ML20056G412

Comment Supporting Proposed Rule 10CFR2 Re Review of 2.206 Process

ML20056G412
Person / Time
Site:	Millstone, Browns Ferry, Nine Mile Point, Hope Creek, Turkey Point, Bellefonte, Washington Public Power Supply System
Issue date:	08/31/1993
From:	Wetterhahn M WINSTON & STRAWN
To:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
References
FRN-58FR34726, RULE-PR-2 2.206, 58FR34726-00009, 58FR34726-9, NUDOCS 9309030095
Download: ML20056G412 (9)

Text

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.C Mr. Samuel J.

Chilk

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Washington, D.C.

20555 i

ATTN:

Docketing and Service Branch

~ ~ ~ ~

Re Commission Review Of Regulations And Practice Governing Petitions Under 10 C.F.R. 52.206; 58 Fed. Reg. 34726 (June 29, 1993)

Dear Mr. Chilk:

On June 29,

1993, the Nuclear Regulatory Commission

("NRC")

initiated a

review of its regulations and practice governing petitions under 10 C.F.R. 52.206 requesting the NRC to take enforcement action (58 Fed. Reg. 34726).

In connection with i

this review, the NRC requested public comment on the 52.206 process and, in particular, on a background discussion paper prepared by the NRC Staff.

In response to that request,

.e submit these l

w comments on behalf of Florida Power Corporation, Niagara Mohawk Power Corporation, Northeast Utilities, Public Service Electric &

Gas Company, the Tennessee Valley Authority, and Washington Public Power Supply System.

I.

INTRODUCTION The S2.206 petition is the primary formal procedure for a member of the public to request the NRC to take enforcemen".

action.

It is in addition to the many mechanisms for the.

identification and resolution of safety and regulatory issues by i

licensees and the NRC.

The vast majority of issues are routinely identified and resolved by licensees.

In addition, the NRC maintains comprehensive oversight of the operation of its licensees through extensive and intensive inspection and regulatory programs.

i The S2.206 process provides the public with a valuable i

mechanism to bring concerns to the attention of the NRC, and i

thereby aids the NRC in assuring that its enforcement i

9309030095 930831 p

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Mr. Samuel J.

Chilk

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August 31, 1993 Page.

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l responsibilities are carried out.

Through the development of this f

i petition practice, the IRC has created an innovative procedure that j

encourages public participation in the enforcement arena.

In this

~

respect, the S2.206 process has worked well as one part of the l

Commission's overall framework for identifying and resolving safety issues.

Therefore, while some improvements to the process of review of 52.206 petitions by the Staff may be appropriate, significant alterations to the NRC's current S2.206 practice are unnecessary.

l The S2.206 process, while providing this opportunity for public participation in the enforcement context, also preserves the NRC's discretion to determine whether action is warranted in a l

given situation.

This discretion is essential for the NRC to evaluate the complex factors that lead to a decision to enforce or not to enforce.

As the Supreme Court has stated:

l 3

[A]n agency decision not to enforce often involves I

a complicated balancing of a number of factors which are peculiarly within its expertise.

Thus, i

j the agency must not only assess whether a violation l

has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency's overall policies, and indeed, whether j

the agency has enough resources to undertake the l

action at all.V

+

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The IEC staf f must have this flexibility to react to new safetv issues and to prioritize its resources.

Excessive formalism associated with one class of issues would only detrr<:t from the agency's ability to carry out its mission.

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Consistent with the concerns noted by the Supreme Court, j

and the NRC's recognition of "the reality of shrinking rather than i

expanding resources,"Il we concur that the NRC's review of its l

S2.206 practice should seek to accomplish two goals:

i I

i F

Heckler v.

Chanev, 470 U.S.

821, 831, 105 S.

Ct. 1649, L

1655-56 (1985).

il 58 Fed. Reg. 34726.

t 9

6

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Mr. Samuel J. Chilk August 31, 1993 Page 3 (1) maximize oublic Darticipation to the extent practicable, given limited NRC Staff and licensee resources; and (2) avoid over-Droceduralization of the S2.20C Drocess that might detract from the Staff's ability to exercise its discretion in considering S2.206 petitions nr lead to judicial review of Directors' Decisions.

With these goals in mind, the remaincer of our comments address specific issues outlined in the Staff background discussion paper, as well as concerns regarding judicial review of citizen petitions (as discussed at the NRC's public workshop on July 28, 1993).

We also provif.e specific recommendations for improvements to the S2.206 prc c is.

II.

DISCUSSION The Staff background discussion paper prepared in anticipation of the public workshop focused on three specific areas of potential change to the NRC's 52.206 practice:

Increasing interaction with the petitioner; e

Focusing on resolution of safety issues rather than on requested enforcement action; e

Categorizing petitions and allocating more resources according to importance of issues raised.

We examine each of these areas below and also discuss issues surrounding the possibility that changes to S2.206 might result in judicial review of Director's Decisions.

A.

Increasing Interaction Between The NRC Staff And The Petitioner Although the NRC Staff makes every effort to foster public participation in the regulatory process and openness in its decisionmaking, petitioners sometimes complain that, from their perspective, the S2.206 process appears to be a " black box."

At the public workshop, public interest group representatives stated that they sometimes submit petitions and subsequently receive denials from the NRC with no intervening communication with the Staff.

Therefore, the Staff background discussion paper offers

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Mr. Samuel J.

Chilk August 31, 1993 Page 4

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ceveral euggestions for increasing interaction between the Staff f

and the petitioner.

Of those suggestions, we agree that the ImC should assure that the petitioner receives copies of all correspondence related to the petition in question until the disposition of the petition by the IRC.

In addition, the IEC should expand its practice of opening informal lines of communication with the petitioner after a petition is filed to focus or narrow the issues in question.

Such improvements to the process could enhance public participation without over-proceduralizing the practice or adding to Staff or licensee burdens.

Participants in the public workshop also expressed a related concern that the IEC sometimes treats letters from members of the public to the ImC as S2.206 petitions regardless of whether the writer actually intended to file a formal petition.

Increased informal communication between the Staff and members of the public writing to the Imc -- e.g.

asking the writer if a S2.206 petition was intended -- could alleviate this concern.

The NRC should not, however, create formal procedures for meetings involving the Staff, licensee, and petitioners, licensee responses under oath pursuant to 10 C.F.R. 550.54 (f), or public discussions of issues raised in the petition.

Informal use of l

these practices depending upon the particulae circumstances

^

surrounding a petition might improve interaction between the petitioner and the Staff.

In many cases, this type of informal interaction already exists.

For example, licensees often provide unsolicited responses to S2.206 petitions.

However, institutionalization of meetings or responses under oath would create a significant drain on Staff and licensee resources and would not offer any offsetting increase in safety.

In addition, any new regulatory requirements concerning S2.206 procedures might r

be interpreted as " law to apply" to a given case and thereby 3

subject Directors' denials of petitions to judicial review (see Section II.D below).1/

1/

S_eq Greater Los Anceles Coun. On Deafness v.

Baldridge, 827 F.2d 1353, 1360 (9th Cir.

1987)

(Department of Commerce regulations requiring Department official to "make a prompt investigation whenever a compliance

review, report, complaint or any other information indicates a possible failure to comply" constituted law to apply for reviewing court).

SCS ALE 2, Wallace v.

Christensen, 802 F.2d 1539, 1552 n. 8 (9th Cir.1986) (en banc); Abdelhamid v.

Ilchert, 774 F.2d 1447, 1450 (9th Cir. 1985).

i Mr. Samuel J.

Chilk August 31, 1993

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Page 5 t

B.

Focusing On Resolution Of Safety Issues Rather Than On Recuested Enforcement Action The Staff background discussion paper examined two options to refocus the S2.206 petition process towards resolution of safety issues, rather than soecific enforcement actions.

The first option raised in the paper was that if the Staff decides that an issue of some importance has been raised, and the Staff decides that it should make additional inquiries, inspections, or investigations, the petition could be granted with the actual outcome of the additional efforts left open.

According to the background paper, this would serve to acknowledge the legitimacy of the petitioner's concerns.

t The Staff should not, however, leave open the outcome of a petition simply to acknowledge that issues were raised by a l

petitioner.

52.206 petitions request that the NRC take specific actions, such as shutting down a plant or modifying or revoking a license.

Thus, postponing a final determination would place a

{

licensee in the difficult position of not knowing for extended periods of time whether a particular license provision is valid or, indeed, whether a plant may be operated at all.

This uncertainty would complicate licensee planning efforts and result in significant expenditures that might not otherwise be necessary.

The second option examined in the background discussion paper would involve a

change in the regulation permitting petitioners to request that the Commission consider a safety issue or issues, alleging violation of a Commission rule or policy, rather than requesting a soecific enforcement action. According to the paper, this would de-emphasize the enforcement implications of a petition and focus on more general safety concerns.

e There is no need,

however, to promulgate additional i

regulations to permit a petitioner to ask the Commission to consider general safety issues.

Petitioners could more i

appropriately address generic issues by filing a petition for rulemaking under S2.802, or by informal means, such as a letter to the Staff.

In addition, S2.206 petitions already often raise general safety concerns in the context of requesting enforcement action, and the NRC may effectively act on these safety concerns, even though it denies the specific relief requested in the petition.

The recent Thermo-Lag petition provides a notable example of this.

Finally, as previously noted, additional i

regulatory requirements could be interpreted as triggering judicial.

j review of Directors' denials of petitions.

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Mr. Samuel J.

Chilk August 31, 1993 Page t>

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C.

Categorizing Petitions And Allocating More Resources According To Importance Of Issues Raised; Providing An Interpal Review Process For Directors' Decisions The background paper noted that one option being considered by the Staff would be to establish internal criteria for i

determining the level of effort and the types of procedures to be l

used on each petition.

In addition, for the category of petitions which the Commission has determined raise the most significant issues, the paper stated that the Staff might consider explicitly amending S2.206 to provide some type of internal review of the Director's decision.

The NRC should not formalize the S2.206 process in this manner.

As the Staff stated in the discussion paper, a

i

" disproportionate" amount of time and resources are already spent coordinating decisions on S2.206 petitions. In addition, the Staff indicated in the public workshop that safety issues -- including i

S2.206 petitions are categorized depending upon safety significance utilizing the same standards and procedures as for all issues before the Staff.

Thus, formal categoriz cion of petitions would further divert limited Staff and licensee resources from other direct regulatory responsibilities, such as processing license amendment requests, inspection and enforcement activities, research, and promulgation of regulations. The three categories of petition proposed by the Staff 9 are too inflexible to account for the complex range of technical and regulatory issues that may be raised by a petition.

The Staff must have the flexibility to address each petition individually and expend the appropriate level of effort.

In particular, the NRC should not amend S2.206 to provide t

for internal review of Director's Decisions, or, as some public interest groups have recommended, to provide for Atomic Safety and Licensing Board ("ASLB") review of these decisions.

There is no need for such review.

With its combination of regulatory experience and technical expertise, the NRC Staff is the organization most qualified to decide upon 52.206 petitions.

A 9

The background discussion paper divides petitions into three categories:

(1) those that merely raise issues and cite information previously evaluated by the NRC Staff; I

(2) those that raise a significant issue or issues with regard to a specific licensee; and (3) those that raise large significant unresolved generic safety issues 1

affecting one or more licensees.

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i Mr. Samuel J. Chilk August 31, 1993 l

Page 7 I

subsequent review by persons less qualified woulu only add to the time and resources spent on petitions without offering any i

corresponding safety benefit.

Furthermore, ASLB judges should not i

review Director's Decisions.

The ASLB panel was designed f

specifically to rule only after the compilation of an exhaustive administrative record and a hearing, rather than to consider j

enforcement decisions and compile such a record itself.

Thus, the l

ASLB panel, while containing both legal and technical judges, should not be put in the position of second-guessing NRC Staff i

determinations regarding the myriad of factors including i

decisions concerning complex technical matters and resource allocation considerations -- that inform a decision to enforce or not to enforce.

In

addition, during the public

workshop, Staff representatives stated that the NRC Office of General Counsel 3

("OGC") reviews Directors' Decisions to ensure that the Staff has-adequately addressed issues raised in petitions.

Thus, there is l

already an informal review of Staff determinations under 52.206.

Finally, as explained in detail below, any regulatory change specifying a formal review process or categorization of petitions could potentially constitute " law to apply" in a given case and i

thereby subject Directors' Decisions to judicial review.

Such a i

result would consume Staff time and would impose further costs on licensees with no countervailing benefit.

D.

Judicial Review Of 52.206 Petitions The Supreme Court has recognized for over a century that an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion and presumptively unreviewable.I' The Court has noted that such enforcement decisions are unsuitable for judicial review because they involve factors within the l

peculiar expertise of the agency, such as resource allocation considerations and technical expertise, and because "an agency l

generally cannot act against each technical violation of the statute it is charged with enforcing. "F With respect to S2.206 i

1/

Heckler v. Chanev, 470 U.S.

821, 105 S. Ct. 1649 (1985)-

United States v. Batchelder, 442 U.S.114, 99 S. Ct. 2198 I

(1979); United States v.

Nixon, 418 U.S.

683, 94 S. Ct.

3090 (1974); Vaca v.

Sides, 386 U.S.

171, 87 S.Ct. 903 (1967); Confiscation Cases, 7 Wall. 454 (1869).

F Heckler v.

Chaney, 470 U.S. at 831, 105 S. Ct. at 1656.

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Mr. Samuel J. Chilk August 31, 1993 i

Page 8 E

i petitions in particular, courts have generally found that l

Director's Denials are within the NRC's enforcement discretion and -

therefore judicially unreviewable.F Chairman Selin, in his introduction to the public workshop on July 28, 1993, reiterated his opposition to judicial review of S2.206 petitions requesting enforcement action, noting that agency enforcement decisions in general are not subject to such review.

l The NRC should avoid promulgating regulatory changes to the petition process that would provide specific, formal standards or procedures for review of S2.206 petitions.

One of the bases of l

the Supreme Court's Heckler v.

Chaney holding that enforcement decisions are presumptivel unreviewable was that Congress had provided no " law to apply."3 That is, Congress did not indicate an intent to circumscribe agency enforcement discretion or provide meaningful standards for defining the limits of agency l

discretion.F Several U.S.

Court of Appeals decisions subsequent i

to Heckler v.

Chaney have found that acency reculations could provide a court with " law to appl _y" and thereby subject agency l

decisions to judicial review.B

Thus, when considering l

i F

Sag, e.g.,

Safe Enernv C-lition v.

NRC, 866 F.2d 1473 (D.C.

Cir. 1989); Massac.;setts v.

IEC, 878 F.2d 1516 l

(1st Cir. 1989).

Nonetheless, Congress is currently l

considering legislation that would amend Section 189 of 4

the Atomic Energy Act ("AEA") to provide for judicial review of S2.206 petitions.

(Sag S.1165,

" Nuclear Enforcement Accountability Act of 1993," proposed by Senator Joseph Lieberman (D-Conn.) on June 24, 1993.)

The IEC should oppose this legislation.

It is unnecessary, and would result in' placing costly burdens l

on licensees and, ultimately, utility ratepayers.

As Chairman Selin stated at the public workshop on July 28, j

d'

1993, the NRC already has an extremely thorough inspection and enforcement regime, and Congress should j

not single out the IEC for review of enforcement decisions.

F Heckler v.

Chaney, 470 U.S.

834-35, 105 S. Ct. 1657.

1

\\

y w

W Sgg Greater Los Anceles Coun. on Deafness v. Baldridae, 827 F.2d 1353 (9th Cir. 1987); Wallace v.

Christensen, 802 F.2d 1539, 1552 n.

8 (9th Cir. 1986)

(en banc) ;

(continued...)

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1 Mr. Samuel J.

Chilk August 31, 1993 Page 9 i

regulatory changes, the NRC must take into account the possibility that creating a more formal, structured process could restrict its t

enforcement discretion and subject Director's Decisions to review by the courts.U/

III.

CONCLUSION AND RECOMMENDATIONS i

The S2.206 process has worked well in the past and does not need significant modification.

However, informal measures to enhance public participation may be desirable. Such measures could i

include increased communication between the Staff and petitioner, and/or providing petitioner with correspondence related to issues raised in the petition.

In addition, the NRC might clarify the procedures that it currently follows in reviewing S2.206 petitions j

and update petitioners as their requests for enforcement action i

move through each step of the S2.206 process.

The NRC should not, however, make any formal changes to j

its S2.206 practice, including provision of an independent review of Director's Decisions, categorization of 52.206 petitions, or a modification of NRC regulations governing the petition process.

These steps are unnecessary, and would divert scarce Staff and l

Licensee resources from other important regulatory responsibilities.

l Respectfully submitted s

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Mark J. Wetterhahn Mark J. Hedien WINSTON & STRAWN 101(... continued)

Abdelhamid v.

Ilchert, 774 F.2d 1447, 1450 (9th Cir.

I 1985); State Bank of India v. NLRB, 808 F.2d 526, 536 n.

12 (7th Cir.1986) ; Hill v. Groun Three Hous. Dev. Coro.,

799 F.2d 385, 394-95 (8th Cir. 1986).

EU If the NRC does decide regulatory changes are necessary, i

any new regulations should plainly protect agency discretion.

Sgg Webster v. Doe, 486 U.S. 592, 602 n.

7, 108 S.

Ct. 2047, 2053 (1988).

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