ML20056G335

Comment Opposing Proposed Rule 10CFR2 Re Review of 10CFR2.206 Process

ML20056G335
Person / Time
Site:	Palo Verde, Turkey Point, Duane Arnold, Clinton, South Texas, San Onofre, Comanche Peak
Issue date:	08/27/1993
From:	Axelrad M NEWMAN & HOLTZINGER
To:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
References
FRN-58FR34726, RULE-PR-2 58FR34726-00003, 58FR34726-3, NUDOCS 9309030012
Download: ML20056G335 (11)

Text

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df ^.l i j W A S HIN GTO N. D. C. 20036 5610 TELEPHONER (202) SS5 6600 FAO IPO2) 872 0 5 81 'M AUROE AXELRAD. -{202)955-6626 August 27,'1993 Samuel J. Chilk,. Secretary U.S. Nuclear Regulatory Commission I Washington, D.C. 20555 1 E Attn: Docketing and Service Branch 'i Re: Comments Recardino 4 2.206 Process j t

Dear Mr. Chilk:

~ l In the Federal Register notice of June 29, 1993 'l (58 Fed. Reg. 34726), the Nuclear Regulatory Commission requested j comments regarding its review of its regulations and practices i' governing petitionc filed under 10 CFR 2.206. [ \\ In response to such request, we are pleased to submit i 'the enclosed " Comments Regarding the S 2.206 Process" on behalf i of: I Arizona Public' Service Co.. Florida Power & Light Co. Houston. Lighting & Power'Co.- -Illinois Power Co.- Iowa Electric Light & Power Co. Southern California Edison Co. c-Texas Utilities-Electric Co. e q All of these companies hold NRC operating licenses for . nuclear-reactors'and believe in the importance of an effective p S.2 206 process for use by the public. 3 I .As shown in the enclosed comments, the S 2.206 process j has met its. objective of providing the public an effective, l D . equitable and creditable mechanism to bring to the-NRC's' l attention concerns that'a facility-is not operating in conformity L with applicable regulatory requirements, or:other safety ^ N l concerns,-to request action on those concerns, and to obtain a .rea'soned decision from the agency in response to.those concerns. .Although some' potential. enhancements have been identified, k primarily with respect to interactions between the NRC and [ } .e f 9309030012 9 M i dh p*,,,Ja.m mt 1

I hs-I NewMAN 6c Hor.Tz1xonn. P.C. t Samuel J. Chilk, Secretary i August 27, 1993 Page 2 petitioners, there are no indications of any significant flaws in i the S 2.206 process. Accordingly, we urge the NRC not to adopt any changes that would further formalize the process and divert i scarce NRC and licensee resources from other tasks that are more j important to safety of operations. j Sincerely yours, s Maurice Axelrad l /tg

Enclosure:

As Stated l f I i I f I s l i s I i 3 I l } r.,.~r r, s w w

. wo, l NDOMN & HOLTZINGER, P.C. i l COMMENTS REGARDING S 2.206 PROCESS 5 i In its Federal Register notice of June 29, 1993 (58 Fed. Reg. 34726), the Nuclear Regulatory Commission (NRC) i announced that it was initiating a review of its regulations and l practices governing petitions filed under 10 CFR 2.206. As the first step in that process it held a public workshop on July 28, 1993 where participants from citizens' groups, industry and government could exchange information on the objectives of the j S 2.206 petition process, its effectiveness, and, what, if any, revisions should be made to the process. To help focus discussion at the vorkshop, the NRC issued a Background i Discussion Paper which outlined the scope of the review, provided background information on the 5 2.206 process, and identified several broad categories of potential improvements for discussion at the workshop. i The Federal Register notice established an agenda for the workshop which focused on the four areas of principal interest to the Commission, i.e., whether the S 2.206 process was meeting its objectives and three broad areas of potential improvements in the process (increasing interaction with the i petitioner; focusing on resolution of safety issues rather than i on requesting enforcement action; categorizing petitions i according to importance of issues raised). The first four sections of the comments below address the four areas identified in the Federal Register notice. The i last two sections of the comments (1) address an extraneous j subject (judicial review) that was briefly discussed during the i open portion of the workshop agenda, and (2) summarize our { principal conclusions regarding the S 2.206 process. 1 1. Perspectives On The S 2.206 Process - What Are The Objectives Of the S 2.206 Process? Do The Current Procedures And Process Meet These Objectives? What Is The Relationship Of The S 2.206 Process To Other Mechanisms For The Public to Identify Safety Problems? The objective of the S 2.206 process is to provide members of the public an effective, equitable and credible mechanism to bring to the. Commission's attention concerns that a facility is not operating in conformity with applicable ] regulatory requirements, or other safety concerns, to request agency action on those concerns, and to obtain a reasoned decision from the agency in response to those concerns. In our view, the 5 2.206 process meets its objective and functions effectively. a

^ The process is readily available for use by the public and facilitates the filing of petitions. A petitioner is not required to make any showing of standing or affected interest. The petition itself can be very simple. The petitioner need only identify a request.ed action and state minimal f acts that would provide grounds for the action. In practice, the petitioner need only provide sufficient information so that the NRC can understand the safety concern to be reviewed. Review of the petition is assigned to the NRC office with programmatic responsibility for the subject matter of the petition. This assures that the most knowledgeable and expert resources within the agency will perform the review. It also assures the most effective use of the agency's resources. If the petition is denied, in whole or in part, the NRC provides the petitioner a carefully reasoned, detailed decision summarizing the basis for the agency's decision, including related actions that may have been taken by the licensee or the NRC and the reasons why the action requested by the petitioner is not warranted. Although formal review of the decision by the Commission is discretionary, each Commissioner, with the assistance of his/her staff, examines each decision to determine whether more formal review is warranted. As discussed in the workshop, some enhancements in the S 2.206 process would be useful. For example, as discussed in Section 2 below, some improvements could be made in interactions between the NRC and petitioners. But there has been no showing of any basic flaw in the S 2.206 process, and major changes are not warranter? and would be counterproductive. Criticisms of the S 2.206 process because it has historically resulted in few formal enforcement actions or formal hearings are mistaken. Since the vast preponderance of S 2.206 petitions involve issues that have been or are already being addressed by licensees and the NRC and rely on licensee or NRC documents, it's understandable that few petitions would result in formal actions. When additicnal action is warranted, it is usually undertaken voluntarily by the licensee. If the S 2.206 process were, in fact, to result in a significant number of formal hearings or enforcement actions, that would be an indicator that the overall NRC regulatory process is not functioning effectively. There is no merit to the argument that additional hearings should be provided through the S 2.206 process in order to attain more public credibility for the process. Such action would unnecessarily divert scarce NRC and licensee resources that are better spent in assuring safe operations of facilities. It would result in overjudicialization of the S 2.206 process rather ; "w

4 i than the achievement of sound technical resolution of safety concerns. Both the Background Issues Paper and the agenda in the l Federal Register notice questioned the relationship between the l S 2.206 process and other existing mechanisms to bring safety problems to the Commission's attention. I The most effective mechanisms for identifying and-1 resolving any safety problems at a plant, and for bringing any significant problems to the NRC's attention, are a licensee's-l extensive operational, surveillance and review programs. Literally hundreds of thousands of issues are routinely 1 identified and resolved each year through these standard programs. The NRC inspection program, which includes at least two resident inspectors stationed at each reactor site and frequent inspections by Regional and Headquarters personnel, is another l effective mechanism for identifying any safety _ problems. l In addition, most reactor licensees have a formal I program (such as Hotline, Safeteam, Speakout, etc.) under which l current employees of the licensee or its contractors, exiting or i former employees, and members of the public can bring safety problems to the attention of the licensee. These programs provide a mechanism under which individuals can identify concerns l anonymously or in confidence, if they prefer. Similarly, employees or members of the public can bring I safety concerns directly to the NRC, where they are handled under the NRC's allegation management system. Allegations are assigned to the appropriate office or region of the NRC for processing, and are assessed for safety significance to permit ranking and resolution in a timely manner. The licensee is often requested to address the area of concern, subject to NRC audit, in order to l minimize expenditure of NRC resources. Allegations are tracked l to resolution and the alleger is informed of the close-out. The-l allegation management system is an effective process which is complementary to, but not a substitute for, the S 2.206 process. i I The public also has other opportunities to participate in oversight of a licensee's activities. An interested person can request a hearing on any license an'.andment. Any member of l the public can request and/or participate in rulemakings. If an order has been issued, an interested person can request a hearing on whether the order should be sustained. i Thus, it is apparent that S 2.206 is not the primary t mechanism for bring safety concerns to the Commission's attention, but rather a back-up to other effective means of l identifying issues. Section 2.206 petitions frequently consist I

4 of a reiteration of matters that were previously disclosed-and addressed as a result of licensee programs, the NRC inspection system or the allegation management system. Accordingly, as previously noted, it is understandable that few S 2.206 petitions would result in additional formal NRC actions. 2. Potential Revisions To The S 2.206 Process: Increased Interaction Between The NRC Staff And The Petitioner Although the NRC effectively addresses concerns raised in S 2.206 petitions, it is apparent that some petitioners are dissatisfied with their ability to participate in the process and with the information that they receive as to the progress of the NRC's review. We would urge the NRC to take reasonable steps to improve its interaction with petitioners. When a petition is accepted, the NRC should inform the petitioner of the identity of an NRC contact at the working level who can respond to any inquiries by the petitioner as to the status of its petition. In addition, if resolution of the petition will be prolonged the petitioners should be periodically informed as t3 the progress of the NRC's review. It is important that the NRC clearly understand the requested actions and the petitioner's supporting grounds. If necessary in order to achieve such understanding, the NRC should ask the petitioner clarifying questions or meet with the petitioner, as appropriate. Although the NRC indicated at the workshop that its internal procedures call for providing the petitioner with copies of NRC-licensee correspondence relating to the petition, it appears that this practice has not been followed uniformly. The l NRC should assure that the petitioner receives such material j (unless it is of a proprietary nature). If the NRC holds. meetings with the licensee relating to the petition, the petitioner should be provided an opportunity to attend as an observer. Subsequently, the petitioner should have an opportunity to address any additional information relating to the petition that has been provided by the licensee in its correspondence or meetings with the NRC. A corollary to keeping the petitioner better informed is to assure that the licensee is fully informed regarding the petition anc its progress. A licensee should receive copies of' all correspondence between the petitioner and the NRC and be provided an opportunity to attend any NRC-petitioner meetings as an observer. The licensee should also be given an opportunity to address any additional information that has been provided by the petitioner in its correspondence or meetings with tae NRC. '

. ~. -- \\ J J i In its discussion of increased interaction with petitioners, the Background Discussion Paper mentioned possible consideration of increased formalization of interaction with a licensee, such as requesting licensees to respond to issues l raised in the petition under S 50.54(f). Such formalization of the relationship with the licensee is unnecessary and would be counterproductive. Many licensees already provide voluntary l responses to petitions. When requested by the NRC, they readily l cooperate in providing any additional information desired by the l NRC without the need for a formal request. Formalizing the l obtaining of information from licensees relating to S 2.206 petitions would waste resources and would imply, contrary to existing practice, that voluntary cooperation by licensees has been insufficient to meet NRC needs. i 3. Potential Revisions To The S 2.206 Process: Shift The Focus Of S 2.206 Petitions From A Specific Enforcement Action To The Exploration And Resolution Of The Underlying Safety i Issue j 1 Any member of the public who wishes to raise a safety ) issue, without requesting a specific enforcement action, can l readily do so outside of the S 2.206 process. Presumably such issue would be addressed by the NRC under its allegation { management system, would be tracked to resolution and the member of the public would be informed of the close-out of the issue. l However, it does not seem that this would be a j substitute for the present S 2.206 process that enables a member j of the public to request an enforcement action and to receive a reasoned decision on his/her request from a responsible NRC l official. l t Nevertheless, even though the S 2.206 process hinges on t a petitioner's request for action, it should be possible to shift l the focus of the NRC responses to emphasize how the underlying l safety issue has been addressed, rather than on whether a formal hearing has been granted or a formal enforcement action taken. t As previously discussed, the effectiveness of the j S 2.206 process should be judged by whether safety concerns raised in petitions have been fully and timely resolved, and not i by whether additional formal hearings or enforcement actions were required to achieve such resolution. Although the NRC does seek j to explain its rationale in its S 2.206 decisions, it appears that the public may still not fully understand that the basic purpose of the process has been satisfied through resolution of the underlying safety concern. The NRC should strive to make this point more explicit in each of its S 2.206 decisions. ) j, + 1 I .-,y,

t ' 9 4. Potential Revisions To The S 2.206 Process: Establishing Categories Of Petitions According To Significance Of The Issues Raised And Specifying Different Levels Of Internal Review Accordina To These Cateoories s-The Background Discussion Paper mentioned the possibility of establishing internal NRC criteria for categorizing petitions in order to determine the level of effort and the types of procedures to be used on each petition. Particularly in view of the limited number of S 2.206 petitions filed each-year, there appears to be no need to establish such criteria. There is no indication that the NRC has misapplied its resources in dealing with S 2.206 petitions or has -failed to consider petitions adequately. In fact, discussion at the workshop indicated that S 2.206 petitions may get expedited treatment beyond that warranted by the safety significance of the issues raised -- which may be understandable in view of the public involvement. The screening of petitions and assignment of resources are typical functions that should be performed by agency management through the exercise of discretion based on the specific circumstances involved. The process should not become overformalized through the establishment of criteria. Such I criteria may even be counterproductive, since they might cause delay or diversion of resources because of potential disputes regarding appropriate categorization. i There was extensive discussion at the workshop about the possibility of establishing some type of internal review of NRC decisions on S 2.206 petitions. The principal reason cited appeared to be a concern about the credibility of an NRC decision when a S 2.206 petition is reviewed by the_same NRC personnel who were responsible for previous evaluations of the safety concerns. In our view, establishing routine NRC internal review of S 2.206 petitions is wholly unnecessary and would constitute a wasteful diversion of NRC resources. Each 5 2.206 decision is reviewed informally by the Commissioners, with the assistance of their staffs, who can readily determine whether any particular decision is sufficiently significant or questionable that a second review might be useful. If such question arises, the Commissioners obviously have the discretion to decide on an ad hoc basis what type of additional NRC review should be conducted. Concerns about having review of S 2.206 petitions performed by the same individuals who performed previous evaluations are without foundation. These are technical questions decided by professionals, with oversight from multi-levels of review within the agency. Since these professionals are competent to decide without bias the thousands of issues that arise each year in the course of reviewing amendment requests, inspection reports, and enforcement actions, they are certainly,

I able similarly to act competently in the review of S 2.206 - petitions. l The establishment of routine internal reviews of S 2.206 decisions would not be an effective use of NRC resources. Since the most knowledgeable and expert NRC personnel are j assigned to act on the 5 2.206 petition, it is doubtful that other personnel assigned to a review of the-S 2.206 decision would add significant technical insight to the decision. l Moreover, assigning personnel to such review would divert scarce i NRC. resources from regulatory functions that would contribute l more effectively to safety of operations. Similarly, retainino I additional personnel or consultants simply to perform internal j reviews of 5 2.206 decisions would be a wasteful diversion of NRC i funds. It can always be argued that a second opinion has some value, but there is no reason to believe that, in the absence of r specific circumstances where the Commission so determines, NRC' l S 2.206 decisions would benefit from such additional review. j i The suggestion was made at the workshop that NRC { internal review of S 2.206 decisions could be performed by the l Atomics Safety and Licensing Board or the Office of Commission Appellate Adjudication, perhaps on an informal basis. In our view, this suggestion is even less worthy of consideration than a technical internal review within the NRC Staff. Regardless of how this review were structured, it.would transform a process for the technical resolution of safety concerns into a legalistic process, which is not a desirable mechanism for addressing technical questions. Such a process would be even more wasteful of NRC and licensee resources, with little likelihood that it would contribute significantly to the soundness of the ultimate j technical decisions. j t 5. Judicial Review Although not part of the overall topic of actions that could be taken by the NRC to improve the efficacy of the S 2.206 process, the subject of judicial review of NRC denials of S 2.206 i petitions was briefly discussed during the open portion of the { agenda at the workshop. Accordingly, we are providing some brief comments on that extraneous subject. l l For many of the reasons that were expressed by Chairman l Selin both at the workshop and in his recent testimony on l S. 1165, " Nuclear Enforcement Accountability Act of 1993," we are strongly opposed to judicial reviewability of denials of S 2.206 i petitions. The courts have held that the enforcement decisions l of Federal agencies, except in limited circumstances, are within the agency's discretion and not subject to judicial review. Such holding is soundly based on the fact that in making enforcement decisions, an agency like the NRC must have the discretion to _7_ l l 4 i i

~. -~ ~ l I' i -l weigh such factors as whether a violation.or.other safety concern exists, the safety significance or seriousness of the particular j violation or concern, actions that have already been taken or are { being taken by the licensee and/or the NRC, priority of the j violation or concern as compared to other issues that are being i or could be addressed by the licensee and/or the NRC, and I 3 availability of NRC resources and their appropriate allocation. l Such' discretionary decisions within the expertise of an agency I should not be subject to judicial review. l t ) The judicial decisions denying reviewability of l enforcement actions apply uniformly to federal agencies. There is no reason why the NRC should be singled out to have its l enforcement decisions subject to judicial review. In fact, in l light of the comprehenttive regulatory program implemented by the NRC, which is unmatched by any other Federal agency in its ? breadth and thoroughness, there is even less justification for making NRC enforcement decisions subject to judicial review than there would be for any other agency. In addition, although NRC representatives at the i workshop indicated that the NRC has not changed its practices ( regarding S 2.206 petitions since courts have held NRC decisions t unreviewable, we are concerned that under current circumstances l the NRC would feel compelled to develop a more extensive record } if its decisions became judicially reviewable. This would i additionally escalate and focus disproportionate attention and l NRC resources on the relatively small number of allegations raised in S 2.206 petitions, without regard to their actual safety significance. The Commission may also be inclined to formally review more decisions in order to minimize the possibility of subsequent judicial reversal. These additional j efforts would not only divert NRC efforts from attention to'more important safety issues, but would increase regulatory costs j chargeable to industry in license fees. I Section 2.206 has provided an effective process for NRC to review and respond to enforcement petitions and there has'been no showing that petitions have been treated improperly or that significant safety issues have not been properly addressed. The i burdens that would arise from judicial reviewability should not be superimposed on the S 2.206 process in the absence of a j demonstration that current practices are inadequate.

Although, as discussed above, some enhancements of the S 2.206 process should be considered by the NRC, there is no basis for singling out the NRC for judicial review of its decisions regarding j

requested enforcement actions. j l i I l Iy l

i 6. Conclusions The S 2.206 process has proven to be an effective I mechanism for the public to raise safety concerns before the NRC, request action and obtain a reasoned decision from the NRC. The process can readily be initiated by any member of the public and is implemented by knowledgeable, responsible NRC personnel. There is no indication that underlying safety issues identified in S 2.206 petitions have not been soundly addressed and resolved. Although few formal hearings or enforcement actions have resulted from S 2.206 petitions, this does~not reflect any deficiency in the S 2.206 process. To the contrary.it demonstrates the effectiveness of the numerous other licensee and NRC programs, which are the primary mechanisms for routinely identifying and resolving safety issues. The S 2.206 process could be enhanced through improved { interactions between the NRC and petitioners and increased emphasis in NRC decisions on how the underlying issues raised in l the petition have been addressed and resolved. However, any + changes that would further formalize the S 2.206 process are l unnecessary, would be counterproductive and should be avoided. In the absence of any showing of a significant flaw in the process, no change should be adopted that would divert scarce NRC j and licensee resources from other tasks that are contributing to safety of operations. j i I i t i i i i t l i e _.}}