ML20054E162
| ML20054E162 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 04/22/1982 |
| From: | Stephen Burns NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| EA-81-063, EA-81-63, NUDOCS 8204260204 | |
| Download: ML20054E162 (15) | |
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Q UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMISSION BEFORE THE COMMISSION
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In the Matter of BOSTON EDIS0N COMPANY l
Docket No. 50-293 ll (EA81-63)
(Pilgrim Nuclear Power Station)
J NRC STAFF'S REPLY TO THE ATTORNEY GENERAL OF MASSACHUSETTS' BRIEF IN SUPPORT OF HIS PETITION TO INTERVENE o>
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UNITED STATES OF AMERICA NUCLEAR REGULATORY CON 4ISSION BEFORE THE COMMISSION In the Matter of BOSTON EDIS0N COMPANY Docket No. 50-293 (Pilgrim Nuclear Power Station)
NRC STAFF'S REPLY TO THE ATTORNEY GENERAL OF MASSACHUSETTS' BRIEF IN SUPPORT OF HIS PETITION TO INTERVENE Stephen G. Burns Counsel for NRC Staff i
April 22, 1982 certif
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
BOSTON EDISON COMPANY
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Docket No. 50-293 (Pilgrim Nuclear Powar Station)
NRC STAFF'S REPLY TO THE ATTORNEY GENERAL 0F MASSACHUSETTS' BRIEF IN SUPPORT OF HIS PETITION TO INTERVENE On April 2,1982, the Attorney General for the Commonwealtn of Massachusetts filed a brief in support of his February 17, 1982 request for a hearing on the Director of the Office of Inspection and Enforce-ment's " Order Modifying License Effective Immediately." 47 Fed. Reg. 4171 (Jan. 28, 1982).
In his supplemental brief, the Attorney General reasserts his claim of an unqualified right to a hearing. Because the Attorney General misunderstands the nature and scope of the Director's enforcement action and ascribes legal defects in well-established Commission precedent where none exist, his brief merits this reply.1
Summary of Argument The principles governing the appropriate disposition of the Attorney General's petition are clearly set forth in the Commission's decision in Public Service Co. of Indiana (Marble Hill Nuclear
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The Coninission's rules of practice neither require nor forbid supplemental filings like the Attorney General's brief.
The rules do permit " amended petitions for leave to intervene," and the Staff has treated his brief as such.
t
.m,.
. Generating Station, Units 1 & 2), CLI-80-10,11 NRC 438 (1980) (herein-after Marble Hill).
In that landmark decision, the Comission held that it was not required to hold a hearing on an enforcement or(er under section 189a of the Atomic Energy Act of 1954, as amended, at the request of a person who did not claim injury from the terms of the order itself but who, instead, complained that the order did not go far enough. The Comission found it reasonable to limit proceedings in the enforcement context to the question of whether the particular remedy proposed in the order should be sustaineo. Requests to hold a hearing on more drastic remedies were properly viewed as requests for action under 10 CFR 2.206.
Although the Comission could hold a discretionary hearing, it was not required by section 189a to hold a hearing on such a request.
Marble Hill is on all fours with the present case. The Attorney General does not allege that he is harmed by the terms of the Director's Order Modifying License, but claims, nonetheless, that he is entitled to a hearing to consider further enforcement action. On the basis of the principles articulated in Marble Hill, the Comission is clearly not required to hold such a hearing, and a discretionary hearing is not appropriate. The Attorney General attempts to avoid the clear import of the Marble Hill decision by erroneously analyzing applicable Comission and judicial precedent. The staff's response to these analytical errors follows.
The Nature of This Enforcement Action The order on which the Attorney General demands a hearing imposes an additional restriction on the Boston Edison Company's pre-existing
. authorization to opeFate the Pilgrim Nuclear Power Station.2/
Specifically, the ordar requires the licensee to submit a plan to improve its oversight and operation of the Pilgrim plant and to implement that plan once it is approved by the Administrator of NRC Region I.
The licensee did not, nor does the Attorney General, contest the imposition of the order's restrictions on the Pilgrim license.
The Order Modifying License was an enforcement order issued pursuant to the Commission's general authority to prescribe the standards and restrictions governing the operation of facilities licensed under the AtomicEnergyActof1954,asamended.2/ Because it purports to modify (i.e., amend) the terms of a previcusly issued license, the order is subject to the procedural requirements of section 189a of the Atmomic Energy Act that are applicable to all actions of the Commission "for the granting, suspending,revokingoramendingofanylicense."SI
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47 Fed. Reg. 4171 (Jan. 28, 1982), ---as modified, 47 Fed. Reg. 8899 (March 2, 1982)
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See Atomic Energy Act 5161i(3), 42 U.S.C. 2201(i)(3). The Attorney General implies incorrectly that section 234 of the Act, which authorizes the Commission to impose civil penalties, is the source of the Commission's authority to establish " enforcement policy" by order.
See Attorney General's Brief at 7-8.
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42 U.S.C. 2239(a). Contrary to the Attorney General's suggestion, the Staff does not contend that, as an enforcement action, the Director's order is somehow not subject to section 189a.
See Attorney General's Brief at 7-9.
All orders to modify, suspend or revoke a license, including orders to show cause under 10 CFR 2.202, are subject to the requirements of section 189a, and the Commission has treated them as such in Marble Hill and subsequent See, e.g., Public Service Co. of Indiana (Marble Hill cases.
Nuclear Generating Station, Units 1 & 2), CLI-80-10,11 NRC 438 (1980).
The Attorney General =Is Not Entitled to a Hearing i
The Attorney General does not aver that the interests he represent;s:
are adversely affected by the terms of the Order Modifying License nor does he contest the imposition of the order.
In the absence of an allegation that he is adversely affected by the terms of the order itself, the Attorney General is not entitled to a hearing on the Order Modifying License as a matter of right under the " standing" tests applied by this Ccmmission. Marble Hill, CLI-80-10,11 NRC 438 (1980);
Consumers Power Co. (Big Rock Point Plant), CLI-81-32,14 NRC 962 (1981);
Florida Power & Light Co. (Turkey Point Plant, Units 3 & 4), CLI-81-31, 14 NRC 959 (1981).
Nonetheless, the Attorrey General believes that he "need not show that the citizens of Massachusetts are harmed by the requirements which the Staff has thus far imposed in this proceeding." Attorney General's Brief at 15. Rather, in his view, it is enough that the Attorney l
General allege that his interests might be affected if "the Commission or its staff requires the w'rong, or insufficient, changes in the Licensee's management systems and controls."
Id. at 5 (emphasis j
added). Thus, the Attorney General believes that he is entitled as a l
matter of legal right to a hearing to determine whether "further or different action" should be required.
Id. at 17. The Commission faced l
this precise claim in Marble Hill and determined that the petitioner l
was not entitled to a hearing as a matter of right merely because the petitioner claimed some additional enforcement remedy might be l
I i
. warranted E/ The Commission determined that, while it would be required to hold a hearing at the request of persons adversely affected by the particular remedy imposed by the order, it was not required under 189a to hold a hearing to determine whether further remedies should be ordered.5/
The Attorney General believes that Marble Hill was wrongly decided.1/ However, that belief appears to stem from the assumption
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CLI-80-10,11 NRC 438, 440 (1980). The Attorney General essentially concedes the point by admitting that "the Commission correctly decided that the petitioners in South Texas [CLI-80-32, 12 NRC 261 (1980)] had no right to a hearing on the sufficiency of its Order to Show Caiis'e." Attorney General's BrieT at 8 (emphasis added). The Attorney General distinguishes South Texas by calling the order to show cause " solely an enforcement order... [that] did not also commence a license amer.dment proceeding." This artificial distinction does not bear up under closer scrutiny. The Commission did not treat the petitioner's request in South Texas as anything other than a demand under 5189a for a hearing. Under 10 CFR 2.202(a), issuance of an order to show cause has the effect of instituting a proceeding to modify, suspend, or revoke a license, actions which give rise to 5 189a hearing rights.
Intervention has been granted in a contested case involving an order to show cause since the petitioners established that they would be adv'ersely affected if the proceeding did not result in the proposed order going into effect. Dairyland Power Cooperative (La Crosse Boiling Water Reactor), LBP-80-26, 12 NRC 367,372-73(1980). A similar result was reached in another contested case, Consumers Power Co. (Midland Plant, Units 1 & 2),
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The Commission also determined that, under its inherent authority to determine the scope of its proceeding and to assist in the exercise of its responsibilities, the Commission could initiate a hearing as a matter of discretion. CLI-80-10, 11 NRC 438, 442-43 (1980).
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In the Attorney General's view, the Commission " confused enforcement proceedings with 9 189(a) proceedings," viewed the Marble Hill order " solely as an enforcement action" and consequently erroneously nullified the grant of intervention rights by limiting the scope of hearings on the order. Attorney General's Brief at 8-9.
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. that the person requesting a hearing, not the order which gave rise to any 189a rights, determines the scope of any hearing. The Attorney General argues, "It is clearly the proceeding in its entirety, and not the particular terms of any order or application initiating the proceeding, against which the interests of a petitioner must be assessed." Attorney General's Brief at 4 (emphasis in original).
The fundamental flaw in this argument is that it overlooks the basic fact that in the absence of the order initiating the proceeding there would be no proceeding.
In this case, but for the Director's Order Modifying License, there would be no action of the Commission on which a peraon with an " interest affected" could demand a hearing.8_/Thus, the order initiating the proceeding establishes the essential context within which the scope of the proceeding and related hearing or intervention rights are determined. The Commission's adjudicatory tribunals tradi-tionally look to the order or notice giving rise to agency hearings to determinetheappropriatescopeofinquiry.E/
The Order Modifying License limits the scope of hearing to the question of whether or not the licensee should comply with its terms.
l Put another way, should or should not this particular order be 1
--8/
And, of course, in the absence of the order, the licensee here would be under no obligation to develop and implement the corrective action plan.
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See e.g., Carolina Power & Light Co. (Shcaron Harris Nuclear Power M ant, Units 1-4), CLI-80-12, 11 NRC 514 (1980); Commonwealth Edison Co. (Carroll County Site), ALAB-601,12 NRC 18, 24 (1980);
l Union Electric Co. (Callaway Plant, Units 1 & 2), LBP-78-31, 8 NRC 366, 370 (1978), aff'd ALAB-527, 9 NRC 126 (1979).
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sustained? See 47 Fed. Reg. 4173 (Jan. 28, 1982).
It should be remembered, too, that the purpose of enforcement orders is not to initiate a full-scale re-licensing of a facility. Unlike initial licensing proceedings, enforcement proceedings are narrowly focused on actions proposed against a pre-existing authorization.
Applying the " outcome" test applicable to the determination of whetherhehasbeeninjuredinfactbytheDirector'sorder,El e
s the Attorney General argues that he is adversely affected by the order,
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. because a possible " outcome" is that further enforcement action may be necessary. Attorney General's Brief at 5.
Thus, the Attorney General does,not allege any adverse effect from the terms of the order itself, p;-
but from some nonspecific claim that the Comission should take some 4
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additionai action. The Order Modifying License did not initiate a broad proceeding to consider whether some unspecified remedies may be appro-priate in the future nor does it foreclose the possibility of further enforcement action to supplement the order or to assure the licensee's adherence to the order. Th'e question at hand is simply whether the current Order Modifying License should remain effective. All concerned, including the Attorney General, agree that it should.
A petitioner can show! that he is entitled to a hearino or
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intervention if "a cognizable interest of the petitioiler might be adversely-affected if. the proceeding has one outcome rather +.han another." Nuclear Engineering Co. (Sheffield Low Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 743 (1978).
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Nonethele:is, the Attorney General argues that the Commission cannot limit the scope of any Commission-initiated proceeding except as to the general " subject matter of the proposed amendment." See Attorney General's Brief at 9.
This argument ignores the basic principle that the Commission, like other administrative agencies, has the basic authority to define the scope of its proceedings. See City of San Antonio v. CAB, 374 F.2d 326 (D.C. Cir.1967). As the Commission noted in Marble Hill, it is empowered to impose reasonable restrictions on the scope of inter-vention in its proceedings and, in the exercise of its discretion to implement the enforcement policy it deems best, the Commission may limit the scope of enforcement proceedings to the question of whether the remedy at hand should be imposed.
11 NRC at 441, citing Moog Industries
- v. FTC, 355 U.S. 411, 413 (1958). As the Attorney General himself admits, no private right of action exists to enforce the Atomic Energy Act.
Attorney General's Brief at 8.
Moreover, the Commission is not required to initiate hearings to determine whether it should exercise its discre-tion to initiate enforcement proceedings.
See Porter County Chapter of the Izaak Walton League, Inc. v. NRC, 606 F.2d 1363,1369 (D.C. Cir.
1979); People of the State of Illinois v. NRC, 591 F.2d 12,14 (7th Cir.
1979). Although the Attorney General avers that the foregoing cases have no relevance to this proceeding,33/ these cases in fact underscore the principle that this Commission has the authority to decide when and to what extent it will initiate formal enforcement proceedings.
11/ Attorney General's Brief at 9 n.2.
9 Judicial opinicis regarding the expanded view of administrative standing do not compel a different result. The two principal cases cited by the Attorney General dealt with intervention in the context of contested proceedings that were akin to NRC initial licensing proceedings.
See Office of Communication of United Church of Christ
- v. FCC, 359 F.2d 994 (D.C. Cir.1966) (license renewal proceeding);
National Welfare Rights Organization v. Finch, 429 F.2d 725 (D.C. Cir.
1970) (hearing to determine state's eligibility to receive AFDC funds). Moreover, the standing doctrines enunciated in these decisions do not abrogate an egency's authority to limit the scope of its proceedings.
Indeed, the Finch case acknowledges such authority and suggests that the agency has the authority to terminate hearings notwithstanding an intervenor's objection that the agency's actions are insufficient or beyond the scope of its authority. 429 F.2d at 738-39.
In a more recent case, the District of Columbia Circuit Court of Appeals has declined to compel the Environmental Protection Agency (EPA) to hold an administrative h' earing when the only objection to EPA's partial cancellation of a pesticide registration was to the permissive aspects of the cancellation.
Environmental Defense Fund, Inc. v.
Costle, 631 F.2d 922, 935-37 (D.C. Cir.1980), cert. denied, 449 U.S.
1112 (1981). The Environmental Defense Fund (EDF) did not challenge the cancellation aspects of EPA's notice, but claimed that it was adversely affected by the failure to cancel the remaining uses of the pesticide and was therefore entitled to an administrative hearir;g. The court held that EDF was not entitled to an administrative hearing to determine t
O whether the pesticide cancellation should have gone farther than EPA required.
Id.at937.E/ This decision provides strong support for the principle that the NRC is not compelled to institute hearings to consider whether enforcement action beyond the scope of the action at handshouldberequired.E/
floreover, the Sholly decision does not support the Attorney General's position. Sholly v. NRC, 651 F.2d 780 (D.C. Cir.1980),
cert. granted, 451 U.S.1016 (1981), cited in Attorney General's Brief at 16, 18-19.
The Commission has sought Supreme Court review because it does not agree with the reasoning and result in the Sholly decision.
However, in all events, one critical difference exists between Mr.
Sho11y's request for a hearing and the Attorney General's. Mr. Sholly claimed that he would be harmed by the venting of TMI-2's containment atmosphere and he claimed that the order did not comply with applicable statutory procedural requirements. See Sholly, supra, 651 F.2d at 789 n.25.
The Attorney General, by contrast, does not claim that his iriterests were harmed by the terms of the Order Modifying License and
-12/ The underlying administrative order that was the subject of judicial review was noted with approval by the Commission in its Marble Hill decision.
See CLI-80-10,11 NRC 438, 442 n.2 (1980).
13/ The court noted in EDF v. Costle the availability of judicial review of EPA's decisions not to require more extensive cancellation of a pesticide's permissible use. See 631 F.2d at 937. A similar remedy is available to the Attorney General here. The Attorney General may demand further action under 10 CFR 2.206 if he believes that the staff's actions in accepting the licensee's plan are insufficient j
or if he believes measures in addition to the implementation of the plan are required. Any refusal by the NRC to adopt the Attorney General's concrete proposals would be subject to judicial review. Unlike the Attorney General, the Staff does not find the opportunities under 10 CFR 2.206 an unreasonable or ineffective l
remedy. See text at 11-12 infra.
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concedes that the order was issued in proper fashion. See Attorney General's Brief at 15-17.
No Discretionary Hearing Should be Initiated As the Comission recognized in Marble Hill, the Comission may initiate a discretionary hearing.
11 NRC at 442-43.
In its answer dated March 2,1982, to the Attorney General's original request for a hearing, the Staff discussed the reasons why a discretionary hearing should not be initiated. See Staff Answer at 14-16. The Attorney General seeks to rebut this analysis by claiming that the suggestion that he may file a petition under 10 CFR 2.206 is a " disingenuous" offer. Unless his inter-vention is allowed, the Attorney General believes that he "has no access to the ' specific facts' which would allow him to ' demonstrate a need for further action.'" However, the Attorney General does have and will have access to all currently available and future inspection reports on the licensee's past and any future derelictions, submittals by the licensee to the staff, and the staff's written responses and positions on the licensee's actions. Given the availability of this basic data, the Attorney General does not explain why he is unable to formulate his views on the adequacy of the licensee's plan and the NRC's enforcement actions, except to say that he would not be privy to the staff's processesofreviewandcompromise.b Yet, if the Attorney General
-14/ Attorney General's Brief at 18. Even in formal adjudications, the Attorney General is not absolutely entitled to examine the internal deliberative process by which the staff reaches its enforcement decisions. See Consumers Power Company (Palisades Nuclear Facility),
ALJ-80-1, 12 NRC 117, 125-26 (1980). He would only be entitled to articulation of the basis for a particular action or declination to act.
O files a 2.206 request proposing certain further action on the basis of specific facts, the staff will be required to articulate the basis for declining to adopt that proposal. The Attorney General has not demon-strated why a hearing is necessary to take such steps, nor have the courts required a hearing in such circumstances. Porter County Chapter, supra, 606 F.2d at 1369; People of the F. ate of Illinois, supra, 591 F.2d at 14.
Conclusion For the basic reasons that the holding of a hearing is not required by law and is not an appropriate exercise of discretion, the Attorney General's request for a hearing should be denied.b Respectfully submitted,
%G%
Stephen G. Burns Counsel for NRC Staff Dated at Bethesda, Maryland, this 22nd day of April, 1982,
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If the Commission chooses to refer the Attorney General's request to a Licensing Board for decision, the staff requests that the Commission clearly state whether it intends the Board to determine solely whether a hearing is required as a matter of right or l
l whether the appropriateness of a discretionary hearing as well as the need for a required hearing are within the scope of the Board's authority. This articulation is necessary in view of the Appeal Board's recent decision in ALAB-670, in which the Appeal Board, in spite of the Licensing Board's contrary conclusion, determined that, in the absence of the Commission's express proscription of its authority, the Connission's lower tribunals are inherently l
empowered to order discretionary holdings in enforcement i
proceedings. The staff does not believe that the Commission has granted such a broad delegation in enforcement, as opposed to licensing, proceedings. Cf. 10 CFR 2.785(a).
l 1
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
BOSTON EDISON COMPANY Docket No. 50-293 (Pilgrim Nuclear Power Stetion)
CERTIFICATE OF SERV _ ICE I hereby certify that copies of NRC STAFF'S REPLY TO THE ATTORNEY GENERAL OF MASSACHUSETTS' BRIEF IN SUPPORT OF HIS PETITION TO INTERVENE in the above-captioned matter have been served on the following persons by deposit in the United States mail, first class, or, as indicated by an asterisk through deposit in the Nuclear Regulatory Conmission's internal mail system, this 22nd day of April, 1982.
Samuel J. Chilk
- Thomas G. Dignan, Esquire Secretary of the Commission Ropes & Gray U.S. Nuclear Regulatory Comission 225 Franklin Street Washington, D.C. 20555 Boston, Mass. 02110 Jo Ann Shotwell, Esquire Docketing & Service
- Assistant Attorney General U.S. 'Juclear Regulatory Commission Environmental Protection Division Washington, D.C. 20555 Public Protection Bureau Department of the Attorney General Atomic Safety and Licensing Appeal Panel
- One Ashburton Place,19th Floor U.S. Nuclear Regulatory Cons.lssion Boston, Mass. 02108 Washington, D.C. 20555 Atomic Safety and Licensing Board Panel
- U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Stephen G. Burns Counsel for NRC Staff i
t