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- N UNITED STATES
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t NUCLEAR REGULATORY COMMISSION f
WASH 4NGTON, D.C. 205S5 t
E May 29, 1992 t
OFFICE OF THE COMMISSIONE R MEMORANDUM FOR:
Samuel J.
Chilk Secretary (4W)k, b
FROM:
James R.
Curtis
SUBJECT:
REQUEST BY NRC FF TO ISSUE DECOMMISSIONING ORDER FOR SHOREHAM FACILITY ON AN IMMEDIATELY EFFECTIVE BASIS (COMSECY-92-014)
This case, in my view, presents a number of important issues of first impression for the Commission with regard to how we will interpret and apply our decommissioning rule.
The manner ir.
which we resolve the issues in this particular case will therefore establish an important precedent for how our decommissioning rule will be applied in future cases.1 I
therefore believe that we should be mindful of the precedential significance of the action that is taken here.
Moreover, because the crux of the issue before us in this case involves the question of public participation in our decisionmaking process, I believe that this case deserves our most careful and considered attention.
The Commission is called upon in this case to decide whether, under our decommissioning rule, the public will be provided an opportunity to participate in the agency's decisionmaking. process for review and approval of a decommissioning plan for a nuclear powerplant and, if so, how and when. In my judgment, the salient issues before us can be summarized as fcilows:
(1)
Should interested members of the public be offered an opportunity to comment on a licensee's proposed decommissioning plan?
1 In this regard, I would note that I see nothing unique about the instant case that would distinguish it from future decommissioning proceedings that will come before the agency.
The only immediately apparent basis -- the fact that the~
petitioners in this case, by their own admission, have pursued every avenue of delief to prevent the decommissioning of the Shoreham facility, whereas future petitioners may well have a good faith interest in commenting on the particulars of how decommissioning of a facility will be achieved -- provides little, if any, basis for distinguishing the two situations.
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(2)
If so, should that opportunity be of an informal " notice and comment" nature, or should a more formal hearing be offered?
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(3)
Should the opportunity to comment on a licensee's decommissioning plan, whether it I
be of an informal or formal nature, arise before the Commission approves that plan, or is it sufficient to provide that opportunity l
after the decommissioning plan is approved by l
the Commission?
I.
Opportunity for Public Comment With regard to the first issue, the decommissioning rule itself provides that before approving a licensee's proposed decommissioning plan, the commission will first provide " notice to interested persons" of the agency's action.
See 10 CFR 50.82(e).
I do not construe this provision as merely contemplating that the Commission will simply inform the public l
of its intention to issue a decommissioning order (DO) approving a licensee's proposed decommissioning plan.
Indeed, it is l
apparent, if this provision is to have any real meaning, that the provision contemplates that interested members of the public will be provided an adequate opportunity for meaningful particination in the decisionmaking process.2 To accomplish this, some form of comment process for interested members of the public must, l
therefore, be provided.3 II.
Nature of the Comment Process If the decommissioning rule is construed as contemplating an opportunity for public comment, that, in turn, leads to the second issue:
What type of comment process -- an informal notice and comment-type process or a more formal hearing -- should be provided?
In the context of the specific case before us, this 2 See,. Summary, Analysis, and Response to Public Comments on Proposed Amendments to 10 CFR Parts 30, 40, 50, 51, 70, and 72
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(NUREG-1221), p. C-2 ("The staff believes that the public will have adequate opportunity for meaningful participation.
").
3 OGC's analysis appears to reach the~same conclusion --
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that the decommissioning rule contemplates something more than simply serving notice on interested members of the public of the action that the Commission intends to take -- albeit via an analysis that rests upon OGC's conclusion that the action taken by the Commission is a granting of " regulatory permission" that, in turn, falls within the first sentence of section 189a.(1).
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issue was, for all intents and purposes, addressed when the staff published a notice providing an opportunity for a formal hearina.
i See 56 Fed. Reg. 66459 (Dec. 23, 1991).
Accordingly, if interested members of the public are to be offered an opportunity to comment on a licensee's proposed decommissioning plan, that opportunity in this particular case must be a formal hearing.'
III. Public Comment Before or After Issuance of Decommissioning Order The third and final issue before the Commission is whether the l
public's opportunity to participate in the agency's l
decisionmaking process should come before or after the agency issues a decommissioning order approving a licensee's decommissioning plan.
The answer to this question is, in my l
view, self-evident:
If we are serious in our desire to solicit l
and take into account the views of the public as part of our decisionmaking process, then we should establish a process that ensures that those views are available to us and taken into account before rendering a decision.5 To convene a " post-
' I would note that the relevant provisions of the decommissioning rule could be read as permitting the Commission to employ informal " notice and comment" procedures, akin to the
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process that we employ for rulemaking, to satisfy the obligation that interested members of the public be given an opportunity to I
participate in the decisionmaking process, particularly if one views the action being taken here as the " lifting of a suspension".
While this option is effectively foreclosed here as a consequence of the position taken by the staff in the December 23, 1991 Federal Register Notice, I believe it is an option that would be permissible under the rule.
5 I am not persuaded by the argument that since the decommissioning order itself does not authorize the licensee to undertake any action that would be inconsistent with its license, the public will therefore have an opportunity to participate if and when the need should arise to amend the license in order to carry out the decommissioning plan.
As a practical matter, given
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the nature of the Possession Only License that has already been issued, I doubt that there will be many instances where amendments will be required to permit decommissioning to go forward.
As a consequence, I do not believe it is appropriate to hold out the prospect of public participation at whatever various future junctures amendments might be necessary.
If, on the other hand, it turns out that numerous license amendments are required in order to permit decommissioning to proceed, I question the wisdom of an approach that would have us offer individual hearings (upon the request of interested persons) on each of
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those amendments.
Such an approach strikes me as an unwise and
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-4 effectiveness hearing" that will be taking place at the same time that the licensee is authorized to undertake irreversible decommissioning activities,6 with very little practical likelihood that the results of such a hearing would be sufficiently persuasive to cause us to reopen the previously-granted decommissioning order, is, in my judgment, a difficult approach to defend.
Beyond this, however, I would reiterate what I believe to be the most compelling argument in f avor of of fering an opportunity for a hearing prior to issuance of the decommissioning order:
Both the staff and the Commission have consistently taken the position that a pre-effectiveness hearing will be provided prior to the issuance of a decommissioning order.
See Carr Letter of September 15, 1989; Murley Letter of September 15, 1989; SECY 247; and the Staff Requirements Memorandum of August 25, 1989.
As OGC notes, to decide now that a pre-effectiveness hearing will not be provided would constitute a reversal of the Commission's previously-stated position.7 For the foregoing reasons, I believe that we should withhold approval of the proposed decommissioning plan pending completion of the hearing process that the agency has instituted.8 Such an approach would be consistent with both the spirit and the letter inefficient (not to mention disjointed) way to address these issues, when the logical alternative would be to offer a single hearing at the outset, prior to issuance of the decommissioning order, with the focus on the decommissioning plan and any amendments that might be necessary to implement that plan.
6 To cite the most obvious instance of irreversibility, the staff has noted that " approval of the SNPS decommissioning plan will permit irreversible actions to be taken inasmuch as the licensee's method of decommissioning is the DECON alternative, and could affect the ability to select another decommissioning alternative."
See SECY 92-140, p.
5.
7 I do not disagree with OGC's response to petitioners' estoppel arguments, but would submit that in light of the Commission's earlier decisions, there is a principle involved here that is more important than whether there is a lecal basis for the Commission to reverse its earlier position that a pre-effectiveness hearing will be provided, a Recognizing the licensee's concern about the possible loss of access to low-level waste disposal sites after this year, I would recommend that we direct the Licensing Board to accelerate the hearing process so as to complete the hearings this summer.
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. of the decommissioning rule and the Atomic Energy Act', as well as provide a sound and rational approach for future decommissioning proceedings.
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The Chairman Commissioner Rogers Commissioner Remick Commissioner de Planque OGC
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' The approach advanced by OGC is, in my view, fully l
consistent with a reasoned interpretation of the Atomic Energy i
Act.
Indeed, I do not disagree with the approach outlined on legal grounds, but instead on policy grounds.
I would note, however, one important legal implication of the approach outlined by OGC:
In the past, the Commission has been quite cautious in its interpretation of the reach of the hearing requirements of section 189a. of the Atomic Energy Act.
In particular, the Commission has been careful to confine the proceedings for which it believes a hearing must be offered to those actions which are explicitly listed in section 189a.(1)
(i.e.,
any proceeding under this Act for the granting, suspending, revoking or amending of any license or construction permit, or application to transfer control
").
- Fee, e.a.,
Lona Island Liahting Co. (Shoreham Nuclcar Power Station, Unit 1), CLI-92-4, 35 NRC 69, 76-77 (1992).
I am not aware of any instance in which the Commission has interpreted section 189a. as providing a right to a hearing for proceedings beyond those expressly set out in 189a.(1).
The proposal in the instant case to treat the Shoreham decommissioning order as a form of " regulatory permission.
subject to the post-effectiveness hearing requirement of the first sentence of section 189a." would appear to be just such an expansion.
A Commission ruling that a " regulatory permission" granted by the agency is among those actions for which section 189a. requires a hearing could, in my view, have serious legal ramifications.
As OGC points out, exemptions from the regulations constitute a form of " regulatory permission."
So, too, do waivers of ASME Code requirements under 10 CFR 50.55a(g) (6) (i).
In fact, much of what tho NRC does in its routine regulation and oversight of the nuclear industry amounts to the grant or denial of a " regulatory permission" of one form or another.
The implication of the proposed Commission ruling cn
" regulatory permission" is that many of NEC's day-to-day oversight activities could well wind up subject to the notice and
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hearing requirements of section 189a.
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POLICY ISSUE (NEGATIVE CONSENT)
April 16, 1992 SECY-92-139 For:
The Commissioners From:
William C. Parler General Counsel Subiect:
IMPLEMENTATION OF THE ADMINISTRATIVE DISPUTE RESOLUTION ACT (PUBLIC LAW 101-552)
James M. Cutchin IV, NRC's designated Dispute Resolution Specialist has prepared
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4/20/92
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. b. n.E h+N [u. !,x'DueDate:4/30/92 Reviewed By:
Joe Gray
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Coordinated With:
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Recommend:
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..w m a. p e rjo,: n:p., ;c. r; + r SECY-92-139: (Negative Conshnt') Mpidmd$tation of he ' Administrative Dispute Resolution Act (Public Law 101-552,)w.[..
Remarks:
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