety-related equipment and related procedural violations by plant personnel.1/ Partly on the basis of these violations, the licensee received a "below average" evaluation in the NRC's Systematic Appraisal of Licensees' Performance.
See 46 Fed. Reg. at 17688. On the basis of this operational history and an additional error in equipment alignment that occurred on January 8,1981, the Director determined that " major changes in the licensee's management controls are necessary to assure that the licensee can operate the Palisades facility without undue risk to the health and safety of the public."
Id.
Before the Director issued an order, the licensee agreed to take long-term and short-term actions to improve its performance and enhance protection of public health and safety in the operation of the Palisades 1/
See 46 Fed. Reg. at 17688.
Civil penalties in the amount of $450,000 for a continuing violation of containment integrity and related pro-cedural violations were challenged by Consumers Power Company.
In a settlement approved by the Administrative Law Judge, Consumers Power Company agreed to pay a compromise penalty of $225,000, which is still the largest civil penalty imposed against an NRC licensee. See Memorandum and Order Approving Settlement Agreement and Terminating Proceeding, ALJ (Docket No. 50-255, July 14, 1981). Consumers paid an additional $16,000 in civil penalties for violations cited in a Notice of Violation issued by the Office of Inspection and Enforcement on September 16, 1980.
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facili ty. The licensee met with reprasentatives of NRC Region III and presented a program of intended short-term actions to enhance safety and performance while the licensee's long-term actions were developed and implemented.
Of particular concern to the NRC's inspection staff wts the licensee's ability to carry out its long-term changes "withouc adversely impacting the safety of near-term operations." 46 Fed. Reg.
at 17688. Because the licensee agreed to take a number of measures to ensure safety, including a comm;tment not to impose excessive burdens on licensed operators by requiring substantial overtime work, the Director did not suspend operation of the Palisades facility, but found that "there is reasonable assurance that the Palisades facility can be operated safely in the near-term." 46 Fed. Reg. at 17689.
In view of the importance to the protection of public health and safety of the licensee's commitments, the Director confirmed these commitments by an immediately effective order.
See 46 Fed. Reg. at 17689.
On March 31, 1981, the Union requested a hearing on the Director's Order to challenge the following provision which, in the interest of providing greater issurance of optimum operator performance by avoiding undue work burdens, restricted the overtime hours that may be worked by licensed operators:
Extended overtime on the part of licensed operators shall be avoided by restricting the overtime for licensed operators as follows:
(1) No more than 4 overtime hours in any 24-hour period; (2) No more than 24 overtime hours in any 7-day period; (3) No more than 64 overtime hours in any 28-day period.
45 Fed. Reg. at 17689.
II. THE LICENSING BOARD'S DECISION On May 29, 1981, the Commission referred the Union's request to the Atomic Safety and Licensing Board "to decide whether the Union should be granted a hearing.
If the Licensing Board determines that a hearing is required it should conduct a hearing."
Upon consideration of the pleadings filed by the Union and the NRC Staff, 2/ the Licensing Board denied the Union's request for hearing.
Memorandum and Order Ruling on Petition to Intervene (July 31, 1981).
l The Board found that, whether or not the Union had shown specific or merely general injury to its interests, the Union's interests were essentially economic interests that are not protected by the Atomic Energy Act and, therefore, do not entitle the Union to a nearing on the Director's Order as a matter of right. Memorandum and Order at 6.
The Union was not entitled to a hearing merely by virtue of the "close proximity" of the operators to the facility.
Id. at 12. Although the Union might have an interest in naintaining safe working conditions, the Union had not shown an injury to such interest or that the protections afforded by 10 C.F.R. Part 19 were limited by the Director's Order or that Part 19 guaranteed the Union a hearing on the Order.
Id. at 6-8.
2/
Petition for Hearing (March 31,1981); NRC Staff's Response to Utility Workers Union of America's Request for Hearing ( April 20, 1981); Reply Brief in Support of Request for Hearing (May 28,1981);
NRC Stiff's Response to Utility Workers Union of America's ' Reply Brief in Support of Request for Hearing...' (June 17,1981). To date Consumers Power Company has taken no position on the Union's request for hearing, but has indicated a desire to participate in any hearing that may be ordered. Letter from J.L.' Bacon to the Secretary (April 8,1981).
a
Because the Union had not alleged that the overtime restriction had made the facility less safe, the Board rejected the Union's implication that the overtime restriction might affect employee morale.
Id. at 9, 12. The Board noted that this argument was inconsistent with the Union's allegei " unique" interest in maintaining plant safety.
Id.
a t 9.
The Union also did not demonstrate a concreta injury to the
" employment opportunities" of the affected workers, because it did not allege that there would be any decrease in jobs or opportunities for advancement.
Id. at 10.
The Board rejected the Union's invocation of the due process clause of the Constitution as a basis for finding that the Union had a right to a hearing. The Union had not demonstrated any " property right" to overtime hours that had been affected by the Director's order.
Id. at 16.
Although the Union claimed it was entitled to be heard as a matter of discretion, the Board found that the Commission's Order referring the Union's request to the Board did not confer the authority to hold a j
discretionary hearing. The Board noted that the holding of such i
hearings was rare, particularly in the context of enforcement actions.
l Nonetheless, the Board weighed the factors that have been used to permit discretionary intervention in licensing proceedings and found, on balance, that a discretionary hearing was not warranted under the circumstances present here in any event.
l l
The Union's request for a bearing is now before the Appeal Board on the Union's appeal under 10 C.F.R. 2.714a from the Licensing Board's July 31st Memorandum and Order. Although the Union's filing of its appeal was untimely, the Appeal Board has accepted the appeal and invited responses from the NRC Staff and Consumers Power Ccmpany. Order (October 8,1981).
III.
SUMMARY
OF THE VIEWS OF THE UNION AND THE NRC STAFF ON APPEAL In sum, the Union argues on appeal that it is entitled to a hearing, because its " collective bargaining interests" have been injured by the Director's Order and such interests are cognizable under the Atomic Energy Act. The Union also maintains that it has a right to a hearing by virtue of 10 C.F.R. Part 19 or, ultimately, the Constitution of the United States.
Even if it fails to show it is legally entitled to a hearing, the Union contends a discretionary hearing should be granted.
The Union has not shown, however, that its " collective bargaining interests" have been injured in fact by the Director's Order or even that such interests are protected under the Atomic Energy Act's paramount concern for public health and safety.
In the absence of such a showing, the Union is not entitled to a hearing under the Atomic Energy Act. Moreover, Part 19 was not intended to confer " automatic" standing on the Union in NRC proceedings.
The NRC has not withdrawn any protections of the Union's collective bargaining interests that may be
-7 guaranteed under any federal law, and the Director's Order did not otherwise affect a " property right" that would entitle the Union to a hearing under the due process clause of the Constitution.
Finally, the Commission did not iatend that a discretionary hearing be held in this case, but, in all events, the Union has not shown that on balance a discretionary hearing is appropriate here.
For the reasons developed in the Staff's argument, the Appeal Board should affirm the Licensing Board's decision to deny the Union's hearing request.
ARGUMENT I.
THE NRC IS NOT REQUIRED TO GRANT HEARINGS TO PERSONS WHO SEEK VINDICATION OF INTERESTS THAT ARE NOT PROTECTED BY THE ATOMIC ENERGY ACT A.
To Establish A Right To A Hearing Under The Atomic Energy Act, A Petitioner Must Demonstrate An Injury In Fact To A Specific Interest That Is Arguably Protected By The Atomic Energy Act In enforcement cases, as in licensing cases, this Commission applies judicial concepts of standing in determining rights to a hearing under section 189a of the Atomic Energy Act.
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), CLI-80-10,11 NRC 438, 439 (1980); Portland General Electric Co. (Pebble Springs Nuclear l
8-Plant, Units 1 4 2), CLI-76-27, 4 NRC 610, 613-14'(1976). 3/ As the Licensing Board noted, Memorandum and Order at 4, it must appear in the context of an enforcement action such as this Order:(1) that the peti--
tioner has been or may be injured in fact by the Director's Order and 4
(2) that the petitioner's interest is arguably within the " zone of in-terests" protected by the Atomic Energy Act. Marble Hill, supra,11 NRC.
at 439; Pebble Springs, supra, 4 NRC at 613. This determination'is a threshold consideration that does not go to the merits of the petitioner's case. Nuclear Engineering Co. (Sheffield, Illinois, Low Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 743 (1978), citing Association of Data Processing Servi.. Organizations v. Camp, 397 U.S.150,153 (1970).
3/
The Commission has recognized that judicial standing is not, of course, a required model for determining the scope of intervention rights in NRC proceedings, because the constitutional requirement of " case or controversy" from which standing derives under Article III of the Con-stitution does not apply to administrative agencies. Pebble Springs, supra, 4 NRC 'at.613; Edlow Int'l Co.- ( Agent for the Gov't of-- India),
CLI-76-6, 3 NRC 563, 569-70 (1976). Nonetheless, " standing". principles have been applied by the NRC and other administrative agencies as "useful guides in determining the kinds of interests a petitioner must establish to sustain a claim for participation in a proceeding as a matter of right."
Pebble Springs, supra, 4 NRC at 613..The use of such standards is clearly permissible.
See National Welfare Rights' 0rg
- v. Finch, 429 F.2d 725, 732-33 (D.C. Cir.1970); Koniag, Inc. v. Andrus, 580 F.2d 601, 616 (D.C. Cir.1978) (Bazelon, J., concurring). The Commission has looked to judicial standing tests.to" assure, for example, that-the intervepors possess concrete, as opposed to. general, inchoate, interests in~ the outcome of NRC proceedings' and that the petitioner seeks to be heard on the basis of matters which the NRC has competence-to decide.
See Edlow Int'l Co., supra, 3 NRC'at 570, 574. The Com-mission's reTTance on juuicial principles of " standing" is thus in accord with the general principle that the Commission may prescribe reasonable rules governing intervention in NRC proceedings. See BPI
- v. AEC, 502 F.2d 424, 427 (D.C. Cir. -1974).
6 8
9-The Appeal Board has described the " injury-in-fact" test as a question of "whether a cognizable interest of the petitioner might be adversely af fected if the proceeding has one outcome rather than another". Nuclear Engineering Co., supra, 7 NRC at 743. The allegedly affected interest must be of a specific nature and may not be merely a matter of broad public interest that also happens to be of concern to the petitioner.
Ijf. at 741-43; Allied General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420, 421-23 (1976). lioreover, the injury must be attributable to the Commission's proposed action, and it must be shown that the injury is likely to be redressed by the Commission s grant of the requested relief. Northern States Power Co. (Tyrone Energy Park, Unit 1),
CLI-80-36,12 NRC 523, 526 (1980) (views of Chairman Ahearne and Comm.
Hendrie); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S.
26, 38 (1976).
Finally, it is well established in NRC practice that an injury which is purely economic in character is not an interest within the
" zone of interests" protected by the Atomic Energy Act.
Pcbble Springs, supra, 4 NRC at 614; Houston Lighting & Power Co.. ( Allens Creek Nuclear Generating Station, Unit 1), ALAB-582,11 NRC 239, 242 (1980); Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 & 2),
ALAB-292, 2 NRC 631, 637-38 (1975) (opinion of Chairman Rosenthal).
m
. B.
The Union Has Not Shown That It is Entitled To A Hearing Under The Governing Principios 1.
The Union's interest in naintaining " contractually established employment rights and benefits" has not been injured by the L
Director's Order.
On appeal, the Union argues that it has an interest in maintaining
" established employment rights and benefits". Brief on Appeal at 5.
This interest, the Union avers, " springs from its bargaining agreement with the licensee and its right to collective bargaining under the National Labor Relations Act".
Id. at 5, 7.
In support of its interest the Union points to federal labor legislation under which unilateral changes in employment conditions may be " unfair labor practices".
Id.
at,. The Union does not contend that the Director's Order exacerbates existing safety hazards at Palisades or that the Order creates new hazards.
Although the Union contends taat it is adversely affected by the Director's Order, the Union provides no specif: demonstration of the manner in which the Order in fact injures the Union's interests.
The Union characterizes its injury as "the giving away of its rights by the empl oye r. " Brief on Appeal at 10 (emphasis added). These " rights" arise out of the employment relationship between the Union and the licensee.
Id. at 7.
The Union falls short of saying that its members have an absolute right to work a particular number of overtime hours
under its collective bargaining agreement with the licensee. 4/ At
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best, then, the Union's interest may be characterized as an interest in being able to preserve its ability to collectively bargain with its employer and pursue its remedies for the employer's violation of any duties to bargain in accordance with the processes established under federal labor law.
Although the Union may have an interest in protecting its interest in the collective bargaining process, the Union must demonstrate that the Director's Order has threatened or resulted in injury to these collective bargaining interests.
See Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41-42 (1976). Of course, the Director's Order has not harmed in any way the Union's ability to pursue collective bargain-ing remedies. The Order does not purport to take a position on the merits of the Union's claim that the licensee's acts constituted an " unfair labor practice" or that the licensee otherwise violated its contractual duties to its employees. Moreover, as the Union itself concedes, "the National Labor 4/
The Union indicates that amount of overtime is nut governed by an express term of its agreement with the licensee, but falls within a category of " practices" that may be construed by the NLRB as terms and conditions of employment subject to collective bargaining.
Brief on Appeal at 7 n.3.
Thus, the Union itself suggests that the overtime practices are not immutable guarantees under the bargaining agreement.
In its Memorandum and Order, at 10, the Licensing Board noted that the Union had not shown any specific harm to " employment opportunities" occasioned by the restriction on overtime work. Thus, the appropriate characterization of the Union's interest is an interest in the collective bargaining process created under federal labor legislation.
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Relations Board has exclusive jurisdiction to remedy these unfair labor practices". 5/
The question of causation may also be viewe1 from the perspectis a of whether the prospective relief, i.e., removal of the overtime restriction, will remove the harm to the Union. See Simon, supra, 426 U.S. at 45-46; Warth v. Seldin, 422 U.S. 490, 505-07 (1975).
In this regard, the Commission's decision ir, Tyrone, supra, 12 NRC 523 (1980),
is particularly instructive.
In that case, two public utility commissions sought a hearing on an order proposing revocation of the Tyrone construction permit to which the licensee consented after issuance. The two commissions complained that such action injured the economic interests of their ratepayers and that such injury could be avoided if the licensee 5/
Brief on Appeal at 8.
Moreover, whether Consumers Power Company in fact had any duties to the Union under federal labor statutes depends on the NLRB's consideration of a number of matters within its par-ticular competence to decide: e.g., whether " mandatory" or " permissive" subjects of bargaining were involved, Local 189, Amalgamated Meat Cutters v. Jewel Tea Co., 381 U.S. 676, 685-86 (1965); whether the matter was a proper subject of bargaining, Alexander v. Gardner-Denver Co., 415 U.S. 36, 51 (1974) (rights conferred by the Civil Rights Act are not part of the collective bargaining process); Kent
- v. CAB, 204 F.2d 263 (2d Cir.1953) (duty to bargain must yield to paramount power of CAB to approve airliae mergers); whether the matter was committed to managerial discretion, Royal Typewriter Co. v. NLRB, 533 F.2d 1030 (8th Cir.1976) (no duty to bargain over partial shutdown of operations where no anti-union animus involved);
EE0C v. American Tel. & Tel. Co., 365 F. Supp.1105 (E.D. Pa.1973),
aff'd and modified in aart, 506 F.2d 735 (3d Cir.1974) (even unilateral changes in collective
)argaining agreement may be warranted to accomme-date equal employment opportunity guarantees).
In view of the jurisdic-tion and particular competence of the NLRB to resolve such questions, it is particularly prudent to avoid using NRC proceedings as a forum to address matters which are within the primary, if not the exclusive, authority of another agency.
See Edlow Int'l Co., supra, 3 NRC at 574-75.
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retained the construction permit and successfully pursued the remaining state regulatory permits needed to build the project. The Commission found that granting the requested relief would not redress the petitioners' alleged harm, because any harm derived "not from the proposed revocation of the license but from the termination of the project".
Id. at 526 (views of Chairman Ahearne and Comm. Hendrie).
All four NRC Commissioners who decided the case agreed that, since the NRC could not force the licensee to build the project, the NRC's action on the construction pennit would not affect "the ultimate fate of the project and the treatment of cancellation costs".
Id. at 527 (concurring views of Comm. Gilinsky and Comm. Bradford); see iji. at 526 (views of Chairman Ahearne and Comm. Hendrie).
A similar analysis holds true for the case at hand.
Even if the Commission withdrew the offending overtime restriction, such action would not redress the Union's injury caused by the licensee's allegedly
" unfair labor practices" or unlawful modification of the employment contract. The NRC could not provide a remedy for any injuries suffered to date by these practices, 6/ nor could the NRC assure that the licensee would not retain the overtime restriction voluntarily if the restriction were removed from its license.
The withdrawal of the restriction would not resolve the conflict over the relative bargaining duties and contractual 6/
Presumably, the " unfair labor practice" which occurred began some-where between February 23 and March 3,1981, when the licensee made its conmitments to che NRC.
See 46 Fed. Reg. 17688-89.
O
obligations between the Union and the licensee that the Union says it will press before the NLRB. As the Union has not shown any injury caused by the Director's order nor that its requested relief will remove the alleged injury to its interests, the Union has not satisfied the
" injury-in-fact' portion of the " standing" test.
2.
The injury of which the Union complains does not affect a cognizable interest under the Atomic Energy Act Even if the Union's interests were to be considered adversely affected by the Director's order, the Union's interests are not the type of interests which are protected under the Atomic Energy Act, and, therefore, the Union fails to meet the " zone of interests" portion of the test of
" standing" in NRC proceedings. 7/ The Union characterizes its interests as " clearly more than purely economic, being based...on federal labor legislation". Brief on Appeal at 12. Without citing any authority to support its supposition, the Union avers that these interests fall within the class of interests which the Commission is required to protect in the exercise of its responsibilities under the Atomic Energy Act.
7/
See Marble Hill, supra,11 NRC at 439; Pebble Springs, supra, 4 NRC at 613.
See also Association of Data Processing Service Organizations v.- Camp, 397 U.S.150,153 (1970); Committee for Auto Responsibility
- v. Solomon, 603 F.2d 992, 999 (D.C. Cir.1979), cert. denied, 445 U.S.
915 ])980) (no standing, on basis of injury to health and conseryational values, to challenge GSA violations of statute dealing with use of government property).
8
The Licensing Board correctly found that economic interests, such as
~
those alleged by the Union, are "not within 'the zone of interests' protected by the Atomic Energy Act and therefore cannot ' serve as a basis to request a hearing as a matter of right." Memorandum and Order at 6.
The Licensing Board's view is baseo squarely on NRC decisions holding that the protection of economic interests is beyond the pale of the Atomic Energy Act. 8/
Moreover, there is no indication that the protections afforoad by this legislation are intended to be adopted as limitations on the Atomic Energy Act's health and safety mandate. Although important, federal labor legislation does not enjoy a preeminent status over other congressional nandates. See, e.g., Southern Steamship Co. v. NLRB, 316 U.S. 31 (1942); McGuire Shaft & Tunnel Corp. v. Local Union No.1791, United Mine Workers, 475 F.2d 1209,1215 (Temp. Energ. Ct. App.) cert.
denied, 412 U.S. 958 (1973) (Economic Stabilization Program overrides anti-injunction provisions of Norris-LaGuardia Act and will not detract from collective bargaining).
l 8/
Pebble Springs, supra, 4 NRC at 614 (ratepayer interest in avoiding rate increases is not protected); Allens Creek, supra,11 NRC at 242 (potential impairment of real estate investments is not protected);
Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 &
2), ALAB-292, 2 NRC 631, 638 (1975) (opinion of Chairman Rosenthal, holding potential economic loss to seller of fossil fuels as a result i
of competition with nuclear facility is not protected); Virginia Electric & Pcwer Co. (North Anna Power Station, Units 1 & 2), ALAB-342, 4 NRC 98,105-106 (1976) (opinion of Chairman Rosenthal), decision deferred to ALAB-363, 4 NRC 631, 633 (1976) (corporation's interests in protecting business reputation and avoiding possible damage claims are not cognizable).
l 1
s
- _ _ _ -, ~.., -, - - -..
m.
The Atomic Energy Act of 1954 established a pervasive regulatory scheme for relinquishing the government's monopoly over the development and utilization of atomic energy and materials through conpliance with the Commission's licensing standards.
See ' Northern States Power Co. v.
State of Minnesota, 447 F.2d 1143,1148,1152-53 (8th Cir.1971), aff'd, 405 U.S. 1035 (1972). This regulatory scheme under the Atomic Energy Act is
" hallmarked by the amount of discretion granted the Commission in working to achieve the statute's ends" and is
" virtually unique in the degree to which broad responsibility is reposed in the administering agency, free of close prescriptions in its charter as to how it shall proceed in achieving the statutory.
objective." Public Service Co. of New Hampshire
- v. NRC, 582 F.2d 77, 82 (1st Cir.1978), citing Siegel v. AEC, 400 F.2d 778, 783 (D.C. Cir.1968).
Over the years, it has been recognized that "public safety is the first, last, and a permanent consideration" in the exercise of the Commission's functions under the Atomic Energy Act.
Power Reactor Development Co. v. International Unicn of Electrical Workers, 367 U.S. 396, 402, 415-16 (1961); see also Virginia Electric & Power Co. (North Anna Power Station, Units 1 & 2), CLI-
. 76-22, 4 NRC 480, 490 (1976). Thus, the NRC does not regulate the use of nuclear facilities and materials on the basis of a broad public interest standard, but rather is confined under the Atomic Energy Act to regulation for the protection of the public health and safety See State of New Hampshire v. AEC, 406 F.2d 170,175 (1st Cir.1969).
e
i The Union indicates nu authority which suggests that the Atomic Energy Act's mandate to protect public health and safety is limited by any condi-tions arising out of the bargaining relationships between employers and em-ployees under federal labor legislation.
In fact, the Appeal Board has held that no such restraints exist. Union Electric Co. (Callaway Plant, Units 1 & 2), ALAB-527, 9 NRC 126,142-43 (1979).
In Callaway, a licensee, which refused to pennit an investigation into the firing of a worker who had provided safety information to the NRC, argued that the NRC should defer its investigation until the conclusion of a labor grievance proceeding. The Appeal Board rejected the notion that the NRC was required to defer the exercise of its responsibilities to avoid any possible effects on the process for resolving labor disputes.
Id.
at 142-43.
Although Callaway does not address specifically the nature of hearing rights under the Atomic Energy Act, Callawar strongly suggests that the Commission's protection of labor interests under the Atomic Energy Act extends only as far as such protection is essentially an extension of the Canmission's health and safety mandate. To the extent that labor interests are unrelated to protection of public health and s
safety or to the extent a person seeks to protect the economic or
non-safety related aspects of the enployment relationship between a licensee.and its workers, the Atomic Energy Act does not encompass such interests as a basis for invoking the Commission's jurisdiction. The Union wishes to vindicate economic interests. The Atomic Energy Act does not require the Commission to grant the Union a hearing on the basis of such interests.
3.
The Commission's regulations in 10 C.F.R. Part 19 do not confer " standing" and do not impose additional procedural requirements on the issuance of orders.
The Union contends that, in recognition of "the special safety concerns inherent in employment" at NRC-licensed facilities, the Commission has attri-buted "special status to the role of workers in maintaining safe conditions" by its promulgation of 10 C.F.R. Part 19 which, therefore, entitles the Union to a hearing. Brief on Appeal at 12.
Part 19 imposes various requirements on licensees for posting of notices to workers and issuance of instructions and exposure reports to workers and establishes procedures for consultation with workers during NRC inspections. Although Part 19 affords certain protections to workers from radiological hazards and t
9
discrimination for reporting health and safety concerns to the Connission, Part 19 is not intended to vindicate interests, such as economic interests alleged by the Union, that go beyond the Commission's jurisdiction.
As the Licensing Board found, Memorandum and Order at 8, the Director's Order in no way inhibits or withdraws the protections afforded workers by 10 C.F.R. Part 19.
The Union implies that the "special status" of workers under 10 C.F.R. Part 19 confers " automatic standing" in Commission proceedings.
It is doubtless true that workers at an atomic plant alleging a specific injury to a health and safety interest would be so likely to be adjudged as having standing as to make such standing appear " automatic".
- However, this " automatic" character doesn't stem from Part 19, but rather from the allegation of a specific injury to a health and safety interest.
No provision in Part 19 or in the general rules of practice in 10 C.F.R. Part 2 would suggest that the Commission has waived the showing of injury to a cognizable interest as a precondition to the Union's i
intervention in NRC proceedings on behalf of the workers it represents.
And, in the absence of a demonstration of specific injury to a health and l
safety interest, the Union's interest in having a voice in i
safety-related decisions affecting the Palisades facility is no different from the general concern in safety shared by all members of the public. See Nuclear Engineering Co., supra, 7 NRC at 741-43; Virginia Electric & Power Co. (North Anna Nuclear Power Station, Units 1
& 2), ALAB-536, 9 NRC 402, 404 (1979).
e 8
-20 In analogous circumstances, the Licensing Board has found a petitioner's use of 10 C.F.R. 2.206 to request initiation of a proceeding to modify, suspend, or revoke a license to be by itself an insufficient basis for the petitioner's " standing" to participate in the proceeding initiated in response to the 2.206 petition. Dairyland Power Cooperative (Lacrosse Boiling Water Reactor), LBP-80-26,12 NRC 367, 373 (1980). 9/ Section 2.206 provides an opportunity for any person, without regard to " standing", to request institution of formal NRC enforcement proceeaings with respect to a particular licensee. Section 2.20b recognizes, as does Part 19 with respect to workers, that members of the public may provide valuable information which assists the Commission in the administration of its regulation. The Commission has not determined, however, that the protections afforded by these regulations confer automatic " standing" to intervene in NRC proceedings.
On the basis of 10 C.F.R. Part 19, the Union also " maintains that whenever action is contemplated to change working conditions of operators of regulated facilities, ostensibly in the interest of improving safety, that [ sic] those licensed workers who participate in the regulated activity on a daily basis should be consulted as a matter of course".
Brief on Appeal at 13, The Unior does not contend, as it cannot, that Part 19 imposes a consultation requirement as a precondition to issuance of enforcement orders. No such requirement appears in Part 19 or in Part 2 Subpart B of 10 C.F.R. Part 2, which governs procedures for the initiation of an 9/
See also Marble Hill, supra,11 NRC at 442. The petitioner's request under 10 CFR 2.206 had been granted in part by issuance of an order suspending construction. The Ccmmission denied, however, the petitioner's request for a hearing on that suspension order.
8
- 21 cnforcement action, requires only that specific notice of the order be provided to the affected licensee. 10 C.F.R. 2.202(a) and 2.204.
No other specific statutory requirement for notice exists in the Atomic Energy Act, see $ 189a, 42 U.S.C. 2239(a), and, therefore, publication of the order in the Federal Register satisfied any other conceivable requirement of notice to the Union.10] The Appeal Board should reject the Union's implication that an additional " consultation" requirement should be read into the procedures governing issuance of enforcement orders.1]f 10f See 44 U.S.C. 1508; see also Bank of Commerce v. Bd. of Governors, 513 F.2d 164 (10th Cir.1975); North American Pharmacal, Inc. v.
HEW, 491 F.2d 546 (8th Cir.1973). Apart from its arguments regard-ing routine consultation, the Union has not specifically challenged the procedural adequacy of the issuance of the Director's order under 10 C.F.R. Part 2.
Moreover, the Union has not questioned the authority of the Director to make the Order immediately effective in accordance with the Commission's regulations and section 9(b) of the Administrative Procedure Act.
See 10 C.F.R. 2.202(f) and 2.204; 5 U.S.C. 558(c). The provisions of the March 9, 1981 Order to Consumers Power Company were made immediately effective, because public health and safety required the licensee's adherence to its commitments to assure adequate assurance of safe operation.
See 46 Fed. Reg. at 17689.
,1_1/ See Action on Safety and Health v. FTC, 408 F.2d 757 (D.C.Cir.1974)
(FTC not required to afford intervention in negotiations leading to con-sent order); cf. People of State of Illinois v. NRC, 591 F.2d 12 (7th Cir.1979) anTPorter County Chap. of the Izaak ETton League, Inc.
- v. NRC, 606 F.2d 1363,1360 (D.C. Cir.1979), both holding that NRC is not required to hold hearings or adopt other fonnal procedures to determine whether formal proceedings should be initiated.
It may be l
that the Commission's inspectors should have had additional discussions with workers; however, the issue before this Appeal Board does not involve the question of when or whether the NRC should consult with workers before taking enforcement action.
Rather, only the question of the Union's entitlement to a hearing on the Director's Order is in issue.
Sce O' Bannon v. Town Court Nursing Center, 447 U.S. 773, 784 n.15(1980).
i I
-22 C.
The Due Process Clause of the Constitution Does Not Mandate a Hearing in This Matter The Union claims that the Commission is required to hold a hea'.ing by virtue of the due process clause of the Fifth Amendment to the Constitution, because the Director 's Order affects " property rights" of the Union and the licensed operators. Brief on Appeal at 6-8.
In the Union's view, the due process clause mandates "that existing property rights Se protected against governmental interference without an opportunity to be heard". Jd. at 8.
The property right asserted here is the "right of the Union to bargain collectively to achieve binding labor agreements" under the National Labor Relations Act, 29 U.S.C. ll 141 et seg.
Id. at 6.
Federal labor law establishes a system of procedures and remedies to assure fair practices by employers, unions, and employees in the collective bargaining process. J2/ However, the Union has never alleged, much less shown, that the Director's Order purports to withdraw these procedures and remedies or prevent the Union from using them, fioreover, the Union has never demonstrated that the Atomic Energy Act confers any entitlement to earn overtime compensation or that the Commission l
12/ Particular terms of an agreement are not guaranteed as a result of collective bargaining. Cf. H.K. Porter Co. v. NLRB, 397 U.S. 99 l
(1970) (NLRB does not have power to impose particular terms of a j
contract).
1
~.
23 -
l has fostered such an expectation by any " mutually explicit understanding" between the NRC and the Union.E Although the Union may have causes of actioa for breach of the collective bargaining agreenent with the licensee, such causes of action do not establish a constitutional right to partici-pate in enforcement proceedings against the employer's license. See O'Bannonv.TownCourtNursingCenter,447U.S.773,787-88(1980).E The duo process clause does not require the holding of hearings at the request of persons'incidentilly affected by the Commission's enforcement See i_d,. at 787, d
of the Atomic Energy Act's health and safety standards.
789-90. The Union has no enforceable expectation in employment at a nuclear facility that does~ not meet the Commission's health and safety standards. See ip'. at 785-86.
13/ See Board of Regents v. Roth, 408 U.S. 564, 577 (1977); perry v.
3 TFn'derman, 4C8 U.S. 593, 601 (1972). These principles were discussed in the Staff's brief before the Licensing Board and were adopted by the Liaensino Board in its decision.
See NRC Staff's Response to Utility torkr in of America's ' Reply Fref in Support of Request for Hear-ing' 22, guoted in Memorandum and Order at 14-16. The Union has not specit?cally refuted this analysis which indicates a lack of any property right to overtime of constitutional dinension under the Atomic Energy Act.
It can also be noted that, while over the years the staff has issued various positions on nuclear power plant staff working hours, except for those at issue here, none have been promulgated by either a rule or an order.
14/ In O' Bannon, the Supreme Court held that Medicaid patients did not have a right to receive benefits in a particular nursing facility that entitled ~ them to a hearing before HEW can decertify the facility. Although the decertification might lead to severe hardships, the patients had no constitutional right to participate in the enforcement proceedings by HEW against the home. The Supreme Court's decision reversed and remanded the Third Circuit's decision in Town Court Nursing Center v. Beal 586 F.2d 280 (3d Cir.
1978), in which the majority of the court relied on the reasoning in Klein v. Califano, 586 F.2d 250 (3d Cir.1978).
See 447 U.S. at i
779, 783. The Union cites Klein in support of its position, but does not explain how Klein, in light of the Supreme Court's implicit disapproval in O' Bannon of the Third Circuit's reasoning in Klein, establishes a constitutional right to a hearing on the Director's Order.
s
II. THE UNION SHOULD NOT BE GRANTED A HEARING AS A MATTER OF DISCRETION A.
The Commission's Order Did Not Authorize the Holding of a Discretionary Hearing In the Union's view, the Licensing Board erred in holding tha+. the Commission did not intend to empower the Board to hold a discretionary hearing on the Director's Order.
Brief on Appeal at 16-17; Memorandum and Order at 17-19. The Union contends the brief, " routine" nature of the Commission's Order of May 29, 1981, did not reflect an intent to deny the Union a discretionary hetring.
To be sure, the Commission has recoqnized in enforcement as well as licensing proceedings that it has broad discretion "to provide hearings or permit interventions in cases where these avenues of public partici-pation would not be available as a matter or right." Marble Hill, supra,11 NRC at 442, citing Pebble Springs, supra, 4 NRC at 614-15.
However, NRC adjudicatory boards possess only suc5 powers as have been conferred on them by the Commission.
See Carolina Power & Light Co.
(Shearon Harris Nuclear Power Plant, Units 1-4), CLI-8U-12,11 NRC Sla, 516-17(1980); Dairyland Dower Cooperative (La Crosse Boiling Water Reactor), ALAB-618,12 NRC 551, 554 (1980). The Commission's Order of May 29, 1981, states that the Licensing Board was to decide whether the Union should be granted a hearing.
If the Licensing Board determines that a heering is required, it should conduct a hearing."
(emphasisadded).
Essentiaily, tha Commission asked the Board to decide whether a hearing should be granted by directing it to determine whether a hearing was required in this case.
By using the word " required," the Commission's Order makes clear that the Board is not to consider the issue of a discretionary hearing.
h
In light of the ".ommission's stated policy with respect to hearings in enforcement mattei 3. the brevity and routine nature cf the Commis-sion's Order underscores the fact that the Commission did sot intend to hold a discretionary hearing in this case. The Commission emphasized in Marble Hill that public health and safety are best served by concentrating the Commission's resources on field 1.1spections and related scientific and engineering work rather than on the conduct of adjudicatory proceedings.
11 NRC at 441. The Staff is not aware of any instance in which the Commission has intended that discretionary hearings be held on confirmatory orders or orders to show cause issued by the staff and consented to by the licensees.
See Marble Hill, supra,11 NRC at 442-43; Wisconsin Electric Power Co.
(Point Beach, Unit 1), CLI-80-38,12 NRC 547 (1980); Houston Lighting &
Power Co. (South Texas Project, Units 1 & 2), CLI-80-32,12 NRC 381 (1980); Tyrone, supra,12 NRC at 527.
In a recent instance in which the Commission has ordered a discretionary hearing bearing on issues raised in a petition under 10 C.F.R. 2.206 and the Director of NRR's issuance of orders in response thereto, the Commission has been quite explicit in establishing the scope and procedural framework for the hearing. See Consolidated Edisen Co. et al. (Indian Point Station, Units 2 & 3),
CLI-81-1, 13 NRC 1 (1981), clarified in CLI-81-23 (Sept. 18, 1981).
It should be noted that the Pebble Springs decision, on which the l
Union relies, dealt only with the question of discretionary inte*vention in a construction permit proceeding--a proceeding in which a hearing a
t
must be held even if no one had been given leave to intervene.
See Atomic Energy Act 5 189a, 42 U.S.C. 2239(a). The notion of granting a hearing on a discretionary basis was not specifically considered in Pebble Springs. As indicated in Harble Hill, the Commission has looked with disfavor in more recent times on the idea of holding a discretionary l
hearing on confirmatory orders.
In addition to the concern for conserving inspection resources expressed in Marble Hiil, it should be remembered that the Commission is also concerned with the application of the agency's avail-able resources in the area where they are most needed.
In view of the foregoing, the Commission's tersely phrased order should not be construed to warrant consideration of a discretionary hearing on the Director's Order.
B.
In All Events, a Discretionary Hearing is not Appropriate here Out of an excess of caution, the Licensing Board weighed the factors identified in Pebble Springs, 4 NRC at 616, that have been applied to discretionary intervention in Itcensing proceedings. On balance, the Licensing Board found that initiation of a discretionary hearing was not warranted under these criteria. Memorandum and Order at 19-23. On appeal, the Union urges the Appeal Board to overturn the Licensing Board's decision by giving overriding consideration to the Union's " singular experience and knowledge,' with respect to the opcrators' interests and the impact of the overtime restriction on safety.
Even if the Board were empowered to determine the propriety of a discretionary hearing, the Union's basis for gr6nting that hearing is outweighed by other relevant factors.
~
In the first instance, the Commission has indicated in Marble Hill that inspection and enforcement resources are best applied to the actual conduct of the inspection program rather than to the conduct of legal proceedings.
11 NRC at 441. The Commission's policy of encouraging licensees to consent to enforcement orders is not promoted by holding discretionary hearings on orders to which a licensee has consented.
Ijb Even in licensing proceedings, a potential litigant is required to make a particularly showing befoce a discretionary hearing is granted when, in the absence of the request, no hearing would be held.
See Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418,1422(1977).
In the absence of the Union's request, no hearing would be held on the Director's Order since the licensee has consented to the imposition of the Order and the Order's terms are enforceable.
See 10 C.F.R. 2.202(d) and (e). Thus, granting a hearing would unduly broaden or delay the proceeding, a factor that weighs against holding 3 discretionary hearing.
Although the Union avers it has a singular ability to address the effects of overtime work on plant safety, the Union has not alleged that operation of the Palisades facility has been made any less safe as a result of the overtime restriction. The alleged interests of the Union are essentially economic and reveal a primary concern with asserting
":ollective bargaining right:." To the extent that such interests would be vented in a discretionary hearing, a hearing would be diverted from the Commission's paramount concern for public health and safety.
Inter-ests that are insufficient to establish a right to a hearing under a
Commission practice do not weigh in favor of granting a discretionary hearing. See Detroit Edison Co. (Enrico Femi Atomic Power Plant, Unit 2), LBP-78-11, 7 NRC 381, 387-88 (1978), aff'd, ALAB-470, 7 NRC 473 (1978).
The Union believes that it represents a unique perspective that would contribute to the development of " sound record" in this proceed-ing. Of course, further development of a reccrd is unnecessary as a matter of law in view of the licensce's consent to the Order.
10 C.F.R. 2.202(e). To the extent that the Union is generally concerned with safe operation of the facility, this concern has been taken into account by the NRC and the licensee in fashioning comprehensive measures to ensure safe operation of Palisades. The Union does not contend that signifi-cant improvements in performance were not required at Palisades. To the extent that the Union's interests are not safety-related, these interests are essentially irrelevant and should not be represected in NRC proceedings bearing on health and safety matters.E floreover, it P, not clear that the Union appreciates in fact the serious nature of the poor performance at Palisades that led to the issuance of the Director's Order. Although the Union does not deny the fact that serious safety violations have occurred at Palisades, it does 15/ Even so, it cannot be said that the licensee has not represented in some meesure the Union's economic interests, since the measures which the licensee proposed were intended to avoid the oore drastic action of suspension of Palisades' operation.
e
~
not seem to appreciate the need for significant improvement in operations at Palisades, as has the licensee, the person primarily responsible for safe operation of the facility and the person with arguably the most to lose by limitation or withdrawal of the license.
Finally, the Union apparently has remedies in other tribunals for Consumers Power Company's alleged unfair labor practices and infringe-ment of contractual rights. The Union itself concedes that the NLRB has exclusive jurisdiction over matters related to unfair labor prac-tices.
For this and the other foregoing redsons, the balance of rele-vant factors weighs against the granting of a discretionary hearing to the Union.
CONCLUSION Although the Union has attacked the merits of the Director's Order in its brief, the only issue before the Appeal Board is whether the Union has established a right to a hearing on the Director's Order.15/
Nonetheless, as indicated on the face of the Director's Order, the Director's actions were taken to remedy the unique safety problems encountered at the Palisades facility. The Union does not deny that Palisades has had a poor operaticnal history in recent times prior to issuance of the Order or that, on the whole, significant improvement in the conduct of licensed activities was needed at Palisades.
16/ The Union's contentions regarding the merits of the Order do not bear on the issue of standing, but rather go to the merits of the issue of whether the Order should be sustained. Before reaching the merits of a litigant's contentions, standing to allege such contentions must be established. Warth v. Seldin, 422 U.S. 490, 498 (1975);. Sierra Club v. Morton, 405 U.S. 727, 731-32 (1972).
8
e The Commission looks primarily to its licensees to assure safe operation of licensed facilities and safe use of licensed materials.
^tlantic Research Corporation, CLI-80-7,11 NRC 413, 425 (1980). When a licensee proposes measures to assure safe operation of its facility, the NRC Staff does not look beyond the safety aspects of those measures to assure that the licensee has also complied with its contractual and non-safety related obligations.
For the reasons stated in this brief, the Union has not shown that the Licensing Board improperly denied the Union a hearing, whether as a matter of administrative standing or constitutional right. The Licensing Board properly found that it was empowered only to hold a hearing if one was required as a matter of law.
Even if the Board were empowered to hold a discretionary hearing, a discretionary hearing is not warranted and would be detrimental to stated Commission enforcement policy.
Accordingly, the Licensing Board's Memorandum and Order of July 31, 1981, should be affimed.
Respectfully submitted, Stephen G. Burns Counsel for NRC Staff Dated at Bethesda, Maryland this 23rd day of October, 1981.
t
o UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter
)
Docket No. 50-255 SP
)
(EA 51-18)
CONSUMERS POWER CUMPANY
)
(Palisades Nuclear Power Facility)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFF'S BRIEF OPPOSING UNION'S APPEAL in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 23rd day of October,1981.
Alan S. Rosenthal, Chairman
- Dr. Peter Morris
- Administrative Judge Administrative Judge Atomic Safety & Licensing Appeal Board Atomic Safety & Licensing Bt U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Thomas S. Moore
- Dr. Jerry R. Kl i ne
- Administrative Judge Administrative Judge Atomic Safety & Licensing Appeal Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
2055F Washington, D.C.
20555 Christine N. Kohl
- Atomic Safety & Licensing Board Penul
- Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety & Licensing Appeal Board Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Elizabeth S. Bowers, Chairman
- Judd Bacon, Esq.
Administrative Judge Consumers Power Company Atomic Safety & Licensing Board 212 W. Michigan Avenue U.S. Nuclear Regulatory Commission Jackson, Michigan 49201 Washington, D.C. 20555
j -
Theodore Sachs, Erq.
Atomic Safety & Licensing Laura Campbell, Esq.
Appeal Board Panel *
- Marston, Sachs, Nunn, Kates, U.S. Nuclear Regulatory Commission nadushin & 0' Hare, P.C.
Washington, D.C.
20555 1000 Farmer Street Detroit, Michigan 48226 Docketing & Service Section
- U. S. Nuclear Regulatory Commission Washington, D.C.
20555 i
)
i W
Karen D. Cyr JF Counsel for NRC Staff f
i 11 O