ML20108B757
| ML20108B757 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 04/26/1996 |
| From: | Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#296-17581 LBP-95-17, OLA-3, NUDOCS 9605060034 | |
| Download: ML20108B757 (33) | |
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p 00CKETED UNITED STATES OF AMERICA
~
NUCLEAR REGULATORY COMMISSION
- % APR 29 A10:47 0FFICE OF SECRETARY Before the Comminion DOCKETING & SERVICE BRANCH
)
In the Matter of )
) Docket No. 50-440-OLA-3 THE CLEVELAND ELECTRIC )
ILLUMINATING COMPANY, et al. ) License Amendment :
) (Material Withdrawal Schedule) j
) 1 (Perry Nuclear Power Plant, ) l Unit No.1) ) l
)
l LICENSEES' BRIEF ON REVIEW OF l LICENSING BOARD DECISION LBP-95-17 l I
l i
Jay E. Silberg, P.C.
Paul A. Gaukler SHAW, PITTMAN, POTTS &
TROWBRIDGE 2300 N Street, N.W.
Washington, D.C. 20037 Telephone (202) 663-8000 Counsel for Licensees April 26,1996 9605060034 960426 PDR ADOCK 05000440 3 03
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TABIE OF CONTENTS l t
Eage t t
i TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i t
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii :
i INTROD UCTI ON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 l l STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A RG UM ENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 )
i I. The Board's Order Is Erroneous Because It Turns Licensee Actions l Requiring Prior NRC Approval Into License Amendments . . . . . . . . . . . . . 8 l
1 A. Section 189a Does Not Mandate Hearings On Regulatory j Approvals Which Are Part of The NRC's Continuing j 1
Oversight Of Licensees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 B. The Administrative Procedure Act Does Not Impose Any Additional Hearing Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
- 1. The APA Does Not Require A Hearing for NRC Licensing A ctio n s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
- 2. Day-To-Day Regulatory Approvals Do Not Constitute APA Licensin g . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 l II. The Order Is Erroneous Because It Eliminates Materiality L As A Requirem' ent For A Hearing Under Section 189a. . . . . . . . . . . . . . . 21 III. The Board's Order Is Erroneous Because It Rejects The Staff's Reasonable Interpretation Of Appendix H, $ II.B.3 . . . . . . . . . . . . . . . . . 23 CON CLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 4 i
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- 29969941/ DOCSDC1 l !
4 i .
l TABI E OF AUTHORITIES Eage FFnERAL CASES ,
American Cylinder Manufacturer Comm. v. Denartment of
' ~
Tran=nortation, 578 F.2d 24 (2d Cir.1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20 l Bellotti v. NRC, 725 F.2d 1380 (D.C. Cir.1983) . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22 {
Blackwell College of Businece v. Attorney General,454 F.2d 928 ;
(D.C. Ci r. 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 j
( Bullwinkel v. FAA, 787 F.2d 254 (7th Cir.1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 City of West Chic 2go v. NRC,701 F.2d 632 (7th Cir.1983) . . . . . . . . . . . . . 17,18 l
l Citivenc Assoc. for Sound Fnerev v. NRC,821 F.2d 725 4
! (D .C. Ci r. 19 87) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Citi7 ens Awareneu Network v. NRC, 59 F.3d 284 (1st Cir.1995) . . . . . . . . . . . . 13 l Commonwealth of M=ccachusetts v. NRC,878 F.2d 1516 (1st Cir.1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 12, 13, 14, 17 1
County of Los A ngeles v. Davis, 440 U.S. 625 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . 14 County of Rockland v. NRC,709 F.2d 766 (2d Cir.),
cert. denied, 464 U.S. 993 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Duke Power Co. v. NRC, 770 F.2d 386 (4th Cir.1985) . . . . . . . . . . . . . . . . . . . 12,14 Florida Power & T ight Co. v. Lorion, 470 U.S. 729 (1985) . . . . . . . . . . . . . . . . . . . . . 8 Kelley v. Selin; 42 F.3d 1501 (6th Cir.), cert. denied, 9,11,12,14, 21 l 115 S. Ct. 2611 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Marnrhon Oil Co. v. EPA, 564 F.2d 1253 (9th Cir.1977) . . . . . . . . . . . . . . . . . . . . . 18 National Cable Television Assoc.. Inc. v. FCC, 554 F.2d 1004 l _ (D.C. Cir. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 l
Page New York P2tholoaic21 & X-Ray Ishs. Inc. v. INS, 523 F.2d 79 (2d Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 San Luis Obisoo Mothers For Peace v. NRC,751 F.2d 1287 (D.C. Cir. i984), vacated in part 2nd rehearing granted in part, 760 F.2d 1320 (D.C. Cir.1985) (en banc) . . . . . . . . . . . . . . . . . . . 8,9,10,13,14,17 San Inic Obispo Mothers for Pasce v. NRC,789 F.2d 26 (D.C. Cir.)
(en banc), cert. denied, 479 U.S. 923 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Samenast Anti-Pollution I,2 ue v. Costle,572 F.2d 872 (1st Cir.1978) ........ 18 Sholly v. NRC,651 F.2d 780 (D.C. Cir.1980), v2cated 2nd remanded, 459 U.S. 1194 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Siegel v. AEC, 400 F.2d 778 (D.C. Cir.1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 21 Taylor v. District Engineer. U.S. Army Corps of Fngineers, 567 F.2d 1332 (5th Cir.1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Union of Concerned Scientictc v. NRC,735 F.2d 1437 (D.C. Cir.1984),
cert denied sub nom. Ark 2ncac Power & T ight Co. v. Union of
[
! Concerned Scientists, 469 U.S.1132 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . 12,13, 21 I United States v.. First Nat'l B2nk Throuah O'Hara. 727 F.2d 762 l (8 th Cir. 19 84) . . . . . . . . . . . . . . . . . . . . . i. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
l ADMINISTRATIVE DECISIONS Advanced Medical Systems. Inc. (One Factory Row, Geneva, OH 44041),
l ALAB-929, 31 NRC 271 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Cleveland Flectric Illuminating Company (Perry Nuclear Power Plant, Unit 1), CLI-93-21, 38 NRC 87 (1993) . . . . . . . . . . . . . . . . . . . . 3,15 Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Unit 1), LBP-95-17, 42 NRC 137 (1995) . . . . . . . . . . . . . . . . . . passim Cleveland Flectric Illuminating Company (Perry Nuclear Power Plant, Unit 1), CLI-96-4, 43 NRC _ (1996) . . . . . . . . . . . . . . . . . . . . . . . . . 6
-lii-i
hac FFDERAL STATUTES Administrative Procedure Act 6, 18 5 U.S.C. $ 5 51 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6, 18 5 v.s .C. $ 5 51 (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
l 5 v.s.C. 5 552(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 5 u.s.C. $ 5 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 5 U.S. C. 5 5 5 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 17, 18 5 U.S.C. $ 5 5 8 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Atomic Energy Act of 1954, as amended 42 U.S.C. $ 2239(a) (Section 189a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
. 42 U.S.C. $ 2201(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 i FFDERAL REGULATIONS 1 C.F.R. Pa n 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 10 C.F.R. $ 2.78 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 10 C.F.R. $ 50.46 (a)(3)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 10 C.F.R. $ 50.48 (c) (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 10 C.F.R. $ 50.54(a) (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 10 C.F.R. $ 50.54 (bb) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 10 C.F.R. $ 50.54 (i- 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 10 C.F.R. 5 50.54 (q) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 10 C.F.R. 5 50.54(w)(4)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 10 C.F.R. $ 50.5 5(b)(6)&(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 10 C.F.R. $ 50.55(f)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 l 10 C.F.R. $ 50.55a(f)(4)(iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 10 C.F.R. $ 50.5 5a(g)(4)(iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 10 C.F.R. $ 50.59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 10 C.F.R. $ 50.59(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 10 C.F.R. $ 50.59(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 23 10 C.F.R. $ 50. 8 2 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 10 C.F.R. Part 50, App,. G, 5 III.B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 10 C.F.R. Part 50, App. G, 5 IV.A.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 10 C.F.R. Part 50, App. G, $ V.D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 10 C.F.R. Part 50, App. G, $ V.E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 10 C.F.R. Part 50, App. H . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 10 C.F.R. Part 50, App. H, 5 II.B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
.10 C.F.R. Part 50, App. H, $ II.B.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23
-IV-
l Eage 10 C.F.R. Part 50, App. H, $ II.B.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 10 C.F.R. Part 50, App. H, $ II.C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 10 C.F.R. Part 50, App. J. $ III.A.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 10 C.F.R. Part 50, App. K, 5 I.C.5.c. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 1
! MISCFI T ANEOUS 1
Proonc,A Poliev Statement on Technic 21 Soccification Imnrovements for Nnclear Power R,2ctors 52 Fed. Reg. 3788 (1987) . . . . . . . . . . . . . . . . . . . . . . . 2 Generic Letter 91-01, " Removal of the Schedule for Withdrawal of Reactor Vessel Material Specimens from Technical Specifications" (Jan. 1,1991) . . . . . . . . . . . 2 .
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l Fin 21 Poliev Statement on Technical Soecific2tions Imnrovements
! for Nuclear Power Reactors 58 Fed. Reg. 39,132 (1993) . . . . . . . . . . . . . . . . . . . . . 3 t
! Domestic I icencine of Production i and Utiliimrion Facilities: Fracture Touchneu Reonirements '
for Nuclear Power Reactors 45 Fed. Reg. 75,536 (i980)
(Proposed Rule) ........................................................... 4 Atomic Energy Commiuion. Lecicl2tive History of the Atomic Energy Act of 19 I' . .4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 16 100 Cong. Rec. 10,171 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 S.3323 and H.R. 8862, To Amend the Atomic Fnerev Act of 1946:
Hearings Before theJoint Comm. on Atomic Energy 83d Cong.,
2d Sess. (1954), reprinted in 2 Legislative History (1955) ...................16 Attorney General's M2nual on the Administrative Procedure Act,"
i United States Department of Justice, Tom C. Clark, Attorney General (1947).............................................................19 ASTM E 185 ("Srnndard Practice for Conducting Surveillance Tests l
l for I icht-Water Cooled Nuclear Power Reactor Vessels") . . . . . . . . . . . . . . passim t
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before The Commission
) ~
In the Matter of ) .
) Docket No. 50-440-OLA-3 THE CLEVELAND ELECTRIC )
ILLUMINATING COMPANY, et al. ) License Amendment
) (Material Withdrawal Schedule)
(Perry Nuclear Power Plant, )
Unit No.1) )
) l l
1 LICENSEES' BRIEF ON REVIEW OF LICENSING BOARD DECISION LBP-95-17 INTRODUCTION Pursuant to CLI-96-4 (1996), The Cleveland Electric Illuminating Company, et 4 (" Licensees") submit this brief requesting the Nuclear Regulatory Commission
('Comntission" or "NRC") to reverse the Memorandum and Order (Ruling on Mo-tions for Summary Disposition) of the Atomic Safety and Licensing Board (" Board"), i LBP-95-17,42 NRC 137 (1995). In granting the summay disposition motion of Ohio Citizens for Responsible Energy, Inc. and Susan L. Hiatt ("Intervenors"), and denying i
Licensees' cross-motion for summary disposition,' the Boani erroneously concluded that the NRC must treat any future change to the reactor vessel material surveillance j specimen withdrawal schedule for the Perg Nuclear Power Plant (" Perry") "as a li-
. cense amendment and provide notice and an opportunity for a hearing in accordance with section 189a of the Atomic Energy Act." 42 NRC at 149. This legal
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determination is incorrect and could have far reaching effects by transforming numer-ous routine requests by licensees for NRC approval under the regulations into the equivalent of license amendments requiring notice and opportunity for hearing under i
the Atomic Energy Act.
l STATEMENT OF THE CASE i
The major issue raised by the Board's decision is whether licensee activities for which the Commission requires prior NRC approval as pan of its continuing regula- f tory oversight of reactor licensees constitute " material licensing actions" requiring li-l cense amendments for which notice and opponunity for hearing must be provided )
under section 189a of the Atomic Energy Act (the "Act"). This issue is presented m j the context of a license amendment request to remove from the Perry Technical Speci- ;
fications the withdrawal schedule for the reactor vessel material surveillance speci-l mera. Under the Board's decision, license amendments would be required for l
l changes to the withdnwal schedule even after the schedule is removed from the Tech-
! nical Specifications because, according to the Board, the regulations require prior ap-l
) proval of such schedule changes.
On March 15,1991, Licensees requested the NRC to amend the Perry operat-ing license to transfer from the Technical Specifications to the Updated Safety Analy-sis Repon the schedule for withdrawing reactor vessel material surveillance ;
i specimens.!! The requested amendment was in furtherance of the NRC's " Proposed !
Policy Statement on Technical Specification Improvements for Nuclear Power Reac-tors, 52 Fed. Reg. 3788 (1987), and in accordance with Generic Letter 91-01 which ESee Letter PY-CE!/NRR.1313L from Michael D. Lyster, Centerior Energy, to U.S. Nuclear Regula-tory Commission, March 15,1991. This request was filed as a supplement to an earlier filed license
. amendment req . ,t. Id.
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encouraged licensees to relocate the reactor vessel material surveillance specimen with-t drawal schedule from plant Technical Specifications to safety analysis reports.E L
[ On November 12,1993, Intervenots filed a supplemental petition contending j- that the removal of the specimen withdrawal schedule from the Perry Technical Speci. .;
L fications ." violates section 189a" of the Act by depriving " members of the public of the r
l right to notice and opportunity for a hearing on any changes to the withdrawal sched-ule."E On February 7,1994, Intervenors moved for summary disposition on their contention.E Intervenors argued that notwithstanding removal of the reactor vessel specimen withdrawal schedule from the Technical Specifications, changes to the with-drawal schedule still require prior NRC approval under 10 C.F.R. Part 50, Appendix H,5 II.B.3, which provides that:
A proposed withdrawal schedule must be submitted with a technical justification as specified in 5 50.4. The EThe Commission has subsequently issued a " Final Policy Statement on Technical Specifications Im-l provements for Nuclear Power Reactors." 58 Fed. Reg. 39,132 (1993). The primary objective of the l Commission's policy is to improve plant Technical Specifications by removing unnecessary materials from them and to limit the specifications to 'the technical requirements for [ plant] features of control-ling importance to safety." 58 Fed. Reg. at 39,136. The Commission observed that past practices had resulted in the " extensive" inclusion of unnecessary materials in the Technical Specifications which di-verted licensee and NRC Staff attention from more important matters thereby resulting in an adverse impact on safety. 58 Fed. Reg. at 39,133. As argued in both the Staff's and Licensees' papers to the Board below (see notes 5 and 6 infra), the removal of the reactor vessel specimen withdrawal schedule from the Perry Technical Specifications is in accordance with the Commission's policy statement, the Act, and applicable NRC regulations and precedent. The Intervenors conceded, and the Board ac-knowledged in its decision, that the removal of the withdrawal schedule from the Technical Specifica-tions did not violate any legal requirements. 42 NRC at 141-42. Accordingly, we will not elaborate on these arguments made to the Board by the Staff and Licensees.
Eh Petitioners' Supplemental Petition for Leave to Intervene, November 12,1993. The Supplemen-tal Petition was filed following the Commission's reversal of a previous Board decision which had ruled that Intervenors lacked standing to intervene with respect to the requested amendment. Cleve-land Electric Illuminating Company (Perry Nuclear Power Plant, Unit 1), CLI-93-21,38 NRC 87 (1993).
i'h Petitioners' Motion for Summary Disposition, February 7,1994.
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1 proposed schedule must be approved prior to implementation.
According to Intervenors, such prior NRC approval constitutes a material licensing action, thus requiring that changes to the withdrawal schedule be treated as license t amendments with notice and opportunity for hearing under section 189a even after re- ,
l moval of the withdrawal schedule from the Technical Specifications. ;
L The Staff's March 7,1994, opposition to the Intervenors' request for summary i disposition took issue with the Intervenors' interpretation of 10 C.F.R. Part 50, Ap-1 pendix H,5 II.B.3. The Staff noted that the regulation's language is ambiguous as to j 1
whether NRC approval of changes to previously approved withdrawal schedules is re- :
quired. Based on its review of the regulatory history, the Staff concluded that the regulation requires prior NRC approval only for schedule changes that deviate from l
the ASTM E 185 standards explicitly incorporated into Appendix H, $ II.B.E Among l other regulatory history, the Staff relied on amendments to Appendix H which had deleted from the regulation specific withdrawal schedules previously required of licen-sees "because the requirements for withdrawal schedules contained in . . . ASTM E 185 I provided satisfactory criteria for scheduling surveillance information gathering." 45 .
i Fed. Reg. 75,536, 75,537 (1980). ;
On March 21,1994, Licensees filed a cross motion for summary disposition.E Licensees argued that, even if section 189a guarantees a right to a hearing for NRC ap-provals not requiring a license amendment which are material to NRC licensing ESee NRC Staff Response to Intervenors' Motion for Summary Disposition, March 7,1994. The Staff's Response included an affidavit tracing the history of Appendix H in support ofits interpretation.
M See Licensees' Cross Motion for Summary Disposition and Answer to Ohio Citizens for Responsi-
- ble Energy, Inc 3nd Susan L. Hiatt Motion for Summary Disposition, March 21,1994.
4 1 _ _ _ _
decisions, the withdrawal schedule was not material to any licensing decision of the -
NRC. Licensees also argued that future changes to the withdrawal schedule would not constitute a de facto license amendment entitling Intervenon to a hearing because, upon approval of the amendment removing the schedule from the Technical Specifica-tions, no license amendment would be required for changes to the schedule. At that time, the license would permit changes to the withdrawal schedule and Licensees -
would not be operating outside the scope of theirlicense authority, even assuming prior NRC approval under Appendix H,5 II.B.3 were required.
On October 4,1995, the Board issued a decision granting Intervenon' sum-mary disposition motion and denying Licensees' cross-motion. Cleveland Electric Il-luminating Company (Perry Nuclear Power Plant, Unit 1), LBP-95-17,42 NRC 137 (1993). The Board essentially adopted Intervenors' arguments and concluded, at least implicitly, that any future changes to the withdrawal schedule were to be treated as li-cense amendments, regardless of materiality. The Board also rejected the NRC Staff's interpretation of Part 50, Appendix H,5 II.B.3, finding the regulation to be unambi-guous and holding that it required the NRC to " approve g proposed schedules prior to implementation." 42 NRC at 147-48 (emphasis in original). Based on this determi-nation - arrived at notwithstanding the fact that the regulation makes no mention of changes to withdrawal schedules - the Board reasoned that, "[b]ecause Appendix H,
$ II.B.3 currently requires that a proposed withdrawal schedule be approved by the agency prior to implementation, any such requested change is a request for a material licensing action that triggers section 189a hearing rights." 42 NRC at 148-49 (citations omitted). The Board thus concluded that the NRC must " treat any future proposed withdrawal schedule as a license amendment and provide notice and an opportunity 5
. .= - -. . - - . . . . - . - - - - - - - - - . . .. .
+
f l.
for a hearing in accordance with section 189a of the Atomic Energy Act." 42 NRC at .
149.'!
On November 7,1995, Licensees petitioned the Commission pursunt to 10 C.F.R. $ 2.786 for review of the Board's decision. By Order dated March 7,1996, the .
Commission granted review. Cleveland Electric Illuminating Company (Perry Nu-clear Power Plant, Unit 1), CLI-96-4,43 NRC (1996). The Commission also di- [
rected the parties, in addition to arguments they chose to present, "to address the ;
l l
significance for this case of 5 U.S.C. $$ 551(8) and (9) (defining ' license' and 'licens-ing')." I_d.
ARGUMENT i
The Board's decision is erroneous. First,'it transforms licensee activities sub-ject to prior approval by the NRC Staff into the equivalent of license amendments for which notice and opponunity for hearing must be afforded under section 189a of the Act. No suppon can be found in the case law or the NRC regulations for this far reaching result. Congress was careful to provide hearing rights under the Act for only I
certain categories of Commission acti >n, which do not include regulatory approvals that are pan of the NRC's day-to-day regulatory oversight of reactorlicensees. Judi-
. a cial precedent reflects this intent. Moreover, the stmcture of NRC's regulations con- j firms that, without more, regulatory approvals such as Appendix H,5 II.B.3 do not require section 189a hearings. The NRC has identified in 10 C.F.R. $ 50.59 proposed licensee actions that require license amendments and therefore trigger notice and op-ponunity for hearing under section 189a. On its face,10 C.F.R. S 50.59 only requires EThe Board did authorize, however, the license amendment to remove the withdrawal schedule from
' the Perry Technical Specifications because, according to the Board, the Intervenors had challenged i only the consequences of the amendment and not the amendment itself. 42 NRC at 148. See also, note 2 supra. l J 6
{
l I _ .. ,.
i l
l l
license amendments for NRC regulatory approvals, such as Appendix H,5 II.B.3, to the extent they fall within one of the categories for which 10 C.F.R. $ 50.59 requires i an amendment. The Administrative Procedure Act ("APA") does not expand on the
- hearing rights provided by the Act and its regulations.-
Second, the Board's decision eliminates materiality as a prerequisite for section 189a hearings, contrary to well-established precedent that section 189a requires a hear- )
1 ing only for issues material to those NRC licensing actions encompassed by that sec-H tion. The Board's decision would require notice and opportunity for hearing even ;
with respect to schedule changes that confonn to the ASTM E 185 standards incorpo- j rated into Appendix H,5 II.B,' standards which the NRC has already determined sat- )
1 isfy its safety requirements. Therefore, such changes are immaterial to any licensing decision and no license amendment and opponunity for hearing should be required. i Again, the NRC's regulatory regime confirms the lack of any hearing requirement for such changes. Schedule changes that comply with the ASTM E 185 standards or oth- )
erwise are immaterial to the public health and safety do not require approval by ,
l amendment under 10 C.F.R. 5 50.59.
Third, the Boani's decision is erroneous because it rejects the Staff's reasonable I interpretation of Appendix H,5 II.B.3. Based on the ambiguous language of Appen-dix H,5 II.B.3 and the regulatory history showing that schedule changes complying with ASTM E 185 standards conform to NRC safety requirements, the Staff con-cluded that Appendix H,5 II.B.3 requires NRC approval only for changes that deviate from the ASTM E 185 standards. The Board ignored both the inherent ambiguity of the regulatory language and its regulatory history.
7
I 4
Each of these three errors in the Board's decision is further addressed below.
I. The Board's Order Is Erroneous Because It Turns Licensee Actions Requiring Prior NRC Approval Into License Amendments.
A. Section 189a Does Not Mandate Hearings On Regulatory Approvals Which Are Patt Of the NRC's Continuing Ovenight Of Licensees.
The Board's decision, that the NRC's ap-oval of withdrawal schedule changes under Appendix H,5 II.B.3 requires notice and opportunity for hearing, rests on a fundamentally flawed assumption. It presumes that alll licensee actions, no matter I how inconsequential, that are subject to prior NRC approval trigger the right to a hearing under section 189a. This assumption is wrong. The language of section 189a ,
I was carefully crafted "to guarantee hearing rights in certain classes of agency action, but not in others." San Luis Obispo Mothers For Peace v. NRC,751 F.2d 1287,1313 i (D.C. Cir.1984), vacated in part and rehearing granted in part, 760 F.2d 1320 (D.C.
Cir.1985) (en banc) (emphasis in original). Accord, Florida Power & Light Co. v. Lo- ,
I don,470 U.S. 729,738-39 (1985). Regulatory approvals that the NRC requires as part of its continuing ovenight of operating reactors are not among the classes of agency 1
action for which section 189a requires notice and opportunity for hearing. j As discussed in both San Luis Obispo and Flodda Power & Light, the Act as originally introduced did not provide for hearings with respen to Commission licens-l ing determinations. The lack of a hearing requirement prompted concerns and led to a proposed amendment to section 181 of the Act which would have provided that l
"[u]pon application, the Commission shall grant a hearing to any party materially in-terested in any agency action."E This provision was soon recognized, however, as too ESee Atomic Energy Commission,1 Legislative History of the Atomic Energy Act of 1954, at 541, j 625 (1955)[ hereinafter cited as " Legislative History")(emphasis added), discussed at San Luis Obispo,
>upra,751 F.2d at 1313.
8 l
l
4 i
l l
l broad of a response to the perceived need and was dropped in favor of the current hearing requirements found in section 189a.E As stated by Senator Hickenlooper in l ,
introducing new section 189a:
l [T]his section reincorporates the provisions for hearings
( formerly made pan of section 181 but clearly specifies the types of Commission activities in which a hearing is required. The purpose of this revision is to specify i clearly the circumstances in which hearings are to be held.1E Thus, the legislative history of the Act " reveals the intent of Congress to guar-antee hearing rights in certain classes of agency action, but not in others." San Luis Obispo,751 F.2d at 1313 (emphasis in original). "If a panicular form of Commission action does not fall within one of the . . . categories set forth in [section 189a], no hear- -
ing need be granted by the Commission." San Luis Obispo,751 F.2d at 1314; accord '
L Kelley v. Selin,42 F.3d 1501,1515 (6th Cir.), cert. denied,115 S. Ct. 2611 (1995);
L Commonwealth of Massachusetts v. NRC,878 F.2d 1516,1521 (1st Cir.1989).
l The categories of agency action for which section 189a requires the NRC to i l
provide notice and opportunity for hearing are: l l any proceeding . . . for the granting, suspending, revok- '
ing, or amending of any license or constmction permit, l or application to transfer control, and any proceeding for the issuance or modification of rules and regulations deal-ing with the activities of licensees, and in any proceeding for the payment of compensation, an award or j royalties .. . . .
?!Sg 100 Cong. Rec.10,171 (1954) (remarks of Senator Pastore), reprinted in 3 Legislative History, su_-
pra at 3175 ("That wording was thought to be too broad, broader than it was intended to make it.")
M'100 Cong. Rec. 10,171 (1954) (remarks of Sen. Hickenlooper), reprinted in 3 Legislative History, e i p_ra at 3175.
9 I
- u. - . ..-
t t
. 42 U.S.C. $ 2239(a). The categories most relevant here and relied upon by the Interve-l non and the Board are the licensing actions for which section 189a grants a right to a ,
hearing "the granting, suspending, revoking, or amending of any license or construc- j tion permit," The licensing actions for which notice and opportunity for hearing are i.
required under section 189a do not, however, encompass the univene of Commission ;
' licensing actions. For example, in San Luis Obispo, the court held that lifting a li .
cense suspension did not fall within any of the classes of licensing actions set out in section 189a. Similarly, in Commonwealth of Massachusetts, the coun held that the NRC's decision authorizing restart of a plant that had been shut down did not consti-tute a license amendment and did not trigger notice and opportunity for hearing un-
' der section 189a.- Thus, even assuming NRC approvals under 10 C.F.R. Part 50, Appendix H,5 II.B.3 are material licensing actions, which they are not, a hearing ,
would be required only to the extent such approvals fall within one of the classes of ;
licensing actions enunciated in section 189a.
NRC approvals of changes to withdrawal schedules for reactor vessel material surveillance specimens do not fall within any of the classes of licensing actions for which section 189a grants a right to a hearing. They are no different than numerous other regulatory approvals that the NRC requires on a continuing basis to assure that the activities authorized under NRC licenses continue to be conducted with no undue risk to the public health and safety.M 'None of these provisions contemplate or HISee, e.g.,10 C.F.R. $ 50.46 (a)(3)(ii) (use of approved integrated scheduling system for showing com-
. pliance with 5 50.46); 10 C.F.R. 5 50.48(c)(5) (compliance with fire protection requirements); 10 C.F.R.
$ 50.54(a)(3) (changes to quality assurance programs that reduce commitments); 10 C.F.R. $ 50.55(f)(3)
(for construction permit holders, changes to quality assurance programs that reduce commitments); 10 C.F.R. $ 50.54(i-1) (decrease in scope of an operator requalification program); 10 C.F.R. 5 50.54(q)(changes to emergency plans which decrease plan effectiveness); 10 C.F.R. $ 50.54(w)(4)(ii)
. (post-accident cleanup plan); 10 C.F.R. $ 50.54(bb) (spent fuel management and funding plan); 10 Footnote continued on next page 10
f.
r require license amendments because the approvals granted by the NRC under these
- provisions do not result in licensees operating beyond the scope of their previously- -
l authorized licenses.
l 1 The cases cited above refute the Board's ruling that such NRC approvals auto- ,
matically tngger section 189a heanng requirements. Closely on point is the Sixth Cir-l -
1 cuit's decision in Kelley. Petitioners in that case argued that the NRC's granting of an l exemption to the vendor of the spent fuel storage casks to be installed at Consumen Power Company's Palisades facility and NRC's " approval of amendments to Pah- i sades' security and emergency plans" triggered section 189a's right to a hearing. 42 t
i I
F.3d at 1514. The Sixth Circuit rejected the petitioners' arguments: i t
i There h no licensing decision being made here. . . . The l- decisions to which petitioners refer as site-specific do not
! grant Consumers the right to operate Palisades in any ,
greater capacity than the plant had previously been al- l lowed to operate, and the NRC did not exempt Consum. ]
l ers from operating under any specific safety requirements j or change the rules applicable to Consumen to such an L extent that it no longer followed otherwise applicable l NRC rules and regulations.
l Footnote continued from previous page C.F.R. $ 50.55a(f)(4)(iv) (use of subsequent editions and addenda of ASME Code for inservice testing of pumps and valves); 10 C.F.R. $ 50.55a(g)(4)(iv) (use of subsequent editions and addenda of ASME Code for inservice inspection of pumps and valves); 10 C.F.R. $ 50.61(b)(6)&(7) (reactor operation beyond pressurized thermal shock screening criterion); 10 C.F.R. $ 50.82(d) (updated detailed decommission- !
' I ing plan prior to start of major disniantlement activities); 10 C.F.R. Pan 50, App. G,5 III.B (test meth-ods for supplemental fracture toughness tests); 10 C.F.R. Part 50, App. G, $ IV.A.1 (reactor vessel j beltline material Charpy upper. shelf energy of less than 50 ft-lb); 10 C.F.R. Part 50, App. G,5 V.D j- (thermal annealing); 10 C.F.R. Pan 50, App. G, $ V.E (programs for satisfying requirements of App.
, G, $$ V.C. & D) 10 C.F.R. Part 50, App. H,5 II.C (integrated reactor surveillance programs); 10 C.F.R. Part 50, App.J, $ III.A.6 (test schedule for Type A integrated leakage rate test); 10 C.F.R. Part 50, App. K, $ 1.C.S.c (ECCS evaluation models).
11
_._ _ _ . . _ . _ _ . ~ _ . _ _ _ . - . _ _ . ~ . _ _ _ _ - . _ _ . _ . . ._
e I
42 F.3d at 1515 (emphasis added). The Sixth Circuit stated further that "the grant of an exemption from a' generic requirement does not constitute an amendment to the re-.-
actor's license that would trigger hearing rights." 42 F.3d at 1517; accord Common-f
- wealth of Massachusetts,878 F.2d at 1521; Duki Power Co. v. NRC,770 F.2d 386, 389 (4th Cir.1985). Similarly, the Kelley decision held that NRC's approval of the re- ;
vised security and emergency plans for Palisades "[did] not require public participa-- l tion." 42 F.3d at 1517.
Here too, the NRC's approval of a change to the withdrawal schedule will not l
grant Licensees, in the words of the Kelley decision, "the right to operate [ Perry] in any greater capacity than the plant had previously been allowed to operate." Nor will it " exempt [ Licensees] from operating under any specific safety requirements or change the rules applicable to [ Perry] to such an extent that it no longer follow [s] oth-erwise applicable NRC rules and regulations." Therefore, the NRC's approval does l not trigger section 189a hearing rights. 1 The cases cited by the Board and Intervenors are not to the contrary. Union j of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir.1984), cert. denied sub nom. Arkancs Power & Light Co. v. Union of Concerned Scientists,469 U.S.1132 (1985), involved a category of licensing proceedings explicitly within the scope of sec-tion 189a. The issue there was whether questions concerning emergency evacuations were material to the Commission's licensing decision to grant an operating license so that they had to be heard in a hearing already required under section 189a. The court in Union of Concerned Scientists did not rule that any request for NRC approval un-der its regulations constitutes "a material licensing action that triggers section 189a 12 l
V
. 1 r
e w
l l .
- i l
l hearing rights," which is the principle for which the Boani cites the case. 42 NRC at 149.E i
l The purported principle upon which the Boani's decision rests is refuted by San Luis Obispo and Commonwealth of Massachusetts. The lifting of the license sus- !
l pension for the Diablo Canyon facility in San Luis Obispo and the NRC's authoriza-L tion of the restart of the Pilgrim reactor in Commonwealth of Massachusetts, both l
determined to fall outside section 189a, were certainly " material" or "important" li-censing actions.E Indeed, the court in San Luis Obispo expressly rejected an argu-ment that "all actions by the Commission which bring about a 'significant change' in
'the licensing status of a nuclear facility come within the mandate of section 189(a)."
. 751 F.2d at 1312; see also 751 F.2d at 1314. Thus, contrary to the Board's conclusion, a material licensing action, by itself, does not trigger section 189a hearing rights. The licensing action must also fall within one of the . lasses of licensing actions specified in
! section 189a.
l l
The other case primarily relied upon by the Boani and the Intervenors, Citi-l zens Awareness Network v. NRC,59 F.3d 284 (1st Cir.1995),is similarly mapposite, i l
l In that case, the court concluded that the NRC's approval (effectuated by a change in I l
l interpretation ofits decommissioning regulations) of the licensee's " component re-l l- moval project" had "substantially enlarged the [ licensee's] authority" to engage in ac-tivities far beyond those previously authorized. 59 F.3d at 294. The coun did not lay msg San Luis Obispo Mothers for Peace v. NRC,789 F.2d 26,30 (D.C. Cir.) (en banc), cert. denied,
- 479 U.S. 923 (1986) (" Union of Concerned Scientists holds only that the Commission cannot exclude j from a section 189(a) hearing issues that its rules or regulations require it to consider in its licensing
' decisions.")
EThe first definition of " material
- found in Black's Law Dictionary is "important." Thus, for exam- j
, ple, a representation relating to a matter "which is so substantial and important as to influence [the] l party to whom made is ' material.'" Black's Law Dictionary Sixth Edition (1990).
I 13
\
P down the broad rule of law promoted by the Boani that NRC approvals which are !
pan of its continuing regulatory oversight require notice and opportunity for hearing under section 189a. Such an interpretation is refuted by Kelley and other cases (San ;
. Luis Obispo, Commonwealth of Massachusetts and Duke Power) holding that such regulatory approvals by the NRC do not constitute amendments to a reactor's license that would' trigger hearing rights under section 189a.E
[ That regulatory approvals under Appendix H,5 II.B.3, and similar regulatory .
1 approvals (see note 11 supra), do not - without more - trigger hearing rights under i
)
- section 189a is confirmed by the structure of the NRC regulations. The regulations in
]
- 10 C.F.R. $ 50.59 identify those regulatory approvals that require license amendments and therefore trigger section 189a hearing rights. Under 10 C.F.R. $ 50.59, license amendments are required (1) to m'ake changes to a plant's technical specifications and (2) to make changes in the facility or the procedures described in the safety analysis re-pon (or to conduct tests or experiments not described in the safety analysis report)
"which involve an unreviewed safety question." 10 C.F.R. $ 50.59(c).E A proposed -
change, test, or experiment is deemed to involve an unreviewed safety question if (i) the probability of occurrence or the consequences of an accident previously evaluated may be increased; (ii) the possibility for an accident of a different type than previously evaluated may be created; or (iii) the margin of safety underlying any technical specifi-cation may be reduced.10 C.F.R. $ 50.59(a)(2).
WThe intervenors also cited Sholly v. NRC,651 F.2d 780,791 (D.C. Cir.1980), vacated and re-l manded,459 U.S.1194 (1983). See LBP-95-17,42 NRC at 140. However, the Supreme Court's vacat-ing the Sholly decision " deprives [it] of precedential effect." County of Los Angeles v. Davis,440 U.S. !
625,634 n. 6 (1979); see also Citizens Assoc. for Sound Energy v. NRC,821 F.2d 725,728 (D.C. Cir. !
1987) ("The Sholly decision is no longer of precedential value ")
i WA license amendment also would be required to change the terms and conditions of the actual li-cense document itself, which obviously is not involved here.
14
l l
Thus, the NRC has identified in 10 C.F.R. S 50.59 those general categories of licensee actions that require approval by license amendments. Under the NRC's regu-lations, other regulatory approvals of licensee actions (such as Appendix H,5 II.B.3 and similar approvals listed in note 11 supra) require a license amendment only if they fit one of the categories for which 10 C.F.R. $ 50.59 requires an amendment.W Other-l wise such regulatory approvals are merely part of the NRC's routine regulatory over-sight of its licensees and do not enlarge or expand on a licensee's authority to operate its plant in a manner adverse to public health and safety. Therefore, as opined by the court in Kelley, these approvals do not require notice and opportunity for hearing.
B. The Administrative Procedure Act Does Not Impose Any Additional Hearing Requirements.
l l
In its March 7,19'96, Order granting review, the Commission directed the par-ties to " address the significance for this case of 5 U.S.C. $$ 551(8) and (9)," which de-j fine " license" and " licensing" under the APA. Section 551(8) states that:
" license" includes the whole or a part of an agency per-l mit, certificate, approval, registration, charter, member-l ship, statutory exemption or other form of permission.
Section 551(9) defines " licensing" as follows:
" licensing" includes agency process respecting the grant, renewal, denial, revocation, suspension, annulment, I
WUpon removal of the reactor vessel material surveillance specimen withdrawal schedule from the Perry Technical Specifications, the withdrawal schedule would be included in the Updated Safety Analysis Report and changes to the schedule would be subject to 10 C.F.R. 5 50.59 as well as Appen-dix H,5 II.B.3. Therefore, any future changes to the withdrawal schedule that involve an unreviewed j safety question would require a license amendment, with notice and opportunity for a hearing under
. section 1892. This result allays any concern, referenced by the Commission in reversing the Board's earlier decision that Intervenors lacked standing, that Intervenors may not be provided notice and op-portunity for hearing on changes to the withdrawal schedule that could potentially affect public health and safety. See CLI-93-21,38 NRC at 95-96.
. 15
1 withdrawal, limitation, amendment, modification, or.
conditioningof alicense.
The APA definitions have limited significance with respect to the issues in this case. First, it is well established that the underlying substantive statute, here section l
.189a of the Act, and not the APA determines the right to a hearing. Therefore, even i
assuming the NRC's approval of changes to the withdrawal schedule constitutes "li-L censing" as defined by the APA, the APA would not enlarge or expand on the hearing rights provided by section 189a. Second, a review of the cases applying the APA defi-L mtions of " license" and " licensing" reflects that, although defined broadly, those terms l do not include day-to-day regulatory approvals by a regulatoty agency. The only coun decision to address this issue has ruled that these APA definitions do not include such approvals made by a regulatory agency as pan of its oversight responsibilities.
L 1. The APA Does Not Require A Hearing for NRC Licensing Actions.
l A long line of judicial authority establishes that the underlying substantive statute and not the APA detennines the obligation of an agency to hold a hearing -
with respect to agency actions.W Thus, cases construing the right to a hearing with ESee, e.g., United States v. First Nat'l Bank Through O'Hara,727 F.2d 762,763 (8th Cir.1984) ("[The APA]cre.tes no right to a hearing; the APA only prescribes procedures to be followed when a hearing is required by another statute."); Advanced Medical Systems, Inc. (One Factory Row, Geneva, OH 44041), ALAB-929,31 NRC 271,282 (1990) ("[I]t is the enabling statute (i.e., the Atomic Energy Act) and not the APA that determines whether an on-the record hearing is required."). The legislative his-l tory of the Atomic Energy Act reflects an awareness that the APA independently does not provide for agency hearings. This led the Congress to enact section 189a. See, e.g., S. 3323 and H.R. 8862, To Amend the Atomic Energy Act of 1946: Hearings Before the loint Comm. on Atomic Energy,83d Cong.,2d Sess.152 53 (supplemental statement of Joseph Volpe,Jr., Volpe, Boskey & Skallerup) ("Un-less the basic legislation requires the licensing proceeding to be determined upon the record after op-l portunity for an agency hearing, the agency is not required to follow the provisions as to hearing and decision contained in Section 7 and 8 of the Administrative Procedure Act."),417 (statement of Oscar M. Ruebhausen, Chairman, Special Comm. on Atomic Energy, Ass'n of the Bar of the City of N.Y.)
("Under the bill it is not clear whether hearings are required. Unless hearings are so required, the hear-ings provisions of the Administrative Procedure Act will not come into play."), reprinted in 2 Legisla-i tive History, supra at 1786-87 and 2051, respectively.
16
1 1
respect to NRC licensing action and the nature of any hearing required have looked to section 189a and its legislative history, rather than to the APA. Cases such as San Luis Obispo and Commonwealth of Massachusetts have held that section 189a does not i
~
grant the right to a hearing for all agency licensing actions. Other cases have held tnat l a formal adjudicatory hearing on the record in accordance with 5 U.S.C. $$ 556 and I l
557 is not required for certain NRC actions for which section 189a does grant a hear- !
l ing. See, e.g., Siegel v. AEC,400 F.2d 778 (D.C. Cir.1968); City of West Chicago v.
NRC,701 F.2d 632 (7th Cir.1983).
The City of West Chicago decision most directly addresses the lack of rele-vance of the APA provisions associated with licensing in determining whether a hear-ing is required for NRC licensing actions. In that case, the Seventh Circuit held that the NRC is not required to provide formal adjudicatory hearings in accordance with 5 U.S.C. $$ 556 and 557 for material licenses issued under Part 40 of the NRC's regula-tions. In so holding, the Seventh Circuit rejected the City's argument that 5 U.S.C. 5 558(c) required such a hearing under the APA. This provision of the APA provides in relevant part that:
When application is made for a license required by law, the agency, with due regard for the rights and privileges of all the interested parties or adversely affected persons and within a reasonable time, shall set and complete pro-ceedings required to be conducted in accordance with sec-tions 556 and 557 of this title or other proceedings required by law and shall make its decision.
The Seventh Circuit held that this provision of the APA does not independently man-date an adjudicatory hearing but "merely requires any adjudicatory hearing mandated i
under other provision of law to be set and completed in an expeditious and judicious l 17
\
)
l l
manner." 701 F.2d at 644. In so holding, the Seventh Circuit reversed its own prior ;
precedent and followed that of the First, Fifth and Ninth Circuits which have simi-larly heki that the APA provides no independent right to a hearing with respect to )
1 agency licensing actions as defined by the APA.E In short, even assuming that NRC approvals of withdrawal schedules consti-tute " licensing" under the APA, the APA would not provide for a headng with re-spect to such approvals. Any right to a heanng is determined by section 189a, which,
~ as discussed above, does not include such regulatory approvals among the classes of agency action for which notice and opportunity for hearing are provided.
- 2. Day-To-Day Regulatory Approvals Do Not Constitute APA Licensing.
The NRC's approval of reactor vessel specimen withdrawal schedules and the other similar approvals required by the NRC under its regulations (see note 11 supra) constitute part of its day-to-day regulatory ovenight of its licensees. The APA licensing definitions have been construed to exclude such routine regulatory administration. The cases applying 5 U.S.C. SS 551(8) and (9) have typically involved WSeacoast Anti Pollution League v. Costle,572 F.2d 872,878 n.11 (1st Cir.1978); Taylor v. District Engineer, U.S. Army Corps of Engineers,567 F.2d 1332,1337 (5th Cir.1978); Marathon Oil Co. v.
EPA,564 F.2d 1253,1261 n.25 (9th Cir.1977). But see New York Pathological & X-Ray Labs,Inc. v.
INS,523 F.2d 79,82 (2d Cir.1975) (holding on a preliminary injunction request that a full adjudica.
tory hearing is required under 5 558(c)). In addition to involving a motion for a preliminary injunc-tion. the factual circumstances of New York Pathological arguably involved " withdrawing, suspending and revoking" of a license. See 523 F.2d at 81-82. The second sentence of 5 U.S.C. $ 558(c) does pro-vide certain procedural protections (notice and opportunity to respond) with respect to the "with-drawal, suspension, revocation, or annulment of a license." Those agency actions are not involved here (but nonetheless are among the licensing actions for which section 189a provides notice and op-portunity for hearing). Moreover, a dissenting opinion New York Pathological read 5 U.S.C. $ 558(c) as providing no independent right to a hearing as the other circuits above that have subsequently ruled on this issue.
18 i
- .~ _ . _ . . . _ . -_
.j
f
~
t individual cenificates, permits and the like,1E and not continuing regulatory oversight t
of agency licensees. The only case to consider whether approvals granted as part of an agency's day-to-day administration of its regulations constitute " licensing" concluded that such agency action does not fall within the APA definition of that term. Ameri- l can Cylinder Manufacturers Comm. v. Depanment of Transponation,578 F.2d 24 (2d Cir.1978).
T In that case, the Amedcan Cylinder Manufacturers Committee ("ACMC") ar-gued that approvals by the Depanment of Transponation (" DOT") to foreign manu-facturers to have compressed gas cylinders analyzed and tested outside the United States in accordance with its rules and regulations constituted " licensing" under the ;
r APA. The Second Circuit rejected these claims as "an exaltation of form over sub- l stance." 578 F.2d at 27. The court analyzed the issue as follows: l t
When one studies the substance of the . . . rules and their :
genesis, it becomes apparent that, though the " approval" !
procedure may appear on the surface to fall within the l broad definition of " licensing" under the Administrative ;
Procedure Act,5 U.S.C. $$ 551(8), (9), in reality the pro- !
cedure involves the performance by DOT of a skilled, !
but essentially pro forma, act - h, determining whether, l on the face of an application, a foreign manufacturer has i shown the capability for meeting specifications relating to testing and analysis.
"'See, e.g., Bullwinkel v. FA A,787 F.2d 254,256-57 (7th Cir.1986) (private pilot's airman medical cer- ,
tificate from the Federal Aviation Administration license under the APA); National Cable Television ,
Assoc., Inc. v. FCC,554 F.2d 1094 (D.C. Cir.1976) (cable television operator's certificate of compli- ;
ance from the Federal Communications Commission APA license); Blackwell College of Business v. ;
Attorney General,454 F.2d 928,934 (D.C. Cir.1971) (Immigration and Naturalization Service's ap-proval of college for attendance by non-immiB rant alien students under Immigration and Nationality :
Act license under APA). Acr am " Attorney General's Manual on the Administrative Procedure Act,* .
United States Department of y.aice, Tom C. Clark, Attorney General, at 16 (1947) (" Licensing pro- ,
ceedings [ include] the grant, denial, renewal, revocation, suspension, etc. of, for example, radio broad- l' casting licenses, certificates of public convenience and necessity, airman certificates, and the like.")
19 i
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. . . .' It would be strange indeed if DOT, while charged i with the duty of protecting the American public from f the dangen of transponing hazardous substances, was permitted to make regulations in conformance with the ;
industry's capabilities, but was denied the power to ad-minister the regulations which properly and validly carry ;
out this charge. We believe, as the Supreme Coun has !
stated, that " administrative agencies and administrators f
[are] familiar with the industries which they regulate and
[are] in a better position than federal couns or Congress l itself to design procedural ules adapted to the peculiari-ties of the industry and the tasks of the agency involved." ;
Common sense dictates that . . . the agency must also j have the authority to oversee the application of its regula- ,
tions. As Judge Friendly has put it, " Congress could ;
hardly have intended to deprive [this] agenc[y] of [its]
ability to administer." I
. . . . . Appellant's position would imply that DOT can- ]
not carry out its functions under these provisions with- l j
out the aid of others in the industry who are not charged with the public duty. . . . j To hold, as ACMC would have us do, that its memben should be permitted to oversee DOT in accepting and ap-proving applications submitted by foreign manufacturers would be to involve an applicant's competitor's in the day-to< lay administration of DOT's regulations vis-a-vis that applicant. Such involvement is not only unrequired by the statutes and regulations, but it is unwise as well.
l 578 F.2d at 27-29 (citations omitted).
! To require a hearing for changes in the withdrawal schedule of reactor vessel material specimens would raise the same concerns as those in ACMC. Similar to t
DOT, Congress has authorized the Commission to promulgate such rules and 20 l
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i regulations as are necessary to carry out its regulatory responsibilities under the Act.
42 U.S.C. 5 2201(b). The courts have held that the NRC'has wide discretion in over- l seeing the implementation of those rules and regulations in furtherance of the Act's )
statutory objectives.M To require the NRC to hold hearings on approvals it has seen fit to include in its day-to-day regulation of reactor licensees would be an unwarranted intrusion into the regulatory affairs of the Commission and needlessly complicate the i 1
' NRC's regulatory ovenight of its licensees as entmsted to the NRC by.the Congress. f II. The Order Is Erroneous Because It Eliminates Materiality As A Requirement For A Hearing Under Section 1892. !
Section 189a has been interpreted to require notice and opportunity for hearing only with respect to issues that are material to NRC licensing decisions for the classes ;
oflicensing actions encompassed under section 189a. See, e.g., Union of Concerned Scientists,735 F.2d at 1443; Bellotti v. NRC,725 F.2d 1380 (D.C. Cir.1983). Even as-l
- suming that NRC approval of reactor vessel specimen withdrawal schedules falls ~ i
! within one of the classes of licensing actions for which 189a grants a right to a hearing, the Board's onier would require notice and opportunity for hearing on a_l1 such NRC l
approvals, regardless of their materiality.-
l In Union of Concerned Scientists, the NRC conceded that emergency prepar-edness exercises had to be satisfactorily completed before the NRC could issue an op-l
! erating license. 735 F.2d at 1438. As a result, the court concluded that such exercises i
were material to the NRC's decision to grant an operating license and were required 2ESee, e.g., Siegel v. AEC, supra,400 F.2d at 783 ("[The] regulatory scheme [of the Atomic Energy Act]
is virtually unique in the degree to which broad responsibility is reposed in the administering agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objec-tives."); County of Rockland v. NRC,709 F.2d 766,776 (2d Cir.), cert. denied,464 U.S. 993 (1983).
l 1 (" Congress has given the Commission considerable latitude to decide difficult questions that arise with respect to nuclear safety.'); accord Kelley v. Selin, supra,42 F.3d at 151112.
! 21 1
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--4 4 , - e
I to be part of the section 189a hearing on the operating license. Ld. In contrast, in Bel-lotti the NRC issued an order modifying and amending a reactor operating license to .
require the licensee to develop a plan for reappraisal and improvement of management functions. 725 F.2d at 1382. Because the substance of the plan was not a factor in the NRC's decision to modify the license, it was not material to the decision. Accord-ingly, a hearing on the substance of the plan was irrelevant to determining whether the order modifying and amending the license should be issued, and no hearing was required. I_d.
Here, implementation of the Board's decision would require the NRC to pro-vide notice and opportunity for hearing with respect to changes in the withdrawal schedules regardless of the materiality of the change. Such notice and opportunity for hearing would be required even if those changes comply with the ASTM E 185 stan-dards incorporated into Appendix H,5 II.B.1. As discussed in the Statement of the Case, the regulatory history of Appendix H demonstrates that withdrawal schedules conforming with ASTM E 185 standards satisfy NRC safety requirements. Accord-ingly, withdrawal schedules conforming with ASTM E 185 standards are not material to any conceivable licensing decision, and therefore do not require notice and oppor-tunity for hearing under section 189a.
Again, the structure of the NRC regulations confirms the correctness of this l analysis. The Commission has in 10 C.F.R. S 50.59 identified those types of regula-tory approvals that are material for licensing purposes by requiring license amend-ments for particular categories of licensee activities. Schedule changes that comply l with the ASTM E 185 standards or otherwise are not material to the public health and safety would not constitute unreviewed safety questions for which 10 C.F.R. $ 50.59 22
would require a license amendment. On the other hand, changes to withdrawal sched-ules that did not conform with ASTM E 185 would likely be determined to involve an unreviewed safety question and require a license amendment under 10 C.F.R. S 50.59(c).2g III. The Board's Order Is Erroneous Because It Rejects The Staff's ;
Reasonable Interpretation Of Appendix H,5 II.B.3. I i
Based on the history of Appendix H, the Staff interprets Appendix H,5 II.B.3 to require NRC approval only for schedules that deviate from the ASTM E 185 stan-dards incorporated by reference in Appendix H,5 II.B.1.E Section II.B.1 of Appen-dix H requires a licensee's reactor vessel material specimen program to comply with the applicable edition of ASTM E 185 (the " Standard Practice for Conducting Surveil-lance Tests for Light-Water Cooled Nuclear Power Reactor Vessels").E ASTM E sets forth requirements for scheduling the withdrawal of reactor material vessel specimens which, upon ASTM E's inclusion in Appendix H, led the NRC to delete from Appen-dix H other provisions that had previously required licensees to follow specific with-drawal schedules. The NRC did so because, as stated earlier, "the requirements for withdrawal schedules contained in . . . ASTM E 185 provided satisfactory criteria for scheduling surveillance information gathering." Based on this and other related regula-tory history, and the ambiguous language of Appendix H,5 II.B.3 on whether NRC msg NRC Staff Response to Intervenors' Motion for Summary Disposition, supra at 27.
ESee NRC Staff Response to Intervenors' Motion for Summary Disposition, supra at 17-27, and the supporting affidavit of Barry J. Elliot, Jack R. Strosnider and Christopher I. Grimes.
EThe applicable editions of ASTM E 185 E have been officially incorporated by reference into the regulations. Sn Introduction to Appendix H (" ASTM E 185-73,-79 and -82. . . have been approved for incorporation by reference by the Director of the Federal Register"). Accordingly, the applicable editions of ASTM E 185 E have the binding force and effect of NRC regulation. Sr 5 U.S.C. $
552(a)(1) and 1 C.F.R. Part 51.
23 i
approval of changes to previously approved withdrawal schedules is required, the Staff concluded that Appendtx H,5 II.B.3 requires NRC approval only for changes to 'with-l drawal schedules that do not conform with the scheduling requirements of ASTM j E 185.
1 The Board rejected the Staff's interpretation and held that "all proposed sched-ules" require the NRC's approval. 42 NRC at 147-48 (emphasis in original). In its de-i l cision, the Boani argues that 5 II.B.3 is clear and unambiguous on its face and that the l Staff disregards its plain meaning. 42 NRC at 143-48. However, the regulation is !
I :
l hardly as clear and unambiguous as the Boani claims. It provides only that "[t]he pro- ;
posed schedule must be approved prior to implementation." It does not specify )
whether it is only the initial schedule that must be approved or whether changes to 1
that schedule must also receive prior approval. While the Board criticizes the Staff for :
"the unwarranted insertion" of the word " initial" into the regulation (42 NRC at 146), !
the Board itself without warrant insens the word "all" in order to find no ambiguity in the provision. 42 NRC at 147. The Staff's interpretation of Appendix H,5 II.B.3 !
is reasonable based on the regulation's history and purpose, and the Commission '
should adopt it.
l.
l CONCLUSION ,
l
? ,
l For the foregoing reasons, the Commission should reverse the Board's Memo-i randum and Order, LBP-95-17, issued October 4,1995. The Board has erroneously concluded that NRC approvals of withdrawal schedule changes under 10 C.F.R. Part 50, Appendix H,5 II.B.3 constitute material licensing actions that must be treated as if ;
i they were license amendments. The Board's decision is contrary to section 189a, well- ;
established case law, the Commission's regulatory regime and established regulatory l 24 i
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practice. It would require the NRC to treat approvals required as part of its continu-1 ing regulatory oversight as if they were license amendments subject te the procedural requirements of section 189a. The Board's decision also eliminates materiality as a -
prerequisite for section 189a licensing hearings and rejects the Staff's reasonable inter- l pretation of Appendix H, $ II.B.3. ,
i In addition to Appendix H, $ II.B.3, the NRC's regulations contain many other provisions requiring RC approval of licensee actions which are not otherwise j subject to notice and opportuaity for hearing under section 189a. See note 11, supra.
The Board's rationale would emboss upon such regulatorily established Staff approvals .
the procedural trappings of license amendments. Generic application of the Board's ruling would have a significant impact on the both the NRC Staff and NRC licensees. ;
It would greatly burden the NRC's regulatory oversight with new procedural require- !
ments with no concomitant benefit to the public health and safety. l Respectfully submitted, i
Shaw, Pittman, Potts & Trowbridge 2300 N Street, N.W.
Washington, D.C. 20037 A%
}. Silbe'rg aul'A. Gaukler j
Counsel for Licensees l Dated: April 26,1996 l
l l
1 25 :
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-- - -~. . . . . .- _._ - -
l l
' 00CKETED USHRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
% APR 29 A10:56 i
0FFICE Cr SECRETARY Before the Commission DOCXEI!NG & TBVICE BRAT 4Cli I
l
)
! In the Matter of - )
i ) Docket No. 50-440-OLA-3
, THE CLEVELAND ELECTRIC )
ILLUMINATING COMPANY, et al. ) t.icense Amendment
) (Material Withdrawal Schedule)
)
(Perry Nuclear Power Plant, ) ;
! Unit No.1) )
! )
CERTIFICATE OF SERVICE l
l I hereby certify that copies of the foregoing Licensees' Brief On Review of Licensing Board Decision LBP-95-17 were sent on April 26,1996 by first class mail, postage prepaid, to the persons on the attached Service List.
i Shaw, Pittman, Potts & Trowbridge 2300 N Street, N.W.
Washington, D.C. 20037 t 00 M As
~~
IYaul k. Gliukler' Counsel for Licensees 1
. Dated: April 26,1996 l
- l k
9
. \
f/1
- UNITED STATES OF AMERICA ,
I NUCLEAR REGULATORY COMMISSION 1
/
l Before the Comminion t
)
In the Matter of )
) Docket No. 50-440-OLA-3 THE CLEVELAND ELECTRIC )
ILLUMINATING COMPANY, et al. ) License Amendment 1
) (Material Withdrawal Schedule)
)
(Perry Nuclear Power Plant, )
Unit No.1) )
) l SERVICE IIST Office of the Secretary Dr. Richard F. Cole U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board -
Attention: Chief, Docketing and Service U.S. Nuclear Regulatory Commission Sectica Washington, D.C. 20555 Wohington, D.C. 20555 Sherwin E. Turk, Esq. Dr. Charles N. Kelber Office of the General Counsel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Thomas S. Moore, Esq. Office of Commission Appellate l
Chairman Adjudication Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission I U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Ms. Susan Hiatt 8275 Munson Road Mentor, Ohio 44060
_