ML20076B902

Forwards Us Court of Appeals 830630 Decision in Ucs Vs Nrc. Court Struck Down Commission 820630 Decision That All Plants Sufficiently Safe Despite Failure to Comply W/Environ Qualification Requirements

ML20076B902
Person / Time
Site:	Crane
Issue date:	08/18/1983
From:	Weiss E UNION OF CONCERNED SCIENTISTS
To:	Buck J, Edles G, Gotchy R NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP), Atomic Safety and Licensing Board Panel
References
82-2000, NUDOCS 8308220076
Download: ML20076B902 (17)

Text

.

%gp UNION OF m

S '

• CONCERNED SCIENTISTS im C....tu.t me..e. s.w.. s. not. E24w m36. m mm BRANc k

August 18, 1983 Gary J. Edles, Chairman Dr. John H.

Buck Dr. Reginald L. Gotchy Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D.C.

20555 RE:

TMI-l Restart, Docket 50-289 Gentlemen:

Enclosed for your attention is the decision of the U.S.

Court of Appeals for the District of Columbia Circuit in UCS

v. NRC, No. 82-2000.

You will note that the Court struck down the Commission's determination of June 30, 1982 that all plants are sufficiently safe despite failure to comply with environmental qualifications requirements.

The Court held that this determination, made without any opportunity for public participation, violated the Atomic Energy Act, the Administrative Procedure Act and the NRC's own rules.

UCS v. NRC, Sl.op. at 19.

ALAB-729, Sl.op. at 173-175, relies on the vacated Commis-ion determination as justification for leaving unresolved UCS's environmental qualification contention in the Restart proceeding.

There is nowhere in the Restart record evidence to justify a finding that TMI-l can be safely operated despite failure to qualify equipment important to safety.

Nor is there any such lawful " finding" at the Commission level, as the Court's decision plainly states.

The most that can be said of the June 30, 1982 determination is that it presumably constitutes the Commission's current belief.

However, a belief which has been reached without the benefit of public participation cannot lawfully be used to determine an issue which has been fairly put before a licensing board, (Cf. Minnesota v. NRC, 602 f.2d 412 (D.C. Cir. 1979).

8308220076 830818 PDR ADOCK 05000289 G

PDR Main Office 26 Church Street. Cambridge. Massachusette 02238. (617) 547-5552

. kM.L3

. The Appeal Board has the obligation to determine whether TMI-1 can be operated without undue. risk to the public health and safety.

Under these circumstancas, you cannot avoid deciding whether the lack of qualification of safety equipment poses such risk.

UCS urges the Appeal Board to reconsider and amend ALAB-729 in view of the Court's decision.

Very truly yours,.

I i

Ellyn R. Weiss Enclosure cc:

TMI-l Servico List j

d v

- y

---y.

e,--..

,,m-,-

.c y.,w..,

e-e -..,.,, - -,., -,

.--,.,-,-re.,,,..ae,

.-,.,- a

+,m,-r,

< m r,,e,,e

.. ~,.,

.,va,-

o w

. r e

nl c.

S o h

e T.

itoe1 f

s s

)

tae a m.

t <

c n n f

n il i r r

o v

b n l

S Ir, tr t

i i e

a ur n E

l in.

l e o S

p i

N DT T

r i l

n i

e t

r aet u T I

NN N

l in.

O e

o T

A E E

f ss f

i

. h f

I e

D M

rs pt o

rr l

wo pU I

NN ei m

r s

v C

T P

t y e nut yI F

O O I

R i m R

I n

tn.

P I

I' U O r

o a.

o bC S

QN Om S

i

.h s

3 3 e-s ivt A

S, S

st l

E EE o

3 8 e

rs I

T MR V

nC 9 9

. r e

r r I

e f

r oe B

S a

Le t,

NR pt O M M A D E f y

, 0 e

1 1

f i

I w

e l cr a: c s.

T a

m1 s

l U 0

.ne T L 0

N OC T

oro 9

s 3

r, y.

CI P N O

0 E

R UI wt r C. i r n

i 1

I sp H C 2

C o

a e

l I

YE O

el y

i f

t u

a mr e

r n

r o I. oo D

R M R N v

i F

2 S

1 v

O u

t prt 8

D T A GO eg M

l.

1 6O o u pr t

e o e

n c A. l g T

E A F Y T R

hC i

I e

R d

i w

ht l

j S. a s S C o

N L O TA r

e e

N R

U

l. C o r b

me P R I

e F

e g

t h

i l

u w

uUrm l T E

G S l

I f a n

s i

T T

l.

nl r e it l

o s

uS C

E E i

i o lu c

t rt c

i c

wi lc.

o I

yv l D N

R A

UI o

A D 1

i 1

R T A

iu n rn i

hE O

f o e at t

A S R U iN nl

!=e C

i t rf n l

A t

n E, Q oou D T F

E, D i

i e e e n te ipp m

Ph s

oeki f

O a

E l

u.

Rr R

t 1

l s

lee f

C T C

m 1

O N

UI U

f

. i s.

h i

l ihlaCt l

F O

NN N

Rt r t.

o Tr l

I ee E

N U

e os leh r n

c, n

it o U

c f

e ye yn o f

f l

a i

o e.

ic' l

r i b l t t et a

t Nt n l 1

rti l

s.

oh o e s

u.

u e l

i inos J p t

I t n

2 3

I.

BACKGROUND Juan L. Rodriguez, Attorney, Nuclear Regulatory Com-4 mission, with whom E. Leo Slaggie, Acting Solicitor, This dispute had its origin on November 4,1977, when Sheldon L. Trubatch, Acting Assistant General Counsel, UCS filed a petition with NRC to address the ability of Nuclear Regulatory Commission, and Martin Green, At-safety-related equipment to function in an accident.'

tornty, U.S. Department of Justice, were on the brief, for Petition for Emergency and Remedial Action (Nov. 4, respondents.

1977) (Petition) (JA 352).$ I'etitioner adverted to I

the results of tests conducted under NRC contract at l

McNeil Watkins, II, with whom Nicholas S. Reynolds Sandia Laboratories in New Mexico. The testa suggested, was on the brief, for intervenor. Malcolm II. Philips, Jr.

inter alia, that certain electrical connectors could not also entered an appearance for intervenor.

maintain their integrity in the environment that would i

Before: WAI.D and MIKVA, Circuit Judges, and MAC-result from a loss-of-coolant accident.', UCS feared that failure of such connectors-and, by implication, other KINNON, Senior Circuit Judge, electrical componenta-during an accident might totally l

Opinion for the Court filed by Senior Circuit Judge disable vital safety systems. The petition requested NRC

]

MAcKINNON.

to shut down affected operating reactors and to suspend licensing for new plants until licensees could demonstrate

]

MAcKINNON, Sentor Circutt Judge: Th.is petition con-that safety-related equipment was qualified to function 1

cerns the regulation of certain safety-related equipment properly in an accident environment. Id.128d, e, f (JA that is needed to mitigate an accident or to shut down a 361-62). The Commission was also petitioned to " direct reactor following an accident in a nuclear power plant, the Staff to independently verify the environmental quali-The Union of Concerned Scientista (UCS) petitions fications of all safety-related systems, components, and 3

this court for review of a June 30,1982 rulemaking by structums." Id.128c (JA 361).

4 the Nuclear Regulatory Commission (the NRC or the Commission), which amended all operating licenses by In response, the Commission swiftly directed its Staff suspending indefinitely the deadline by which nuclear to report by November 9 on any safety matters requiring I

immediate action. The Staff concluded that no immediate facilities must complete " environmental qualification" of action was warranted.4 In addition, the Staff issued two such equipment. Equipment is " environmentally quali-

{

fled",if it has been proven capable of surviving and per-

• The petition also sought remedial action with respect to forming its function under accident conditions. The certain fire protection deficiencies. The Commission eventually j

Juna 30,1982 rule (hereinafter "the interim rule") has promulgated new fire protection rules. 10 C.F.R. $ 50.48 l

now been superseded by another rule on environmental (1982),

j qualification, promulgated on January 6,1983 (herein-2 Citations to the Joint Appendix are designated by "JA."

after "the final rule"). In promulgating the interim rule,

• Petition H 16 & Attachment A, Memorandum from R. Feit,-

however, the Commission made a factual determination Research Applications Branch. NRA, to L.S. Tong, Assistant upon which the final rule is predicated in part. Because Director for Water Reactor Safety Research, NRC, at 4-5 l

that factual determination was ma,de without affording t)

( Aug. 5,1977) (JA 365, 370-71).

i public notice and opportunity to comment, we grant the 4 Memorandum from Edson Case, Acting Director, Office of petition and remand for further proceedings.

Nuclear Regulatory Regulation, to the Commissioners (Nov.

9.1977) (.I A 396). The Staff concluded that " electrical con-

- e$6.

~'

v.

~ ~,

n

"*h i

F.h M).

k. N; E's 4

h c

h8 0

-\\

%p N,W y.

MG 4.,

.:4 g

tV s v W

.oW j.G R.T n

4

,d.

W;

%~

?

VW

'E f,,

M2 37' tesla,(.'the NRC dimeted thi 5taf

~ieview and evaluate,. %

t-l I

ion and Enfortement (I&E) Bulletins directing viro'ninental qualification of all) class IE ele

,,7,:first-priority matter,(the infety, adequacy and en-A',-

}

to provide information on electncal connectors o

in,

y systems.*

ment' in eleven older plants then participating in an q l

' ine Commission's first formal response to the UCS

[

ongoing NRC Syi,tematic Evaluation Program (SEP).

.s P

Iion was issued on April 13, 1978. Petition for Id. at 420 & n.28 (JA 23). Thereafter, the Staff was to nelyency and Remedial Action, CLI-78-6, 7 N.R.C. 400 determine whether to extend gi.aliacation myiew to all (1$ $) (JA 3). Finding on the basis of licensees':n-operating plants.' Id. at 42 '(JA 23).

j pliet to Staff inquiries that there was no immediate V

The Commission spent the next two years attempting, l

nees) to shut down all operating reactom, the Commis-with scant success, to obtain documentation of environ-i sioeQ denied the petition. Nonetheless, the Commission 3

mental qualification from licensees. Licensee failure to mpkted that a few plants had been shut down where 7-cooperate prompted the Staff to upgrade its documenta-ru uent inquiries had indicated that electrical con-

'l.

tion request to a mquirement in 1979. I&E Bulletin No.

were unqualified and licensees had not justified 79 01 (Feb. 8,1979) (JA 45); see Petition for Emer-l nued operation pending qualification or replace-gency and Remedial Action, CLI-80-21,.11 N.R.C. 707, With respect to three other plants that had i

neltber demonstrated qualification nor replaced unquali-713:(1980) (hereinafter "1980 Order") (JA 61). But licensees still tarried in submitting complete documen-fle$ components, the Commission permitted continued op-tation.

cratJon because the licensees had committed to a testing program whose preliminary results appeared promising.

Frustrated by grudging cooperation from licensees, the Id.pt 417-18 (JA 20-21). In all thne instances the NRC NRC in 1980 issued a new order that upgraded its docu-

]

expgessly found that operation pending completion of the mentation requirement even further. In dismissing a tests would not constitute an undue risk to the pubhc UCS petition to reconsider the 1978 Order, the Commis-

"" 8" 'D' sion noted that "some licensees ha[d] Ignored" their re-

)

sponsibility and had displayed "a disregard for [the]

As for safety-related equipment other than the elec-environmental qualification problem." 1980 Order, supm, 1

j trical connectors that were the subject of the Sandia 11 N.R.C. at 712, 713 (JA 66, 67). Accontingly, "[i]n Order to leave room for no doubt on this issue," the Com-nekors of the type that failed in recent Sandia testa generally mission set in motion a process that would elevate its amjaot being used in nuclear power plant safety systems that documentation demands to the status of license conditions.

arepuired to function under environmental conditions pres-i cnt,during a loss of coolant accident." Id. at 1 (footnote

' Class IE is the safety classincation of electrical equipment omi,tted) (JA 396).

and. systems essential to emergency reactor shutdown, con-

• )&E Bulletin Nos. 77-05 (Nov. 8,1977) and 77-05A (Nov.

tainment isolation, reactor core cooling, and reactor heat re-i 14,71977). These Bulletins are discussed in Petition for moval. Id. at 407 n.6 (JA 10).

]

Emergency and Remedial Action, CLI-78-6,7 N.R.C. 400,409-

.The Commission did in fact extend its review of the envi-

]

10 & nn.16-17 (1978) (heremafter "1978 Order") (JA 12-13).

ronmental qualification of all safety-related equipment beyond l

• Sce 1978 Order, supre note 5, at (12 (Pilgrim) (JA 15);

older, SEP plants to encompass all operating plants. See I&E i

id. at 415 (Browns Ferry) (JA 18) ; id. at 417 (D.C. Cook)

Bulletin No. 79-01, at 2 (Feb. 8,1979) (JA 47); I&E Bulletin I

(JK 20).

No.79-01B at 2-3 (Jan.14,1980) (JA 51-52).

~

l

.=

1

h 4

n r-3 y:

2, y

"/

,+

6 1'

.7 c

I

't 712 (JA 66). In addition, the NRC ordered,that 1 these submittals and durlig the spring of 1981 issued all ty-related electrical equipment in all operating Safety Evaluation Report, (SER) for each of the T be qualified by June 30,1982. Id. at 714-15 (JA operating plants. The'SERs identified all equipment fa

).The compliance deadline was incorporated into

.which qualification had not been demonstrated." Esel esse conditions and technical specifications of each licensee was given ten days in which to justify continu%

i e by individual onfers dated October 24, 1980.'

operation in the absence of complete qualification. Upot ly, the Commission stated that the new deadline did evaluation of the ten-day esponses, the Staff found thal l

not.[" excuse a licensee from the obligation to modify or each plant could safely continue operation in the interini

~

l mplace inadequate equipment promptly." Id. at 715 (JA SECY-82-51, supra note 11, at 1 (JA 220). Each licensq 69); Thus, if during the course of its ongoing review, the was then given 90 days in which to provide either (1) 1 l

Staff found " poor" documentation of qualification, or if documentation of missing qualification information at I

documentation " raise [d] questions about the ability of (2) a commitment to cornetive action (e.g., replacemen thel equipment to perform its intended function in acci-of the unqualified component), in which case the license l

dent conditions," the Staff "[would] make a technical would have to provide further justification for operatia judgment regarding continued operation." Id. In other until such cornetive action was complete. Id. at 1-2 (JJ l

words, the Commission made no finding that operation 220-21).

1 wasld necessarily be safe or unsafe until June 30,1982; 1

All 72 licensees chose the second option and submitte i

thal, question was entrusted to the technical judgment of the required "90-day responses." Id. at 2 (JA 221). Th thdStaff on a case.by-case basis during the course of its Franklin Research Center-(Franklin) was hind by th i

s.

l

• "E"I "'***

Commission to evaluate each of the justiAcations for con

. Pumuant to I&E Bulletin No.79-01B, licensees sub-tinued operation accompanying the responses." Franklii mitp' demonstrate its quali6 cation.

ed lists of equipment and documentation purporting

]

to The Staff" evaluated u SECY-82-51, " Staff Requirements-SECY-81-803B--Pro j

posed Rulemaking,' Environmental Qualification of Electrics i

• When adding these requirements to existing licenses, the Equipment for Nuclear Power Plants,'" at 1 (Feb. 4,1982l I

NRC published Federal Regieter Notices which provided notice (hereinafter "SECY-82-51") (JA 220). For r.n example of ai cf the proposed changes and afforded an opportunity for a SER, see Safety Evaluation Report by the Office of Nuclea heiIring upon the request of the licensee or any other inter.

Reactor Regulation, Equipment Qualification Branch, is ested person. See, e.g., 45 Fed. Reg. 75,369-97 (Nov.14, Metropolitan Edison Company, Three Mile Island Unit 1 (Man 1

1980); id. at 75,803-18 (Nov.17,1980). Apparently, no 24,1981) (hereinafter "ThMe Mile Island SER") (JA 75).

I hesirings were requested. By contrast, when the NRC, removed u Franklin was not assigned the task of verifying wheths the7 compliance deadline from all heenses in the interim order equipment identified as qualified by licensees was in fac

]

chaDenged by the instant petition, it did so w,thout affording qualified. Rather, Franklin assessed the justification for con i

engnotice or opportunity for comment. See pages 10-12 infra.

tinued operation in spite of the presence of unqualified equip 9While the Staff reviewed most of these submittals, those ment. Franklin described the scope of its review as confinet l

from the 11 older plants participating in the Systematic Eval-to the following:

j untion Program (discussed at pages 4 5 supra) were reviewed Review the licensee's justification of interim operatioi i

by the Franklin Research Center under contract to NRC. See and provide [ Franklin's] independent analysi:s whic]

l Brief for Respondent at 12.

shows whether or not licensee nrovided technically =nnm

... 4 2 :.

.M.

l

's f

8 that while 54 licensees had supported their (June 22,1981) (JA 111).%The Staff reconunended a one-year extension," while UCS. opposed any extension as cl(

that continued operation was justified,18 had not.

unsafe." The Commission took' no action on the petition i

F lin Review, supra note 12, at 6 (JA 171). The 5

knade yet another request for information from the at that time.

18 ticensees whose Juni.Ificatkna were deficient. SECY-

On January 20,1982, the NRC noticed and sought pub.

82-d, supra r:ote li, at 2-3 (JA 221-22). More informa-lic comment on a proposed rule respecting environmental tionbras submitted, and the Staff found by March 23, 198dthat the last 18 reactors could safely continue, to quali8 cation. Environmental - QualiScation of Electric Equipment for Nuclear Power Plants,47 Fed. Reg. 2876 opeyte pending completion of their qualification. pro-

~

(1982) (to be codi8ed at 10 C.F.R. pt. 50) (JA 71).

grams. See Memorandum from William J. Dircks, Execu-i tivelDirector for Operations, to Commissioner Ahearne The proposed rule generally would codify the Conunis-sion's action in the 1980 Onler, with two major excep-(Mdr. 23,1982) (JA 254).

4"- j i

tions. First, it contained a set of explicit criteria that T, $roughout this process of obtaining j.ustificat. ions for wem to be met by each licensee in order to justify the

, tapa operat,on, however, the Staff made clear its mten-l tionsto hold licensees to the June 30,1982 quali8 cation continued operation of each plant despite i--h-d==

e i

a in environmental quali8 cation. These are similar to the deadline that had been incorporated into all licenses. See, criteria contained in the SERs, see note 12 supra, and e.g.,?1'hree Mile Island SER, supra note 11, at 11 (JA 89).

essentially require a showing that a plant's safety sys-j On$une 22,1981, a group of NRC licensees petitioned tems will not be. disabled by failum of an unqualiSed l

thelNRC to extend the deadhr.: by 13 months. Petition NRC expected that all justi8 cations for continued opera-component. 47 Fed. Reg. at 2879, col.1-2 (JA.74). The forpnsion of Deadhne for Compliance with CLI-80-21 tion would be received and evaluated "well in advance I

nationale as a basis for justiAcation for continued plant of the effective date of the rule." Id. at 2877, col. 2 I

%peration.

I.JA 72). Second, the proposed rule provided an exten-Equ ment QualiAcation Review of Licensees' Resolution of sion of the June 30, 1982 deadline until the second m-Outstanding Issues from NRC Equipment Environmental fueling outage after March 31, 1982." This would ex-Qualineation Safety Evaluation Reports, Franklin Research Center, at 1 (Jan. 25,1982) (hereinafter " Franklin Review")

tend the deadline approximately two years. In addition, l

(JA,166).

further extensions could be granted to November 30,

}

Franklin was instructed to match the submitted justinca-1985, on a showing of gond cause, and beyond that date' tions against a set of four criteria, which permitted operation with' unqualified equipment only where (1) redundant environ-mtntally qualified equipment is available to perform essen-

" NRC Staff Response to Petition for Extension of Dead-ti2nally the same function; (2) another system is capable of line for Compliance with CL1-80-21, at 10 (July 31,1981) providing the same function as the unqualified system; (3)

(JA 133).

ths unqualified equipment would have performed its safety "See Union of Concerned Scientists' Response to Petition function prior to failure; or (4) the plant could be safely shut for Extension of Deadline for Compliance with CLI-80-21 and down in the absence of the unqualiRed equipment. SECY-82 NRC Staff Response Thereto (Sept. 18,1981) (JA 144).

51, supra note 11 App. A (JA 225). These criteria are essen.

tiilly identical to those contained in the SERs and in the

" Nuclear power plants typically shut down annually for Jannarv 20.1982 nroposed rule (discussed at pages 9-10 infra).

ggg

7

[

j 45

+

d 10

.i 11 i

NRC promulgated the interim rule, which amended all j

indeSnitely, in " exceptional cases." Id. at 2879, col.1 operating licenses by indefinitely suspending that dead -

l (JK,74).

line.82 The Commission ' expressly noted the interim na ',

submitted comments on the proposed rule. Com-ture of its suspension and indicated that the interim '

by Union of Concerned Scientists on Proposed rule "will be saperseded by the final rule bearing the i

R on Environmental Qualification (Mar. 25, 1982) same section number." Interim Rule, supra note 17, at i

(J 401). UCS argued, inter alia, that the proposed 28,363, col. 2 (JA 1). The Commission remarked that -

ion was unjustified, id. at 5-9 (JA 405-09), that it had expected to publish a final rule'before June 30, ;

j the )roposed rule's definition of safety-related equipment but "this ha[d] not proved possible." Id., col.1 (JA 1).

C j

wasGtoo narrow, id. at 9-13 (JA 409-13), and that the Relying on the " good cause" exception to the Adminis-trative Procedure Act, 5 U.S.C. I 553(b)(B) (1976) i; critiria for justifying continued operation pending quali-ficaf,lon were " vague and insubstantial" because they de-(APA), the NRC justified dispensing with public notice i

far$ to licensee representations based on equipment per-and comment as follows:

i forepance during normal, not accident, conditions. Id. at

[Blecause the Commission will be unable to promul-8,16. (JA 408,416).

Kate a final rule by. [ June 80] and because licensees 06 May 24,1982-the day after the Staff reported should not be placed in jeopardy of enforcement ac-l thaf the last 18 licensees had demonstrated their capacity tion pending pmmulgation of a revised schedule for,

to sperate safely pending qualification, see page 8 suprs' Implementation of eiguipment, qualification require '

--the Staff proposed a final rule. Final Rule " Environ-mynts, the Commission finds good cause to dispense with notice and comment. In addition, the Commis-I mestal Qualification of Safety-Related Electric Equip-sion has already solicited comments on the proposed j

ment for Nuclear Power Plants," SECY-82-207 (May 24, rule's schedule delaying implementation beyond June 1982) (JA 255). The Commission met.in public session 30F and the final rule will contain a schedule of this on June 1 to consider the proposed final rule. The Com-

type, missioners had questions about the final rule as proposed, and the Staff was directed to consider various alterna-Interim Rule, supm note 17, at 28,363, col. 3 (JA 1).

l tives, including methods of extending the June 30, 1982 The Commission also made a finding that all 72 operat-d=dline if a final rule could be promulgated by that date.

ing plants could safely continue operation despite failure i

See Memorandum from S(muel J. Chilk, Secretary, to to complete qualification. In support of this finding, the 1

William J. Dircks, Executive Director for Operations Commission referred to the plant-specific analyses li-l l

(June 10,1982) (JA 340). The Staff recommended censees had submitted to justify continued operation. The i promulgation of the interim rule which is the subject Commission reported that' matter of this litigation."

[o}n the bases [ sic) of these analyses, the Commis-Thus, on June 30,1982-the deadline established in sion has determined that continued operation of these 1980 for completion of environmental qualification-the plants pending completion of the equipment qualifica-2' Environmental Qualification of Electric Equipment, 47 j

53 Extens. ion of June 30,1982 Deadll.ine for Environmental Fed. Reg. 28,363 (1982) (to be codified at 10 C.F.R. 5 50.49) l Qualification of Safety-Related Electric Equipment 2 & En-(JA 1) (hereinafter " Interim Rule").

j clecure 1 (June 18,1982) (JA 342,345-50).

y..

1, i

i st' ion program, will not present undue risk to the pub-if these plant-specifts justi8 cations were voluntarily submitted and evaluated by the stat prior to pubH-l

'lle health and safety, 1

?

cation of a psal rule,'this requirement would be

.d 8 (JA 1).

b deleted. '

u i

instant petition to review the interim rule was Interim Rule, supm note 17, at 28,868, col. 2 (JA 1)

(emphasis added). Since the interim rule had reported I

in August. On January 6,1983, the Commission 2

iromfpigated its pra=In d Snal rule." The substantive riteria for environmental qualiacation are essentially the to the codineation of ite requirements for plant-specise justi-Acation as follows:

ame[as those provided in the proposed rule. Also like the Also included in the proposed rule is a requirement...

iroposed rule, the final rule stops short of setting actual for submission of an analysis by licensees to ensure that l

I adlines for completing the qualification program. In-the plant can be safely operated pending completion of te d/the rule calls for the establishment of " schedules" the environmental quallAcation of electric equipment. The vith;the.' goal" of ultimate qualification by "the second Commission expects that, for each of the currently oper-l efueling outage after March 31, 1982 or March 81, ating power plants, this analysis and its evolustion by the 19851whichever is earlier." Final Rule, supm note 18, NRC stag wiH be completed wen in advance of the esco-e five dcte of this rule. If the licensees of operating power i

tt 2738, col. 3 (JA 445). The final rule expressly super-plants fail to, provide these analyses in a timely manner, edeai*the interim rule. Id. at 2780, col. 3, 2732, col. 2 the Commission expects the NRC stat to take the appro-1'JA,442, 444). The NRC also concluded that "[nlo priate steps to require that the information be provided i

l hanges to license or technical speel6 cations are necessary and to enforce compilance.with this requirement. '11is o redect these new completion dates." Id. at 2730, col.

requirement has been included in this proposed rule to provide a regulatory basis for enforcement.

l I (JA 442).

47 Fed. Reg. at 2877, col. 2 (JA 72) (emphasis added). Al-i Finally, the Commiasion deleted from.ts final rule the

^

though the Commission, in the language quoted above, did not i

I

>roposed rule's requirement that licensees submit jus-state explicifty that it intended to delete the requirement if '

l incations for continued operation pending completion of analyses were received and evaluated before promulgation of the Anal rule, it was not unreasonable of the Commission to i

he qualification program. The Commission bottomed this interpret its own language as implying such an intent:

one lel: tion on the rather cryptic remark that "[t]his uire-might reasonably infer that the " expected" satisfpetion of the ntnt bas been satisfactorily met.,, Id. at 2732, col. 2 requirement "well in advance" of its proposed codincation l

tJA 344). Apparently, this remark alludes to a state-would render codification unnecammary.

nent in the interim rule which interpreted the proposed As we have seen, the Commission's " expectation" proved

• ule" as holding out a promise that, well founded, for the Staff in fact did complete its evaluation of all analyses by March 23-ecarcely two months after the proposed rule was noticed. See Memorandum from William J.

l

" Final Rule on Environmental Qualification of Electric Dircks, Executive Director for Operations, to Commissioner j

Squipment Important to Safety, 48 Fed. Reg. 2729 (1983)

Ahearne (Mar. 23, 1982) (JA 254). The Staft's internal i

(to be codified at 10 C.F.R. ! 60.49) (JA 441) (hereinafter determination that all plants could continue to operate safely l

' Final Rule"),

pending qualification was then reported publicly in the interim n.In the Supplementary Information a rule as a ground for amending all licenses to extend the dead-line. See Interim Rule, supra note 17, at 28,363, col. 2-3 aosed rule, the NRC characterized its m, ccompanying the p*tentions with respect(JA 1),

l i

g-..

r4se i

i l

A I

7 i

EA 14 16 4

C terim rule had the added efect of making a safety de -

llthe receipt and evaluat.

4 ion of these j.ustificat. ions, upon termination upon which the final rule is partially predi-which the NRC at that time based its finding that con-cated. The validity of that' safety finding, therefon,,

j isnued operation in the absence of qualification presented remains a live issue which must be reviewable in some' o undue risk to the public health and safety, see sd., col.

j# 8 (JA 1), that safety finding was, in efect, incor-i forum' i

ted by reference into the final rule.=

We are not persuaded by respondent's attempts to

[The Commission then filed with this court a motion to l

denigrate the safety determination as an insignificant j

4

" ancillary finding" or explanatory background remark".

dismiss the present UCS petition as moot due to promul '

i which was "not a part of the rule." Brief for Respond.

j

,intion of the final rule. UCS opposed the motion and -

ent at 29, 41, 20. Such characterization is belied by the !

l subsequently filed a separate petition attacking the final 3

language of the interira rule, which unequivocally pur :

)

rule as well. A motions panel of this court uferred the ports to predicate its deadline E_-Won on the safety l

Commission's motion to this merits panel.

of continued operation:

The Commission has. received, and the staff has II. MoorNESS evaluated, each operating-plant licensee's justifica-

$ We are met at the outset by respondent's contention tion for continued operation. On the bases of these that the UCS petition has been mooted by promulgation analyses, the Commission has determ,ined that con-i of the final rule, which establishes a new compliance tinued operation of these plants pending completion i

schedule for environmental qualification. We disagree.

of the equipment qualification program, will not pre-sent undue risk to the public health and safety.

)

? At the heart of the Commission's mootness argument Interim Rule, supra note 17, at 28,863, col. 2-3 (JA 1).

]

lies its assertion that the sole effect of the interim rule As counsel for NRC conceded at oral argument, this is was to suspend the deadline for environmental qualifica-

" finding language." Since the Anding forms the basis :

i tion. As we have observed, however, suspension was both for amending licenses ih the interim rule and for i

granted on the basis of an express finding that continued deleting the justification requirement from the final rule, j

operation in the absence of qualification would not pose we cannot brush it aside as some stray finding having,

l undue risk to the public health and safety. This safety no legal effect. In short, the safety finding has continuing ;

j finding, the basis of which has never been subjected to vitality which has in no way been superseded by promul--

l public comment of any kind, was then relied upon in the gation of the final rule.

final rule as a ground for deleting the proposed rule's codification of the requirement that licensees submit de-Nor are we persuaded by the Commission's argument t

that, since the factual record on which the NRC made -

j tailed analyses justifying interim operation. See Final Rule, aupra note 18, at 2729, col. 2 (JA 444). Conse-the safety finding was " extensively supplemented" during '

quently, in addition to suspending the deadline, the in-the six months separating the promulgation dates of both :

rules, there is no continuing reliance on the earlier evalu-I

'"That the interim rule's safety determination was refer-ation of plant-specific justifications. Brief for Respond-enced in the final rule was made eiien more clear by remarks ent at 23-24. The NRC refers to its January 6,1983.

I made during the Commission affirmation session on the final affirmation session on the final rule, during which Com-rule. See pages 16-17 infra, mission and Staff membern dincunned 46 nInnt-anecifie :

~

?

e 16 P

17l tion and these TERs are;heing forwarded to the 11-,

tee $nical evaluation reports submitted by Franklin Re-2 censees for corrective action for which de6ciencies,

semith Center. The Snal rule, respondent maintains, was have been identifiedi Soye are Anally getting down thai predicated on these new evaluations, not, on the to the point in time where action is going to be taken f "priivious and now outdated analyses" relied on in pro-by the licensees to correct any denciencies that cur-mufgating the interim rule. Id. at 24. But these tech-rently exist. However, Jaetifestion for continued op.

nical rePoris dealt not with justification for continued eration has been completed, operation in h.em of quallAcation, but w.th progress made i

teFord actual quallAcation. This point was brought home Transcript of Commission A81rmation Session on Final Rule at 34-35 (Jan. 6,1988) (JA 449-50) (emphasis by P. Shemanski, a technical monitor in the Equipment Qualification Branch, who steered Commissioner Ahearne added). Indeed, mapondent elsewhere concedes that, un-like previous mports focusing on ja tifications for contin-cway from making precisely the same error respondent ued operation, these particular reports "wem limited to would have us make regarding these reports:

evaluating the licensees' moolution of the deficiencies [in I

MR' SHEMANSKI-These reports are quite de-asseded qualification] identi8ed in the staff's SERs and Itailed and they generally are two volumes approxi-to evaluating the quali8 cation documentation submitted

~

mately four inches thick. They evaluate each safety by the beensees." Brief for Respondent at 14 n.4 (em-rreisted electrical component and they make a judg.

P asis added). In other words, the " extensive [] sup.

h i

i ment as to the qualifcation status of this particular P ement[ation]" to which mopondent refem related to i

i

' component and they put it in I believe seven or eight qualification, not, to justiAcation, which the Commission i l

< categories, regarded as "past history" when promulgating the final i

COMMISSIONER AHEARNE: Excuse me. The rule. The validity of the interim rule's safety finding l one thing I guess I will have to take exception to is thus mnains a hve issue."

we have removed something from the final rule (i.e.,

' the requirement that justifications for continued op-

$5 Comm.issioner Ahearne's confusion-as well as that which

~ eration be submitted], and the grounds of the re_

apparently plague

• Coramission counsel-is readily under-moval were that the justification has been satisfac-standade. Frankun was twt hired to evaluate only the Justi-torilY.Provided. That is the rationale we used. So Acations for continued operaUon. See note 12 supra. Frankhn that ts past history. It really has to bel:] is the completed that assignment on January 25,1982, when it re.,

j justification ths,t has been provided satisfactory to ported that all but 18 licenseen had supported their claims j

lead to removal of that requirement out of the rule.

that centinued operation was hetiSed. This Arst report is That is past history, but it is important past history.

set out at.I A 165-93. Franklin s 4bsequently reviewed licensees' 1

asse&ns mardng me quaneadon of equipnwnL To Ws MR. SHEMANSKI: I aI"e that judgment has end, the NRC issued a Notification of Contract Extension on 1

been made. However, these reports now are detail-July 27,1982 (JA 419). The completion of this review was j

j ing in very great detail the actual qualification status expected by March 1983. Brief for Respondent at 14 n.4.

of these particular components. Right now of the 46 During the second half of 1982, Franklin succeeded in issuing -

}

reports that we have received from Franklin [forl most of these reports on qualineation, id., and these are the >

each plant, the equipment is. categorized. No. I, the 46 reports to which Shemanski referred during the January 6, 3

1983 affirmation session.

equipment is put in a category of being qualified.

The second category is qualification not established.

A Staff member did remark during the affirmation session ;

m.

a :a -,s-nm, i. nuolibatinn, winding inndifien-that the same evaluations of justifications for continued opera-

1 i

IE

-1 18 lt is evident, therefore, that this petition is not moot 6nding was made. Having considered fully the briefs and inithe constitutional sense. The dispute is not " abstract, arguments of the parties, we_are loath to turn petitioner feigned or hypothetical," and no advisory opinion is away now only to visit upeaH pardes---and sneeer Panel of th,s court-the burden of trudging through this I

sogght on an issue which lacks the " impact of actuality."

i Silbron v. New York, 392 U.S. 40, 57 (1968) ; acconi legal morass once agaiin at a later date. Such a dispost-Alton & Southern Ry. v. Intenistional Association of tion would squander Judicial, administrative, and adver-i sarial resources.88 The UCS petitior, is not moot.

}

Machinists & Aerospace Workers, 463 F.2d 872, 877 l

(D.C. Cir.1972). The allegedly invalid safety finding III. PaocuovaAL CHALLENGEB retains its vitality as a predicate to the final rule, and the Commission has thus preserved the " case or contro-The Commission's reluctance to resolve this litigation on i

versy" that is the gravamen of this litigation. Cf. Pickus the merits is understandable, for the rulemaking is rife '

j

v. United States Bosni of Parole, 507 F.2d 1107,1111 with procedural error. In amending all operating li '

(D.C. 1974 ) (where supersedir.g agency actions npeat censes without affording notice and opportunity to com-l the same alleged procedural error, they " preserve, rather ment, the NRC has evaded the hearing requirement of,

i than moot, the original controversy.").

section 189a of the Atomic Energy Act, violated its own >

l It is true, as respondent contends, that this issue could

"*edural rules, and misapolied the " good cause" ex-l also be resolved in a petition to review the final rule.

ception of the APA. Any one of these procedural ir- !

l Brief for Respondent at 25. But it does not follow that regularities is sufficient ground for reversal.

w2 must defer review until the UCS challenge to the A.

SMw.n, ma of the Atenn. Enew AL e

l final rule eventually percolates up to this court. So long i

as we can grant meaningful relief affecting the contro.

Section 189a provides:

l v:rsy that precipitated the litigation, we may, in the in-In any proceeding under this chapter, for the...,

terest 0f sound j,udicial adm,nistration, afford that e amending of any license..., and in any proceeding i

i lief with as much propriety upon review of the interim for the issuance or modification of rules and mgula-l rule. It was, after all, the interim rule in which the as In this respect, we note that counsel for intervenor Nuclear tion that were relied on in promulgating the interim rule had Utility Group on Equipment Qualification, which represents been reexamined "a couple of months ago" to determine nuclear licensees that support the Commission on this appeal, whether the Staff's safety finding needed to be revised now acknowledged at oral argument that the safety finding was i

thtt Franklin would be embarking on a lengthy review of made on June 30,1982; that the finding is reviewable; and that licensees' representations regarding actual qualification. The it makes little difference whether review takes place now or Staff concluded that revision was unnecessary. Transcript of upon consideration of a separate petition for review of the j

Commission Affirmation Session on Final Rule at 23 (Jan. 6 final rule.

1 1983) (remarks of G. Lainus). But rereading old evaluations obviously does not mean that " previous and now outdated

$8 UCS also contends that the Commission's decision to pro-l analyses" have now been " extensively supplemented" or that inulgate the interim rule was " arbitrary, capricious, [or] an i

th;re is no continuing reliance on the earlier evaluations. The abuse of discretion." 5 U.S.C. 5 706(2)(A) (1976). Because l

Staff merely reexamined the old facttial record and found no we reverse on procedural grounds and the record will therefore,

I reason to alter its belief that continued operation posed no be supplemented on remand, see Part IV infra, we do not reach

)

undue risk to the public health and safety.

petitioner's substantive challenges.

1

Aso

,a i

21'

'20 tions dealing with the activities of licensees... the Nor can the Commission huatify dispensing with notice i

Commission shall grant a hearing upon the request and comment on the ground that these amendments "in-of any person whose interest may be affected by the volve[] no signincant hazards determination," as the proceeding, and shall admit any such person as a Commission now insists that the only conceivable findi party to such proceeding.... [T]he Comm,ssion that might pass for such a determination-the "no un-i may, in the absence of a request therefor by any per-due risk, finding-is an " ancillary Anding" lacking any i

son whose interest may be affected, issue... an legal effect Brief for Respondent at 29.

)

amendment to an operating license without a hear.

j ing, but upon thirty days' notice and publication once The only basis given in the rule for dispensing with in the Federal Reg, ster of its m, tent to do so. The notice and comment is an allusion to the " good cause" i

Comm,ssion may dispense with such thirty days no-exception of the APA." Interim Rule, su note 17* at i

1 tice and publication with respect to any application 28'363' CU1 3 (JA 1). The propriety of reliance on that a

/

for... an amendment to an operating license upon exception is discussed below. See pages 24-27 infra. But a determination by the Commission that the amend-even assuming arguendo that the NRC properly inter-ment involves no significant hazards consideration.

l 42 U.S.C. I 2239(a) (1976). The June 30,1982 interim

1. N #^"P'##~,,.42 U.S.C. 3 2237 (emphasis added). Sicce sec-rule is plainly a " proceeding" for the " amending of [a}

tion 189a requires a hearmg 'an any proceeding fs,r the issu-l h.eense" with.in the meaning of sect. ion 189a, s.ince it ex-ance... of rules and regulations dealing with the activities of cised from all operating licenses the compliance deadline licensees," id. 6 2239(a), a license amendment effected pur-suant to section 187 but without notice and comment would established by the 1980 Order. The rulemaking is also not be " issued in accordance with the terms of this chapter."

s " proceeding for the issuance of rules and regulations dealing with the activities of licensees"; the NRC desig-

" The Commission also sought to justify dispensing with no-tice and comment on the ground that it had received comments nated its action as a "[f]inal rule," Interim Rule, supra on the proposed rule, which also would have extended the dead.

note 17, at 28,363, col.1 (JA 1), and the Commission h.ne. Intenm Rule, supra note 17, at 28,363, col. 3 (JA 1) ; see does not now dispute that designation. W1.v.her charac-Brief for Respondent at 36-87. 'the opportunity to comment in I

ter. ed as a license amendment or as a rulemakm.g, the a collateral rulemaking does not cure this particular failure to iz Commission's action runs afoul of the express terms of provide notice and opportunity to comment. No opportunity

)

section 189a, which unequivocally requires notice and op-whatsoever has been afforded for public evaluation and partici-pation with respect to the Commission's determination that no portunity to comment for both types of proceedings."

undue risk to the public health and,afety is posed by continued 2

operation pending qualification. The gravamen of petitioner's

" We express no opinion on the arguments of the parties on challenge is the Comm,ssion's failure to allow public comment l

i the question whether these amendments must be made by ad.

on plant-specific justifications. The UCS commenta on the pro-judication or whether they fall within that category of license posed rule did not address the safety of continued operation of amendments that may be made by rule under section 187 of indi,vidual plants in the absence of adequate documentation of I

the Atomic Energy Act, 42 U.S.C. 6 2237 (1976). That is a environmental qualification. See Comments by Union of Con-j matter for the NRC to determine in the first instance on re-cerned Scientists on Proposed Rules on Environmental Qualifi-mand. We memly hold here that notice and an opportunity to cation (Mar. 25,1982) (JA 401). UCS was thus foreclosad f

comment must be provided whatever administrative route is fium any opportunity to comment on licensees' justincations i

taken. Section 187 provides that 'l[t]he terms and conditions or on the Commission's determination that those justifications of all licenses shall be subject to amendment... by reason of supported the deadline suspension.

I rules and regulations issued in accordance with the ferms of

..u.

22 23 i

l preted the scope of the exception, the Commission has (b) The notice will include:

fciled to justify its departure from the strictures of (2) The manner and time within which inter-j section 189a. The hearing and notice requirements of the ested members of the public may comment l

Atomic Energy Act are not subject to the " good cause" l

exception of the APA. The APA provides that an agency 10 C.F.R. I 2.804 (1982) (emphasis added). Similarly, may have recourse to the except,on,,(elrcept when no-10 C.F.R. I 2.805(a) (1982) provides:

i l

tice or hearmg is required by statute." 5 U.S.C. I 553(b) l (1976) (emphasis added). As its terms clearly indicate, (a) The Commission will agord interested persons section 189a is just such a statute. The Commission's an opportunity to participate in rulemaking rationale for dispensing with notice and comment would through the submission of statements, informa-i tion, opimons and arguments in the manner permit the general rulemaking provisions of the APA stated in the notice.

to swallow the more specific command of the Atomic

}

Energy Act. Such a result would mock the fundamental (Emphasis added).

]

maxim of statutory construction that the terms of a more On their face, these rules admit no exceP on to the ti specific statute take precedence over those of a more gen-afford.mg of not. ice and comment in rulemaking. The tral statute where both statutes speak to the same con-as chosen to confine its discretion solely to the I

cerns. Basic v. United States,446 U.S. 398,406 (1980).**

regulation of the manner in which comment can take l

The specific requirement of section 189a may not be cir-i cumvented through the " good cause" exception of the f"ddit. And having chosen to grant interested persons a

ional procedural rights in the exercise of [its]

j APA-discretion," Vermont Yankee Nuclear Power Corp. v.

I NRDC, Inc., 435 U.S. 519, 524 (1978), the agency is l

B.

The Commission's Rules of Practice and Procedum.

bound by its own rules. United States v. Nixon, 418 Even if section 189a did permit dispensing with notice U.S. 683, 695-96 (1974); Filarelli v. Scoton, 359 U.S.

and comment for good cause, the NRC has divested itself 535, 539-40 (1959); Service v. Dulles, 354 U.S. 363, 388-

'l of discretion to invoke that exception. The Commission's 89 (1957).

Rules of Practice and Procedure provide:

NRC appears to pudicate its claimed right to forego (a) When the Commission proposes to adopt, amend, notice and comment on its use of the word " manner,

or repeal a regulation it will cause to be pub-as if affording no opportunity to comment is one way of lished... a notice of proposal rulemaking;....

regulating the manner of commenting. See Brief for Re-spondent at 30-31. While considerable deference is to be l

" See also.Preiser v. Rodriguez,411 U.S. 475,489-90 (1973) accorded the Commission's interpretation of its own rules, j

(specine habeas statute overrides the general terms of section North Anna Environmental Coalition v. NRC, 533 F.2d 1983) : UNIF. STATir! day CONSTaUCTION AcT 5,17,14 U,.L.A.

655, 662-63 (D.C. Cir.1976), this interpretation does pec a o violence to the language of the rule and, as Judge John a a$1 nstru. if i le,]

9 al r isi,the effect is given to both. If the conflict between the provisions is Sanborn once remarked, gives the regulat, ion a " curious, j

irreconcilable, the special or local provision prevails as an ex-narrow, hidden sense that nothing but the exigency of a ception to the general provision....").

hard case and the ingenuity and study of an acute and 1

b

. ~.

4 25 24 of enforcement action pending issuance of the final rule j

powerful intellect would discover." Lynch v. Alworth-

-are insumcient.

Stephens Co., 294 F.190,194 (8th Cir.1923) (quoted I

Our cases make clear that the exception is confined in Lynch v. Alworth-Stephens Co., 267 U.S. 3G4, 370 to emergency actions which are "indeed rare," Americas I

(1925)). When an agency's interpretation of its own i

rules Ries in the face of the language of the rules them.

Federafime. of Gorernment Employcea v. Block, 655 F.2d 1153,1157 n.6 (D.C. Cir.1981), and that "the mere ex-i selves, it is owed no deference. Shepherd v. MSPB, 652 istence of deadlines for agency action... [does] not in F.2d 1040,1043 (D.C. Cir.1981).

itself constitute good cause." Council of Southern Mous-j N:r has the NRC proven its assert. ion that it "has fains, Inc. v. Donovan, 653 F.2d 573, 581 (D.C. Cir.

j consistently mterpreted the agulations in th,s way.'

1981). In fact, courts have routinely declined to sane-i Brir.f for Respondent at 31. The only proffered mstance tion recourse to the exception beesuse of an impen' ding i

of such " consistent interpretation is Fire Prevention deadline. See, e.g., NRDC v. EPA, 683 F.2d 752 (3d Schedules for Operating Nuclear Power Plants, 45 Fed.

Cir. 1982); National Association of Farmworkers v.

j Reg. 71,569 (1980) (to be codified at 10 C.F.R. I 50.48).

Marshall, 628 F.2d 604 (D.C. Cir.1980).

Sea Brief for Responaent at 31 n.10. But that rulemak-i ing never even mentions the rules at issue here, and it None of the arguments offered by respondent demon-certainly does not purport to construe them. The NRC strate the propriety of its reliance on the exception.

merely did there what it did here, i.e., it temporarily NRC seeks to distinguish the case law just noted as in-suspended, without notice or comment, certain complet. ion volving substantive, not, procedural rules. The interim schedules pending conclusion of another ongoing rulemak-rule, the Commission insists, while not " strictly proce-ing proceeding. A single, abrupt rulemaking that does dural,... ha[s] no substant.ive effect on safety." Brief n t purport to construe the relevant regulations does not for Respondent at 34. This apparent reliance on the constitute a " consistent interpretation" of those regula-APA's exception for " procedural rules" or " statements of tions. See Shepherd v. MSPB, supra, 652 F.2d at 1043.

policy," see 5 U.S.C. A 553(b) ( A) (1976), is misplaced.

1 Even assuming arguendo that the "no undue risk" finding

}

C.

The Propriety of Reliance on the " Good Cause" is not part of the rule, the NRC has amended plant oper-l Exception of f.he APA ating licenses. Such an action is inherently substantive, j

Even if section 189a and the Commission's own rules whatever the Commission's view of its " safety." More-over, lifting the deadline is not a " statement of policy" did not, prohibit recourse to the " good cause" exception of the APA, the NRC has not supported its application akin to announcing an intention not to take enforcement t

action. Rather, the interim rule alters a binding norm to of theexception.

j which licensees must conform. In fact, in promulgating The APA provides that notice and comment may be the interim rule the NRC has stripped itself of prosecu-ayuded upon a show,ng that " notice and publ,c proce-torial discretion by legalizing the underlying conduct. See i

i 4

dure thereon are impracticable, unnecessary, or contrary Pickus v. United States Board of Parole, 507 F.2d 1107, to the public interest." 5 U.S.C. 5 553(b) (B) (1976).

1113 (1).C. Cir.1974)."

4 Th3 two reasons given by the Commission as constitut-ing good cause-its inability to promulgate a final rule

" Even if we were inclined to accept the Commission's ob-i on time and its reluctance to place licensees in jeopardy lique invocation of the APA's exception for " procedural rules"

1 1

i 26 27 i

NRC's reliance on Council of Southem Afountains, Commission's concern for licensees' " jeopardy" does not supra, is also misplaced. That case weighed five factors rise to the level of an emergency situation falling within l

in reaching the conclusion that an imminent deadline the scope of the " good cause" exception. See Americas l

constituted good cause. 653 F.2d at 581-82. But in Coun-Federation of Government Employees v. Block, supra, 655 l

cil the inability to promulgate a final rule on time was F.2d at 1157 n.6.

l due to circumsLmees beyond a diligent agency's control.

IV. CONCLUSION Id. at 581. Here the NRC Staff had recommended exten-si:n of the deadline eleven months before June 30, and As indicated by the particular facts of this case, the still the agency tarried. See NRC Staff Response to Peti-NRC maintains constant vigilance over the safety of i

tion for Extension of Deadline for Compliance with CLI-nuclear power plants and monitors compliance with safety l

80-21, at 10 (July 31,1981) (JA 133). Given our view mquirements at each nuclear reactor on a day-to-day basis. Nothing in our opinion today should be read to j

in Council that we were responding " guardedly" to an l

"cxtremely close case," 653 F.2d at 582, we are unwilling suggest otherwise. But when the Commission incorpo.

to approve summary action under the more egregious rated compliance deadlines into all operating licenses, it facts of this case.

saddled itself with the burden of pmviding an opportu-nity f r public comment when it became necessary to Respondent and intervenor point out that this is not a ange h deadlines. The Commission may regret hav-case in which a deadline alone impelled abrupt agency Ing acted as,t did in the first instance," but having done i

l action. Licensees would have been placed in jeopardy of

" ", ""* c mply with the procedures prescribed by law i

enforcement action had the deadline not been suspended.

I Unfortunately, this argument is undercut by the NRC's l

own adversica to its prosecutorial discretion: the agency Accordingly, the decision of the NRC in promulgating could have chosen to take no action or it could have the June 30,1982 interim rule is vacated and remanded issued, without notice and comment, a " statement of pol-for reconsideration in accordance with this opinion. How-1 j

icy" regarding its intent not to enforce the deadline. See ever, the matter will not be resolved solely on the basis 5 U.S.C. I 553(b) ( A). Instead, it chose to amend all of information available as of June 30,1982; all parties operating licenses to remove license conditions. While may supplement the record with any relevant data. On we are reluctant to vacate a rule when an agency could remand, therefore, the Commission shall provide an op-h:.ve achieved the same result by doing nothing, the very portunity to comment on the sufficiency of current docu-power to do nothing demonstrates conclusively that the i

"It seems unlikely the NRC will again lock itself into such is not the rat.ionale used by and " statements of policy,',' that,th not,ce and comment. The procedures by deadlines embodied in operating licenses. In its i

the NRC to justify dispensmg wi i

final rule, the Commission eschewed " changes to license or NRC plainly relied on the " good cause", exception in paragraph technical specifications... to reflect these new co npletion j

(B) of the APA, not on the exception embodied in para

• dates." Final Rule. anpra note 18, at 2730, col. 3 (JA 442).

graph ( A). See Interim Rule, supra note 17, at 28.363, col.

See also Hrief for Respondent at 25-26 ("In this case, there is g

3 (JA 1). We are foreclosed from affirming a decision on a no reasonable expectation that the same party will be subject ground different from that relied on by the agency m, makmg to the same action again. Compliance deadlines are not usually the dec,s on. Securities & Exchange Comm'n v. Chenery Corp.,

incorporated as conditions in imwer plant operating licenses i

322 U.S.194,196 (1947).

but, rather, are generally established by rule.").

23 mentation purporting to justify continued operation pend-ing completion of environmental qualification of safety-related equipment."

So ordered.

4 l

l 4

i t

4

" As noted, we leave to the NRC the decision whether to proceejl by adjudication or rulernaking on this matter. See

.