ML20035C613

Discusses Background Paper for Review of Commission Regulations & Practice Governing Citizen Petitions Under 10CFR2.206 for Instituting Proceedings Against Licenses

ML20035C613
Person / Time
Issue date:	02/03/1993
From:	Parler W NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Rogers, Selin I, The Chairman NRC COMMISSION (OCM)
References
2.206, COMSECY-93-007, COMSECY-93-7, NUDOCS 9304080180
Download: ML20035C613 (57)

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{' h NUCLEAR REGULATORY COMMhSIORELEASED TO THE PDR s s.y./j. E WASHINGTON, D. C. 20555 +lll9b L 'a as 0 31993;

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COMSECY-93-007 MEMORANDUM FOR: The Chairman Commissioner Rogers Commissioner Curtiss Commissioner Remick Commissioner de Planque FROM: William C. Parler General Counsel

SUBJECT:

BACKGROUND PAPER FOR REVIEW OF THE COMMISSION'S REGULATIONS AND PRACTICE GOVERNING CITIZEN PETITIONS UNDER 10 CFR 2.206 FOR INSTITUTING PROCEEDINGS AGAINST LICENSEES In SECY-92-415 (December 18, 1992), I recommended that the Commission initiate an effort to evaluate potential ways to increase the effectiveness of public ir.volvement in the Commission's regulatory processes. The central focus of this initiative would be an evaluation of whether the Commission's practice governing S 2.206 petitions should be revised to enhance the opportunity for public participation. The first step in this evaluation would be a discussion of possible relevant significant issues at a public workshop. Knowledgeable participants from citizen groups, state government, the nuclear industry, and federal agencies (such as the Administrative Conference of the United States) would share their advice and views on the S 2.206 process as well as other issues with the NRC staff. I suggested that the Office of General Counsel, in coordination with other interested NRC offices, would prepare a background paper to serve as the focus for discussion at the workshop. In the Staff Requirements Memorandum (SRM) on SECY-92-415, dated January 26,

1993, the Commission approved the initiation of the evaluation of the NRC S 2.206 process and directed the Office of General Counsel to prepare a background paper for the Commission's consideration prior to commencing the planning of a public workshop.

This paper responds to that SRM. In accordance with the SRM, the focus of this paper is limited to the ' enforcement-type S 2.206 petitions, explicitly excluding discussion of the Part 52 S 2.206 petitions to suspend, revoke or modify combined licenses. I never intended to suggest that I believe that any Part 52 S 2.206 matters should be revisited. I do not. Neither did I intend to suggest that I believe that the precedents on judicial review of S 2.206 petitions should be revisited. I would note, however, that if that question were presented to me on a clean slate, I believe that on balance we should not be opposed to having any agency regulatory 9304000180 930203 PDR COMMS NRCOPA CORRESPONDENCE PDR 8 v N t i L.

2 action exposed to the scrutiny of review by the appropriate Federal 2 appellate courts. I. Rationale for Current Examination of G 2.206 Petition Process The S 2.206 petition is the primary method for a member of the public to request Commission review of a potential safety problem with an NRC licensed facility, outside of a licensing or rulemaking proceeding. A review of the record reveals that a substantial majority of all S 2.206 petitions have been denied and that, except in a few cases when hearings of some type were held, the decisions appear to have been made without further input from the petitioner af ter the petitioner's written submission.2 It should not be surprising that most of these petitions should be denied if the NRC has done a good regulatory job. Nevertheless, this process has been the subject of longstanding and extensive criticism by citizens' groups' and by some members of Congress. 2 Since the 1985 Heckler v. Chaney decision, we have deliberately structured the S2.206 process to avoid any implication that grant or denial of the petitions is governed by any substantive

standard, and thereby successfully advanced the proposition that non-Part 52 S2.206 petition decisions are not

) subject to judicial review because there is no standard to apply. We could, by adopting some type of substantive S2.206 decision standard, provide for judicial review, but this would be a clear departure from our prior practice and litigative policy. In any event, any reduced opportunity for the scrutiny of judicial review of agency regulatory actions increases the agency's obligation to assure that its processes are fair to all interested persons and provide for sound results. The workshop I am recommending is consistent with that obligation. 2 See the Commission's response of October 3, 1991, to a question on the S 2.206 process from Representative Peter Kostmayer, Chairman of the Subcommittee on Energy and the Environment, House Committee on Interior and Insular Affairs, included as Attachment 1. Similar information was provided in a June 4, 1992, memorandum from Dennis K. Rathbun, Director, NRC Office of Congressional Affairs, to Sam Fowler, Counsel, Energy j Research and Development Subcommittee, Senate Committee on Energy and Natural Resources, enc]qsing congressionally requested response to the report by the Unit.a of Concerned Scientists. See The Public as Enemy: NRC Assaults on Public Participation in the Reaulation of Operatina Nuclear Power Plants I (A Report by the Union of Concerned Scientists), Diane Curran (April 1992), included as Attachment 2. j J l

i + 3 The NRC has not re-examined the process in any systematic way, as far as I am aware, since it was first established in 1974. The purpose of the proposed review would be to ensure that the process is an effective, equitable, and credible mechanism for public participation. Such' an evaluation of the S 2.206 process is consistent with current Commission efforts to enhance public disclosure, public information about the mission of the agency, and public participation and support for Commission decisionmaking. Finally, there is no statutory right in the Atomic Energy Act to raise these potential safety issues to the Commission or to request a formal hearing. Many environmental statutes do include " citizen suit" provisions which allow civil actions by any member of the public against any

person, including Federal

agencies, for violating any requirement of the

statute, or any regulatory requirement issued pursuant to the statute'.

These statutes also permit civil actions against the agency for failure to perform an act or duty which is required by the statute. The Atomic Energy Act does not contain any such provision, thus highlighting the critical importance of S 2.206 as the only mechanism clearly set forth for interested citizens to raise potential safety issues to the Commission outside of the licensing or rulemaking process. Also, additional Congressional and administration attention could be focused on the S 2.206 process. This could result in the Commission being required to initiate a re-evaluation of its practices in this area or in having additional statutory requirements imposed. II. Descriotion of the R 2.206 Process Any person may file a petition under 10 CFR 2.206 to request that the Commission institute a proceeding to modify, suspend, or revoke a license, or for such other action as may be proper. This process provides the public with a mechanism to raise issues of concern, which must then be reviewed and addressed by the Commission's staff. Except as specifically provided in the regulations, each 5

See, e.c.,

Section 304, Clean Air Act, 42 USC S 7604; Section 7002, Solid Waste Disposal Act, 42 USC S 7902; and Section 310, Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (Superfund), 42 USC S 9659. 5 For instance, Part 52 at section 52.103 (b) (2) (ii) provides that a petition to modify the terms and conditions of the combined license will be processed as a 5 2.206 petition. However, these petitions shall be considered by the Commission itself. The Commission must determine whether any immediate action is required prior to commencement of operation under the license. The scope of this discussion is limited to enforcement-type S 2.206 petitions, l and specifically excludes S 2.206 petitions pursuant to Part 52 combined licenses.

t 4 2.206 petition is reviewed by the appropriate major program Office Director, who must either initiate the requested proceeding or issue a formal Director's Decision providing a specific disposition of all issues raised in the petition within a " reasonable time." If the Director finds that the petition raises a substarxial safety question, an enforcement order will be issued or other appropriate action taken. In reviewing the issues raised in a S 2.206 petition, the staff generally relies on its own resources - to gather and review information, including, when appropriate, the initiation of engineering reviews by headquarters staff or inspections by inspectors operating out of one the NRC regional offices. The staff also may rely on studies prepared by NRC consultants and, for emergency planning issues, may refer the petition to the Federal Emergency Management Agency for its review and comment. The licensee usually voluntarily responds to the issues in the petition. Also, at the staff's discretion, it may require the licensee to submit under oath or affirmation, additional information in response to the petition. In many instances, the staff's review may not involve new engineering work or inspection; rather, the primary job of the staff may be to explain why results of earlier technical reviews or inspections do not warrant further agency action. An important purpose of S 2.206 is to provide a simple method for any member of the public to bring facts or issues to the NRC's attention for evaluation. The petitioner bears a minimal burden in filing a request under S 2.206. The petitioner need only ask that some action be taken against a licensee and identify the facts that the petitioner believes provide sufficient grounds for taking the proposed action. No showing of legal standing or interest is required. It is not even required that the petition mention S 2.206. The NRC's normal practice is to treat any request for action against a licensee, even for instance, a letter or a postcard, as a S 2.206 petition, provided only that it identifies a sufficiently specific basis for the request. The bases for the staff's determination on each S 2.206 petition are set forth in a formal Director's Decision signed by the Director of the appropriate program office. Decisions are published with reported agency adjudicatory decisions in the NRC Issuances. Although the filing of a S 2.206 petition does not, by itself, initiate a hearing, S 2.206 petitions have resulted in hearings in rare cases. If an order is issued, it may trigger an agency proceeding in which the petitioner may intervene, although the intervention is allowed on a very limited basis, within the scope of issues defined by the Commission. Bellotti v. NRC, 725 F.2d 1380 (D.C. Cir. 1983). However, a formal hearing will usually

5 result only when the licensee demands a hearing to challenge the proposed order. Also, in general, S 2.206 petitions may not be used to relitigate an issue that has already been decided or to avoid an existing forum, such as a licensing proceeding, in which the issue is being or is about to be litigated. Consequently, some issues raised in S 2.206 petitions have been addressed in hearings associated with other NRC proceedings. When a petition is granted, the Director may also issue an order to modify, suspend, or revoke a license pursuant to the NRC's rules in 10 CFR S 2.202. Not all actions granting a petition will necessarily require the issuance of an order. For example, without issuing an order, the staff may issue a notice of violation, or a civil penalty, or may obtain a licensee's agreement not to restart its facility pending completion of certain safety reviews, a step that essentially complies with petitioner's request, or take the appropriate measures to correct a problem that has been cited in the S 2.206 petition. A review of the record shows that in about 10% of the more than 300 petitions that have been filed with the NRC, regulatory action was taken which, in effect, granted, in whole or in part, the relief requested. The actions taken have included issuance of a Notice of Violation and Proposed Imposition of Civil

Penalty, orders i

modifying, suspending or revoking licenses, the initiation of further NRC inquiries into the safety issues raised in the petition. In addition, in many instances where the petition was denied, the action requested had already otherwise been taken, and l I thus the S 2.206 petition was effectively mooted. Although no formal appeal of a denial of a S 2.206 petition is allowed under the rule, such denial decisions are subject to the discretionary review of the full Commission. If the Commission does not decide to review the Director's Decision within 25 days, the decision becomes the final decision of the agency. This review has been rarely exercised. l Prior to 1985, some of these final decisions of the NRC had been I subjected to judicial review under the Administrative Procedure Act. The Commission's decision was not overturned in any of these cases.

However, in 1985, the Supreme Court held that agency decisions not to undertake enforcement action are presumptively unreviewable under the Administrative Procedure Act'.

The decision interprets section 701(a) (2) of the Administrative Procedure Act, 7 which states that judicial review is not available to the extent Heckler v. Chaney, 470 U.S. 821 (1985). j l 7 5 USC S 701(a) (2). j

F '6 that " agency action is committed to agency discretion by law." However, the decision further states that the presumption against reviewability may be rebutted where an agency's substantive statute provides guidelines for the agency to follow in exercising its 8 enforcement powers. Although the Supreme Court has not specifically. held that NRC denials of S 2.206 petitions are presumptively unreviewable under the Chanev holding, three circuits of the U.S. Court of Appeals have decided that Chanev does apply, and that S 2.206 petition denials by the NRC which constitute refusal to take enforcement action are presumptively unreviewable'. III. Areas of ODoortunity to Enhance Particination in the E 2.206 Process A significant concern with the S 2.206 petition process from the view of the participating public is that the vast majority of these petitions are denied, usually without any further input from the petitioner than the original written petition. The NRC staff has found that, of the more than 300 petitions which have been filed, approximately 10% have achieved, in whole or in part, the objective 10 which the petitioner sought However even in many of these cases, the petition is at least partially denied. Therefore, the public perception is that these petitions are almost automatically denied. i When a petitioner submits a

petition, the NRC issues an acknowledgement letter and a Federal Register notice from the appropriate program Office Director.

These documents are very often the only communication the petitioner receives from the NRC until the date that the Director's Decision is issued. That may be a fairly long time period, depending on the issues raised in the petition. However, the Director's Decision itself will often recount extensive interactions between the NRC staff and the 8 470 U.S. at 832-33. See Mass. Public Interest Research Group v. U.S.

NRC, 852 F.2d 9 (1st Cir. 1988); Safe Enerciv Coalition v.

U.S.

NRC, 866 F.2d 1473 (D.C. Cir. 1989) ; and Arnow v. U. S. NRC, 868 F.2d 223 (7th Cir. 1989).

Note that petitions to modify the terms of a combined license issued under 10 CFR Part 52 will be handled generally as S 2.206 petitions.

However, these are subject to judicial review in accordance with the Energy Policy Act of 1992 which amended section 189b. of the Atomic Energy Act to make decisions on such petitions specifically subject to judicial review.

l 20 See Attachment 1.

7 licensee in order to resolve the issues. The appearance of this practice is that while there is no opportunity for the petitioner to participate in the resolution of the issues the petitioner has raised, the licensee has a much greater opportunity to become involved and influence the decision process. In fact, often by the time of the issuance of the Director's Decision, af ter interactions with the NRC staff, the licensee has taken measures to correct the problems noted in the petition and the NRC has evaluated the licensee action as acceptable. These actions are treated as grounds to deny the S 2.206 petition as moot and have the effect of avoiding initiation of formal enforcement proceedings. On the other hand, from the point of view of the NRC staff, a disproportionate amount of time and resources are spent coordinating decisions on S 2.206 petitions. Time spent on S 2.206 petitions must be taken away from other direct regulatory l responsibilities. Very often the facts alleged in a S 2.206 petition are gleaned from NRC documents, and are thus well known to the staff, and have already been or are being resolved in the normal course of regulatory interaction between the NRC and the licensee. The goal in considering possible changes to the S 2.206 process would be to produce improvements in the opportunities for public participation, without adding significantly to existing resource burdens on either staff or petitioners, and with the possibility of reducing resource requirements by more efficient allocation. 1. One option involving only staff practices would be to implement i a variety of staff interactions with petitioners. Some of these practices are carried out currently to some extent, but these procedures could be made an explicit and mandatory part of the procedure for handling S 2.206 petitions. One such example would be informal inquiries to clarify matters raised in the petition and the petitioner's concerns. This effort might serve also to focus or narrow the issues in question. In appropriate cases, increased consideration could be given to requiring the licensee to respond under oath or affirmation (pursuant to a staff request under 10 CFR S 50.54 (f)) to issues raised in the petition. This would conserve NRC staff time. The petitioner could be put on the service list for all communications with the licensee regarding issues raised in the petition. In addition, the petitioner could be permitted to attend any meetings with the licensee regarding these issues and these meetings could be held in the area where the licensee is located. The petitioner could also be permitted to respond to any submission of information from the licensee. 5 i c-- 1~s -m

=- I l 8 Informal public discussions could be held on significant issues upon a determination that the scope of the issue (s) would be appropriate for broader public input. 2. One of the least costly options in terms of expenditure of resources would involve simply a change in approach to the ) resolution of issues raised in the petition. Although a petition under S 2.206 is phrased in terms of requesting a particular action from the commission. i.e., to " modify,

suspend, or revoke a license, or for such other action as may be proper", the underlying j

significance of the S 2.206 petition is to bring issues of potential health and safety impact to the attention of the Commission. Therefore, if an issue of some importance has been raised, and the staff is pursuing some method of resolving the issue or the issue has otherwise been resolved, then even if the exact relief requested by the petitioner has not been granted, the petition should be characterized as partial grant in the Director's Decision. This treatment acknowledges the legitimacy of the petitioner's concerns and their actual resolution. This approach has already been implemented to some extent. It could be made the i explicit policy. l A variation on this approach would involve a change to the rule in S 2.206 which would allow petitions to request that the Commission consider an issue or issues, alleging violation of a Commission rule or policy, rather than requesting a specific enforcement action (i.e. to modify, suspend, or revoke a license). This change of the focus of the rule would explicitly recognize and implement an important purpose of the S 2.206 petition, which is to bring alleged facts and concerns to the Commission's attention for further evaluation. It would de-emphasize the need to request a specific enforcement action, which is desirable because enforcement decisions necessarily involve many factors of agency discretion. 3. An option to allocate more effectively the limited existing amount of staff time and resources on S 2.206 petitions would be to establish internal criteria for determining the level of effort and the types of procedures to be used on each petition. One possible set of criteria would divide S 2.206 petitions into three categories: In the first category would be S 2.206 petitions which merely raise issues and cite information which has already been evaluated by the NRC staff, without adding any new information or new issues. Some S 2.206 petitions merely incorporate publicly available NRC documents, such as inspection reports, and, without introducing any new information or issues or without arguing why previous decisions should be re-evaluated, request a more severe enforcement action. These petitions would be handled in the Director's Decision by restating the staff's pre-existing evaluation of the issues.

i 9 At the other extreme would be a category of petitions which raise large unresolved generic issues affecting one or more licensees. An example of this type of petition involves the Thermo Lag issue. In this category, a larger scale effort could be expended, involving, as appropriate, solicitation of public comments, public workshops, Commission meetings, etc. In appropriate cases, a S 2.206 petition could be treated as a petition for rulemaking. In the middle range would be a category of petition which raises a significant issue or issues with regard to a specific licensee. The approach on this category of petitions would be substantially similar to that used on most petitions now, involving a systematic resolution of all issues raised by the

petition, allowing appropriate participation by the petitioner.

IV. Coordination This paper has been informally coordinated with suggestions of many members of the staff who have significant experience handling S 2.206 petitions, including individuals from the Office of the General Counsel, the Office of Enforcement, the Office of Nuclear Reactor Regulation, the Atomic Safety and Licensing Board Panel, the Office of Commission Appellate Adjudication, and individual Commissioner's offices. Some of these suggestions go beyond my central focus, but could become the subject of public attention in the workshop, and are included in Attachment 3. V. Conclusion I believe that it is desirable to commence arrangements for the workshop as soon as possible, and I await the Commission's direction. If the Commission agrees that it is advisable to proceed with the workshop, we would immediately begin this effort. The workshop discussion will be structured around a clear explanation of this whole S 2.206 petition process, including what information is submitted, how it is handled by the staff, how additional information is gathered, how a decision is reached, and what opportunities there are when the petitioner is dissatisfied with the result. The material that has been discussed in this memorandum is illustrative of the material that would be presented to workshop participants for discussion purposes. The items that are identified by Section III of this memorandum are representative of the main issues that the NRC staff would offer for consideration by the workshop participants to enhance public participation.

1 10 i Although no one can predict what additional issues would be raised by the participants at such a workshop, my sole objective is to have public discussion on whether, consistent with resource considerations, the opportunity for participation in the S 2.206 process can be enhanced by measures such as those identified in Section III of this memorandum. /5{93 William C. Parler General Counsel Attachments: 1. October 3, 1991, Commission Response to Question 2 from the House Subcommittee on Energy and Environment. 2. The Public as Enemy: NRC Assaults on Public Participation in the Reaulation of Ooeratina Nuclear Power Plants (A Report by the Union of Concerned Scientists), Diane Curran (April 1992). 3. Suggestions Involving Changes to the Rule in S 2.206. SECY - Please track. t -r

\\. 1 -) 4 1 J i 1 4 n 2 f f .i ATTACHMENT 1 . 3' T 'f a ? a f 1 P F k t m

+#'o ne i 'e, UNITED STATES .P1 ease note - this attach-f NUCLEAR REGULATORY COMMISSION ment only includes the g { g w AsecTow. o. c. mas response to Question 2 to s Representative Kostmayer. j %....* / October 3, 1991 l CHAIRMAN F The Honorable Peter H. Kostmayer, Chairman Subcomittee on Energy and the Environment Comittee on Interior and Insular Affairs United States House of Representatives Washington, D.C. 20515

Dear Mr. Chairman:

Enclosed are the Nuclear Regulatory Comission's responses to the post hearing questions on nuclear plant licensing reform that the Subcomittee posed to the Comission in its September 3,1991 letter. Sincerely, f Ivan Selin i

Enclosure:

As stated cc: Representative John J. Rhodes, III e b k -{ ~ r

2 QUESTION 2. In response to a question about the Comission's record in granting or denying 2.206 petitions, you testified that although hearings had been granted in only two out of over 300 requests, about ten percent ' achieved their objective without having to have a hearing." Please provide a description of the relief that was granted and explain how the petitioners' objectives were achieved in each of those Cases. ANSWER. 1. Sumary of 2.206 Petitions Resultino in Reaulatory Action Which Achieved. in Whole or in Part. Petitioners' Ob.iectives Between 1974 and September 5,1991, over 300 petitions have been filed pursuant to 10 C.F.R. I 2.206. Of these, approximately ten percent have been granted in whole or in part. Petitions have led to regulatory action including the issuance of a Notice of Violation and Proposed Imposition of Civil Penalty, or orders modifying, suspending or revoking licenses, or the initiation of further NRC inquiries into the safety issues raised in the petition. Even where the petition is denied, the petitioner may have an impact by triggering the NRC's review of a safety issue, or some other NRC action. The most recent case in which a 2.206 petition resulted in regulatory action which achieved the petitioners' objective, at least in part, is Yankee Rowe. On June 4,1991, the Union of Concerned Scientists and the New England Coalition on Nuclear Pollution filed a Petition for Emergency Enforcement Action and Request For Public Hearing with the Comission seeking the imediate shutdown of the Yankee Rowe Nuclear Power Plant, asserting that the Yankee Rowe reactor violates the Comission's requirements for pressure vessel integrity and that, therefore, the Comission cannot have reasonable assurance that the facility poses no undue risk to public health and safety. On June 25, 1991, the Director of the Office of Nuclear Reactor Regulation issued a letter to Petitioners denying the request for emergency relief. Because the petition presented an enforcement question of sufficient public importance, the Comission concluded that it should make the decision on the safety of continued operation of Yankee Rowe. On July 31, 1991, the Comission issued a Memorandum and Order, CLI-91-II, in response to the Petition. The Comission determined that, while there is no safety or other regulatory requirement for an imediate plant shutdown, the soundest interpretation of the Pressurized Thermal Shock (PTS) regulation,10 CFR 50.61, is that uncertainties such as those identified by the Staff should be resolved as soon as possible to move in the direction of the overall risk goal for a PTS event contemplateo' by the Comission when it adopted 10 CFR 50.61. The Comission also found that it was unable to determine at that time whether plant shutdown at any date much earlier than the end of the current cycle, cycle 21, would permit comencement of the testing programs needed to resolve the uncertainties; therefore, it instructed the Licensee to inform the Comission if testing programs can be comenced at a time prior to the scheduled end of cycle 21. In keeping with the Comission's belief that any additional action that proves to be feasible to further increase the margins against vessel

3 failure should be undertaken, the Commission instructed the Licensee to investigate such additional measures and ordered the Licensee to submit to the NRC on or before August 26, 1991, its evaluation of and its plans for modifications to its operating conditions that would provide additional margin against reactor vessel failure from a PTS challenge. In another case, Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), DD-90-3, 31 NRC 595 (1990), the petitioner, Northern California Power Agency (NCPA), filed petitions dated December 4,1981 and August 1, 1984, and a filing dated March 19, 1985, clarifying these petitions, requesting the Director of the Office of Nuclear Reactor Regulation (NRR) to take certain remedial enforcement actions against Pacific Gas and Electric Company (PG&E) for allegedly violating certain antitrust license conditions. After considering the issues raised in these petitions, the Director of NRR determined that PG&E had violated certain of its Diablo Canyon antitrust license conditions, issued a Notice of Violation, and required that PG&E inform the NRC of the steps PG&E had taken and intends to take to comply with its licensed conditions. (The District Court of the Northern District of California had issued a ruling in connection with an action brought by the United States against PG&E that dealt with many of the same issues raised in the petitions. This ruling provided necessary remedial action that required PG&E to comply with some of the Diablo Canyon antitrust license conditions at issue.) PG&E filed its response September 28, 1990, and denied it had violated its license conditions. As a result, by a petition filed on November 30, 1990, NCPA requested pursuant to i 2.206 that the Commission take appropriate action to ensure compliance. The matter is now before the staff. In another case, f eneral Electric Co. (Wilmington, North Carolina, facility), DD-89-01, 29 NRC 325 (1989), Anthony Z. Roisman and Mozart G. Ratner, as counsel for Vera M. English (petitioner), filed a petition requesting that the NRC take appropriete action against General Electric Company (GE) for its deliberate retaliatory discharge of Mrs. English. The petition sought imposition of a civil penalty and imposition of a license condition requiring GE to fully compensate Mrs. English for her economic losses, medical expenses, and other expenses allegedly incurred in connection with GE's alleged discrimination. The Director of NRR granted the petitioner's request that enforcement action be taken against GE, and issued a Notice of Violation and Proposed Imposition of Civil Penalty. (However, he declined to impose the civil penalty requested by the petitioner in the amount of $40,635,000 plus 337,500 per day for every day after April 6,1987, that GE did not take corrective action, and applied the guidance provided in the Enforcement Policy applicable at the time of the violation and set out in 10 C.F.R. Part 2, Appendix C, 49 Ee1 E m 8583 (March 8, 1984) in assessing a civil penalty of $20,000. The Director also declined to impose a license condition upon GE requiring GE to compensate Mrs. English for her alleged losses, stating that in Section 210 of the Energy Reorganization Act, Congress explicitly gave to the Department of Labor (DOL) the authority and responsibility to order individual compensation, and that the NRC lacked such authority.) l 1 4

4 following cases illustrate the type of regulatory action that has been taken in response to 2.206 petitions: A. Issuance of NOV Cleveland Electric illuminatino Co. (Perry Nuclear Power Plant Units 1 & 2). DD-83-17, 18 NRC 1289 (1983) (Petitioner's request that a license application be dismissed, construction permit be revoked or civil penalty be assessed was denied, but the Director determined that a violation had occurred and Notice of Violation should be issued.) Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), DD-85-9, 21 NRC 1759 (1985) (Petitioners' request that the Director find violations of NRC requirements was granted, but requests that show-cause proceedings be initiated and civil penalty of $250,000 be assessed were denied. The Director instead proposed a Notice of Violation and a $64,000 civil penalty.) B. Issuance of Order Modifying, Suspending, or Revoking Licenses Cincinnati Gas & Electric Co. (W.H. Zimmer Nuclear Power Station). DD-83-2, 17 NRC 323 (1983) & CLI-82-33, 16 NRC 1489 (1982); Consolidated Edison Co of New York. Inc. (Indian Point, Units 1 and 2); Power Authority of the State of New York (Indian Point Unit 3), DD-80-5,11 NRC 351 (1980). C. Initiation of Further NRC Inquiries into Safety Issues Raised in Petitions Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), DD-83-15, 18 NRC 738 (1983); Rochester Gas & Electric Co. (R.E. Ginna Nuclear Power Plant), DD-82-3, 15 NRC 1348, 1349 (1982); Dairvland Power Cooperative (Lacrosse Boiling Water Reactor), DD-80-9, 11 NRC 392, 402-03 (1980); Catholic University of America, DD-80-8,11 NRC 389 (1980); Philadelohia Electric Co. (Limerick Nuclear Generating Station, Units 1 & 2), DD-79-16, 10 NRC 609, 610 (1979). In two other cases, one of which involved Comission reversal of three staff denials under i 2.206, the NRC granted petitions asking for preparation of an environmental impact statement. Ett Viroinia Electric Power Co. (Surry Nuclear Power Station, Units 1 & 2), CLI-80-4, 11 NRC 405 (1980); Comonwealth Edison Co. (Dresden Nuclear Power Station, Unit 1), DD-80-24, 11 NRC 951 (1980).

5 D. Initiation of Other NRC Action Shioments of Hioh level Nuclear Power Plant Waste, DD-84-9, 19 NRC 1087 (1984) (Petition denied; however, NRC changed conditions under which certain shipping casks could be used for transport of spent reactor fuel, in response to a petition which had claimed that insufficient attention had been paid to the implications of an accident using such casks.) GPU Nuclear Coro. (Three Mile Island Nuclear Station, Unit 1), DD-84-22, 20 NRC 1033 (1984) (Petition denied; however, NRC review largely substantiated petitioner's claim that the Licensee had deficiencies in its environmental qualification program for safety-related equipment. Licensee took corrective action.) II. List of 2.206 Petitions Resultino in Reculatory Action. Which Achieved. in Whole or in Part. Petitioners' Objectives 1. On 6/4/91, UCS and NECNP filed a petition requesting the shutdown of Yankee Rowe based on allegations that the facility is operating in violation of NRC requirements for reactor pressure vessel integrity. In CLI-91-ll (7/31/91), the Comission issued a Memorandum and Order requiring the Licensee to submit to the NRC its evaluation of and its plan for modifications to its operating conditions that woulo provide additional margin against reactor vessel failure, and to submit its plan and a monthly progress report to resolve uncertainties in the chemical and metallurgical characteristics, and, in other respects, denied the petition. 2. On 7/14/89 and in supplements, Shoreham-Wading River Central School District, and on 7/26/89 and in supplements, Scientists and Engineers for Secure Energy, Inc., filed petitions to request issuance of an immediately effective order to the Licensee to cease defueling and destaffing of Shoreham Unit I and return to " status ouo ante' pending consideration by the Commission. In DD-91-3 (5/15/91), the petition was granted to the extent that it requested NRC action to prevent the Licensee from shipping certain fuel support components for burial, and was denied concerning its request that the Comission issue an NOV and Order the Licensee to implement a remedial plan. 3. On 5/1/87, GAP filed a petition requesting suspension of further licensing of all facilities pending study and a report on the Chernobyl accident. In DD-87-21, 26 NRC 520 (1987), the petition, to the extent that it requested the Staff to undertake a study and review, was granted; the other requests were found to be without merit and were denied. 4. On 4/6/87, Vera English filed a petition requesting that enforcement action be taken against the licensee of the Wilmington facility for illegal discrimination. In DD-89-01, 29 NRC 325 (1989), the petition was granted with respect to the NRC taking enforcement action against the Licensee for discrimination against Mrs. English, and a Notice of Violation and a civil penalty was issued. The petition was denied, however, with respect to the request that NRC impose a civil penalty in the amount stated and that the NRC impose a license condition upon the Licensee to fully compensate Mrs. English.

6 5. On 3/13/86, the Comission in Texas Utilities Electric Comoany, (Comanche Peak Steam Electric Station, Unit 1), CLI-86-04, 23 NRC 113 (1986), referred a request from Citizens Association for Sound Energy (CASE) dated 1/31/86 that the Comission assess a civil penalty for unauthorized construction. On 8/8/88, CASE withdrew a portion of its request except its request for some type of escalated enforcement action. On 2/28/89, the NRC Staff issued an NOV for Severity Level III violation with no civil penalty proposed. 6. On 9/11/85, the Comission referred to the Staff a petition filed by the Oil, Chemical & Atomic Workers International Union, AFL-CIO, dated 9/3/85, which requested that the Comission order an investigation of 20 specific allegations raised in the letter, require a formal hearing with notice prior to granting any future request to operate the Erwin facility, and hold a public hearing in the area to establish that reduced operations can be conducted at the facility without adversely affecting the public health, safety, and interest. In DD-86-03, 23 NRC 191 (1986), the Director determined that with the exception of petitioner's request for an investigation of the specific allegations raised in the petition, the petition should be denied. The Staff conducted an extensive investigation of these allegations. 7. On 6/27/84, Palmetto Alliance and on 9/27/84, GAP filed petitions for enforcement action against Duke Power Co. (Catawba) on the basis of violations of NRC regulations and alleged harassment and intimidation of quality control inspectors. In DD-85-09, 21 NRC 1759 (1985), the Director determined that an NOV and Proposed Imposition of Civil Penalty should be issued for the violation and that no further enforcement action was warranted. 8. On 8/1/84 and in supplements, Northern California Power Agency filed a petition requesting that the NRC take certain enforcement actions against PG&E (Diablo Canyon) for allegedly violating the antitrust license conditions. In DD-90-03, 31 NRC 595 (1990), the Director found that the Licensee had violated certain antitrust conditions, determined that an NOV should be issued, required that the Licensee provide information to the Staff within 30 days of its receipt to this Decision, and determined that no other enforcement action was necessary because the June 8, 1989 District Court Decision provided the necessary remedial action that required the Licensee to comply with the antitrust license conditions. 9. On 6/29/84, Alabama Electric Cooperative, Inc., filed a petition l requesting action to enforce the antitrust conditions for Farley Nuclear Plant. In DD-86-07, 23 NRC 875 (1986), the Director declined to initiate enforcement action on certain allegations but issued an NOV requiring the Licensee to respond to the remaining alleged violations and to take timely steps to achieve compliance. 10. On 3/19/84, GAP and Citizens Association for Sound Energy filed a petition requesting the NRC take certain actions with respect to alleged serious construction and documentation deficiencies at Comanche Peak. In DD-87-17, 26 NRC 323 (1987), the petition was granted with rerpect to the request for special NRC inspections of the facility but was denied with respect to l

7 suspending construction and initiating an independent management audit and independent design and construction verification program. 11. On 10/20/83, joint intervenors in the Diablo Canyon OL proceeding filed a petition requesting that the low-power license for Diablo Canyon Unit I should be revoked or at least remain suspended on the basis of the Licensee's failure to report a 1977 audit of the QA program to the Licensee's prise piping contractor. In DD-84-08, 19 NRC 924 (1984), the Director found that the failure to report the audit constituted a material false statement under the Atomic Energy Act but did not find revocation or suspension of the license to be an appropriate remedy for the reporting failure. On 8/20/84, the Comission issued an Order directing the Staff to issue a Severity Level III NOV, rather than the Staff proposed Level IV. 12. On 7/20/83, MASSPIRG filed a petition requesting that the NRC take action with respect to the state of emergency planning at the Pilgrim facility. Specifically, MASSPIRG requested the initiation of the 4-month period specified by the Comission's regulations within which to correct the j alleged deficiencies at the Pilgrim facility and consideration by the Comission as to whether the state of emergency preparedness in conjunction j with the alleged poor safety record at the facility warrants immediate ~ shutdown or operation of the facility at reduced power. In DD-84-05, 19 NRC 542 (1984), the Staff determined that the Evacuation Time Estimates should be reviewed by FEMA for potential bottlenecks to effective evacuation of the EPZ on the periphery of the EPZ; therefore, the Director deferred resolution of this issue until after FEMA submitted its response. In DD-84-15, 20 NRC 157 (1984), the Director denied the renainder of the petition based on FEMA's evaluation that traffic management issues had been adequately addressed by the Commonwealth of Massachusetts. 1 13. On 6/13/83, Lone Tree Council and GAP filed a petition requesting that the NRC take certain action with regard to the Midland project. In DD-83-16, 18 NRC 1123 (1983), the Director found that the petitioners' relief was satisfied by previous action of the Comission with respect to the hold points and determined that a management audit was not necessary at this time as a condition for going forward with the construction completion plan but that the j Staff would continue to review information concerning the Licensee's performance in other areas to determine whether an audit is required. The i Director denied the remainder of the request. In DD-84-02, 19 NRC 478 (1984), ) the Director determined that an appraisal of the Licensee's management of the Midland project was required and required the Licensee to submit to the Region III Administrator for review and approval a plan for an independent appraisal of site and corporate management organizations and functions. j 14 On 5/9/83, the Licensing Board referred to the Staff a petition from Ohio Citizens for Responsible Energy (OCRE) requesting dismissal of the Perry license application on the basis that the Licensee had made material false statements in its application concerning the use of herbicides to control vegetation along transmission lines, revocation of its construction permit, or assessment of civil penalty. In DD-83-17, 18 NRC 1289 (1983), the Director determined that the Licensee had made a material false statement, that the violation should be categorized as a Severity level IV, issued a Notice of j i

8 Violation requiring the Licensee to respond and describe its corrective actions to prevent similar occurrences in the future, and denied petitioner's request for other enforcement actions.

15. On 4/8/83, Miller, Tupper, Flanagan, and Sensible Maine Power filed a petition requesting an initiation of a proceeding to modify, suspend, or revoke Maine Yankee's license based on FEMA's identification of significant deficiencies in emergency planning and preparedness.

In D0-83-15, 18 NRC 738 (1983), the Director determined that the Staff had partially granted the relief sought by taking action to obtain correction of the deficiencies identified by FEMA, that petitioners' request that operation of the plant be suspended was denied, and that the issue of whether State Route 27 is an adequate evacuation route would be resolved pending FE W s evaluation. In DD-85-06, 21 NRC 1547 (1985), the Director denied the remaining portion of petitioners' request. 16. On 8/4/82, UCS and NYPIRG filed a petition requesting imediate shutdown of Indian point Units 2 and 3 because of deficiencies in emergency preparedness identified by FEMA in a letter to the NRC Staff dated 8/2/82. In D0-82-12, 16 NRC 1685 (1982), the Director denied the request. In CLI-82-38, 16 NRC 1698 (1982) and Comission Order dated 2/3/83 (unpublished), the Comission superseded DD-82-12 and determined that, even though no enforcement action was required at that time, the Comission would continue to monitor the progress made and asked FEMA to present the Comission monthly reports on the status of Rockland County planning and training on the plans being developed, the status of resolution of the bus driver issue in Westchester County, and any other emergency preparedness issues that arise as work continued. 17. On 8/20/82 and supplemented on 10/18/82, Miami Valley Power Project and GAP filed a petition requesting suspension of construction of Zimer Station and argued that the Licensee should be removed from any responsibility for reinspection of construction work. In CLI-82-33, 16 NRC 1489 (1982), the Comission issued an imediately effective order suspending the Licensee's safety-related construction activities, including rework of previously-identified deficient construction, and required the Licensee to show cause why the suspension should not continue pending review and implementation of proposals to improve the Licensee's management of the project, to verify the quality of construction work, and to ensure that any future construction conforms to the Comission's requirements. In DD-83-02, 17 NRC 323 (1983), the Director determined that the Comission's order satisfied substantially all the requests for action and found no basis for the argument that the Licensee be removed from any responsibility for reinspection of construction work. 18. On 3/11/82, the Sierra Club filed a petition requesting that a review be conducted of matters pertaining to the ability of the Licensee to safely operate the Ginna plant so as to protect the public health and safety in light of the steam generator tube rupture at the Ginna plant. In DD-82-03, 15 NRC 1348 (1982), the petition was granted insofar as it requested a review of various safety issues to ensure that necessary actions to protect public health and safety were taken prior to resumed operation of the reactor and

9 denied the request for a formal order to require such a review and to prevent restart of the reactor. 19. By petition dated 3/19/79, Ms. Kay Drey requested the NRC to prepare an Els on the proposed chemical decontamination of Dresden. By petition dated 9/20/79, Illinois Safe Energy Alliance requested a public hearing on the decontamination based on the lack of assurance that the NRC would issue an EIS. By petition dated 3/13/80, Citizens for Better Environment and Prairie Alliance supported Ms. Drey's petition. In DD-80-24, 11 NRC 951 (1980), the Director determined that an EIS should be prepared for Dresden Unit 1 decontamination but determined that a public hearing was not necessary. 4 20. On 5/23/80, the Comission referred to the Staff an undated petition by Save The Valley, which alleged that the New Madrid fault zone extends in a northeasterly direction towards the Marble Hill site, expressed concern over accidental releases of radioactive liquids, and raised concerns about construction practices at Marble Hill. In DD-80-27, 12 NRC 381 (1980), the Director of NRR found that no further action regarding site suitability issues was warranted. In a letter dated 3/18/81, the Director of IE determined that the actions requested in the petition concerning the construction practices at Marble Hill had essentially been taken through an Order dated 8/15/79 and a " Graduated Rescission of Order dated August 15, 1979," dated 5/15/80. 21. On 9/17/79, UCS filed a petition requesting the NRC to revoke the provisional operating license for Indian Point Station Unit 1, order the Licensee to submit a plan to decommission Unit 1, and suspend operation of Units 2 and 3 pending resolution of various safety-related issues. In DD-80-05, 11 NRC 351 (1980), the petition was granted with respect to Unit I by issuing an Order to Show Cause why the operating license should not be revoked and why a decomission plan should not be submitted. The Director determined not to order the shutdown of Units 2 and 3 because he found that Units 2 and 3 both had been significantly modified to meet NRC safety and security requirements, that a NRC task force would determine what design changes should be made to further reduce the probability and/or consequences of a severe reactor accident, and issued a Confirmatory Order imposing interim measures to provide additional assurance of safe operation of these facilities. 22. Dn 3/19/79, the Appeal Board referred a petition from Save the Valley l (STV) which requested that the safety hearing held in connection with the application for construction permits for the two-unit Marble Hill facility be reopened, and subsequently requested in additional letters of 4/4/79 and 4/19/79 that certain other information be considered by the Director as a basis for either reopening the safety hearings or for issuance of an order to show cause to revoke or suspend the Marble Hill construction permits. By petition dated 6/29/79, and in supplements, Sassafras Audubon Society (SAS) requested that the Director suspend or revoke the construction permits for the Marble Hill Station and reopen safety hearings on that facility. In DD-79-10, 10 NRC 120 (1979), the Director determined that there was no adequate basis j for instituting a proceeding to suspend or revoke the Marble Hill construction permits or to take any further action to supplement the record in the proceeding with respect to the matters raised by STV and thereby denied the i

i i 10 request. By Order dated 8/15/79, a portion of the petitions had been granted j to the extent that it suspended construction on the basis of alleged l construction deficiencies until the Director has confirmed that reasonable assurance exists that safety-related construction activities will be conducted j in accordance with NRC requirements. In DD-79-21, 10 NRC 717 (1979), the Director denied the SAS petition to suspend or revoke the Marble Hill construction pemits or to reopen the safety hearings. 23. On 8/15/79, Badger Safe Energy Alliance filed a petition requesting revocation of the Tyrone construction permit because of licensees' announced decision to cancel the project. The Director on 6/16/80 granted the petition by issuance of a show cause order to revoke the construction permit.

24. On 4/27/79, and in a supplement dated 5/16/79, the Environmental Coalition on Nuclear Power (ECNP) requested that the Director institute public 1

hearings prior to any alteration of the " experimental and operation status' of the THI-2 reactor. In 00-80-16, 11 NRC 588 (1980), the Director partially granted the petition because it found that the Commission had already taken action along the course requested by ECNP concerning the emergency action to prevent the unassessed release of contaminated water, and denied the remainder of the petitioner's request. 25. On 10/3/79, P. Kelly Fitzpatrick filed a petition requesting that the license issued to Catholic University for operation of a reactor be suspended, that inspection and investigation of alleged violations of the operating license be conducted, and that an order be issued to Catholic University to show cause why the license should not remain suspended pending a thorough review of the licensee's operations. In DD-80-08, 11 NRC 389 (1980), the petition was granted in part by conducting an investigation into the alleged safety violations and deficiencies but denied the request to suspend the operating license or issue a show cause order as to why its license should not remain suspended. 26. On 11/02/79, Critical Mass filed a petition requesting an investigation to determine if grounds exist to suspend or otherwise amend the operating licenses of all U.S. light water reactors which base their ECCS upon " faulty analytical codes" for fuel cladding performance under LOCA conditions. On 3/03/80, the Director granted the petition by investigating the significance for ECCS of faulty codes in analyzing fuel cladding performance under LOCA conditions. 27. Three petitions were filed involving the steam generator repair at the Surry Nuclear Power Station. They were from the North Anna Environmental Coalition (filed 12/29/78; denied in DD-79-01, 9 NRC 199 (1979)); the Environmental Policy Institute (filed 2/20/79, denied in DD-79-3, 9 NRC 577 (1979)); and the Potomac Alliance, Citizens Energy Forum, Inc., Truth in Power, Inc., and the Virginia Sunshine Alliance (filed 4/18/79, denied in DD-79-19, 10 NRC 625 (1979)). In CLI-80-04, 11 NRC 405 (1980), the Commission reviewed these three petitions, sua soonte, on the issue of the need for an EIS regarding the proposed repair and directed the Staff to expeditiously prepare and issue the EIS.

11 i 28. On 4/12/79, and in supplements, Frank Romano filed a petition requesting that the Comission investigate whether blasting at a quarry near Limerick had a deleterious effect on that site and requesting further investigation of alleged construction deficiencies at the site. In DD-79-16, 10 NRC 609 (1979), the Director granted the petition with respect to investigating the effects of blasting on the Limerick site, but denied the remainder of the petition. 29. On 5/21/79, Ms. Anne K. Morse file-d a petition requesting the NRC to order suspension of the provisional license for Lacrosse BWR. In DD-80-09, 11 NRC 392 (1980), the Director determined that the petition did not provide an adequate basis to suspend the license at that time but the Staff supported petitioner's concern about liquefaction and issued an order to show cause to resolve that issue. 30. On 7/29/78, J. Honicker filed a petition regarding all fuel cycle j licenses requesting the revocation of all licenses, the decommissioning and dismantling of all facilities, and the isolation of hazardous radioactive materials from the biosphere. On 8/4/81, the Commission denied the petition but invited the petitioner to participate in the ongoing proceeding to analyze the health effects of low-level radiation as related to current occupational exposure standards (46 FR 39573). 31. On 12/29/78, Citizens United for Responsible Energy filed a petition requesting a proceeding to suspend the license for the Duane Arnold facility pending modification of the license to include an augmented inservice inspection program of safe-end assemblies. On 3/5/79, the Director granted the petition by amending the technical specifications to require such a program. 32. On 1/4/78, the City of Cleveland filed a petition requesting the NRC to take enforcement action against the Licensee for violations of antitrust license conditions for the Perry and Davis-Besse facilities. On 6/25/79, the Director granted the petitions by issuance of an Order enforcing antitrust license conditions. 33. On 2/6/76, NYPIRG filed a petition requesting that the Comission require the licensee to show cause why the Indian Point license should not be suspended until emergency planning deficiencies are corrected and why civil penalties should not be imposed for alleged misrepresentation to the Comission. On 8/19/76, the Director granted the petition by requiring that licensees demonstrate compliance with emergency preparedness requirements for offsite participation in emergency drills and denied the remainder of the request. 34. On 8/25/75, T. Collins filed a petition requesting that Humboldt Bay's license be suspended or revoked because of poor site conditions for seismic l safety. On 5/21/76, the Director granted the petition by issuance of an Order l for Modification which prevented restart pending seismic re-evaluation. l l 35. In 1975, Business and Professional People for the Public Interest (BPI) filed a petition for Indian Point I and Dresden. On 6/23/76, the Director

j 12 granted the petition in part by issuance of an Order to Dresden to require demonstration of compliance with IEEE-279. Indian Point had already been requested to make a similar demonstration and was shut down at the time the petition was filed.

36. On 1/29/75, D. Stewart, et al., filed a petition requesting an amendment f

to the Brunswick licenses to require a reevaluation of the plant's seismic. safety. On 4/10/75, the Director granted the petition in part by issuance of a show cause order to require seismic monitoring and evaluation of seismic j data. I v i I k 4 9 l I } l .=

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t l t L o THE PUBLIC AS ENEMY: t NRC Assaults on Public Participation in the Regulation of Operating Nuclear Plants. i A REPORT BY THE UNION OF CONCERNED SCIENTISTS Diane Curran Harmon, Curran, Gallagher & Spielberg Counsel to UCS Ad.ditional copies of this report can be obtained from: Union of Concerned Scientists 26 Church Street Cambridge, MA 02138 (617) 547-5552 April 1992 C 1992 Union of Concerned Scientists

e g Table of Contents Chapter 1 Introduction and Background......................... 1 Overview of the NRC Licensing Process and Public Participation................................ 2 f Safety Issues at Operating Plants........... 4 Chapter 2 Case Studies of NRC Treatment of 2.206 Petitions............. 7 B&W Reactors 8 Pilgrim Plant 12 Perry Nuclear Plant........... 18 Yankee Rowe Nuclear Plant 23 Statistical Analysis and Conclusions 24 Chapter 3 Judicial Review of 2.206 Denials........................ 27 Analysis 30 Chapter 4 R e m e di e s...................................... 37 NRC's Loss of Accountability 37 Congression Reform of 2.206 Process Needed.... 33 I Appendix A NRC's Growing Policy of Excluding the Publicin Fav o r of I n d u s try......................'........... 41 New Restrictions on Public Participation Rights 41 Industry's One. Sided Influence on Generic Decisions............. 43 Backfitting Procedures ..............................44 NRC's Delegation of Responsibilities to !NPO and Shielding of INPO. Generated Information 45 Sunshine Act Violations.... 48 Industry Review ofInspection & Enforcement Bulletins and information Notices 49 Utilities Allowed to Retain Enforcement Documents 50 e

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...g. y: \\ 'G-Chapter 1 N Introduction anc bckground The generation of electricity using nuclear fission is by its funda-mental nature ari inherently dangerous activity. In the United States, the Atonile Energy Act provides that responsibility for ensuring that p'ublic health and safety and the environment are adequately protected from that danger falls to the Nuclear Regula-tory Commission (NRC). The hazards of nuclear power are unique: ionizing radiation is extraordinarily deadly, capable of producing cancers, mutations, and genetic defects. It is also utterly incapable of being detected by any human senses. Consequently, the public has perhaps a higher interest in assuring the safe use of this technology than for any other technological or industrial undertaking. When Congress enacted the Atomic Energy Act in 1954 to make commercial use of nuclear power possible,it acknowledged this high level of public interest in the matter, and included extensive provisions for public participation in the regulation of nuclear tech-nology. Under the Act, any member of the public whose interest may be affected by the issuance of a nuclear power plant construc-tion permit, operating license, or license amendment,is entitled to a hearing befor~e the NRC. For over thirty years, the public has exercised this right to participate in the licensing process. In the 1960's and 70's, licensing of new plants demanded the bulk of the Commission's attention. However, no new plants have been ordered since the Three Mile Island accident i,n 1979. The Commission's 16dit has now shifted to the regulation of the nation's 110 opbriting reactors. The demands on the NRC include not only assurihg that the plants comply with theirlicenses, but coping with the niyriad of new and unexpected safety problems that continuall einerge as the plants age. . eg The public Inl Ilh huclear regulation is thus no less for operat-ing plants th Ibhjhb initialissuance of a license. However, unlike the righ lb'& hearing on issuance or amendment of a license, the At6 15 Energy Act conveys no public participation rights in general NRC oversight of operating reactors. Moreover, in the wake oMIM libelear industry's decline following the Three Mile Island AR8t' herhobyl accidents, the Commission has l increased its ell 6ftflo insulate the industry from public criticism. %en 'f& l %w~[,." 1

Introduction Chaetei The keagan and Bush administrations,in partial response to the indthtry's decline, have appointed as NRC commissioners individi als who are predisposed to the nuclear industry point of view in favor of minimal safety regulation, and hostile to what they seem to view as the dilatory meddling of the public in the inevitable development of a more nuclear future. These recent Commission-ers have directed a steady erosion in all aspects of public participa tion in the Commission's regulatory activities. 4 This report concerns itself generally ~with the NRC's attack on put lic participation in its regulatory processes, and specifically with one aspect of that attack: the virtual elimination of public partici-pation in the regulation of operating plants. Commission regula- .tions'.have long proyided that any person may request the Com-mission to commence a proceeding to " modify, suspend, or revoke" a license. Historically, most such requests have been ' denied. Until recently, however, denials of such requests could bc challenged in federal court. In recent years, however, denials of citizen enforcement requests have been virtually automatic, and now several courts have ruled that such denials are unreviewable in court. This report will analyze the phenomenon of NRC denials of enforcement requests and judicial refusal to review those denials. It concludes that the Commission's denial of virtually all such requests in recent years demonstrates arbitrary and capricious behavior and hostility to public participation on the Commission's part, and discusses several cases where the Commission should have at least instituted hearings on actions requested by citizens. This report also concludes that the new legal principle that agenc) decisions not to take enforcement action are presumptively unre-viewable is unwise and dangerous, and in any case should not be applied in the context of regulation of operating nuclear plants. Finally, the report discusses other aspects of the Commission assault on public participation in Appendix A.

d..

Overview of the NRC, Licensing Process and Public Participation ..e initial 1.icensing .hh Seefidn 189(a)(1) of the AEA provides that "[i]n any proceeding... for the granting, suspending, revoking, or amending of any licens, 6t Ebhltitction permit,... the Commission shall grant a hearing w p;;q+ .c... i d10 C.F.R. SS 2.202, 2.206. . m.1-w g

~ Chacter 1 introduction upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding."2 A hearing is mandatory for all construction permit proceedings, bdt the Commission may grant an operating license without a hearing if hone is requested at that stage. The Commis-sion may also is' ue a combined construction permit and operating s license under "ohe-step licensing" provisions, promulgated in 1989.' tc. NRC licensing hearings are formal, trial-type adjddications before three-member Atomic Safety and Licensing Boards, with sworn expert testimony and cross-examination by other parties.' Any i organization or person whose interest may be affected by a pro-ceeding can intervene as a full party to the proceeding.5 The scope of the. hearing is defined by'the " contentions" or issues success-fully raised by the intervenors. In response to industry pleas to curtail public participation in licensing cases, the Commission recently' raised its threshold standard for the admissibility of con-tentions. While under the old requirements, a petitioner needed only to submit contentions and the bases for the contentions " set forth with reasonable specificity," the new rules require sufficient detail and support to demonstrate the existence of a " genuine dis-pute" with the applicant on a "materialissue of law or fact."7 As discussed in Appendix A, the raised admissibility standard con-stitutes a drastic curtailment of the opportunity for citizen partici-pation in NRC licensing. UCS challenged npects of the new stan-dard in the U.S. Court of Appeals, but the court ruled that the standard was not invalid on its face. The court held open the pos-sibility that the standard, as applied, might constitute a denial of the ri Act.' ght to a hearing under section 189(a) of the Atomic Energy An intervenor (Uh6 successfuliy negotiates the NRC's barriers to admittance to a licensing case can exercise basic procedural rights in litigating the sufficiency of the license application. These 2 42 U.S.C. $ 2i39(a)(1). 3 10 C.F.R. Part $5,54 Fed. Reg.15372. 4 10 C.F.R. Subhk 5 10 C.F.R. $ 2.")14(i)(2). 54 Fed. Reg. $$Id.1) 6 7 10 C.F.R. 5 2/Ii4(b)(2),54 Fed. Reg. 33168. Union of Confnd bcientists. Inc. v. NRC,920 F.2d 50 (D.C. Cir.1990). 8

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Introduction Chapter 1 include the right to present testimony, cross-examine the witnesses of other parties, present proposed findings of fact and conclusions of law,.and appeal the outcome of the preceeding to,the Commis - sion' arid then to the federal Court of Appeals. (This is not to say that the hearings are fair, since the applicant and the NRC staff with their orders of magnitude greater resources are invariably. arrayed against the position of the intervenors.) .s Thus, recent actions of the Commission have seriously eroded the opportunities for meaningful public participation in the NRC licensing process. As we will see, though, the problem is even more serious after a license has been issued. a. s. [ Oversight of Operating Plants Once A huclear plant receives its license to operate, opportunities for public p' articipation in the ongoing NRC oversight of the plant are virtually non-existent. Commission oversight of operating plants is accomplished almost entirely in non-public interactions between NRC and its licensees. The Commission also is increas-ingly relying on industry groups to perform regulatory oversight functions outside the public eye. The only opportunity for citizens to initiate actions related to oper-ating plants is the so-called "show cause," or "2.206"getition. Under section 2.206 of the Commission's regulations, any person may request the Commission to institute proceedings under sec-tion 2.202 requiring licensees to "show cause" why their licenses should not be modified, suspended, or revoked. (The text of these regulations is set out in Appendix B.) Unfortunately, as discussed in detail below, these provisions have become worthless as a mech-anism for public participation because Commission denials of 2.206 petitions are virtually automatic, and federal courts are now refus-ing to teylew those denials under an unwise and dangerous legal Principleg,.n , s w<. Safety Issues at Operating Plants The safety of nuclear plants does not cease to be an issue import-ant to the public after a license has been issued. Indeed, the post-l licen(i g xperiences of operating plants are just as important to i l The Commission recently abolished its Atomic Safety and Licensing 9 Appeal Board, which represented an intennediate appellate level between the Licensing Boards and the Commission. 10 - 10 b.F.NJB5 2.202,2.20s. S: q.:: g

4 Ch8Dier 1 IntrodOCliOO safety as are the design and construction issues that were approved in the initiallicensing proceedings. The list of important safety problems at operating nuclear plants is too long to mention here. Among those that have been well-publicized in recent years have been sleepifig reactor operators (Peach Bottom); occurrence of an earthquake m6te severe in some respects than the plant was designed for (Perry); improper maintenance resulting in non-func-tioning safety equipment (TMI, Davis Besse, many others); inade-quate operator training (TMI, Seabrook, many others); late discov-ery of serious design flaws (Diablo Canyon, Grand Gulf); and inadequate em6tjgerity plans (Pilgrim, Seabrook, Davis-Besse, Indian Point).,. y,:, These problems e impNtant tq the public because they have the potential to lead to very severe nuclear power plant accidents, on the order of Three Mile Island or Chernobyl or worse. Quick oper-ator actions hade been essential in preventing numerous nuclear ^ plant occurrences and accidents from becoming much worse than they were. Obviously,if the operators are sleeping or otherwise inattentive, or improperly trained, their capacity to take such quick actions can be severely impaired, and the likelihood of serious acci-dents is increased. Given the interdependency of nuclear power plant safety sys,tems, one design flaw or operator error can have deadly consequences. If any one of the dozens of safety systems the plant relies on to prevent or moderate the effects of accidents fails or behaves unexpectedly,it may trigger or exacerbate a seri-ous accident. Moreover, current experience with aging plants indicates that a wide variety of equipmentis adversely affected by plant aging. For example, pressure vessel embrittlement, steam generator degra-dation and failure, and pipe corrosion and cracking all raise seri-ous doubt about the continuing validity of the Commission's find. ings that plants are operating with a sufficient ma/ gin of safety. As the issued eci above make apparent, the public interest in nuclear safety hhd participation in nuclear regulation is as least as great for the post-licensing issues as it is for the initial licensing process. Citizen paiticipation improves the safety of nuclear power by providmg an important conduit for bringing safety con-cerns to the alfahtion of the Commission, and by making the NRC more accountable BHis regulatory oversight of the nuclear indus-try. Public dI6stifE And participation are also absolute pre requi-sites for the pdisibility of public acceptance of nuclear power. If I the nuclear indtisby and the agency charged with ensuring that it operates safelf are seen to be actively avoiding public scrutiny, as has clearly beefilh6 case for at least the past decade, the public will understandably reject efforts to revive that industry. It is very ' LW .5 IWM

3,.r.ph - 4 4 Introduction Chapte dainaging to the credibility of both the nuclear industry and the NRG tliat the public lacks meaningful opportunities for participa, tion in:the regulation of operating plants. e 'cct*! - ,...-:. ~ c....e.. = ' ~. * * .-3.t.- S.sie.Y -e e.e r1:M/t,f. e.'c ye ....:,s.7,. - ..; p r,0. E,' f.9 '. s 'e, -7.v;, .~ o 3.; i 6**4 6 t;. t. ,}&,i 4 e '-r -. 4. I 9 4 e I. e N. .'v...,. ..v ."l 3 e h.f. s.k '.'!* 11 :f'. e

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w.g.. y,7 - i Chapter 2 h Case Stucles of NitC Treatment of 2.206 Petitions pi.- After the Nuclear Regulatory Commission has issued a license for a nuclear plant,',th'e~public has only limited opportunities for partic-ipation in the ohgoing regulation of that plant by the Commission. Members of the public have no right to obtain enforcement of NRC safety requirements against operating plants. Instead, they must request the Commission to, institute a proceeding requiring a licensee to "show cause" why its license should not be " modified, suspended, or fev~oked" as a result of particular occurrences or con-ditions. The proWsions governing these petitions, also known as "show cause" or "2.206" petitions, are set forth in sections 2.202 and 2.206 of the Commission's regulations, which are found in Title 10 of the Code of Federal Regulations. They are reproduced in full in Appendix B to this report. The Atomic Etiergly Act provides no right to a public hearing on a show cause petition, no matter how serious its allegations. The decision whether to grant a hearing regarding what type of enforcement action is necessary lies within the complete discretion of the agency. If the NRC denies the perion,it need only provide a statement of the i'easons for the denial. (@ 2.206(b)) @e This chapter discusses the recent experiences of citizens groups and governments with show cause petitions. Three recent cases are examined in seine detail, and a statistical analysis of Director's Decisions under Bection 2.206 over several years is presented. W1?Sii This history iWdll lhit as a means for meaningful citizen partici-pation in the r@illhflon of licensed nuclear plants, this regulation as implemented liy NRC is a dismal failure. Even in cases where the Commission'edncedes the. significance of issues raised by citi-zens and agree's B hddress those issues on its own, it generally has been unwilling.fo permit citizens to participate in the consider-ation or retoltiti6d 6f those issues in a meaningful way, as clearly contemplatsd By.lhe regulations. Rather, the Commission insists that it be free to p&ss judgment on the adequacy of its licensees' performance With6til the involvement of the public. In contrast, as discussed in Appendix A below, the nuclear industry is given extensive opgogtlihities to affect NRC decisionmaking on all levels.

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NRC Case Studies Chaoter > Standard Used in Consideration of 2.206 Petitions NiiOTrigulations do not provide guidelines for Car. mission cials to tise in deciding whether to grant petitions to institute "show cause" proceedings under 10 CFR 5@ 2.202 and 2.206. According to NRC case law, however, the standard which NRC directors are to use is whether substantial health and safet have been raised. Mere factual disputes are not sufficient.y This is kiery subjective standard, and the history below shows that in NRC's view,it is a standard that is very difficult to meet. To the Commission, virtually nothing rises to the level of a substan. tial health, and safety issue. B&W Reactors I In March of 1979, the worst nuclear plant accident in the his the United States occurred at Three Mile Island Unit 2, a reactor manufactured by the Babcock & Wilcox Company (B&W). NRC and industry investigations into the operating history of B&W reac-tors after the TMI accident revealed that the design problems that contributed to the TMI accident were not unique to that plant. Indeed, virtually all eight operating B&W plants in the United States had experienced disturbing operating mishaps which were different in kind as well as degree from those at other reactors. And in the years since the TMI accident, in spite of the alleged "l' sons learned" from that experience, B&W reactors have continued to experience very disturbing incidents which suggest inherent design safety flaws in those plants. In 1985, for instance, more than six years after the TMI accident, the Davis-Besse Plant in Ohio and the Rancho Seco Plant fornia-both B&W units-experienced serious loss-of feedwater and overcooling events, respectively. In the case of the Davis-Besse evbnt, only extraordinary multiple actions taken by an alert operatoi outside the control room prevented a much more serious accidenl..The very same feedwater, control, and instrumentation problen'is that were instrumentalin the TMI accident were also implicated in these events. According to a report of the B&W -,+p. : .%3 . (.y. M l C$nsolikated Edison Compny of New York, Inc. (Indian 1 ' 3), CU.75-8,2 NEC 173,175 0975); Sacramento Municipi Utilit (Rinthb Seco Nuclear Generating Station), DD.88 20,28 NRC 809,\\ U.f'f."? 1 m i 8 M b,f i

Chapter 2 ..n : NRC Case Studies Owners Group, B&W plants experienced ten operational tran-sients that exceeded stability parameters between 1980 and 1985.2 In response to the repeated mishaps at B&W reactors, UCS com-menced an investigition of B&W plants and the NRC's effective-ness in regulating their safety. UC5' research demonstrated that basic aspects of thh B&W design increased both the probability and consequences of accidents. Those features are: 1) the once-through steam generators, whose extreme sensitivity to feedwater flow upsets has greatly exacerbated events that would be harmless at other PWRs; 2) the pressurizer, whose small size in B&W plants further contributes to the reactor's excessive sensitivity to changes in feedwater flow; 3) the auxiliary feedwater system, which has proved notoriously unreliable when called upon to supply cooling water to steam generators when main feedwater systems fail, as has occurred frequently; 4) the integrated control system, a non-safety grade system'the failure of which causes the equipment it controls to malfuncti6n, initiating severe overcooling or undercool-ing events; and S) non-nuclear instrumentation, the failure of which sends false signals to the integrated control system and main control room, both of which then direct the plant on the basis of that false infonnation. l All of these systems contributed to the 1979 accident that destroyed Three Mile Island Unit 2, the most serious accident in the history l of the U.S. nuclear program. They were also implicated in earlier l and subsequent serious incidents at the Davis-Besse and Rancho Seco plants, in Ohio and California, respectively, which are also B&W plants. One' need look no further than TMI to realize the sig-nificance of these design problems. In that accident, a combina-tion of these design problems, inoperable equipment, incorrect sig-nals to operators, and incorrect operator actions based on those incorrect signals led to the core of that reactor being partially uncovered. Ab6bt half of the fuelin the reactor melted. It has been estimated.thit the core was within thirty minutes of a com-plete meltdowtL5The containment system that is supposed to keep radioactivity fr~6fdiciping to the environment would almost cer-tainly have bedh Breached. The consequences to the public from such an event could have been comparable.to or worse than those ~ at the Chernobfl accident. b O; +*stkStpy ;e.c f.@ fiQ,7.. j -Q*[g,' ...- w ;.- b 2 "B&W OwhiW Group Safety and Performance Improvement Program," BAW-1919,ilpdated through Revision 5, July 1987. ..; x - e < q.t7 [ .q;

NMC Casa Studbs Chapter These kinds of severe accidents, with consequences sive doses of radiation to the surrounding popula nation of land, food, buildings, and water for scores of ye occur et any nuclear plant. By the NRC's own reckoni a 45% cumulative probability of such a severe core melt accid i occurring in the U.S. in the 20 year period that began in 1985 The design characteristics of B&W plants noted above make plants significantly more difficult to control in abnormal situat than other PWRs, and consequently increase the possi such severe accidents occurring. The TMI accid to beini; a nuclear catastrophe. UCS found that the-Commission's reassessment of t design was inadetluate in three respects:

1) NRC inappropriately delegated the bulk of the reassessment to the B&W

("BWOG")--<onsisting of B&W and the utilities whose pla being investigated; 2) NRC continued a long-standing p using prolonged studies to forestall actions to solve proble

3) NRC lacked the technical capability to assess the In February 1987, UCS laid these fundamental problems Commission in a " Petition forImmediate Action Risks Posed by Nuclear Power Plants Designed by the Bab Wilcox Company." The petition, filed under 10 CFR $ 2.2 sought public hearings to determine what corrective actions w necessary to provide an adequate level of protection at B&W plants.. In light of the serious risk posed by continued op these unsafe plants, UCS also requested the suspens ing licenses for all B&W plants, pending full implementat rective ineasures.

One month later NRC informed UCS by letter that its conc not warrant immediate suspension of the licenses. In October tion ishle a Director's Decision denying entiretf.I($he Commission conceded plant ir@fovements made by the licensees of B&W plant response, to these various Commission actions, significa e. ':.p'. ;w -? littN...,,.. 3 April 16,1985; response to prehearing quest Pe0ilonf5 Immediate Action to Relieve lindue Risks Pos 4 Planis Designedby the Babcock & Wilcox Company. DD-871 (1987)J.w ;. f:;7 .U-Q. 10 9_-i.M A pp -

.4 ChaDter 2 NRC Case Studies tional transients continued to occur at these facilities."3 Nonethe-less, the Commission declared that shutting down the plants was not necessary.: In denying the petition, the NRC claimed that all the generic B&W issues (having to do with pressurizer size, steam generator feedwa-ter flow sensitivity, auxiliary feedwater system reliability, etc.) had been resolved, and that any remaining problems with the reactors are plant specific and do not callinto question the integrity of the design. It claimed the design of the B&W once through steam gen-erator is sound, but that it required a better control system, and it was not practical to require them to be replaced. NRC maintained that the problem with the pressurizers had been solved by chang-ing the setpoints on relief. valves, and that maintaining pressurizer level was not necessary for plant safety. NRC acknowledged that there had been problems with auxiliary feedwater systems, but claimed that all B&W reactors would soon have installed various types of equipment to address it. The fact that this new equipment would not all be safety grade (subject to rigorous requirements intended to assure high reliability under accident conditions) was not important, NRC maintained, because it would be " highly reli-able." Similarly, NRC claimed that the fact that the integrated con-trol system and non-nuclear instrumentation were not safety grade was acceptable, since it had made sure that they were reliable, and that their failure would probably not be very consequential because of other " defense-in-depth" features. Moreover, the B&W Owner's Group program was addressing these issues, and the NRC staff's review of the BWOG program had not identified any safety concerns that would require shutdown of the B&W plants. UCS did and still does dispute some of the Commission's substan-tive findings in this denial, but it is unnecessary to dispute each of them to take issue with its refusal to grant UCS's request for pro-ceedings to consider these issues. When members'of the public request the iniliati6n of proceedings, as provided by the Commission's tules, on issues whose safety significance the Com-mission does Ect question, it is inappropriate for the Commission to proceed to deal extensively with those very issues only in secret interactions with the regulated industry. The participation of the B&W Owners Group in resolution of these problems was undeni-ably necessarfl. turned over reso,However, when the Commission essen t 4. for itself, it ivafiyirtual abdication of its regulatory responsibility. [ ~ When it denied UCS's petition to participate in resolution of these t b *. .a,: i. ~~

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.' ~. NRC Case Studies Chapter 2 crucial issues, thus completely shutting out the public, the Commis-sion demonstrated its contempt for public participation in the regu-lation of operating plants. As the Commission reviewed each safety issue raised in UCS' peti-tion,it addressed only the question of whether immediate shut-down of the B&W plants was warranted. No discussion was pro-vided n to whether any of these issues should be aired in a public hearing in which UCS could participate under section 2.206. In fact, the only language of the Director's Decision that could be remotely considered to address the issue of whether UCS had made a sufficient showing to " institute a proceeding" under see-tion 2.206lwas the terse statement that "The petition does not pres-ent any substantial health or safety questions associated with the operation or construction of plants designed by the Babcock & Wilcox Company, the resolution of which would be advanced by granting the relief requested."' In the Commission's view,it seems, the public can have nothing useful to contribute. Thus, the NRC tersely dismissed UCS' attempt to utilize the only available means of obtaining a hearing on the serious safety issues affecting B&W reactors - the.2.206 process. It is notable that at the same time the NRC was turning a deaf ear to the public,it was opening its doors to the "B&W Owners Group," even allowing the BWOG to take over a significant part of NRC's responsibility for NRC's ongoing review of safety problems at B&W reactors. The existence of significant safety problems at B&W plants was not dis-puted - but the NRC decided that the industry, and not the pub-lic, would have a role in their resolution. Pilgrim Plant The Pilgrim nuclear power plant near Plymouth, Massachusetts, a General Electric boiling water reactor with a Mark I containment, was licensed in 1972. It has long been plagued with serious safety problems, including poor management, a dismal record of safety errors duririg operation, an inherently weak containment, and vir-tually nonexistent emergency plans for the large population within the ten-mile emergency planning zone. These problems, either sin-gly or in combination, could contribute to severe accidents and large pbblic radiation exposures. Poor management and safety errcrs can initiate and exacerbate accidents. The GE Mark I con-tainrdnt'syllem has been said even by NRC to have a high likeli- ] [ Y;$5 6 SIMiC at 366. ud;m.;hi M GM.---___-___---_-___________;

~ Chaeter 2 NRC Case Studies hood of failing in a severe accident, thus releasing large quantities of radioactivity to the environment. Inadequate emergency plans would, of course, increase the adverse public health consequences of such releasesi :.n State government officials have repeatedly been rebuffed in their efforts to obtain ptiblic hearings on these issues. In July of 1986, the Massachusetts Public Interest Research Group (MassPIRG), Massachusetts State Senator William B. Golden and others submit-ted to NRC a petition seeking a show cause proceeding on whether Pilgrim should be allowed to continue to operate. In October of 1987, while the plant was shut down in part because of serious mismanagement, the Governor and Attorney General of Massachusetts also filed a-2.206 petition seeking institution of a pro-ceeding to modify the license for the Pilgrim Plant. Both petitions requested NRC to 1) modify the Pilgrim license to bar restart of the facility until a plant-specific probabilistic risk assessment (FRA) was performed and all indicated safety modifications implemented;

2) extend the current shutdown pending the outcome of full hear-ings on safety issues and adequacy of emergency plans; and 3) issue an immediately effective order to preclude the licensee from taking any steps to increase the power output of the reactor until after a formal adjudication hearing and finding are made concern-ing safety questions at Pilgrim.

The Commission sat on MassPIRG's and Senator Golden's petition for over a year. During that time, the Federal Emergency Manage-ment Agency (FEMA) issued a report which essentially ratified the Senator's claims concerning the inadequacy of Pilgrim's emer-gency preparedness.' Nevertheless,in August of 1987, the NRC Director of Nuclear Reactor Regulation denied the MassPIRC peti-tion with respect to emergency preparedness and containment issues, and deferred it with respect to management issues.' The NRC Staff denied Massachusetts' request for an immediate order to preclude power ascension in November 1987, and denied the rest of the Massachusetts petition in three separate opinions in 1988.' In May j988, the NRC Staff issued an Interim Director's C.? tf 7 Federal Emergency Management Agency,"Self. Initiated Review and interim Finding for the Pilgrim Nuclear Power Station, Plymouth, Massachusetts, August 6,1987. = Boston Ediso[i5tipiny (Pilgrim Nuclear Power Station), DD-8714,26 NRC 8 87 (1987). >; ;, -l 9 Boston Edison brepdhy (Pilgrim Nuclear Power Station), DD-88-7,27 NRC 601 (1988): DD 88-17,28 NRC 491 (1988); DD-88-21,28 NRC 814 (1988).

NRC Casa Studies Chapter 2 ~ Decision deferring decision of Massachusetts' contentions concern-ing Pilgrim management and emergency preparedness, and deny-ing the petition with respect to the need for a PRA.? Notably, the decision explicitly acknowledged that it was deferring the manage-ment issties "until (1) the management issues have been suitably addressed by the Licensee and (2) the NRC Staff completes its assessmsnt of the Licensee's efforts."" , M.; ' In other Words the NRC Staff explicitly put off deciding whether to grant Massachusetts a hearing on management issues until after those issues had been resolved by it and the licensee. What Massachu-setts wanted was to. participate in resolution of the management issues in the context of a hearing. Naturally, no hearing would be forthcoming after.the NRC Staff and licensee had resolved matters to their own satisfaction. Precisely the same thing happened with respect to the emergency planning issues. See below. By the time the NRC Staff got around to deciding whether to grant Massachusetts a hearing (fourteen months after its petition was filed), the Staff was able to conclude that sufficient progress had been made to make a hearing and the relief sought by Massachusetts unnecessary. In fact, the alleged " progress" was nominal, and the resolutions reached by NRC amounted to sophistry. Had the state officials been party to the deliberations, these results would not have been toleratedi 4 Management Issues Massachusetts' 2.206 petition challenged the adequacy of Boston Edison's management system for assuring safety at Pilgrim, based on "(1) consistently low ratings in systematic assessment of licensee's performance (SALP) reports; (2) the Licensee's inability to sustain performance improvements; (3) the Licensee's poor enforcement record regarding the severity and number of viola-tions; and (4) recent news articles concerning security problems and the use of excessive overtime."'* In October 1988, one year after Massachusetts filed its 2.206 petition, the NRC Staff issued a Second Interim Director's Decision, denying the state's requests TM %'d. sido$ Edisch Company (Pilgrim Nudear Power Station), DD.88-7 20 sonpu>. 11 ~ 11at ech. 12 fsNfdat 492. 14 ..hk

Chanter 2 NRC Case Studies concerning thesh issues.2' The same day, the Staff also issued a final decision derifing the petition of MassPIRG and Senator Golden filed mdre than two years earlier (in July 1986) on the same management issues il Pilgrim." An August 1987 Interim Decision had denied MassPIRG and Sen. Golden's requests concerning emergency preparedness and containment issues.ts MassPIRG appealed the denial of its petition to the U.S. Court of Appeals for the First Circuit. The court's refusal to review the Commission decision is disetissed in the next chapter. In denying these petitions, the NRC did not dispute that the issues raised by them were very real and very serious at the time the peti-tions were filed. Indeed, the Commission was at that time forbid-ding operation of the plant through a " confirmatory action letter" because of those very issues. Instead, the Commission concluded, based on reports issued after the 2.206 petitions were filed, that management conditions at Pilgrim were notably improved. Thus, the Commission followed its usual pattern of delaying ruling on the petitioners' requests for hearings untilit could make a plau-sible claim that its own, private interactions with the licensee had yielded sufficient improvement to justify denial of the hearing requests. While Massachusetts and the other citizen petitioners may have attained some small fraction of the improvement they desired through the closed interactions between the Commission i and the licensee, they were denied the opportunity to participate in the process of determining what those remedies should be, or whether the objectives were actually being achieved. Emergency Preparedness Massachusetts' claims with regard to the inadequacy of emergency preparedness at Pilgrim were based in large part on the findings of a report by the Federal Emergency Management Agency (FEMA), which has responsibility for evaluating emergency response plans for nuclear plants. In August 1987, FEMA issued a harshly critical report on the status of emergency preparedness at Pilgrim, conclud-ing that it could no longer make the finding that the state and local plans wergidequate. %:i2 Boston EdisorlEr : m 13

y 'pitity (Pilgrim Nuclear Power Station), DD-88-17,28 NRC Coth 491 (1988).

14 Beston Edison Corhpany (Pilgdm Nuclear Power Station), DD-88-16,28 NRC 483 (1988). Boston Edisofikoirfpony (Pilgrim Nuclear Power Station), DD 8714,26 NRC 15 87 (1987). YC ~ 15

NRC Case Studies Chapter 2 The FEMA report listed six issues which formed the basis for its finditis 6f inadequacy: 1) lack of evacuation plans for public and private schools and day-care centers; 2) lack of a reception center for people evacuating to the north; 3) lack of identifiable shelters for the beach population; 4) inadequate planning for evacuation of the special needs population; 5) inadequate planning for evacua-tion olthe transportation-dependent population; and 6) overall lack bf progress in planning and apparent diminution in emer-gency preparedness. The Massachusetts petition was based.on these concerns plus two others: 7) the Pilgrim emergency response plans did not incorporate current or reliable evacuation time esti-mates; and 8) offsite exercises and drills had not been held for a signifi6aht period of time." The Commission took nearly 14 months to respond to the emer-gency planning aspect of the Massachusetts petition. During this - time, progress was made on resolution of several of the issues raised by the state. Consequently, the NRC Staff concluded that the revised plans and procedures that were in place by the time the decision was issued adequately addressed Massachusetts' con-cerns regarding planning for schools, day care centers, and special needs and transportation-dependent populations. With respect to the issue of sheltering the beach population, the NRC Staff response was that FEMA had changed its position on the iss'ue since its August 1987 report on Pilgrim was issued. Real-izing that summer houses and clam shacks provide poor shelter from radiation, FEMA had adopted the eminently convenient new position that evacuation alone could constitute "a range of protec-tive actions" for beach populations. Therefore, since the revised Fil-grim plans called for evacuation of the beach population, NRC Staff considered the issue resolved. The issue of a reception center for evacue'es to the north was not a substantial health and safety issue, NRC Staff concluded, because the two existing reception centers-with augmentation-would be adeqtlhle, and the state was pursuing establishment of a third cen-ter tolhFriorth. As to the purported lack of progress in emer-gencyjrdparedness, NRC Staff concluded that in the sixteen months smee issuance of the FEMA report, significant progress had b66ti made. 78%p. '~ p n~g,y.e - l.;. $oslon Edison company (Pilgrim Nuclear Power Station), DD-88-21,28 NR 16 814, 818 (1988). } :( [ i"". 16 %:6

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= g Chapter 2 NRC Case Studies Similarly, with respect to evacuation time estimates and public edu-cation, the licensee had undertaken new efforts since Massachusetts' petition had been filed, and NRC Staff found them to be adequate. Finally, the NRC Staff concluded that the lack of a full-participation exercise at Pilgrim since 1985 did not raise a sub-stantial health and sifety issue, as earlier exercises had been suc-cessful, and thste were other indications that "an infrastructure to handle emergencies was in place and would implement the revised plans."" q Thus, rather thhh grant a hearing and allow public ventilation of these serious safety issues forthwith, the NRC stalled for a year and lamely attenipted to get the Pilgrim house in order before it answered the Massachusetts petitions. When it finally responded, it made no argument that the concerns raised by the state were not significant; but it nevertheless denied the state any opportunity to contribute to the regulatory process. Instead it presented its own conclusions and purported solutions to the problems as afait accom-pli. Nine months after the NRC denied the Massachusetts petitions, the NRC's own Inspector General severely criticized the superficial-ity of the Staff's review in a report on the results of its investiga-tion into the Pilgrim case." Noting that the NRC made few local contacts and conducted little firsthand review of local off-site emer-gency preparedness, the IG berated the Staff for relying on the self-interested utility for much of its information. The IG observed that the Staff had failed to reconcile differences in credible information received from various sources, and in some cases did not validate information they accepted." For example, despite the accessibility i of local officials, the NRC made no effort to verify statements by the licensee, Bos in the emergency, ton. Edison Company (BECO) that all of t planning zone (EPZ) had submitted emergency planning procedtirhi to the state. In fact,130 procedures for Plym-outh and Duxbufy.hid never been submitted, and many had not even been develop 6d.' The IG also found that public meetings and gatherings..With ptiblic officials, purportedly intended to dis-l cuss offsite plahni$g and preparedness, were not in fact held for that purpose andgd not involve meaningful dialogue between

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NRC Case Studies Chaoter 2 NRC staff and local emergency planning officials."" A tour of the EPZ included no public officials at all, and was led by a sm, gle pn-vate c'itizen.22 ?%. As ths.U.S. Court of Appeals for the D.C. Circuit has obsened, evaluation of community preparedness plans is "as much within outside participants' expertise, or that of other federal agencies like FEMA, as Within the expertise of the NRC Staff."2s It is unques-tionable that had the NRC granted the hearings requested by Mas-sachtilElBiMassPIRC, and Senator Golden, the Staff would not have bssh'able to get away with its shoddy review of emergency planning for Pilgrim. In the rigors of a public hearing, the Staff would h@e been forced to confront the serious defects in the plans. Perry Nuclear Plant The Perry Nuclear Power Plant is located on Lake Erie east of Cleveland. In January 1986, when construction of Unit 1 of the plant was completed, but issuance of the operating license was still pending, northeast Ohio experienced an earthquake, with an epi-center ten miles from the Perry plant, which exceeded the " design basis" for the plant in some technical respects." That particular earthquake was only slightly more severe than the plant was designed for, and the plant was apparently not damaged. The real significance of the quake was that it demonstrated the possibility that the area might have a capable geologic fault which could pro-duce an earthquake much more severe than had previously been thought possible in that area-much more severe than the plant was designed to withstand. Earthquakes pose a critical risk to the safety of nuclear plants because of their ability to damage piping or other structural compo-nents hpMsary to cool the nuclear fuel. Any breaks in the water-filled ebblihg system-whether in piping, valves, pumps, steam generatortf or the reactor vessel itself, can result in a loss of cool-ant accident. Even after the nuclear fission reaction is shut down, the reactor fuel generates so much residual heat that when coolant is lost, h heats up to the point of melting. If the coolant cannot be typ 21 IEhk$? 22 ilW@ " UMon of Concerned Scientists v. NRC,735 F.2d 1437,1451 (D.C. Cir.19M 23 24 Cleveland Electric illuminating Company (Perry Nuclear Power Plant. Units 1 and,g, pp-86-4,23 NRC 2M,216 (1986). En? A 18

s, Chaoter 2 NRC Case Studies restored and the melting continues long enough (a matter of about an hour), all of a plant's containment systems can be breached, i potentially resulting in uncontrolled releases of radioactivity to the environment. Thus, assumptions about the most severe likely' earthquake at a huelear plant site, and the design features to deal with that "desigtt Basis earthquake," are crucial aspects of the safety of the plant. Nuclear plants in areas with a relatively high frequency of earthttuakes, such as California, have substantially more rigorous seismic safety features than those in other parts of the country. Although earthquakes are relatively infrequent in Ohio and the eastern and midwestern U.S. generally, they can be just as severe as more frequent California earthquakes, and gener-ally have significant effec,ts over a much larger area. Immediately following the earthquake, two citizens' groups, Ohio Citizens for Responsible Energy (OCRE) and the Western Reserve Alliance (WRA), filed show cause (2.206) petitions requesting that fuelloading and operation of Unit 1 of the plant not be author-ized, and that construction be halted on Unit 2 of the plant, until the implications of the earthquake for the seismic design of the facility were thoroughly reviewed. The Director of Nuclear Reactor Regulation denied the 2.206 peti-tions. His decision did not address the. crucial question of whether the earthquake demonstrated that in approving the Perry seismic design, the NRC had underestimated the severity or frequency of earthquakes that might be experienced by the plant in the future. Instead,it discussed only the narrow question of whether that par-ticular earthquake had had any adverse effects on the plant. As an independent ground for denying the OCRE petition, the Director also stated that OCRE's complaint was not appropriate for an " enforcement" proceeding under section 2.206 because it con-l cerned the initiallicensing of the plant, which was still pending l before the Cordinission.2s (The adjudicatory hearings had been l completed, but the Commission had not yet issued an operating license for the Perr plants.) In fact, OCRE hab also filed a motion to reopen the record of the Perry operating license case and litigate the adequacy of the plant's seismic design..The motion was based on newspaper reports which b6Mtihited the only available information on the earthquake at thhltime. In reviewing OCRE's motion and the responses of thflatility and NRC Staff, the NRC's Appeal Board .pu p. 25

14. at 214, no{E.ika-

$D:t !?N.'h' e.

NRC Case Studies Chapter 2 found that it had insufficient information to decide whether the carthquake posed a serious enough safety issue to warrant reopen-ing the record. Consequently,it decided to hold an exploratory mini hearing on the safety significance." The NRd dobmissioners, who sit as the highest tribunal in the Commission's then three level adjudicatory system #, did not approve of the Appeal Board's suggestion that it might be seri-ously considering granting the motion to reopen the record in the Perry proceeding. Acting on its own initiative, the Commission vacated the Appeal Board's decision. It held that the Appeal Board had no authority to inquire further if OCRE's filings, standing on their own, did not constitute an adequate showing. According to the Commission, the Appeal Board should not have pursued its concern that OCRE rhight'have raised an issue of safety signifi - cance based on the newspaper articles that were the only informa-tion available in the days immediately following the earthquake. The Commission was more interested in quickly finalizing the licensing of the plant than in pursuing a potentially serious safety concern. As Commissioner James Asselstine observed in his dissenting opin-ion, this limitation on the Appeal Board's power of inquiry, "when combined with the Commission's standards for reopening and the Commission's rules on raising issues sua sponte (i.e., on its own ini-tiative), ties the hands of the Boards. By setting such high stan-dards in all of these areas, the Commission has made it extremely difficult for an intervenor to raise new issues. 2s Commissioner Asselstine also observed that the Commission's devotion to technical pleading requirements and precedents was not applied uniformly to all parties. In this regard, he pointed to recent orders in another licensing proceeding, in which the Com-mission "went out of its way to give the applicant a second chance to make its case on a motion on which it clearly had not met its burden as. tndvant." 29 i 26 l Cletddnd Eltetric illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), Cl.l.86 7,23 NRC 233,235 (1986), citing Appeal Board Orders of Ma.h 20. And April 8,1986(unpublished). The dha board has since been abolished, leaving only the 1 27 Board and the Commission to conduct adjudication within the agency. 23

14. at 238 29 Id.ati$0.

i 4..', 20 t

g. ~

w.r.c-Chacter 2 NRC Case Studies Cornmissioner A'sietskne's observation is most astute. One need not be a conspiratorialist to discern a definite pattern in the Commission's actioni during the past decade. As discussed in' Appendix A,in both rulemaking and adjudication, the Commission's actions have almost universally tended to increase the constraints ch ihtervenors in particular, and curtail public par-ticipation in general. OCRE appealed the Commission's denial of its attempt to reopen the record in the Perry operating license proceeding to the Court of Appeals for the Sixth Circuit. After briefly staying the Commission's vote on the licensing of Perry, the court ruled that it lacked jurisdiction until the Commission made its final licensing decision.3 After the Commission voted to issue the full-power license for Perry, OCRE again filed a petition for review in the Sixth Circuit on the basis of the Commission's refusal to reopen the record to consider seismic issues for the Perry plant. The State of Ohio had become concerned about the adequacy of emergency preparedness for both the Perry plant and the Davis-Besse plant in Northwest Ohio, and withdrew its support for the emergency response plans for both plants (see also discussion of Davis-Besse below). At Perry, because the operating license had not yet been issued, the state sought to intervene late in the licens-ing proceeding pursuant to 10 CFR g 2.715(c), which provides that the presiding officer of a proceeding "will afford representatives of an interested State, county, municipality, and/or agencies thereof, a reasonable opportunity to participate and to introduce evidence, interrogate witnesses, and advise the Commission without requir-ing the representative to take a position with respect to the issue." The Commission denied the state's request as untimely, and because it felt the state could not meet the high standards for reopening the record and filing late-filed contentions."

v..

The state appealed the Commission's denial of its late intervention effort, and the Sixth Circuit consolidated that case with the OCRE appeal. The court dfirmed the Commission's grant of the 32 licensc, noting that Ohio's concerns about emergency prepared-ness were being addressed while the case was pending. With respect to OCRE's earthquake concerns, the court concluded that we - ,,e _e p. > *. ! Ohio Citizen)fot $$sp,onsible Energy v. Nuclear Regulatory Cornmission,803 30 F.2d 258 (6th Cir41986). 31' Clewland Eleedf((l[Stinating Company (Perry Nuclear Power Plant, Units 1 and 2), CLI-86 20,24 NRC 518 (1986). 32 State of Ohio D. Natclear Regulatory Commission,814 F.2d 258 (6th Cir.1987). N

HRC Case Studies Chaoter 2 OCRE had tiot shown how it could assist materially in the analy of the new data presented by the occurrence of the unexpected earthquake.3' The court noted particularly that OCRE had submit-ted only newspaper articles about the earthquake in support of motion to reopen. The court allowed that it was using an extremely deferential standard of review in denying OCRE's peti tion", and explicitly noted the availability of the 2.206 petiti an "adeqtiate remedy for any grave safety shortcomings.,ss OCRE, accepting the Sixth Circuit's invitation, in January 1988 again submitted a 2.206 petition to NRC seeking "immediate action to relieve undue risks to the public health and safety posed by th inadequacy of the seisinie design of the Perry Plant." This time, OCRE supported its* petition with an affidavit prepared by a q fied expert seismolopst Who concluded there was considerable evi-dence for the existence of a tectonic structure (fault)in the vi of the Perry plant which could be capable of generating a ma tude 6.5 earthquake. The plant was only designed to withstand an earthquake of magnitude 5.3, more than a factor of ten less severe. The expert recommended additional study to confirm or refute his hypothesis. In June of1988, the Commission denied OCRE's petition.3' The Commission's decision simply states its staff's disagreement with the conclusions of OCRE's expert and reiterates its earlier conclu-sion that the seismic design of the Ferry plant was adequate. No expert opinion is cited in support of the staff's conclusions. OCRE again appealed the Commission's denial, this time to the Court of Appeals for the D.C. Circuit. In January 1990, the court issued a brief decision refusing to review the Commission's denial. (See d cussion of judicial review in next chapter.) Thus, at every turn, the NRC erected barriers to public partic tion in its deliberations regarding an issue of undeniable signifi cance to thfsafety of the Perry reactor: theimplications of an carthquake in excess of the plant's design basis. The concerned cit-izens exer'cised every avenue open to them-and were rebuffed at every turn. Their initial request to reopen the hearing record-filed as promptly as possible (within three days of the earth-m. . : : E: 33 Id. at {$21 34 Id. at 20.' ~ ' ' 35 /d. at 2s4.' ' 36 Units hnd 2), DD-88-10,27 NRC 657 (1988). Cleve 22 j 4 d' 8

g ' P.. Chapter 2 NRC Case Studies quake)-was rejected because it was based, of necessity, on only newspaper articles. Their simultaneous 2.206 petition was rejected based on a narrow analysis that considered only whether that ticular earthquake had actually damaged the plant. When the, par-citi-zens then filed another 2.206 petition, supported this time by an expert affidavit, that petition was again rejected-based on the same analysis that the Commission had relied on in rejecting the first 2.206 petition,: In addition to OCRE's and the State's petitions concerning the Perry earthquake, the Commission rejected numerous other citizen-initiated efforts to challenge the licensing and operation of the Perry plant in 1986 and 1987. Various Ohio citizens' groups filed 2.206 petitions challenging'the safety of General Electric Mark III reactor designs, after a Cleveland' newspaper disclosed internal GE documents, related to a secret 1975 GE safety study called "the Reed Report," that seriously questioned the safety of these plantsc. The petitions also challenged the financial qualifications of the utility and sufficiency of the quality assurance program in the plant's construction.38 The Commission denied all of these peti-tions as not warranting the relief requested. Yankee Rowc Nucicar Plant i Since 1985, the NRC has made only one 2.206 decision which afforded the public any degree of participation and resulted in sig. nificant safety action. In that case, the Commission partially granted a. June 1991 emergency enforcement petition brought by UCS and the New England Coalition on Nuclear Pollution against the Yankee Rowe nuclear power plant in western Massachusetts. Based on the NRC Staff's own studies, the petition charged that the plant's presstird vessel, which holds the radioactive core and its primary cooling water, had become seriously embrittled and posed an unacceptable threat of rupturing and causing a core meltdown. The Commission granted partial relief, ordering the immediate investigation of mitigating measures, and setting a deadline for the 37 Cleteland Electric illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), DD-8M6,26 NRC 315 (1987). 38 Cleveland Electric illuminating company (Perry Nucl ear Power Plant, Units 1 and 2), DD-86-4,23 NRC 211 (1986). 39 Memorandum and Order, CU 9111 Guly31,1991). The petition was originally brought before the Commission, which referred it to the NRC Staff. The Staff denied the petitioners' request for immediate shutdown. Later, the Commission reasserted jurisdiction over the petition and partially granted it.,,,. i

I" ' - NRC Case Studies Chapter 2 submittal of a pidn to resolve uncertainties regarding the degree of ~ pressure vessel embrittlement, beyond which the plant would not be Allowed to operate. The Commission also ordered the Staff and license.e to serve their correspondence on the petitioners and to open their meetings to the public. UCS and NECNP were invited to address the Commission in public briefings on the issue. How-dC eni, ths C6minission denied their request to institute a formal show catise proceeding with an adjudicatory hearing, and refused to conform to NRC rules forbidding ex parte contacts in formal enforcemeht proceedings. Two months later, after further investi-gitions revealed thht uncertainties regarding the condition of the vessel wers eVen greater than the Staff had previously believed, Yankee RoWe shut down voluntarily, pending testing of the vessel materials. In February of 1992,in the face of the enormous expense expected for testing and repair of the vessel, Yankee's owners decided to shut it down permanently. Statistical Analysis and Conclusions The examples of denials of 2.206 pentions that are discussed above are only a few of dozens in recent years. In the seven years between the beginning of 1985 and the end of 1991, the NRC Staff issued 93 Director's Decisions on 2.206 petitions involving power plant safety." l The Staff ddnied all of them. In only one case, Yankce Rowe, the Commissichers took jurisdiction over a 2.206 petition and partially granted it. In a very small number of other cases, the NRC Staff purported to partially grant petitions, but analysis of the cases shows that these were affirmative only to the extent that the Staff agreed that it should investigate or take some non-public action on an issue br maintain the status quo." s 'hW/l W;. r J,, 40 A few additional cases involved issues such as employment discrimination elaltns or antitrust. 41 For instane'e, in long Island ughting Co. (Shoreham Nuclear Power Station, Unit 1), DD-913,33 NRC 453 (1991), the NRC Staff took almost two years to grant part of an enforcement petition filed by parties opposing the D, r, - fiU scheduled shutdown and decommissioning of the Shoreham nuclear power plant. The Staff ruled in favor of the petitioners' contention that y- ". ' -' ' ? Lrl.CO hadho authority under the terms of its full power operating ' } lichhte'to ship tontaminated reactor parts to a low level waste radioactive g n.- :.. ib ' " tlislidtil sitt< The Staff denied that part of the petition which sought fines i', [;... and th(Q:Inipotillon of a remediation plan. 4_,, s. p

s.,

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p Chapter 2 NRC Case Studies In fact,in a 1990 case in which the Commission argued that the i. right to bring a 2.206 petition was an adequate surrogate for the right to A hearing tinder section 189(a) of the Atomic Energy Act, the Commission could come tip with no instances in which a 2.206 petition ott safety issues had been g, ranted, and formal show cause 1

,~ i ~

proceedings institutedi sitfte 1980. 2 < @'l UC5 does not argue that every claim in every one of these 2.206 petitions was substantively meritorious. However,it is not credi-ble that none of these claims had sufficient objective merit to war-rant the institution of show-cause proceeding as provided in sec-tions 2.202 and 2.206. )Vhen the public attempts to use the Commission's provision fortilizen challenges to existing NRC licenses 93 times and fails consistently even to get a hearing,let alone enforcement action, the Commission's implementation of that provision is certainly suspect. For example, in the Perry case, three citizens' groups and the State of Ohio attempted to use the Commission's public participation provisions to raise a myraid of serious issues concerning the safety of that plant. The Commission found that none of their concerns were sufficiently meritorious to warrant the institution of show-cause proceedings. Even five distinct issues-an earthquake, a desi,n that was seriously questioned even by scientists within the P company that manufactured it, substantial emergency planning deliciencies, the shaky financial qualifications of the license appli-cant, and alleged serious quality assurance problems in construc-tion-did not either singly or collectively give the NRC Staff any pause in licensing the facility. Once again, to the extent that the Commission found any merit at all in the petitioners' claims, it insisted upon resolving the issues quietly with the licensee, beyond scrutiny. Herings in which the public might participate meaninfully were to be avoided at all costs. As the Inspector General's report on emergency planning at Pilgrim bears out, seri-ous shortcomings and ommissions in the NRC's enforcement work may escape scrutiny-or even detection when the agency is shielded from public participation in its deliberations. In the past, arbitriry actions of the NRC could be checked, at least to some extent, by the federal courts. Under the Administrative Pro-cedure Act, actions of federal agencies that are " arbitrary, capri-i. Holls, art AbliBe dl disdelion; 0r otherwise not in accordance with y,f pg,,s s. 4 [jg.- h' ~_ > ' + 1 '42 Nuctedr $rtforhillon and ites9arce Servict v. NRC, 938 F.2d 169 (D.C. Cir. 1990), rehrdrfrig en bane granled,928 F.2d 46s (D.C. Cir.1991).

• I Y*

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=i s i NRC Case studleg Chapter 2 law" c' n N,.~. a: i i chtllenged by citizens in federal; court. Unfortu-a nately, sevelal federal circuit courts of appeals have interpreted the i law to make NRC decisions to deny 2.206 petitions presumptively non reviewable. T.his will.be the subject of the next chapter. l ^'* f.." &.v. { ',5 f .f '1

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Generallf, hetidns or'failllrds to act by federal agencies are subject . td challenge hi federil court, also known as judicial review, under the Administrative Procedtlie Act ("APA").' Even where statutes do nbt specifically ;irovide for. judicial review of agency action, th'e i courts historically followid h strong presumption that all agency i decisions Are reviewable under the APA, at least to assess whether the actions were " arbitrary,'c'apricious, or an abuse of discretion."2 Prior to 1985, NRC denials df 2.206 petitions were considered final t agency actions subject to judicial review under the APA, and many were in fact reviewed.3 4 In 1985, the Supreme Court decided a case called Heckler v. Chancy in which it held, for the first time, that agency decisions not to undertake enforcement proceedings are presumptively unreviewable under the APA. The case interprets section 701(a)(2) of the APA, which provides that judicial review is not available to the extent that " agency action is committed to agency discretion by law."5 Analogizing from the decision of a prosecutor not to indict, the Court concluded that agency decisions not to take enforcement action have traditionally been committed to agency discretion because of their " general unsuitability for judicial review." The Court, speaking through Justice Rehnquist, stressed that such deci-sions were "only presumptively unreviewable; the presumption may be rebutted where the substantive statute has provided guide-lines for the agency to follow in exercising its enforcement pow-ers. Not surprisingly, aber the decision in Heckler v. Chancy, NRC Began to argue thit its denlais of 2.206 petitions were unreview-sble decisions hot f(like enforcement action under the rule of a -nw ,. m, 1 . $ U.S.C. $$ 702,70s.' Abboll leborniori s '. Gardner,387 U.S.136,139-41 (1967). 2 v 3 $dt, e.g., Cify of West Chiedge v. NRC,701 F.2d 632 pth Cir.1983), Rockford ? league of WotntWofits v. NRC,679 F.2d 1218 pth Cir.1982). DoU.s.afi(ink.k%g ' h '4~ v-3 U.S.C. 6 foi(a)(idM [ 5 ) 470 U.S. at 832-{3.g., m.. i 27 ~.

.r.. + Judleial Revle* Chapter 3 that case. Iranically, the very same day that it decided Heckler v. Chaney, the Supreme Court also decided another case, Florida Pow & Lfght Company v. Lorion',in which it had the clear opport declare that NRC denials of 2.206 petitions were presumpti unteWewable. The Court did not do so, ruling instead that federal courts of sppeals rather than district courts have initial subjec ter jurisdiction to review 2.206 petition denials. The Court, spe ing through Justice Brennan, suggested in a footnote the pos ity that Chaney, decided the same day, might apply in this instance But the Court explicitly declined to decide that issue because it was not briefed or argued by the parties, and was not necessar the decision.8 As of early 1991,'thi Supreme Court still has not decided whether NRC denials of 2'.206 petitions are presumptively unreviewable under Chancy. Three different circuits of the U.S. Court of Appe have decided that issue, however: in each case they decided that Chaney does apply, and thus that 2.206 denials by NRC are sumptively unreviewable. In July of 1988, the Court of Appeals for the First Circuit in Boston decided Massachuscits Public Interest Research Group, Inc. v. U.S Nuclcar Regulatory Commission'. As detailed in the prece ter, MassPlRG, Massachusetts Senator William B. Golden, and other parties had petitioned the Commission under section 2.206 to suspend. Boston Edison Company's operating license for the Pil-grim Nuclear Plant because of 1) deficiencies in plant manag ment,2) Inadequate emergency response plans, and 3) design flaws in the plant's containment structure. The Commission denied the petition with respect to two of the issues and deferred decision on the third, and MassPIRC petitioned the First Circuit for review of the decision. In its appellate brief, MassPIRG argued that the standard th mission itself purportedly uses in deciding whether to grant 2 petitions provided the requisite standard by which the court cou judge the Commission's action. That standard, from a 1975 Com mission decision, required that a show cause order be issued if NRC director concluded that " substantial health and safety had been raised."" The court rejected MassPIRG's argum 7 470 U.S. 729 (1985). B 470 U.S. at 735, note 8. 9 852 F.2d 9 (Ist Cir.1988). 10 Consolidofid tdison Co. of Nao York (Indian Point, Units 1,2. and

_ =-- 0 Chapter 3 Judicial Review cluding that this statement did not limit the Commission's discre-tion because the Commission did not so intend it, inasmuch as other language in the decision purported to preserve that discre, tion. The court held that the refusal of the NRC to issue a show cause order 6 gainst the cornpany was not subject to judicial review because there was ho meaningful standard of review of 2.206 deci. sidns in either the Atomic Energy Act of 1954 or the Commission's regulations." This bar to court review could only be temoved, declared the court, where the court was "strongly convinced" that' the Commission "was inexcusably defaulting on its fundamental responsibility to protect the public safety from nuclear accidents." 2 i The next year, the Court of Appeals for the Seventh Circuit in Chi. cago followed the First Circuit's lead in Arnow v. NRC". In that case, Illinois citizens had petitioned the Commission to suspend i the licenses for several nuclear plants operated by the Common-wealth Edison Company because of alleged deficiencies in the i methods used by the company to test the leak rates of the plants' containment structures. The Commission denied the petition on the ground that the issues raised had already received sufficient consideration from the Commission. The Seventh Circuit ruled that NRC's denial of a 2.206 petition was presumptively unreview-able under the rule in Chancy. After Chancy was decided, the D.C. Circuit Court of Appeals for a time avoided the issue of whether 2.206 denials are reviewable. When the Lorion case was sent back to the D.C. Circuit following the Supreme Court's ruling that the Court of Appeals, rather than i the District Court had subject matter jurisdiction of NRC's 2.206 denials, the court declined to rule on the question whether 2.206 denials are reviewable." Instead, the court ruled on the merits that the Commission's denialin that case was not arbitrary, capri-i clous, or an abuse of discretion. On the same day that Arnow was decided by the Seventh Circuit, however, the D.C. Circuit joined the courts holding that NRC enforcement decisions are presump-tively unreviewable in Safe Energy Coalition of Michigan v. NRC'. i 173 (1975). 11 B52 F.2d at 10. i 12 Id. C '1) 868 T.2d i23 (7th Cir.1989). 14 lorfo*t v. NRC,785 F.2d 1038 (D.C. Cir.1986). 15 866 F.2d 1473 (D.C. Cir.1989). 29

l Judicial Review Chapter 3 - Fa]'e Tncrgy Coalition concerned a citizens group's 2.206 petition to NRC seeking the imposition ofimprovements to licensee Detroit Edison Company's employee quality assurance progum for its Fermi 2 nuclear power plant. The citizens alleged that the utility's internal quality assurance program was an attempt to divert safety concerns from the program regulated by the Commission's regula-tions. The Commission denied the petition on the ground that the utility's program was voluntary and the licensee was in compli-ance with the Commission's regulations concerning quality assur-ance. Following the First Circuit, the Court refused to consider the merits of the citizens' petition for review, holding that Commission denials of 2.206 petitio,ns are presumptively unreviewable. In January 1990, th'e'D.C. Circuit reiterated its Safe Energy decisio by refusing to revie'w the denial of OCRE's second 2.206 petition concerning the ecrthquake at the Perry plant." Not every case since Chaney has resulted in a ruling that 2.206 deni-als are unreviewable. The Court of Appeals for the Sixth Circuit avoided this " knotty" issue in reviewing the Commission's denial of the 2.206 petitions filed by the State of Ohio and the Toledo Coalition for Safe Energy concerning emergency preparedness for the Davis-Besse plant, as related in the preceding chapter. 16ther than decide whether the denials were reviewable, the court decided what it termed the " easier question of whether the Director's decision was a proper exercise of his discretion."" The court ruled in the Commission's favor on substantive grounds. Analysis While the Supreme Court has not yet ruled on the issue, three cir-cuits of the Court of Appeals have now ruled that Commission denials of 2.206 petitions are presumptively unreviewable under the rule in Heckler v. Chancy. One circuit has declined to rule on that issue. No federal circuit courts have ruled to the contrary. As a threshold matter, we believe it is apparent that the Supr Court made bad law in Heckler v. Chancy. Justice Marshall wrote a l separate opinion in the Chaney case in which he concurred in the } judgment, but not the reasoning, of the majority. Rather than put forward a new and dangerous rule that agency decisions not to l I s l 16 Ohio Citizensfor ResponsiNe Ericrgy v. NRC,693 F.2d 138 (D.C. Cir. j ~ 17 Sfdfe of Ohio er 'el. Celebrezze v. NRC,868 F.2d 810 (6th Cir.1989). r 1B Id.atB11. i 3 30

k Chacter 3 Judicial Review enforce are presumptively unreviewable, Justice Marshall would have simply held that the agency did not abuse its discretion in that case. His opinion bears quoting at some length: Easy cases at times produce bad law, for in the rush to reach a clearly ordained result, courts may offer up prin-ciples, doctrines, and statements that calmer reflection, and a fuller understanding of their implications in con-crete settings, would eschew. In my view, the "presump-tion of unreviewability" announced today is a product of - that lack of discipline that easy cases make all too easy. The majority, eager to reverse what it goes out of its way - to label as an " implausible result,"... not only does reverse, as I sgree it shotild, but along the way creates out of wholt cloth the notion that agency decisions not to take "cqorcentent action"are unreviewable unless Congress has talher specifically indicated otherwisc..... I write separately to argue for a different basis of deci-sien: that refusals to enforce,like other agency actions, are reviewable in the absence of a " clear and convinc-ing" congressional intent to the contrary, but that such refusals warrant deference when, as in this case, there is nothing to suggest that an agency"with enforcement dis-cretion has abused that discretion. On the merits, then, a decision not to enforce that is based en valid resource. allocation decisions will generally not be "ntbittary, capricious, an abuse of discretion, or other-wise net in accordance with law".... The decision in this case is no exception to this principle. The Court, however,is not content to rest on this ground. Instead, the Court transforms the arguments for deferential review on the merits into the wholly different notion that " enforcement" decisions are presumptively unreviewable altogether-unreviewable whether the resource-allocation rationale is a sham, unreviewable whether enforcement is declined out of vindictive or per-sonal motives, and unreviewable whether the agency has simply ignored the request for enforcement. * *

• But surely it is a far cry from asserting that agencies l.

must be given substantial leeway in allocating enforce-inent resources among valid alternatives to suggesting I, 19 470 U.S. At P,40-41 (Emphasis added). b y ~, P. v

Jurklal Review Chapter 3 that agency enforcement decisions are presumptively unreviewr.ble no matter whatfactor caused the agency to slay its hand.** Justice Marshall's opinion debunks the majority opinion's argu-ments that the presumption of unreviewability stems from legal preceve and " tradition." He reaffirms the seminal case on the stibject of judicial review of agency action, Abbott Loboratories v. zi Gardifer, to the effect that "...only upon a showing of ' clear and conviticing evidence' of a contrary legislative intent should the tourts restrict access to judicial review."** He points out that even in the area of criminal prosecutions, from which the majority derives the prest mption of unreviewability, judicial review is avail-able where the pluihtiff "makes a sufficient threshold showing that a pro ecutor's discretion has been exercised for impermissible rea-som.~ 2 Justice Marshall also points out that the analogy between criminal prosecutorial discretion and agency enforcement discretion is mis-leading, and even uses nuclear safety as an example: Criminal prosecutorial decisions vindicate only intangi-ble interests, common to society as a whole,in the enforcement of the criminallaw. The conduct at issue ha : already occurred; all that remains is society's general interest in assuring that the guilty are punished. * *

• In centrast, requests for administrative enforcement typi-cally seek to prevent concrete and future injuries that Congress has made cognizable-injuries that result, for

o. ample, from misbranded drugs, such as alleged in this cast, or unsafe nuclear power plants.... A request that a no.lcar plant be operated safely or that protection be provided against unsafe drugs is quite different from a request that an individual be put in jail or his property confiscated as punishment for past violations of the crimi-nal law. Unlike traditional exercises of prosecutorial dis-cretion,"the decision to enforce-or not to enforce-may itself result in significant burdens on a... statutory benefi-ciary.""

~ 20

14. at 842-43 (Emphasis in the original).

21' 38711.$.136 (1967). 2k id. nt 141.

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23 Id. at 847. 24

14. At 847-48 (Citations omitted).

e. S

i({ ~ l Chaoter 3 Judicial Review We believe Justice Marshall has it exactly right. The rule the Court announced in Heckler v. Chancy is both unnecessary and extremely p detrimental to the accountability of federal agencies. The knoyel-edge that virtually all of their actions or failures to act are subiect to judicial scrutiny-even under very deferential standards of review-necessarily acts as a powerful incentive to keep agencies honest. Indeed, the whole purpose of the APA and administrative law generally has been to " continuously narro[w] the category of actions considered to be so discretionary as to be exempted from review."U Now the court has defined a large category of agency actions-i decisions not to enforce--as, presumptively unreviewable. It is axi-omatic that. where agencies know that their decisions will not be subje, t to judicial review, the like'lihood of decisions based on impermicsitzte considerations willincrease. Where judicial review l nnd thus public accountability is proscribed, the possibility of ~ngen* y capture," whereby the agency becomes more solicitous of the inh' rests of its wards than of the public,is considerably higher. 4 o result M the three Court of Appeals cases discussed above, the .hmap of th" rule in Chnney has now clearly been realized in the l t onte.~t of nn< icar regulation. The Commission can now deny 7 2% p-titions with virtually complete impunity, and the possibil-i'y ef meaningful citizen participation in nuclear regulation after a IWnw ha-been issued is decimated. It is impossible to discern how thh can be considered an improvement in the regulatory envi-sonment. Indeed, given the deteriorating condition of the country's operating nuclear power plants, this new legal doctrine is cause for serious alarm. These Courts of Appeals applied Chancy to 2.206 denials on the ground that there was no law limiting the agency's discretion or for courts to apply in judging the agency's decisions. In fact, there is no less " law to apply" in the context of 2.206 denials than there is in the context of the NRC's initial granting of a license or prom-ulgation of a rule-contexts in which there is absolutely no doubt 3 that judicial review is available. Under section 186(a) of the Atomic Energy Act, the Commission may revoke a license on the basis of conditions "which would warrant the Commission to j J p. s I n a-f IS Id. at M9, q foHng Shapiro, Administrative Discretion: The Next Stage,92 Yale Ll. 1487,1489, n.11 (1983). - t

Judicial Revlp* Chapter 3 refuse to grarit a license on an original application....,26 The Act e.xplicitly provides that the same standards apply to revocation as to initial granting of a license. The primary substantive standard that governs Commission deci-sions on initial issuance of licenses is " reasonable ass public health and safety will be adequately protected.27 That is concededly a subjective standard, which leaves the Commission with substantial discretion. Nonetheless, it has never been ar that these initial licensing decisions are committed to agen cretion by law," and thus presumptively unreviewable.'It is a far different matter to review such decisions under a deferen dard than to declary them presumptively unreviewable. Denials of - i 2.204 etitions should be reviewable under the same stand 1 li< ente issuatice:i.' ' To conclude, the Chancy case and its progeny promise nothin im nemuntability in government. Turning once again to Justice Marshall: Discretion may well be necessary to carry out a variety of important administrative functions, but discretion can be a veil for laziness, corruption, incompetency, lack of will, or other motives, and for that reason "the presence of discretion should not bar a courtfrom considering a clahn of illegal or arbitrary use of discretion." L. Jaffe, Judicial Con-tiol of Administrative Action 375 (1965). Judicial review is available under the APA in the absence of a clear and convincing demonstration that Congress intended to pre-clude it precisely so that agencies, whether in rulemak-ing, adjudicating, acting or failing to act, do not become stagnant backwaters of caprice and lawlessness. " Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler, some civil or military official, some bureaucrat." United States v. Wunderlich,342 U.S. 98,101 (1951).:s Even if the rule in Chaney were appropriate in some contexts, it is utterly inappropriate when ap slon denials of 2.206 petitions. plied to situations such as Com As Chief Judge Wald of the Court of Appeals for the D.C. Circuit observed in her dissent in a similar case involving the National Highway Traffic Safety Administratio 26 42 U.S.C. 5 2236(a). 27 10 CFil 5 50.57. 28 Hermer v. Chady,470 U.S. at F48. (Ernphasis in original)

[, Checter 3 ? Judicial Review I fear that we have taken Chancy's mandate too far in applying it to a decision made explicitly on safety and ~ remedy grounds hfter a " technical review" of safety and

• engineering data in the co'ntext of a statute which specif-Itallf authorized citizen petitions to open investigations and which mandated public responses to those petitions.

'c

• *
• The record of [the agency's technical] assessment alchg with the regulation's " reasonable possibility" stan-dard provides plenty of law for us to apply on review.29 in the casc' of NRC dentals of 2.206 petitions, thE agency's technical asse::sment of the merits of the petition in the context of the Commission's regulations,,,along with the " reasonable assurance" standard,)toVlde plenty Of }aw for courts to apply on review.

1 .. sib.- i,. if, p p - , s n. .,t 4 b-4.., j p.;., ...r,. \\.. 3 ~ i9 {r.. Centerfor Aulo Safety'd. bo}t,846 F.2d 1532,1536 (1988) (C.J. Wald,. l dis.tentlng). v, 7.3 p ;.,. [:*i c 35

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.. y,; p Rem dies. = e .e.. .. c v. s m. x. .. 1. . n.: c ,.. ;:,:..y. :,:.;..- 4.u..-. -a.. ~. - -_;-, = - a_ _2.n; u.n. f f NRC's Im9 of Accountability.. ...w. m. .m,....,..,... u... ..t - dongr'ss stfentil thelin}bftande o( p'ublic ' articipation in NRCn ii). s?- w e p derisidnmaking when it gave interested citizens the right to demand hearings on NRC licensing actions'under section 189(a) of.. the Atomic Energy Act. As'noted in'a 1982 House report, the hearing process servis E vital function as a forum for raising relevant issues regarding the design, conr.truction and operation of a reactor, and for providing a means by which the applicant and the Commission staff can be held accountable for their actions regarding a particular facility... [T]he hearing process is essential to obtaining public confidence in the licensing process which is needed if the nuclear option is to be preserved.' At this juncture, public confidence in nuclear power and the NRC has never been lower.2 b The Commission has responded to this crisis in public confidence, not by opening u 3 its_ deliberations to public scrutiny, but by i becoining increns ngly more secretive and hostile to public partici-ps potion. For bl$tance, as discussed in Appendix A of this report, the Commission rotillnely violates public meeting notice requirements under the Gwernmentin the Sunshine Act;it has turned over to the industry dnd thereby hidden from public scrutiny many inspec. .tlon and re NRC Staff; porting functions that wste formerly performed by the K _i it has attiEnded its procedural rules to erect formidable M + . huidies to titiien1htervestion in NRC; licensing proceedings; and - [ b.. it has established a set of pt6cedures bfwhich licensees may con;

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^* t6st and defeat bhekfits" (recommended plant improvements) with-d M. - -..

' through its yhttiallf: guaranteed denials of requests for hearings ~ 2 E ' out ahy khBwledge,let alone participation; by the public. Finally, K y;,p3 f,.Qff9pg_;_, ; f u,u ..w..;. :..,u.g,o.$.g.},,*...g. 9j,, t..n ~. ':

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u .s ,e g.. ...' E ong 1st}Sess.'k'1 (1982) .'#- 5 ' y h.k. 'N,) D.',w. .. y- '/23, in pihlifoplhldd polls itirEctnt years /significant majorities' consistently ( D ^' '~7 ~~ ' ' d,y( y,b4.gi,'4ay that thef oj$ se c6nttrutflon'of more nuclear power plants. See, e.g.,- 'N?f~ ?' . 3;; N P

• c ').Retraith Strat Wnageriiedt,Inc., November 1989 (62% opposed to h:!.

..3 UhMe but!EO p Is)I $uss.MafiApocistes, March 1990 (64 % opposed); , -f. .. s,.. , f4tei Ilntt de R6bert Tetittri A)MI 1990 ($?% opposed). g;e,;.f' . ~l*..:,9'.W;;%Qp.;- q::... L- {rf;c;.3 ;-. ,s'-,.i, . '. ? ' - - f,,. n:;, . g.gg g.; f gip;.y.; 3. ] 1. .v.f.. ,. v,.., :.y ? *

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4 , &SN)4 b $fy Chaote i and enforcement under Section 2.206, the Commissio ated cffcclive public participation in the tcgulat nuclear plants in the United States. These unjustifiable and unstertwrtalic deccicpments in nuclear safety regu w!ent u~ith Congress' purposes in enacting the Atomic - Congression Reform of 2.206 Process Needed The Atomic Energy Act and NRC regulations provide public participation in the process of nuclear plant While the Commission has recently promulgated rules the environment for nuclear licens democratic one. There is no reason why public parti regulation of a licensed facility should be any less exten for one which has mercly applied for a license. As discu bility for meaningful public contribu plant,is just as great after the license issues as before which also argue for greater, rather opportunitics. Yet, dmpite the inneasing need for public oversight oflic 4 1,n'- the Commission has entrenched its stand against citiz t h per 3 above concerning judicial r in its mission, knows that its denials om-unreviewable in court,it is beyond question that it will be more likely to hastily deny them. Three circuits have now ruled that 2.206 petitions are un abic. However,it is possible that one or more circu of Appeals, that have not yet addressed the issue that the rule in Heckler v. Chaney should not apply (The various circuits are not bound to follow eac n a s. sions, although they usually do give prior decisions i er's deci. cuits developed, the likelihood that t i ecir-agree in review a case would be increased. However, the ruling (bat Chancy should not ap j l rentole. Unfortunately, the mood of federal courts-lead from the Supreme Court-seems to be on l ence to federal agencies. 38 i

• d

'.h E4 : Cppter 4 Remedies There is a remedv for this unacceptable situation, however, and .thnt is for Congre'ss to provide what the courts now say is lacking: law to apply in judging 2.206 denials. Congress should amend the Atomic Energy Act to provide that Commission denials of citizen ~ requests for action on a license are subject to judicial review, and to provide a slandard for courts to use in that review. A bill that would accomplish this task was introduced by Rep. Peter Kostmayer (D. Pa.) in the 102d Congress.' The bill, H.R. 3629, would amend 189 of the Atomic Energy Act to establish the follow-ing standard for judicial review of 2.206 petitions: (d)(1)lN GENERAL. - Any person may petition the Com-mission to institute A proceeding to modify, suspend, or revoke a license, or,,for suel,1 other action as may be proper. DSTANDARDS FOR GRANTING. - The Commission shall giant any request under paragraph (1)if there is mateiini evidence to suggest thate the holder of the license with respect to which a request has been made under parag,raph (1) is in significant non-compliance with tha terms of its license, this chapter, or the Commission's icgohtions, or that conditions at the licensed facility may present undue risk to the public health and safety, or com-mon defense and scrutiny. (3).iUDICIAL REVIEW. - Any Commission order denying n request under paragraph (1) shall be subject to judicial review in nccordance with chapter 158 of title 28, United 5tntes Code and chapter 7 of title 5, United States Code. This statutory language would: 1) provide an explicit statutory basis for the citizen right to request Commission proceedings to modify, suspend, or revoke a license; 2) prescribe a substantive standard (" law to apply") for the Commission and reviewing courts to use bi judging such fequests; and 3) specifically provide that Commisslori denlais of such requests are subject to judicial ' review bring that standard. Enottment t f thl.4 provision would restore some balance and accountability to the Commission's handling of 2.206 petitions. It would not represent any radical new opening of the courthouse 5 . doors. Rather,it would simply restore,in the context of citizen J.. petitions for NRC enforcement action, the administrative law status f .3 H.R. 3629,102d cong. ist Sess., Sec. 301 (1991).

.t bitiedics Char >ter 4 i i gno (i.e., the rule in Abbott Laboratories that judicial review of [ agency action or failure to act is available absent express statutory prohibition) that prevailed prior to Heckler v. Omney. The standards proposed in H.R. 3629 are sufficiently high to - ensure ihat the NRC will not be unduly burdened by judicially. reversed 2.206 denials. Indeed, many citizens' groups will be pre-ciuded from appealing 2.206 denials simply because the costs of latyyers, and court fees are prohibitive. This legislation will, how-ever, gtiarantee that citizens will have recourse to raise issues Whdie stWsta6tial risks to public health and safety are involved. i The mere fact tiiat the ifRC must be accountable to somebody for 19 accisions will have a very important sobering effect on those l 'i-hiotr. The knowle'dge that its discretion is not unlimited will trault in better icasoned, more accountable behavior on the i Commit; ion's part. Moreover, the interested public, already dis-trur.thil of the NRC and its apparent coziness with its licensees, i vill be less suspicious of the Commission if it knows that there is rev recourse for arbitrary Commission action. As Justice Mar-shnll so cloquently stressed in his Omncy concurring opinion, that i riv isely what the Administrative Procedure Act is designed to l l " wide---a check on arbitrary and impermissibly motivated ar,"oty action. That is all we seek to restore here. I t 4

• e e

g_s Q C. ~'- p '. vi. (cgf a' ~.- g-y.; 40 '

,,v ,----e- -m-, -, - -.., Appendix A NRC's Growing Policy of Excluding the~ Public in Favor of Industry. The NPD lunnolithic resistance to public involvement in enforce. tuent inatt5s reflects a growing general policy of shunning public scrutinv of its segulatory actions. This policy is manifested, for in=tance. by the Commission's cavalier disregard for meeting notirr requirements imposed by the Government in the Sunshine Act, anri l v th" Conunission's jncreasing practice of encouraging lic. n.w,, in n,im documents "available" for NRC inspection n' the t 1 limt sih rativ:t than insisting that they be sent to the NRC where tiu r va "id i..$.mhject to public disclosure pursuant to the Free-deni ef Informniion Act. t 1, o....., ni it.,nine time that it excludes the public from its ,1clii..nio ,"s. 81. Conuni" ion has given the industry an ever-in o n : ion rob in the regniatory process. The industry is invited to , n nnmni on n nul+ory on.i enfeicement proposals at very early . i,r. .""I ony inlinence m till these proposals before the public .. n I,in.: nh.'"! them. Ni;' ' 9laff proposals to "backfit" or n; ;.i mi.; the rol. f v of inclivieluni cperating teactors may be nisi col.,i hv li. r nnres without the participation-or even the 1n..wl..ip . l the affecteti public. The Commission has also dele-g1Icel in flu: in.hktry important NRC functions such as nuclear power l*lant inspections. Examphs n! tiie Commission's practice of excluding the public from its deliberations are described below. f New Restrictions on Fultlic Participation Rights In 1989, under heavy pressure from the nuclear industry, the Com-ndssion finally made good its longstanding threat to institute " reforms" of NRC procedures for public participation in licensing proceedings.' Under previous standards for defining the issues to be heard in licensing hearings, citizen intervenors were required to describe their concerns in " contentions" that were articulated with 4 3 ^- 1 " Rules td Practice for Domestic Licensing Proceedin55-Procedural y Ch Anges in Horing Process," 54 Fed. Reg. 33,168 (August 11,1989). ?- 41

f in0 CorioilmesM of rob'ic Wte.ir* itir'n Appendix A "reasonnble specificity and basis."2 In judging the admissibility of these contentions, the hearing officer was not allo.wed to consider their merits. The new rule retains the original" basis and specific-ity" requirements, but also requires prospective intervenors to sub-mit much more substantial support for their contentions at the very outset, when they necessarily suffer from a severe shortage of-information, and have not yet raised sufficient funds to hire expert witnesses to assist. The support for contentions under the new rule must include a "conci<e statement of the alleged facts or expert opinion which sup-port the contention" and " references to those specific sources and I documents of which the petitioner is aware and on which the peti-tiones will rely to establish those facts or expert opinion."3 In addi. tion, the rtile requires petitioners to submit sufficient information to drott'nstrate that "a genuine dis "n an icsve of law, fact, or policy "pute exists with the a This showing must include >Prcific references to the application and a statement of "the sup-r"rting reasons for cach dispute."' f fmcover,in the very act of raising its admissibility standard, the Commission has also refused to make publicly available the cru-rial, material information contained in its own staff's licensing doc-ninentr,, the Safety Evaluation Report and EnvironmentalImpact % trim nt! While these reports have never been available during tbr enntention pleading stage, the Commission's former admissibil-itv.-t.mrinid did not place such a premium on documentation of nei,i:ntions in order to get them admitted; thus, they were not of. <m li oitical importance in gaining admission of issues to a hear-ing. Under the new rule, during the short period of time in which inten ennis are allowed to file contentions as of right, they are pla.nl in an untenable position: given only a fraction of the infor-mation that the NRC considers material to its licensing decision, f hey must nevertheless identify all material is' sues with rigorous precision. UCS appealed the new admissibility standard, but it was upheld by the United States Court of Appeals for the District of Columbia Circuit as not violative of the Atomic Energy Act.' 10 C.T.R. 5 2.714. 3 10 C.F.R. 5 2.714(b)(ii),51 Fed. Reg. at 24,371. 4 1d.,5 2.714(b)(ili). 5 1J. 6 54 Fed. Reg. at 33.171. 7 Union of Concerned Scientists v. NRC,920 F.2d 50 (D.C. Cir.1990). A )

~ V ~ l AntwP.W A NRC Curtailment of Public Participation 1 The new rule Will discourage all but the most well heeled interve. nors,.who have access to experts that can verify and document i their concerns. For typical citizen intervenors, who rely heavily NRC Staff doctments to substantiate their criticisms of a license,on application,it will be extremely difficult to obtain.a hearing on a new license or license amendment application.t + a. .... y. s.. + Industry's One-Sided Ittfhiente on Generic Decisions In 1982, the NRC established the Committee to Review Generic Requirements ("CRGR") for the purposd of isviewing and prioritiz-ing prornsed " generic regulatory requirements, such as regula-tions, regulatory guides, arid other generally applicable standards. Thecc include proposals tol'backfit" or upgrade existing standards. All proi osals for gencric changer, to NRC regulatory requirements aie tonkd to CRGR, where they go through several stages of tr view. No public participation is mandated during CRGR's review. How-ever,(b pinpoials may be discussed with the industry at an early singe." I atei there is a discretionary option to " revise proposal or mlicit luiblir: comment nr no further work."' If the "no further e nil? option is chosen, the proposal may disappear without an .nyportunity for public comment and may be rejected based solely on industry comment. Even if it is retained and offered for com-mont, it inav have been sig,1ificantly altered in response to the imlush.. Thun, the pul$lic is deprived of a meaningful opportu-nity to influ.>nce the decisionmaking process, while the industry may hwe a pivotal role. IM cr'~R Charter requires the Executive Director for Operations to give the Commission monthly reports on CRGR activities, including' a list of items under review and their stitus. That sum-maty is to be distributed to the NRC staff and the NRC's Public Document Room. However, the Charter contains no requirement for public disclosure of the information presented to CRGR or the contents of CRGR's deliberations. In fact, minutes of these meet-ings are routinely withheld on the ground that they "contain pre-decisional information." Thus, they "will not be released to the Public Docuntent Room until the NRC has considered (in a public forum) or decided the matters addressed by the information."" 8' ~5et flod thirt in Attathtnent 1 (September 1986 Revision 3) to Revised Charter-Cornmittee to Review Generic Requirements, NRC, April 23,1987. )- 9 14. id Set, e.g., M,ettierandum froin Edward L Jordan, Chairman, CRGR, to 43 '

i .2 !gc curtallment of Put9ic Participation Appendix A Ilackfitting Procedures Plaht4pecific backfitting proposals are also subjected tolormalized procedures for evaluation by the NRC staff." Under these proce-dures, proposed safety upgrades ofindividual plants may be reviewed by the NltC Staff, with the participation of the affected utility, but without the knowledge or participation of the affected public. When the NRC Staff undertakes consideration of a backfit pro-posal,it begins a set of procedural steps, the results of which are communicated to the licensee, but not the public. The Staff's first step is to determine.whether a proposed change is a backfit,i.e. whether it invnives a change to the license or the governing regu-htory rerjuitements. If the proposalis determined to be a backfit, ihe SlafI then decides whether it is needed for public health and atety on tegulatory compliance, or whether it goes beyond that ler") of rafety required for adequate protection. If the proposal f alN into the latter category, the Staff proceeds to perform a "regu-1: t u v :"alysis," using cost-benefit criteria. In the msrse of prforming the regulatory analysis, the Staff may lecid" th H further analysis is likely to show either that the pro-1 o r l nf< ty benefit is not likely to be substantial additional over- 'll riotr r tion, of that the direct and indirect costs of implementa-tion oc ncit likely to be justified." In that case, the Staff may "cime" ' lie analysis, thus determining that no safety improvement shall 1 e required. Notice is sent to "all the parties," namely the offected titilities. Since the procedures provide for no public nNice the "rartics" are apparently limited to affected license'es." While the Staff is required to keep a record of the regulatory analy-sis, no j'rovision is made for notifying the public that a decision has been made not to require a safety improvement, or that records of the supporting analysis even exist. ' The backfit procedures also give licensees extensive appeal rights, at each stage of the evaluation process, on such critical safety issues as whether a backfit is "necessary" to protect the public health and safety or whether a backfit which goes beyond protect. Robeit M. Bernero et al, re: CRcR Meeting No.148 (October 3,1988). 11 Ste, geWrally, Nild Manual, Chapter 0514, "NRC Program for Management 6I Plant Specific Bhtkfitting of Nuclear Power Plants. l l 12 Id. at seetion 013. l 13 }d. at section 042.

.v? Appendrx A NRC CurtaHment of Public Participation ) Ing the minhnom level bf safety has benefits outweighing.its j costs." No provlsl6tiis thade for public participation in this pro-CeM t'ither. 'L' ~ s As 6 result, the Commisilon may make a final decision not to go forward with a safety improvement because it considers the improvement unnecessary to assure adequate protection of the. public or uuWarranted on tost-benefit grounds. These decisions may be made without the ptiblic even knowing about them, much le':s participating in theni. Of ceurse. if the Commission finally makes an affirmative decision to promulgate a tule or issue a license amendment,it must offer a Iv ntiny, or oppet tunity for commer3t under the procedural require-ment = of the Atninic Energy Act and the Administrative Procedure & t. I!ow" vet, no such opportunity for public participation is preided with tegmd to d proceeding in which, after considering evbmicienn by the staff and licensee, the Commission determines that a prorom:d backfit should not be ordered because the costs nutm ir.h ib"l cnefits of the proposal. This is notwithstanding the in, t th,' the public interest in participation in this decision is opiallv grrnt if not greater. . flu +: I h h gation of IMponsiltilities to INFO and Shielding of l ld i'8 1_f.*efic: aleel l11lp111.1a{ jet] '1he Institute of Nuclear Power Operations (" INFO")is an industry nignnization that routinely inspects operating plants, sets industry per f ormance criteria, and collects and maintains information on plant op":ation. Dues from member utilities finance INPO's 550 million nnnual operating budget. NRC has come under attack from the public interest community for its increasing reliance on INFO in carrying out NItC's regulatory responsibilities, without complying with statutory public disclosure and participation requirements. ~ The "SEE-lN" Prbgtam For instance, with NRC's endorsement, nuclear utilities rely on INPO's "SEE4N" Program to satisfy the TMI Action Plan's ' requirement for providing operators and other personnel with a 14 1d. at section 044. ~ ~' ~ 15 42 U.sf. $ 2239(ai ? d.sf$$I55,554. ~' ~ 16 The TMl AcBon Plan was the Commission's plan for implementing safety I' proMrhents that restillfd from lessons lesmed from the 1979 accident at m .ma

finp CurtMmW of Fube Pmticloation Appendix A continubus supply of operating information pertinent to plant safety. The SEE-IN program is intended as an industry supple-ment to NRC regulations which require nuclear power plant licen-sees to rc~ port promptly to the Commission any accident or " event" beating safety significance. These reports, known as Licensee Events Reports ("LERs"), must include an evaluation of the causes of the accident and a description of remedial measures to be taken. Under the SEE4N program, licensees are also required to submit copies of their LERs to INPO, Where they cre screened by INFO's enginects and other technical experts. For those events or patterns of events considered to have safety significance,INPO prepares 91gtilficant Event Reports ("SERs") and Significant Operating Expe-rience Herorts ("SOESs"), which analyze the significance and implications of the events and recommend remedial steps in a for-mat similar to NRC's own enforcement publications. These reports ar" trancmitted both to the affected utility and the NRC. M the NRC, SERs and SOERs are screened to determine which crents are significant enough to warrant follow-up analysis and po.uillc NRC action. Thus, the SERs and SOERs may have a bear-ing on licensing and enforcement decisions by the NRC. Despite the important and mandatory role of the SEE-IN program in NRC's regulatory scheme, the NRC has refused to disclose these INPO documents to the public. NRC claims that disclosure would discourage candid analyses by INFO. However, INFO has never told the NRC that it would discontinue the SEE IN program if SERs and SOERs were made public. i in a Freedom of Information Act lawsuit brought by the Critical Mass Energy Project, the U.S. Court of Appeals for the District of Columbia Circuit has found NRC's alle tiosure policy to be tinsubsthnliated. ged reasons for its nond l Unfortunately, the Federal Distrlet Court, Oh refnand to determine whether disclosure of the 1 Three Mile Island Unit 2. See ORC Generic Letter No. 82% Clanfication of TMI Action P 17 RegtdrHnents, NUREG-0737, item I.C.S. 18 Memorsndum of Agreement Between Institute of Nuclear Power Opdations and NRC, dated October 20,1988. Crbhbl Med Ettivgy 11 oject v. NRC,830 F.2d 278 (D.C. Cir.1987). 19 r

v.: j App 9 nth <A NRC Curtanment of Public Participatici SER= and SOElls would in fact harm the NRC's regulatory pro-gram, declined to heed the dif'ections of the Court of Appeals. j Thus, Critical Masi was coinpelled to appe&l once again to the i D.C. Circuit," which once agalh concluded that the NRC had not Ballsfied its burden of demonMrating that the safety reports should be withheld ftdtti lhe })ublic." Nitc-1Nro Nietnurandutit of Agreement Pursuant to 1988 Memorandum of Agreement ("MbA") between NRC and INPO, the Commission has also delegated significant inspection lesponsibilities to INPO. ' In the MOA, the NRC states its desire to "tecognize INPO evaldation activities to the extent that these activities are effectiVein helping meet NRC's responsibil-Ilies as well as lessen the burderi imposed on the industry by dupli-cative nppraisal activities."" NRC also expresses its intent to " mini-mize NllC sponsored evaluations or appraisals that duplicate INPO evahtations.*23 Under the MOA, NRC will consult INPO before issuing informa-tion Notices.26 NRC will also place INFO representatives on "Inci-dent investigation Teams" '--clearly an inappropriate role for the regulated indu,try to take. Finally, the MOA gives INPO signifi-cant respomihilities for ITaining programs. 'Rather than protoul-gate binding training standards, as required by the Nuclear Waste Policy Act, the N11C has delegated this responsibility to INPO, and has approved INPO's tralriing program in a nonbinding policy statement. Pobile Cititen successfully challenged these training provisions in the polle y statement as a violation of the Nuclear Waste Policy Act in the United States Court of Appeals for the District of Columbia 20 Cntical %ss thergy Project v. NRC, D.D.C. No. 841943, March 2,1990 Order. 21 CHilal %ss Energy Project it. NRC, D.C. Cir. No. 90-5120. 22 CHli<ml %ss Energy Proftc) ti. hitC,931 F.2d 939 (D.C. Cir.1991.) 23 Mem arandum of Agreement BetWeen Institute of Nuclear Power Operations arsd NRCs dated Octobhr 20,1988. f l Wi *: M jd., hy. 2,91. 25 Id., App.1,5 la.. 25 M., App.1,9 2.f. "f'- 27 a; App.4. m.

[.,.,. ,,, gy.,;.,; q..yf .?,.l y- ,. ::,f. 3 s,. q NAC Cunnilmeht of Put.0c Partleipallon Appends ^ Clrtult." The hticledr industry sought Supreme Court review of the toutI of Appeals decision in Public Citizen's favo Supretite Court 161 the Court of Appeals ruling stand g c,NRC must nbW promtilgate a training rule, as required by the NWPA, but it he proposed a rule that only adopts the INFO training program." Thus, NitC continues to give INPO the lead in nuclear safety trairi-ing. Sitnshifte Act Viniations The " Government in the Sunshine Act" requires the NRC Commis-sinners to hold open meetings unless the Commission determines that they fallinto a specific exception protecting discussions of such topics as national defense, personnel matters, trade secrets, or law enforcement. The Act also commands the Commission to give at least one week's notice of the meeting, including the time and pince, the subject matter of the meeting, whether it is to be open or rievd to the public, and the name and phone number of the offi-cial designated by the NRC to respond to requests for information about Ibc inecting." The advance notice period may only be short-ened if the Commission determines, by recorded majority vote, that an earlier meeting is required; nevertheless, full meeting notie' mu:;t be previded "at the earliest practicable time.,,32 The nnnoontement must be followed immediately by a Federal Regis-tre notice providing the same information.33 The subject matter of the meeting may not be changed unless the mai'.tlity of the Commission determines that agency business so requires and that no earlier announcement of the change was pos-sible, and the Commission publicly announces such change and the vote of each itember upon such change at the earliest practica-ble time." A PnMic Citizen, el cl. v. N1tC,901 F.2d 147 (D.C. Cir.1990). 28 Nuclent Managensmi & Pewurces Conneil, Inc. v. Public Citizen,111 S. C 29 59 t).S.LW. 3392 (1990). 30 57 Fed. Reg. $37 (January 7,1992). 31 8 t).S.C. $ 552b(e)(1). 32 14. 33 Id., $ (t)(3).

NRC CurtaRment of Public Participation Appendhe A Despite numerous protests from the public, the Commission often ignores these notice requirements. Typically, the FederalRegister notices and tape recordings prepared by the Commission each week contain only a general statement that time has been reserved for a Commission meeting, and that the subject matter will be announced at a later time. If the Commission does decide to meet during the reserved time,it is often too late to put a notice in the Federal Register, as required by the Sunshine Act. Instead, the Commission puts the announcement on its telephone tape within only a few days of the meeting. Where the meeting concerns an individual plant, the " subject matter" described in the tape is gener-ally nothing more than the name of the plant involved. Thus, when the Commission'Octes to meet without posting one week's notice in the Federal Register, only those who are lucky enough to call the NRC's tape-recorded Commission meeting notice within two or three days of a meeting will know that it is taking place. Moreover, even if they learn from the tape that the meeting concerns a particular plant, they will not fm' d out what aspect of the plant is being discussed without making numerous telephone calls to the NRC. The net effect of the Commission's disregard for the procedural requirements of the Sunshine Act is to keep the public in the dark about the nature of the Commission's deliberations, and to discour-age public attendance at Commission meetings. Only those indi-viduals who diligently and daily telephone the Commission to hear taped meeting announcements are likely to be fully informed of the subjects the Commission is discussing. Even then,if the sub-ject matter of the meeting is an individual plant, nothing more than the name of the plant will be revealed in the tape. Industry Review of Inspection & Enforcement Bulletins and Information Notices On an increasing basis, the NRC invites the industry to review important enforcement documents before circulating them to the industry. As discussed above in Section D, NRC has agreed to INPO's review of Information Notices before they are sent to licen-sees. The industry is also routinely offered an opportunity to review other enforcement documents before they are issued. No such opportunity is provided to the public. In one recent case, the Commission watered down an Inspection and Enforcement ("I&E") Bulletin at the behest of the Nuclear Util-ity Management and Resources Council ("NUMARC"). These bul-letins tveically notify licensees of serious safety problems and pre-

4 NRC Curtallment of Public Particloation - ' Appendtx A scribe corrective actions. In 1988, NRC raids on nuclear suppliers disclosed that unqualified circuit breakers with counterfeit namebrands are installed in nuclear plants across the c9untry and cannot be traced to their manufacturers. In response, NRC drafted an 1&E Bulletin that would have required utilities to subject all safety-related and non-safety-related circuit breakers to destructive testing. The Bulletin was based on the advice of circuit-breaker experts at the Underwriters Laboratories ("UL") and the National Electrical Manufacturers Association (" NEMA").. NRC submitted a first draft to NUMARC kn August, and a second draft in October. As a result, the NRC substantially weakened the I&E Bulletin, requiring 6nly non-destructive testing, and eliminat-ing the testing reghirement for non-safety-related circuit breakers. In addition, NUMARC persuaded the NRC to remove any refer-ence to the bogus breakers as a " generic problem" for nuclear utili-ties. As a result of NUMARC's influence on the preparation of the I&E Bulletin, the NRC has proposed measures that UL and NEMA con-tend will be ineffective to detect all bogus circuit breakers, and will leave plants vulnerable to breakdowns by non-safety related cir-cult breakers. Moreover, the NRC has minimized the general sig-nificance of the matter by failing to treat it as a generic safety issue. Had the interested public been given the same opportunity as NUMARC to influence the development of the I&E Bulletin,it might have been able to offset the arguments and political pres-sure wielded by NUMARC. Utilities Allowed To Retain Enforcement Documents Historically, utilities were required to submit to NRC detailed responses to enforcement documents such as bulletins and generie letters. Recently, however, NRC has been instructing licensees not to submit detailed documentation in response to such notices, but rather only to retain such documents in reviewable form at the plant site and send only conclusoryletters to NRC. ~ In this way, the detailed inforrnation is corhpletel[ shielded from ~ public scrutiny, as it is available neither iwthe NRC5s Public Docu-mentRoom nor tinder the Freedom ofInformhtion' Act. It is instructive that the Commission is happy"to'tolerale fhis severe inconvenience to its own ability to review the information in order to keep the information inaccessible to the plublic. k I/ *$ ] ^ '.4 50 ~ ., t t

1h i r ) Appendix B NRC Enforcement. Regulations NRC regulations governing citizen enforcement petitions provide, ' f in pertinent part: 9 2.202 Order to show cause. (a) The Executive Director for Operations during an - emergency as determined by the EDO, and Director of i Nuclear Reactor Regulation; Director of Nuclear Material Safety and Safeguards, Deputy Executive Director for j Regional Operations or the Deputy's designee, and Direc-tor, Office of Administration and Resources Manage-ment, as appropriate may institute a proceeding to mod-ify, suspend, or revoke a license or for such other action as may be proper by serving on the licensee an order to show cause which will: (1) Allege the violations with which the licensee is charged, or the potentially hazardous conditions or other facts deemed to be ",ufficient ground for the proposed j ~ action-(2) Provide that the licensee may file a written answer to the order under oath or affirmation within twenty (20) l days of its date, or such other time as may be specified in the order; (3) Inform the licensee of his right, within twenty (20) l days of that date of the order, or such other time as may be specified in the order, to demand a hearing: (4) Specify the issues; and 4 (5) State the effective date of the order. s 9 2.206 Requests for action under this subpart (a) Any person may file a request to institute a proceed-ing pursuant to 9 2.202 to modify, suspend, or revoke a license, or for such other action as may be proper.. i The requests shall specify the action requested and set forth the facts that constitute the basis for the request. The Executive Director for Operations will refer the j request to the Director of the NRC Office with responsi-i

a l NRC Enforcement Reculations Accendix B bility for the subject matter of the request for appropri-ate action in accordance with paragraph (b) of this sec-tion. (b) Within a reasonable time after a request pursuant to paragraph (a) of this section has been received, the Direc-tor of the NRC office with responsibility for the subject matter of the request shall eitherinstitute the requested proceeding in accordance with this subpart or shall advise the person who made the request in writing that no proceeding will be instituted in whole or in part, with respect to the request, and the reasons for the decision. Other provisions,stath that the Commission may on its own initia-tive review a Director's Decision not to institute a show cause pro-ceeding, but nofeiuestby the public to undertake such a review l will be entertained by the Commission.10 CFR SS 2.206(c)(1) and (2).

i i E 1 i t i a ( i f r t i r P -4 ATTACHMENT 3 ~ i i 4 k I i '.l I h r 2 { f ~ .. m. .m

) 3 Succestions Involvina Chances to the Rule in S 2.206 The following ideas involving changes to the rule in S 2.206 have been mentioned by members of the staff: 1. The scope of the availability of S 2.206 petitions could be clarified to apply to requests for the NRC to review issues other than NRC licensee activities. For instance, a situation has arisen recently involving the NRC's conduct of the Agreement State program. An Agreement State is not a licensee of the NRC.

However, the 2.206 petition procedure could be explicitly broadened to include petitions raising any issue of the application of NRC rules or policy in any specific case.

The broadening of the scope of 5 2.206 petitions as discussed might i result in some increase in the number of petitions received, however it is unlikely that there would be many other areas of concern outside of the usual scope of NRC licensee issues. 2. Section 2.206 could be amended by rulemaking to incorporate some carefully thought out criteria to govern the Director's Decision to grant or deny the petition. If the criteria could be made sufficiently precise, the application of the criteria in the Director's Decisions would appear less arbitrary to petitioners. There are several potential problems with this approach.

First, it will be difficult to craft decision criteria which are sufficiently precise to guide decisionmaking in the range of situations which are presented in S 2.206 petitions.

The l decision to take a specific enforcement action incorporates balancing many considerations which are specific to the individual situation and facts. Furthermore, if it were possible to develop decision standards to place in the regulation, the promulgation of binding standards in the regulation might subject future Director's Decisions to judicial review. The decisions of the Courts of Appeals which have found NRC denials of S 2.206 petitions unreviewable have suggested that if there were a standard of decision in the regulation, there would be a standard of review to apply, and the presumption of unreviewability described in the Chanev case would 2 be overcome. Thus it is likely that this approach would entail increased commitment of agency resources to defend Director's Decisions on judicial review. 1 See Mass. Public Interest Research Group v. U.S. NRC, 852 F.2d 9 (1st Cir. 1988); Safe Enerav Coalition v. U.S. NRC, 866 F. 2d 1473 (D.C. Cir. 1989); and Arnow v. U.S. NRC, 868 F.2d 223 (7th Cir. 1989). i i

2 3. Section 2.206 could be amended by rulemaking to incorporate some type of review within the Commission of the Director's Decision. Following are four possible structures of internal review. Each would provide a solution for the petitioners' concern that 2.206 petitions are reviewed only by the same NRC staff which may have already evaluated the information in the course of other regulatory responsibilities. Each of these options would involve further commitment of agency resources. a. Allow petitioners a discretionary appeal of a denial of a S 2.206 petition to the Commission. This change would allow the petitioner to focus the issues on appeal in a petition for review for the Commission's consideration. As a sub-option, if important health, safety, or environmental issues were involved, the Commission could refer the issues to the Atomic Safety and Licensing Board Panel for assignment to a presiding officer (i.e., a three member licensing board or a single administrative law judge or administrative judge) for review. After review of the Director's Decision on the existing

record, the presiding officer could either agree with the Director's Decision or make non-binding recommendations to the Commission (which could include a

request to initiate adjudicatory procedures to resolve important issues). b. Allow a petition for review directly to an Atomic Safety and Licensing Board Panel presiding officer. The review would be conducted on the existing record. If the presiding officer's review agreed with the Director's

Decision, the presiding officer would either close the matter with a summary affirmation or provide a written decision.

If the Presiding officer disagrcea with the Director's Decision, the presiding officer could make a non-binding recommendation to the commission regarding appropriate action, which could include a request to initiate adjudicatory procedures to resolve important safety issues. c. The petition for review could be assigned to the appropriate NRC advisory committee, depending on the subject matter of the petition. The advisory committee would review the existing record and give the Commission a letter report with recommendations. The Commission would take any final action on the petition for review. d. A special internal staff group, similar to the Committee to Review Generic Requirements (CRGR) could be established to perform a review of the denial of a S 2.206 petition upon petition for review. F b U y ,m--}}