ML20039E170

Memorandum Supporting Shoreham Opponents Coalition Contention 7B.Commission May Not Lawfully Use Vehicle of Policy Statement to Promulgate Substantive Rules & Deny Public Right to Participate.Certificate of Svc Encl

ML20039E170
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/31/1981
From:	Latham S SHOREHAM OPPONENTS COALITION, TWOMEY, LATHAM & SHEA
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8201060606
Download: ML20039E170 (14)

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- $N 8 UNITED STATES OF AMERICA g a NUCLEAR REGULATORY COMMISSION '82 JM -4 PS:06

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BRMICH In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322 (OL)

)

(Shoreham Nuclear Power Station,)

Unit 1) )

MEMORANDUM OF SHOREHAM OPPONENTS COALITION (SOC) IN SUPPORT OF SOC CONTENTION 7B I. Background In its original Petition to Intervene in Docket No. 50-322 (dated January 24, 1980), SOC submitted twenty ( 20 ) proposed contentions. Contention 7a(ii) referenced " Additional generic issues identified in 1979 including those identified as a result of the TMI-2 accident" (SOC Petition at p. 42). In its Order dated March 5, 1980, the Board permitted SOC to particularize Contention 7a(ii). SOC's responses was submitted on June 6, 1980, although final particularization of SOC's TMI contention has had to await the evolution of the Commission's policy concerning litigation of TMI issues in individual licensing proceedings.

In the aftermath of the accident at TMI Unit 2, a number of investigations of its causes and implications were undertaken, most notably the work of the President's Commission on the p6

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8201060606 811231' PDR ADOCK 05000322 C PDR

Accident at Three Mile Island ~1/

and that of the NRC's Special

' Inquiry Group.~2/ These investigations found deep and pervasive flaws-in the process by which nuclear power is licensed and regulated:

To prevent nuclear accidents as serious as Three Mile Island, fundamental changes will be necessary in the organization, procedures, and practices--and above all--in the attitudes of the Nuclear Regulatory Commission and, to the extent tha t the institutions we investigated are typical, of the nuclear industry.3/

These investigations made' recommendations as to some of the changes required, both in the organization and. functioning of the NRC and on specific and more narrow issues'related to reactor design, emergency preparedness, operating training, plant siting and others. The NRC directed its staff to develop a plan to correct or improve the regulation and operation of nuclear facilities based on the experience from the accident at TMI-2 and the official studies and investigations of the accident. This

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activity culminated in the development of a document entitled "NRC Action Plans Developed as a Result of the TMI-2 Accident."4/

~1/ Report of the President's Commission on the Accident at Three Mile Island, "The Need for Change: The Legacy of TMI,"

(Hereinafter "Kemeny Commission").

-2/ U.S. NRC Special Inquiry Group, "Three Mile Island: A Report to the Commissioners and to the Public," (hereinafter "Special' Inquiry Group").

3/ Report of Kemeny Commission, Id., p. 7.

4/ NRC Action Plans Developed as a Result of the TMI-2 Accident, NUREG-0660 (hereinafter " Action Plan").

The- Action Plan identified a large number of' safety pr,oblems requiring resolution by the NRC and the industry. In some cases, it mandated a particular change in plant design or operation and a schedule for implementation of this change in current pending applications. For example, specific improvements in the content of operator training and procedures were mandated.~5/ In other cases, particularly with respect to the more complex and technically difficult questions, the Action Plan called for future studies and/or future rulemaking proceedings. One example in this category is the need to provide protection against hydrogen

. 6]

explosions.

The Commission also directed its staff to consider 'which of the TMI-related safety improvements contained in the Action Plan should be required as a condition to granting approval of 'pending operating license applications. This resulted in the development of another, much shorter document entitled "TMI-Related Requirements for New Operating Licenses," NUREG-0694, June 1980 (hereinafter ""NUREG-0694"). NUREG-0694 essentially excerpted those portions of the Action Plan which, in the judgment of the NRC Staf f, were appropriate to require for new licenses ~y, The NRC did not solicit comment on the substance of NUREG-0694 nor attempt to comply with the procedures - for agency rulemaking contained in 5 U.S.C. Section 553.

i.

5/ Action Plan, p. 4.

6/ Id., p. 5.

7/ NUREG-0694, pp. 4-10.

On June 16, 1980, the NRC issued its " Policy Statement" on the TMI-2 ' accident , by a vote of 3-2.~8/ It described the process of development of both the Action Plan and NUREG-0694 and " concluded" that the list of requirements for new operating licenses ' contained in NUREG-0694 "is necessary and suf ficient ' for responding to the TMI-2 accident."-9/ The Commission went on to prescribe an unprecedented procedure for grafting NUREG-0694 on to - ongoing adjudicatory proceedings for operating licenses; it directed that, as to those of the new requirements which " supplement the existing-regulations," parties to adjudicatory proceedings would be permitted to ~ challenge their necessity, but no party would be .

. permitted to introduce evidence or make any argument to show that

~

the requirements did not go far enough to protect safety or were 10/

insufficient in any way.

Thus, in effect, the Policy Statement established a new set of substantive safety-related requirements for nuclear plant adjudicatory proceedings only by those who wished to show that they were too strict. Those who wished to show that they were not strict enough were foreclosed. Commissioner Bradford stated:

"Further Commission Guidance for Power Reactor Operating

-8/

l Licenses; Statement of Policy" 45 F.R. 41738'et. seq.

(hereinaf ter " Policy Statement") .

9/ Policy Statement, p. 5.

. _10f d Id., p. 7.

l

• . . .y. , , , ,

[ A} s a result of the Commission's actions, . the only group that will be permitted to contest the questions at issue here will be the industry. Thus, those who have had the greatest say in shaping the Action Plan will now be able to challenge .its require-ments further, while those who have had no say in shaping it.will be foreclosed from challenging the very requirements that they have had no opportunity to comment on.11/

In case the point were not clear enough, the Commission forbade its Licensing Boards from inquiring into these issues sua 12/

sponte,-- instructed its staf f to utilize summary judgment procedures to the maximum extent to dispose of TMI-related safety 13/

contentions,-- and ordered " strict adherence" to timeliness rules to prevent the interjection of new .TMI-related safety -

. contentions into ongoing licensing proceedings.--14/-

On July 25, 1980, the Union of-Concerned Scientists and the Shoreham Opponents Coalition, filed with the NRC a " Request for Stay of Effectiveness of Commission Statement of Policy on Further i

Commission Guidance for Power Reactor Operating Licenses Dated

< June 16, 1980."--15/ On August 14, 1980, SOC, UCS and other 11/ Id., Dissenting Views of' Commission Bradford, p. 2.

J l 12/ The Atomic Safety and Licensing Boards established by the Commission to preside over its adjudicatory proceedings are authorized to consider and resolve serious safety, environ-mental, or common defense and security questions even if such questions have not been raised by any of ' the parties to the proceedings. See la CPR 2.760(a); Pacific Gas & Electric Co.

(Diablo Canyong Nuclear Plant, Units 1 &.2), ALAB-560, 11 NRC 227, 230 (1980).

13/ Id., p. 8.

j 14/ Id.

--15/ After 3-1/2 months, this request was denied by a' 2-2 vote of the' Commission on November 3, 1980.

i

" _ _ _ _.:- -_A- _

affected parties filed a " Petition for Review" of the Commission's '

Policy Statement with the United States Court of Appeals, D.C.

Circuit (Docket No. 00-1962).

NUREG-0694 was superseded by NUREG-0737, " Clarification of TMI Action Plan Requirements," adopted by the Commission on

~

October 28, 1980 by a 4-0 vote. As noted in a Commission Memorandum and Order dated December 18, 1980, (hereinafter

" Revised Policy Statement),

NUREG-0737 makes numerous significant changes in'NUREG-0694.

In some instances, the requirements in NUREG-0694 are made more flexible, especially as to implementation schedules. In some instances, the requirements in NUREG-0694_ are made more strict. In addition, NUREG-0737 adds new requirements, taken from previously issued Bulletins and Orders, which were not part of NUREG-0694.

The Commission's approval of NUREG-0737 requires tha t "

some changes be made in the previously adopted Statenent of Policy. Moreover, the Commission has now had morec time to reflect upon the distinction between  ;

interpretive and supplementary requirements, as originally set forth in NUREG-0694 and as modified in .

NUREG-0737, and believes tha t the number of supplementary requirements may be quite small. For these reasons , the Commission has decided- that the Statement of Policy should be amended as . set forth im ,

the Appendix to this Memorandum and Order.

The December 18, 1980 " Revised Policy Statement" altered the June 16, 1980 Policy Statement in two material respects:

l. The authority of the Atomic Safety and_ Licensing and Appeals' Boards to raise issues sua sponte was exten'ded to i~ ~

both categories of TMI requirements--those that supplemented existing regulations as well as those that merely interpret '

or_ refine existing regulations;

2. Intervenors were given the right to challenge the suf ficiency of the second category of TMI issues--those' tha t '

~

supplement existing regulations (see Commission Memorandum-and Order, CLI80-42, December 18, 1980, at pp. 7-8).  ;

Since the December 18, 1980 revised Statement of Policy, the Commission has issued a Proposed Rule on TMI requirements (May 7, 1981) in an effort to incorporate the NUREG-0737, and ultimately all or part of the remaining NUREG-0660 items, into 10 CFR Part 50 of the Commission's regulations. The Proposed Rule does not alter the applicability of the NUREG-0737 requirements to the Shoreham licensing proceeding and the Commission ' has indicated tha t it will be augmenting the rule in the future with additional NUREG-0660 i'tems (see Proposed Rule at pp. 5-6). The comment period on the Proposed Rule ended on August 12, 1981 and to SOC's knowledge, th e Commission has not taken further formal action on the Proposed Rule since that date.

II. ARGUMENT In~ the more than two and one-half years since the accident at TMI Unit 2, the Commission and Staf f have generated a seemingly l-endless volume of Orders, technical studies, new licensing

- requirements and modifications to all of the above . On the surface, the ef fort appears credible, but on closer examination, the actual thrust and impact is quite to the contrary. In the f ace of the most serious reactor accident in commercial nuclear U' ^

history, the Commission has arbitrarily divined a new set of safety requirements while systemically excluding the concerned

'/ public from the decision-making process. In view of the virtual

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-unanimous condemnation of the NRC's regulatory performance pr i or

, to the TMI acci' dent, the . Commiss ion 's " resolution" of.TMI-related safety issues is beyond rational comprehension.

,  : 21-qq. .,.

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Through the vehicle of the initial and revised Policy

• 4 Statements, the Commission has established a new set of substantive safety requirements which the Commission alleges are "necessary and sufficient for responding to the TMI-II accident".

Without_ resort to formal rulemaking or adjudication, the Commission has arbitrarily extracted certain items from NURE.G-0660 J

f and imposed them as " requirements" for all prospective operating [

licensees. The balance of the NUREG-0660 issues remain in i

, regulatory and administrative limbo.

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' There is little question, in spite of. the delicate and of ten fi

~ tortured; language and logic employed by the Commission in its 'M V3

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, various policy' statements and orders, that the.NUREG-0737 E:

_ / requirements, particularly those which " supplement" existing g regulations constitute new regulations. While these new E

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H - 9l reguiations can be challenged as unnecessary by the industry they fi y

are binding. upon those who, like SOC, wish to contest the adequacy 55 of the requirements themselves . Like it or not, the new is E..E requirements have been established by the Commission as the

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' maximum required for safety.

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In basic terms, the Commission's attempt to insulate from q""

public sprutiny the regulatory repercussions of the TMI-2 accident 5

y is;directly at odds with an intervenor's right to due process. 1:

Along with virtually all other administrative agencies, the 55S Commission has ' two methods by which it can establish binding

' 5 m=~n precedent: _by#rulemaking or by adjudication. Minnesota v. 50 N.R.C., 195_U.S.-App. t.,. 2..

D.C. 234, 602 P.2d 412, 416-417 (1979). ME T^

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Whether the Commission opts for rulemaking or adjudication, intervenors are guaranteed a right to be heard under the Federal Administrative Procedure Act. (See 5 U.S.C. Sections 553, 556, and 557). The Commission may not lawfully use the vehicle of a Policy Statement to promulgate substantive rules , thereby denying the public its right of participation. Pacific Gas and Electric Co. v. F.P.C., 164 U.S. App. D.C. 371, 506 F.2d 33 (1974). It is also clear that the legal status of the various Policy Statements is to be judged by their ef fects, not by the labels which the Commission might choose to attach to them. Columbia Broadcastina System v. U.S., 316 U.S. 407, 416, 62 S.Ct. 1194 (1942); See also Pacific Gas and Electric Co. v. F.P.C., cited above.

By arbitrarily establishing a new scope of safety requirements and by denying the public its right to participate in that decision as guaranteed by the Administrative Procedure Act and applicable case law, the Commission has severely abridged the rights of intervenors such as Soc. SOC has been effectively prohibited from raising certain critical safety issues identified by the TMI-2 accident and acknowledged by the NRC itself - such as through the publication of NUREG-0660 for example. The Commission's various Statements of Policy and the limitation of

.new requirements to those included in NUREG-0737 is an attempt a t rulemaking on an ex parte basis.

It has been widely acknowledged that throughout the development of NUREG-0660 and NUREG-0737, the industry has had significant and coatinuous input into the Commission's decision-making process. In a number of instances, the Atomic Industrial Forum-(AIF) urged the Commission to reduce the number of new requirements and stretch out-schedules for implementation. In response to the AIF presentations, the NRC Staf f reconsidered a number of ' items in the Action Plan and made extensive revisions to 16f it.

Thus, the applicant in the Shoreham Licensing Proceeding has had, directly, or through its agents, repeated opportunities to influence the scope of the new regulatory requirements derived from the TMI-2 accident. Intervenors such as SOC have had no similar opportunity to expand the scope to ~ meet ' the requirements of protecting public health and safety.

SOC believes tha t the Licensing Board in Docket No. 50-322 has a number of methods by which it can hear and resolve the issues identified in the four parts of SOC Contention 7B. For example, pursuant to 10 CFR 2.760(a), the Board can zraise or adopt safety issues of its own and can require the parties to present testimony on those issues. Ironically,' had the Commission not effectively suspended the licensing process in the wake of the TMI-2 accident, a number of the issues which SOC seeks to litigate in Contention 7B would have been ripe for litigation as Board

~~16/ See NUREG-0660, vol. 2, pp. 158-177, " Comparison of the TMI Action Plan with the Report to the AIF Policy Committee on Follow Up to the Three Mile Accident by the Working Group on Action Plan Priorities and Resources".

}

e questions in Docket 50-322 without having to overcome the questionable impediment of the Policy Statements.

SOC also believes tha t the Board could require litigation of the issues raised in SOC Contention 7B on the same basis as it has permitted the litigation of Regulatory Guides in this proceeding.

As the Board is undoubtedly aware, Regulatory Guides are challengable in adjudicatory proceedings even though they are not regulations. Cite Gulf States Utilities Co., (River Bend Station, Units 1 and 2), ALAB-44, 6 NRC 760, 772-73 (1977). SOC believes

that the Board should extend the same treatment to non-NUREG-0737 issues in the Shoreham proceeding.

Neither of the above two options affords SOC the full adjudicatory rights to which it is entitled under the Administrative Procedure Act and the Atomic Energy' Act - to raise and litigate safety issues important to public health and safety.

To SOC's knowledge, an intervenor's right to challenge non-NUREG-0.737 issuc s in ongoing licensing proceedings has not been decided by the Commission, and that question must be squarely posed for a Commission determination. SOC urges the Board to do so in this proceeding so that the conflict over the Commission's Policy Statement can be finally resolved.

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- l CONCLUSION "1

III. ,

LContrary to the fears of the Commission (See Policy l Statement, p. 7), SOC has set forth only four'non-NUREG-0737 items a to be litigated in the Shoreham proceeding. The critical

. importance of those four issues for Shoreham has been set forth .in ,

the Contentions themselves.  !

~

SOC urges the Board to admit each of the four subparts contained in Soc's Contention 7B for litigation in this proceeding or .in the alternative, to certify those issues as Board questions or to admit then far litigation on the same basis as Regulatory Guides.

Respectfully submitted, Stephen B. Latham Twomey, Latham & Shea Counsel for Shoreham opponents Coalition 33 West Second Street y P.O. Box 398 Riverhead, New York 11901 i

l Dated: December 31, 1981 Riverhead, New York i

1 I'

- CCLKETCP U'illRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'82 JM -4 P 5 :06 BEFORE THE ATOMIC SAFETY AND LICENSING _B.OARD w , . .. J SE CRE TA 00CKEil!!G & SEHv:C-In the Matter of ) BRANCH

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322 (OL)

)

(Shoreham Nuclear Power Station,)

Unit 1) )

. .; CERTIFICATE OF SERVICE. _. ,

I hereby certify that copies of " Memorandum of Shoreham Opponents Coalition (SOC) in Support of SOC Contention 7B" dated December 31, 1981, submitted by the Shoreham Opponents Coalition, in the above captioned proceeding, have been served on the following, by deposit in the United States mail, first class, this 31st day of

. December, 1981:

Louis J. Carter, Chairman Ralph Shapiro, Esq.

Administrative Judge Cammer and Shapiro 23 Wiltshire Road No. 9 East 40th Street Philadelphia, Pa. 19151 New York, N.Y. 10016 Mr. Frederick J. Shon, Member W. Taylor Reveley, III, Esq.

Atomic Safety & Licensing Board Huntori & Williams U.S. Nuclear Regulatory Comm. P.O. Box 1535 Washing ton , D.C. 20555 Richmond, Va. 23212 Dr. James L. Carpenter, Member Jeffrey Cohen, Esq.

Atomic Safety & Licensing Board Deputy Commissioner & Counsel U.S. Nuclear Regulatory Comm. New York State Energy Office Washington, D.C. 20555 Agency Bldg. 2 Empire State Plaza Edward M. Barrett, Esq. Albany, N.Y. 12223 General Counsel Long Island Lighting Co. Atomic Safety & Licensing 250 Old Country Road Appeal Board Mineola, N.Y. 11501 U.S. Nuclear Regulatory Comm.

Washing ton, D.C. 20555 Atomic Safety & Licensing Board U.S. Nuclear Regulatory Comm. Samuel J. Chilk, Secretary Washington, D.C. 20555 Docketing and Service Station U.S. Nuclear Regulatory Comm.

Howard L. Blau, Esq. Washing ton, D.C. 20555 217 Newbridge Road

, Hicksville, N.Y. 11801

David J. Gilmartin, Esq. J.P. Novarro Suffolk County Attorney Project Manager, LILCO Suffolk Co. Dept..of Law P.O. Box 618 Veterans Memorial Highway. Wading River, N.Y. 11792 Hauppauge, N.Y. 11787 Energy Research Group, Inc.

Patricia Dempsey, Esq. 400-1 Totten Pond Road Asst. County Attorney Waltham, Mass. 02154 Suffolk Co. Dept. of Law

. Veterans Memorial Highway Bernard M.'Bordenick

- Hauppauge, N.Y.. 11787 Counsel for NRC Staff.

U.S. Nuclear Regulatory Comm.

MHB. Technical' Associates Washing ton , D.C. 20555 1723 Hamilton Avenue

- Suite K Nora Bredes San Jose, Ca. 95125 SOC Coordinator 195 E. Main Street Jeffrey L. Futter Smithtown, N.Y. 11787 Long Island Lighting Co.

250 Old Country Road Mineola, N.Y. 11501 Ql tan.y I . .? u -

Stephen /B. Latham I

f h _ _ _ _ _ . _ _ _ _ . _ _ . _ _ _ _ . _ _ _ ____._________._____.________._____m._ _ . _ _ _ _ . _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ . - _ _ _ _ _ _ . _ _ . _ _-_. . . _ _ _ . _ _ _ . _ _ _ _ _ . _ . _ _ _ _ . _ . _ _ _ - .