ML20151H277
| ML20151H277 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 10/29/1982 |
| From: | Slaggie E NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20151H280 | List: |
| References | |
| FOIA-88-198, TASK-AII, TASK-SE SECY-82-444, NUDOCS 8211190001 | |
| Download: ML20151H277 (59) | |
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October 29, 1982 g, SECY-82-4 4 t/ e e...* !
ADJUDICATORY ISSUE (Information)
Fort The Commission From: E. Leo Slaggie, Acting Solicitor
Subject:
NRC BRIEF IN BELLOTTI V. NRC, D.C. CIR.
NO. 82-1932
~~
Purpose:
To inform the Commission of the recent filing of the NRC's brief in this case.
Discussion: In August 1982 the Attorney. General of Massachusetts sued the Commission to overturn the denial of his request for an adjudicatory hearing on the NRC's enforcement action on Pilgrim. See SECY-82-357. Under the stipulated briefing schedule, we filed the NRC brief on October 28 (copy attached).
The brief takes the position that the NRC has the authority to define the i scope of hearings offered with respect :
to its action and that Mr. Bellotti contested nothing within the scope of that of fer of a hearing. We expect briefing to b completed by early December.
f e M,, ' .>p.
- u. _,
E. Leo Slaggie j Acting Solicitor' Attar.hment
. Briff'-
Contacts:
. Mark E. Chopko, GC, X-41493 Paul Bollwerk, GC, X-43224 ~
' l DISTRIBUTION:
Cor.missioners EDO CGC ELD C7I ASLSP
- A A3 LAP _
@,Q lll 9 0 00 b g ,
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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT [
i !
No. 82-1932 FRANCIS X. BELLOTTI, i i . Petitioner, {
j , !
- v.
t I UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents, 4
j BOSTON EDISON COMPANY, Intervenor.
~
i ON PETITION FOR REVIEW OF FINAL ORDER l OF THE UNITED STATES NUCLEAR REGULATORY COMMISSION 4
J )
j BRIEF FOR RESPONDENTS !
}
1 1 LEONARD BICKWIT, JR. ANTHONY C. LIO7FA
! General Counsel Acting Ass't Attorney General 1
Land and Natural Resources i
E. LEO SIAGGIE Division Acting Solicitor DIRK D. SNEL
! ' MAPJ 1. CHOPKO NANCY B. FIRESTONE 4 . . JOHN *F. KLUCSIX Attorneys 1 G. PAUL BOLLWERK III U.S. Department of Justice Washington, DC 20530 Attorneys j , .
U.S. Nuclear Regulatory Ccemission
! uashington, DC 20555
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) I CCIC3EY 'h5.
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,o .. ,
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4 TABLE OF CONTENTS I.ajg,e, QUESTION PRESENTED . . . . . . . . . . . . . . . . . . 1 RELATED CASES . . . . . . . . . . . . . . . . . . . . 1 l ,
STATEMINT OF TRI CASE . . . . . . . . . . . . . . . . 2 i
i I. Nature of the Case . . . . . . . . . . . . . . . 2 II. State' ment of Facts . . . . . . . . . . . . . . . 4 A. Regulatory Framework . . . . . . . . . . . . 4
- 3. Factual Background . . . . . . . . . . . . . 7 :
{
SUMMARY
OF THE ARGUMENT . . . . . . . . . . . . . . . 16 ARGUMENT . .... . . . . . . . . . . . . . . . . . . 18 I. The Scope of the Proposed Hearing 1 -
With Regard to the NRC's Enforcement l Order Was Defined Properly . . . . . . . . . . . 18 A. The Agency Has the Authority to Define the Scope of Any Hearing that is Afforded by AEC Section 189a with Regard to a Proceeding . . . . . . . . 18
- 5. The NRC Did Not Abuse its Discretion j In Defining the Scope of the Hearing
] Relating to the Enforcement Order .. . . . . 25 Petitioner Raised no Affected Interest ;
II.
Within the Meaning of Section 1894 with !
Respect to the NRC Action . . '. . . . . . . . . . 33 l l
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . 36 j ADDE 5acM -- Statutes and Regulations
) .
""*. NRC Order on Review i .-
i d
i, i
1
.j
, s . l l
l TABLE OF AUTHORITIES Page A. Judicial Decisions 1 l
- *s9I v. AEC, 163 U.S. App. D.C. 4 22, '
T77 F.23 T24 (1974) . . ........... 16,19, l passim 1
Cities of Statesville v. AIC, 142 U.S. App. 0.6. 272, 441 F773 962 (1969) (en banc) . . . ........... 19 i 2
Drake v. Detroit Edison Co. , 453 F.Supp. 1123 (W. D. Mich. 1978) . . .. . . . 26 Easton Utilities commission v. AEC, i 137 U.S. App. D.C. 359, 424 F.23-~
847 (1970) (en banc) . ..... ..... 19
)
Envircreental Defense Fund v. Costle, i 1 20 3 U.S. App. D.C. 340, 631 F.Td TTI )
l (1980), cert. denied, 449 U.S. 1112 i (1981) . . . . . . . . ........... .14 l
rord Motor Credit Co. v. Cenance, 452 l U.S. 155 (1981) . . . . ........... 24 I
FTC v. Universal-Rundle Corp. , 387 U.S. l j
ITT (1967) . . . . . . . . .~ . . . . . . . . 26 j I'llinois v. NRC, 591 F.2d 12 (7th Cir.
1979) . . . . . . . . . ........... 27
)
1 Mooq Industries , Inc.'v. FTC, 355 U.S.
1 411 (1958) . . . . . . ........... 26 I Natural Resources Defense Council, Inc.
I v. NRC. U.S. App. D.C. , 666 j
F.2TT95781) . . . . ........... 24 Natural Resources Defense Council. Inc.
- I
' ev. NRC, 208 U.S. App. D.C. 216, 647
] F.2TT345 (1981) . . . ........... ,24 ,
i l
i .
- Porter County Chapter of the Izaak l Waltr;. League v. NRC, 196 U.S. App.
! D.C. 456, 606 T.2d 1363 (1979) . . .. . . . 25,27,30 a
t i Rockferd League of Wemen Veters v.
l NEC, 6 7 9 T.2d 1218 (7th Cir. 1992) .. . . . 30 l
*ses prin:: pally relied upon are indicated by asterisks, i _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
1 j e .
Page i
Seacoast Anti-Pollution League v.
E E No. l1-2146 (b.C. Cir. Oct. I,
~
ITi2) . . . . . . . . . . . .. . . . . . . . 7,27,30 l
- shelly v. NRC, 209 U.S. App. D.C. 59, 651 F.2d 7F(1980) , ~reh. denied, 1 209 U.S. APP. D.C. 71 ~IT2 F.2d 792, '
- cert. granted, 451 U.S. 1016 (1981) .. . . . 28 Siecel v. AIC 130 U.S. App. D.C. 307, 300 t.2d 7 W ,(1968)
' ' ^
. . . . . . . . . . . . . 21 simmons v. Arkansas Power & Light Co.,
155 T.2d 131 (8th Cir. 1981) . . . . . . . . 27 cdall_ v. Tallman, 380 U.S. 1 (1965) . . . . . 24
! Vermont Yankee Nuclear Power Corp. ,
l v. Natural Resources Defense !
counes1, Inc. , 4 3 5 U.S . 519 (1978) . . . . . 4,21 l i B. Administrative Decisions
! Besten Idison Co. (Pilgrim Nuclear ,
, Power Station), CLI-82-16, 16 NRC
] (1982) . . . . . . . . . . . . . . . . . 2,13,31 4
I carolina Pcwer & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, ,
2, 3 & 4), CLT-30-12,11 NRC 514 j (1980) .. . . . . . . . . .. . . . . . . . 23 I carolina Power & Light Co. (Shearon ilarris Nuclear Power Plant, Units 1, 2, 3 6 4) , ALAB-5 7 7 , 11 NRC 18 (1980) . . . . 23 ;
I
. Commonwealth Edison Co. (Carroll l "County Site) , ALAB-601, 12 NRC 18
, I i (1980) .. . .. . . . . . . . . . . . . . . .23 I
ccmonwealth Edison Co. (Zion j Station, Units 1 6 2), ALAB-616, j 12 NRC 419 (1980) . . . . . . . . . . . . . . 24
~
l I Dairviand Power Coop. (Lacrosse
] 3e:11ng water Reactor) , LSP-80-26,
- 1
- SFC m (1950) . . . . . . . . . . . . . . 24
1 l
E.*H*.
4 Energy Reorganization Act of 1974 42 U.S.C. 5 5801 et seq. . . . . . . . . . . . . . 4 t
Regulations i
10 CFR Part 2, Subpart B . . . . . . . . . . . . . 5 !
, 10 CTR Part 2, Subpart G . . . . . . . . . . . . . 21
- 10 CrA 5 2.104 (a) (3) . . . . . . . . . . . . . . . 22 t
10 CFR 5 2.105 . . . . . . . . . . . . . . . . . . 22 3 10 CFR 5 2.105 (e) (2) . . . . . . . . . . . . . . . 22 10 CTR 5 2. 201 . . . . . . . . . . . . . . . . . . 9 l 10 CFR 5 2.202 . . . . . . . . . . . . . . . . . . 6 l 10 CFR 5 2.202(a) (4) . . . . . . . . . . . . . . . 22 10 CPR $ 2.204 . . . . . . . . . . . . . . . . . . 5,10,28 j 10 CTR 5 2.205 . . . . . . . . . . . . . . . . . . 9
- 10 CTR 5 2.206 . . . . . . . . . . . . . . . . . . 6, passim i
10 CTR 5 2.703(a) (3) . . . . . . . . . . . . . . . 22 !
10 CFR $ 2.714 . . . . . . . . . . . . . . . . . . 19 10 CTR 5 2.715 (c) . . . . . . . . . . . . . . . . 32 :
1 10 CTR 5 2.717 (a) . . . . . . . . . . . . . . . . 22
] 10 CTR 5 50.44 . . . . . . . . . . . . . . . . . . 7,8,9 i Miscellaneous i
~j 47 red. Req. 25793 (June 15, 1982) . . . . . . . . 7 i 47 red. Reg. 12240 (Mar. 22, 1982) . . . . . . . . 9 i 4 7 Te37 Req .~ 9 98 7 (Mar. 9, 1982) . . . . . . . . . 5 I 47 Fe37 Req. 4899 (Mar. 2, 1982) . . . . . . . . . 15 I i 43 red. Req. 50162 (Oct. 27, 1978) . . . . . . . . 8 l
}' U.S. Nuclear Regulatory Commission .
Manual, ch. 0127, 5 0127-031 . . . . . . . . . . 5 i u.s. Nuclear Regulatory Commission,'
l 1980 Annual Report (Mar. 1981) . . . . . . . . . 29 i U.S. Nuclear Regulatory Cc= mission, 1981 Annual Report (June 1982) . . . . . . . . . 29 I , 8 * .
I .
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IN THE WITED STATES COURT OF APPEALS -
FOR THE DISTRICT OF COLUMBIA CIRCUIT
)
FRANCIS X. BELLOTTI, )
)
Petitioner, )
- v. )
)
UNITED STATES NUCLEAR REGULATORY )
COMMISSION and the UNITED ) No. 82-1932 STATES OF AMERICA, )
' )
Respondents, )
)
50STON EDISON CCMPANY, )
)
Intervenor. )
)
BRIEF FOR RESPONDENTS
,UESTION Q PRISENTED
, Whether section 189a of the Atomic Energy Act mandates that, in instances when the Nuclear Regulatory Commission isposes remedial conditions upon a license in the context of an enforcement action, a, person in agreement with the Cormaission's action is entitled to a formal adjudicatory hearing to litigate whether additional remedies are appropriate.
, RELATED CASES
.~~
A case involving whether section 189a of the Atc=ic Energy Act requires a formal hearing in instances when the SEC terminates enfer:e: en actien and reinstates prev:, : sly act..:r:.:ed '1: ens t auth:::.ty is new b::.efed f:r
i argument in the United States Court of Appeals for the sixth Circuit. Save the Valley v. NRC, No. 82-3148 (filed Mar. 5, 1982).
STATEMENT OF CASE I. Nature of the Case Francis X. Bellotti, Attorney General of the Commonwealth of Massachusetts, filed this petition to review the July 30, 1982 order of the Nuclear Regulatory Coemission (NRC or the Commission) denying his request for a hearing with regard to certain agency enforcement activities. !
Boston Edison Co. (Pilgrim Huclear Power Station), I i
i CLI-82-16, 16 NRC (1982). By letter dated January 18, l
1982, the NRC enforcement staff concluded, based on NRC {
inspections and information supplied by Boston Edison company (BECO), that BECO had given insufficient review and attention to the operation of its Pilgria Nuclear Power station in Plymouth, Massachusetts. As a result, the NRC staff issued a notice of violation of NRC regulations against BECO and proposed a civil penalty of $550,000. In
, adaition, to provide for improvements in management of the Pilg"rka facility and for an appraisal of SECO's compliance with NRC requirements, the NRC staff ordered an immediate N
"' l condition imposed en BECO's license to require the utility to develop an independent review of management organization l and functicas. The crder also stated that a hearing on the 1:,:ense r.:htt:a;,:n ::uld be requested and tha: :,f any
. O ,
hearing were conducted the issue to be considered would be whether, on the basis of the matters set forth in the order, the order should be sustained.
On February 17, 1982, petitioner Bellotti filed a l request for a hearing on the staff's otder. Specifically, he asserted that, as Attorney General of the Commonwealth of Massachusetts, he was a "person whose interest may be affected" by the license modification and that, under o section 189a of the Atomic Energy Act of 1954 (AEA or the 1
Act), 42 U.S.C. 5 2239(a), he was entitled to have a public hearing convened for the consideration of his concerns that the plan would not 'ce properly developed or adequately l ,
implemented by the NRC staf f and BECO. After receiving ,
further pleadings from BECO, the NRC staff, and the
] petitioner, on July 30, 1982, the comission denied the 1
- request, declaring that (1) petitioner's concerns were j outside the scope of the issue stat'ed in the modification j order and he was not adversely affected by the staf f's order i
and, as such, could not demand a hearing as of right under i
i section 199a, and (2) under the circumst'ances, NRC declined I
j . to exercise its discretion and convene a formal hearing. )
\ -
2' In this case, petitioner Bellotti essentially 4 . reiterates the arguments he raised before the Comission -
j that the Atemic Energy Act guarantees him a hearing on this I
matter and that it was arbitrary and illegal for the
)
l C:=.issien :: deny his petiti:n. Respendents believe the SE: a::ed ::ns:.ste..: V:.th the A::
- .n deny' ng the {.e ar:...;
)
i request. The NRC requires that a person seeking a formal adjudication must seek to litigate issues within the scope of the proceeding in order to demonstrate an interest i adversely af f acted by the licensing action in question.
When, in this enforcement action, petitioner's concerns were l
i beyond the issues designated to be heard and the NRC acted in a way not adverse to the petitioner, the agency l
l r'easonably denied the petitioner's request for a hearing.
! Accordingly, the denial should be affirmed and the petition dismissed, l
II. Statement of Facts A. Regulatory Fra=ework l
Under the Atomic Energy Act, 42 U.S.C. 5 2011 el seq., and the Energy Reorganization Act of 1974, 42 U.S.C. l 5 5801 g seq., the NRC is accorded the authority to license and regulate the construction and operation of nuclear power I
plants. As has been described elsewhere, Vermont Yankee '
l Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 526-27 (1978), in line with its
, statutory authorization, the agency has constructed a rather detahtd regulatory framework for the administrative processing and adjudication of applications related to l censtru: tion permits and operating licenses.
Af ter a permit or license is issued, the licensee re ains subject te centinuing review te ensure c: pliancu I w;;n :: nss;:n reparements . The NR; has a wide range cf
l remedies with which to accomplish its regulatory goal of protecting the public health and safety: letters confirming commitments by licensees, notices of violation, civil i penalties, orders modifying licenses, suspension, and revocation. See generally "General Statement of Policy and Procedure for Enforcement Actions," 47 fed. Reg. 9987 .
(Mar. 9, 1982). With regard to orders to modify licunses, !
I one of which is the cbject of controversy before the Court, the NRC's Enforcement Jolicy provides that they are to be issued under 10 CTR $ 2.204 "when some change in licensee l 1
equipment, procedures, or management controls is necessary."
Id. at 9992. Such orders are an important mechanism to I
j i
assure licensee action since the Atomic Energy Act provides i
for judicial enforcement. 42 U.S.C. $ 2280.
I The procedures for the agency-initiated i modification of a license are set forth in 10 CTR Part 2, i
j Subpart B. Under 10 CTR $ 2.204, the Director of the NRC '
i staf f Of fice of Inspection end Enforcement can issue an 1
) order for modification of a license' on notice to a licenses that he sty demand a hearing, before a date certain, with
- respect to any part of the amendment.1/ If the Director 3
j
. findt khat the public health, safety, or interest so i .
i 1
1 ' i
)
1/ Although section 2.204 indicates that the five-membe'.-
I Cc: mission is authorized to issue an order for j
) -
codificatien, the Commission has delegated such j authority to others, including the Director of the of fice of !nspectien and Enforcement. U.S. Nuclear i
p e ::: a t:- - ---'ss c- Ma..ual, :h. O*;7, S C;;?-031
i j l
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requires, he may make the modification immediately I effective. Alternatively, if such a finding is not made, !
the modification order is to become effective on the !
i expiration of the period during which a hearing could be '
i requested or, in the event the licensee demands a hearing, l j on the date specified in an order made following the ,
j .
j hearing.
4 1
In addition to this procedure, the agency has I
f, provided An 10 CFR $ 2.206 that members of the general i public can request that it require the licenses to show l
cause why its license should not be suspended, revnked, or ;
4 r modified. Such a request can be directed to one of several r
l 1
. NRC staff of ficials, including the Director of the Office of I l
Inspection and Enforcement, and must specify the relief j requested and the basis for such a request. If the Director j then decides to institute a show cause proceeding under 10 1
] crR 5 2.202, he is to serve upon the licensee an order to i e i show causi. That order mast allege,the regulatory l l
violations or the potentially hasardous conditions or other j l
1 f acts that are grounds for the proposed licensing action:
5 .
inform the licensee that before a date certain it must file i an answer in which he can request a hearings specify the -
j issues that will be censidered in any such hearing; and j -
4 state the ef fective date of the proposed licensing order.
) If the licensee's answer dere. ands a hearing, an order will be
] issued designat:.ng the ti: e and place cf hearing. If, en l :he c:her hand, the Oirecter dete=ines that ne s{.cw cause
_ 1
f I
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}
proceeding is warranted, he must notify the person filing !
i j the section 2.206 petition of that decision in writing with {
i a statement of his reasons.
l While no petition for !
]
I 1 Commission review uf a Director's decision is allowed, the Commission doas, sua sponte, review each denial to ensure ;
i that the Director has. not abused his discretion. Judicial :
l review is available thereaf ter in the courts of appeals.
] Seacoast Anti-Pollution League v. NRC, No. 81-2146, slip op. I 1 :
i at 5-6 (D.C. Cir. Oct. 8, 1982). . l
{ 5. Factual Background ;
, As is detailed in the January 18, 1982 letter of 1
the Director of the NRC's office of Inspection and Enforcement to BECO (AR-2) (J . A. )2/ and the agency's !
i June 10, 1982 Notice of Abnormal occurrence, 47 Fed. Rev. l 25793 (June 15,1982) (AR-15)
(J.A. ) , over the past three years tau NRC has conducted a series of progressively more vigorous enforcement actions against BECO. The action underlying the instant case actuall'y reflected several I separate stC0 f ailings, ancng them, nonconformance to NRC requirements under 10 CTR 5 50.44 for control of corbustible gaseg7.,an octcher 1979 misrepresentation concerning 3ECO's !
t compliance with those requirements, and an incident in which I BECO violated NRC requirements en maintenance of containment 1
l l
1 a' he des: nata:n "J. A. " will refer :: the :i..: A;;e r.d ;x
- f;;ed vish ' he C:urt. C;;s ::ns designated (AA- )
refe: :: the decu. e..:s :n the Je: ified Inde.t of :ne 7e::: 2 f i '. e d . : : n . e ::ur: :- Au us: :4 :;i
integrity by disabling certain automatic control circuits.1/
In issuing a Notice of Violat. ion and PLoposed Imposition of Civil Penalties on January 18, 1982 (AR-21 (J.A. ), the Director of the office of Inspection and Enforce =ent declared that BECO's f ailure to comply with 10 CFR 5 50.44 from November 1978 through June 1981 and its 4
October 19,1979.mi4 representation of its compliance with 1
1/ In 1978 the NRC promulgated 10 CFR S 50.44 to set t l
standards for the control of combustible gases, particularly hydrogen, that are generated in a
' loss-of-coolant accid' nt at a reactor. 43 red. Reg.
50162 (Oct. 27, 1978). Although BECO inforEe3~the ~
agency on October 19, 1979, that its existing system I
cceplied with section 50.44 when ef fective in November l 1976, the utility discovered shortly thereaf ter that it i did not meet the requirements of section 50.44 because i certain valves were oriented improperly so t: at they '
i 4
cculd not function as designed and certain personnel required to operate part of the system would have been subjected to excessive radiation levels in an accident. ,
i sy 1980 BECO had corrected the latter problem, but the i former was not rectified until June 1981. As a separate violation of NRC requirements, BECO did not !
l infons the NRC staf f of its discoveries or of its October 1979 misstatement until May 29, 1981 l In addition to the above, BEC0' violated a condition of
! i'.s operating license requiring maintenance of the :
integrity of the radiation containment area around the resetor. During electrical maintenance activities on septedder 12, 1981, BECO personnel deenergized certain electrical pcwer supplies, which partially disabled the JTytematic control circuits for the isolation valves in
) the steam line to the reactor core cooling system. As 1
a result, in the event of a loss of coolant accident, ,
these valves, which operate to prevent a release of i j
radiation outside the containment area in the event of ;
such incidents, would not have closed automatically as
. designed so that significant amounts of radioactive ,
suterials could have been released to the environment.
1 The facility was cperated in this condition for l
eighty-nine hcurs until the pr:b'er was dis:cvered by
- .'.e SE ' s r e s i d e n t inspe:::: at the Pi.'7rir p'a..: and l
- rre::::ns were made.
section 50.44 both were serious violation = of NRC regulations. As to each violation, a fine. in the amount of
$250,000 was proposed to be levied againr>. the utility. In addition, the Director proposed that a fine of $50,000 be j levied against BECO for its deactivation of the automatic e
control circuits.O ,
l The Director also noted that, in addition to the !
~
above violations, the Pilgrim facility had scored below average on the NAC's most recent Systematic Assessment of 1
Licensee Perfomance,1/ which had indicated licensee i
weaknesses in the areas of refueling, reporting, radiatiors protection, energency preparedness, and management controls. l The Director further stated that BEco had been cited for l other f ailures to comply with regulatory requirements three M In the notic ' of violation, BECO was informed that under 10 CTR 55 2.201 and 2.205, it must, within thirty l days, file a written statement or axplanation in which it should either admit or deny the violations and
] indicate any cbjections it had, to the imposition of the q proposed civil penalty. In its response to the January 18 Notice of Violation', BECO admitted 4
coraitting the asserted violations and forwarded payment for the $550,000 civil penalty. (AR-20) l (J.A. ) l 1/ =Ya 1980 the NRC established a program for the
! systematic Aporaisal of Lt.censee Performance by which the NRC staff evaluates pow w e reactor licensees with respect to safety. By examining licensee performance l
)
with a view toward understanding why a particular {
1 licensee reacts to N3C requirements in a particular manner, the NPC also hoper to improve its cwn
! perfor:ance as a regulater. The NRC program as now 1
1 revised is described at 47 red. h 12240 (Mar. 22, Mi ) .
4 i
- I I I times within the past two and ort-half years, resulting in l
l fines totalling $28,000. The Director concluded that this history, which revealed weaknesses in specific aspects of management control, when coupled with the way in which the <
l !
- other more recent vio:,ations occurred, raised substantial !
]
quastions about the overall adequacy of SECO control over l l facility activities. Accordingly, pursuant to 10 CFR i i
) 2.204, the Director ordered BEco's license modified f effective immediately. (AR-1) (J.A. ) Under that order, BEC0 was directed to submit to the agency for review. !
J J
a cceprehensive plan for an appraisal of BECO management, I
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both on the corporate level and with regard to the Pilgrim [
l -
f acility, that would result in recomendations for the improve =ent of management control and oversight.II The NRC's January 18 order stated that BECO could j 1
l j 1/ Under th6 NRC's order, BECO must retain an independent organisation to evaluata DECO management organisation l and coatrols, staf fing levels and training,
! comunications, and operating ' practices. The
{ independent organization is also to recommend changes to assure SEC0 personnel can inde endently identify and initiate solutions for Pilgrim f a ility problems.
! Also, under the plan BECO is to establish a program to i
Jnsure that all past and future information supplied to
'
- athe NRC on the compliance of safety-related systems with NRC requirements is ccmplets and correct. i
{
l Finally, the plan is to provide for SECO's review of ' !
i
' ' the suf ficiency of its present progras.s for the !
development and implementation of Jacility l l modifications and design changes, of safety-related !
i orocedures, and of the training of personnel involved I in maintenance and safety-related utivities and for ;
development of an audit systen for SECO management to l 1
i assure ::nf erran:e with SEC rez.irerents. I
I 1
. l l
request a hearing on the order, but that the issue to be < 3 1
considered at that hearing would be "whether, on the basis of the matters set forth in ... this order, this order should be sustained." BECO did not request a hearing l j
concerning the order modifying its license. (AR-7)
(J.A. )
On February 17, 1982, Attorney General Bellotti, asserting that under AEA section 189a he had interests that "may be affected by the proceeding," and also represented persons who had such interests, demanded a hearing on the order. (AR-4) (J.A. ) He did not contest that the !
evidence before the NRC supported its enforcement determination to require BECO to submit a performance improvement plan. (See AR-4, at 5-6) (See J.A. )
Rather, he proposed to litigate whether the Pilgrim facility 1
should continue to operate pending implementation of any proposed changes resulting from the plan; whether the independent auditing organization, the schedule for the reviews to be conducted under the plan, and the scope of the reviews was appropriate; whether the improvements to be made l would-ensure au, safe plant operation; and whether BECO would 1
implement properly the necessary improvements. (AR-4, at 3,
)
l
., 5-6; see AR-16, at 4) (J.A. ; _see J.A. ) !
On February 26, 1982, BECO urged denial of the !
hearing request, asserting that because BECO had not requested a heari..7, n 'pr::eeding" existed under se ::.cn 159a inte which petitioner selletti could inter <cne, and l
i
- 1 I
l that, in any event, under the terms of the order petitioner was not a person whose interest was affected. (AR-5)
(J.A. ) In a March 2, 1982 submittal, the NRC staff also 'trged denial by contesting petitioner's assertion that he was entitled to intervention on the license modification order, defending the issuance of the order as immediately effective, and opposing any grant ef a hearing as a matter ;
of discretion. (AR-6) (J.A. ) On April 2, 1982, the l petitioner filed an additional brief with the Commission in I which he reiterated his belief that he was a person whose interest was affected by the January 18 order and that the initiation of a formal adjudication was necessary to allow l
i him to present his concerns about whether, under the plan, incorrect or insuf ficient changes might be made to BECO's manager.ent systems and whether the changes would be properly implemented by BECO. (AR-9) ( J . A . __ ) On April 22, the NRC staff replied, asserting that the scope of the hearing was proper and that petitioner had no standing to contest '
I the license modification since it had not been adversely l l
affected. (AR-10) (J . A. ,
) The staff also noted, as it had fp. its previous pleading, that a petition under 10 CFR l
$ 2.206 asking the Director to further modify the BECO -
.. license was the proper avenue for petitioner to use to express his concerns. -
On July 30, 1982, the Commission denied the hearing
request.1 CLI-82-16, supra. (AR-16) (J.A. ) Relying upon its earlier decision in Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 &
- 2) , CLI-80-10, 11 NRC 438 (1980), the Commission declared that it was within the agency's authority to "limit the issues in enforcement proceedings to whether the facts as stated in the order are true and whether the remedy selected I
ls supported by those facts." CLI-82-16, slip op. at 2.
Further, in assessing petitioner Bellotti's particular concerns, the Commission noted that "(t]he Attorney General does not oppose the issuance of the Order nor does he raise ;
in his petition or brief any suggestion that it is unsupported by the facts it sets forth . . . . If anything, the Attorney General suggests that these facts not only support this order but also support further NRC action." Id. 1 1
1/ The commission began its formal consideration of petitioner's request on July 19, 1982, and had tentatively set early August a,s the time for rendering a final decision. On that same day, the petitioner filed a lawsuit in the United States District Court for the District of Columbia asking that the court either require the Commission to issue a decision on his petition, or in the alternative, treat his hearing
,getition as denied and determine whether he was legally {
sentitled to a hearing. Bellotti v. NRC, No. 82-1991 l
(D.D.C. filed July 19, 1982). The complaint in that '
lawsuit was served upon the agency on July 21, 1982.'
Shortly thereafter, the parties established a framework for dismissal of the lawsuit because the Commission had set the hearing request for decision. !
Following the l issuance of the Commission's final order in July 30, a stipulation of dismissal was filed with the district court terminating that lawsuit. The record does not I suppert, and we refect any netien, Pet. Br. at 6-7, 21, !
- ha the f 'ing Of the lawsuit p : pted the issuance cf the Cen. mission's decision.
1 l' o'
. )
at 4. As a consequence, the Commission determined that the petitioner did not have an interest aff' acted by the order that was within the scope of the proposed hearing. Further, the Commission determined that, under the circumstances, a discretionary hearing snould not be held. Accordingly, petitioner Bellotti's request for a hearing was denied, but with the suggestion that there were other avenues by which hun could seek relief, id. at 4-5:
The NRC staff will give full and fair consideration to any of the Attorney General's expressed concerns regarding future actions in this case, and we believe ;
that this informal process will prove to be a '
satisfactory way of resolving those concerns. If for any reason the Attorney General believes his concerns have not received adequate attention or he desires more formal consideration of them, he may file a request for further enforcement action pursuant to 10 CFR 2.206.
In this way, the Commission declared, the public health and l
l l
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. l I
l
+4 1
safety would be adequately protected.SI On August 13, 1982, petitioner Bellotti filed the instant petition for review of the ccmmission's July 30, 1982 order. BECO was granted leave to intervene by order of this Court dated September 7, 1982.
El After requesting and receiving an additional 30 days beyond the 30 days given it in the January 18 order, 47 Fed. Reg. 8899 (Mar. 2, 1982), on March 18, 1982 BECO filed its proposed Performance Improvament Program, which has been made publically available, with the NRC for its review. (AR-7) (J. A. ) The NRC accepted the general nature or the plan in April 1982, subject to certain clarifications. (AR-ll) (J.A. ) In May, BECO provided that information (AR-14) (J . A. )
and, based on NRC comments, revised its Performance
. Improvement Program. In order to further assess the development and implementation of the plan, the NRC staff and BECO have held a series of meetings at six-week intervals, the most recent having occurred in October. Summaries of these meetings, as well as copies of the revisions to the BECO plan that have resulted from these NRC/ DECO discussions, have been made availdale to the petitioner and the ger.eral public.
(AR-21) (J.A. ) Each meeting summary indicates when the next meeting is scheduled. There is no bar to the attendance of interested persons at these meetings. 1 In addition, the NRC has met with, and will continue to '
meet with, local of ficials concerning matters related to the BECO plan.
At this time, BECO is proceeding with its plan. As one example of the scope of BECO's performance under the Iplan, BECO has revicvad past modifications for any potential unreviewed safety questions. BECO reviewed about 1500 design changes and 30,000 maintenance items, reviewed the narrative explanation and safety l evaluation for each design change, and compared each change with its original application. About 180 items were identified for further analysis and by the August 1982 meeting, all analysis was complete and questions l resolved. ;
1 1
d
SUMMARY
OF THE ARGUMENT Although a "person whose interest may be affected" by certain specified NRC actions is entitled to a hearing under AEA section 189a, it was settled by this Court's decision in BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974), that the agency can, consistent with that statute, establish reasonable limitations to focus the issues of any hearing that is otherwise required. In its rules and as a matter of consistent administrative practics, the NRC specifies the 1 l
relevant issues to be considered in any hearing on a facility licensing action and limits the scope of the hearing to those issues. In enforcement cases like this one, the NRC focuses any hearing that miyht be requested on whether the underlying modification order should be !
sustained on the basis of the factual matters set forth.
Certainly, without some focussing of issues, a hearing on an l enforcement order dealing with a specific problem could expand to a totally unwieldy reconsideration of "anything related to the reactor." The focus' established here was not unreasonable given agency concerns over the allocation of limi,tyd resources; the desirability of encouraging licensee compliance with enforcement orders; the availability of -
suitable alternatives, such as undsr 10 CFR S 2.206, for the
, expression of petitioner's concerns; and the questionable utility of a formal adjudication as a practical tool for addrest;.; the c:n: erns raised by Mr. Belletti. :: bei..;
apparent that the issues the petitlener a..ncunced ha
intention to litigate lay outside the limited scope of the hearing offered on the Pilgrim enforcement order, the Commission's denial of the hearing request was clearly correct.
It is also plain that petitioner Bellotti agreed with the action the agency had taken on BEco's license and was in no way adversely affected by it. Under the judicial concept of standing adopted by the agency to determine ,
4 whether intervention is proper under section 189a, ' injury in f act" must be established by an intervenor. In this !
instance, the petitioner did not challenge the order itself but merely wished to urge the Commission to go even further, c Hothing in the commission's order precludes the possibility of addit.ional action. Mr. Bellotti thus was not "aggrieved" by the order in question and lacked standing to request a he a rin'g . The NRC denial should be upheld.
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G E.,
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1
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ARGUMENT I. THE SCOPE OF THE PROPOSED HEARING WITH REGARD TO THE NRC'S ENFORCEMINT ORDER WAS DEFINED PROPERLY.
A. The Agency Has the Authority to Define the Scope of any Hearing that is Afforded by AEA Section 189a with Regard to a Licensing Proceeding.
Petitioner asserts that he is entitled, as a matter of right, to a hearing on the NRC-initiated modification of the Pilgrim license under the plain language of AEA section 189a, 42 U.S.C. 5 2239 (a) . As Attorney General, he believes he is clearly a "person whose interest may be af fected" by the NRC modification of the Pilgrim license, not because he disagrees with the NRC's conclusions about BEO's conduct, bu'. because he is concerned over whether further future er.forcement action by the agency may be necessary because the NRC staf f might not have gone far enough or because BECO might not comply properly with the NRC order. Petitioner's position is at odds with the teachings of this Court and is based on a misconception of the agency's authority under its organic statute to define
. the scope of its hearingr.
{
Section 189a provides that *(iln any proceeding under this Act, for the . . . amending of any license . . .
.~
the Commission shall grant a hears.ng upon the request of any l 4
person whose interest may be affected by the proceeding, and !
1 shall ad-it any such persen as a party to such I 1
p c:eehng . . . . Faci-i:ner hinges n:.s case :n a l a ', . :e r a" r e a ding f th i s p a s t .* ;e .
In d:ing sc [+ .:n:res
l the settled interpretation of this section by the Commission and this Court.
In BPI v. AEC, 50" F.2d 424 (D.C. Cir. 1974), this Court, upheld the Commissior's authority to compel persons seeking formal adjudicate'.y hearings in licensing actions to identify particularized concerns within the scope of the proposed action rather than merely reciting that their I
'nterests i would be affected. In BPI, the agency had rejected requests for a hearing by petitioners who alleged residence close to a nuclear plant but who, contrary to Atomic Energy Commission rules, 10 CFR $ 2.714, did not proffer speci.fic matters within the scope of the proceeding.
The Commission found that petitioners clearly were persons "whose interest may be af fected" but none :heless denied the request for a hearing for their f ailure t : follow the pleading rules. Relying on two prior decisions,b this Court stated it "has not deemed section 189(a) to be the last word on the subject of intervention." 502 F.2d at 427.
on the contrary, "(s]ection 189 (a) does not in literel terms state that any person whose interest is af fected may inte nene,. .
nn.
. . The statute does not confer the automatic right of intervention upon anyone." Id. at 428. As this.
,., Court stated in BPI, the Commission was not attempting to i
limit. its statutory mandate by requiring a specific showing o f Ea st: . Utils . F - '- v. AIc , 4 2 4 T.2d 847 (D.C. Cir, l
l
.sM) ten ca.. 1: 0 ::.es f S u te sv ille v . Arc , 4 4, T.;d j 962 (D.C. Cir.
- 90) ten een:).
. 7
but rather, consistent with section 189a, was seeking to establish "the focus of the desired hearing." Id. at 429.
As this Court explained, "(il n this manner the Commission narrows those within the larger class to those entitled to participate as intervenors, and thus to assist the Commission in the resolution of the issues to be decided.
In doing so we do not think the agency transgresses its legislative charter." M.
Although the subject matter of the instant casa differs slightly from that in BPI, that case clearly establishes that the Commission acts well within the broad responsibility given it by the Congress to determine how t
M/ In his brief, Pet. Br. at 15, petitioner Bellotti indicates that BPI has no relevance here because that
.gase merely indicates that the Commission can require
~ rintehenors to present statements of issues they wish to litigate, which he has done here. To accept this, characterization of BPI's holding, however, would render the case almost meaningless since under this reading, the mere presentation of issues, no matter how irrelevant to the licensing action involved, would
.- entitle one to a hearing. Instead, as BPI suggests, the Cem.ission can place limitations upFthe scope of a hearing and require that one seeking to intervene ecce within these restricticns.
, g best to proceed in achieving it statutory objectives,11/
when, as here, it acts to focus the issues relevant to a particular licerst modification. In the absence of ,a clear statutory definition for the scope of a "proceeding" the Commission has, consistent with BPI and its rulumaking authority under section 161p of the AEA, 42 U.S.C.
5 2201(p), interpreted the Act as allowing it to establish what constitutes the proceeding and the concomitant scope of a hearing in the context of the NRC adjudicatory process.
Under that settled administrative practice, an intervenor's asserted "interest" and specified concerns must be considered in the context of the proposed action, i.e.,
within the terms of the agency's "proceeding." This policy is consistently reflected in the way in which the NRC conducts licensing and enforcement actions. Under 10 CFR Part 2', Subp3rt G, in the consideration of applications for l
facility licensing action, the agency's issuance of a notice of hearing commences an agency "pro.ceeding" with regard to
. 11/ siecel v. AEC, 400 F.2d 778, 783 (D.C. Cir. 1968); see J7mrront Yankee Nuclear Power Corp. v. Natural Resources )
Defense Council, Inc., 435 U.S. 519, 543 (1978), in t which the Supreme Court noted:
- j l
._ Absent constitutional constraints or extre=ely compelling circumstances the administrative
- )
agencies should be free to fashion their cwn rules l of procedure and to pursue methods of inquiry l capable of permitting them to discharge their 1
..ultitudincus duties. l l
that licensing activity. 10 CFR $ 2.717 (a) .1 In issuing a notice of hearing, the agency is to specify "the matters of fact and law" to be considered. 10 CFR 55 2.104 (a) (3) ,
2.703 (a) (3) . Likewise, if the agency initiates a proceeding to modify a license by terving an order to show cause,. that order is to inform the licensee of its right te a hearing and must 'specify the issues. " Id . 5 2. 202 (a) ( 4 ) .11I
- Thus, NRC regulations reflect the agency's 12/ section 2.717 (a) also indicates that a notice of proposed action under 10 CFR 5 2.105 will commence a proceeding. Under that section, if the agency proposea to take one of a number of specified actions requested by a licensee's application, it notices the "nature of the action proposed" with regard the application and the right of interested persons to intervone. If such an intervention petition is received, a notice of hearing or an appropriate order is to be issued. Id.
$ 2.105 (e) (2) .
13/ Petitioner's assertion that the nature of the
' proceeding" dictates the nature of the "hearing" that might be requested such that any matter related to the "proceeding" must be "heard" at the request of an interested person turns this administrative process on its head. Pet. Br. at 18. On the contrary, as noted in the text, the notice of hearing focuses the nature and scope of any contested proceeding that might be held. In addition, petitioner has thoroughly misconceived what the NRC has done in this case.
First, there is no engo.i.ng agency license amendment proceeding in this case. See Pet. Br. 8-14, 17. The "tproceeding" in this instance was concluded when no person affected within the scope of the order requested a hearing. However, the NRC informal review of BECO's plan may lead to future "proceedings" on which the
. petitioner may seek hearings. Finally, as noted belcw, infra note 19, contrary to his assertion that this is a
' private" enforcement action, Pet. Br. at 21-22, the Attorney General cay provide any substantive technical cer=wnts on the plan at this time. See suora note 8.
He has net dene sc.
discretion to set the scope of a hearing by specifying the issues to be considered. In addition, the Conunission's adjudicatory boards have recognized that, under the AEA, the Comission limits the scope of a hearing -- and a board's authority -- in a proceeding under the Act by way of the order or notice that establishes the hearing. see, g .,
Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), CLI-80-12, 11 NRC 514 (1980);
commonwealth Edison Co. (Carroll County Site) , ALAB-601,12 NRC 18, 24 (1980).14/ Further, when parties have proffered matters for inclusion in a hearing that concern matters 1.4./ In Shearon Harris, an NRC Atomic Safety and Licensing Board ordered the NRC staf f in a construction permit proceeding to include a particular issue in its consideration of the operating license application.
The Atomic Safety and Licensing Appeal Board reversed, stating the lower board's authority was circumscribed by the notice of the proceeding and matters for inclusion in the subsequent operating license were C
beyond its authority.(Shearon Power Harris Plant,Nuclear _arolina Units 1, 2,Power 3 & & Light Co
- 4) , ALAB-57 7, 11 NRC 18, 25-2 6 (1980). The Appeal Board, however, imposed on the, staff certain procedural requirements designed to assure proper consideration of the issue at the operating license stage, although
' without deciding on the need for a hearing at that time. Id. at 33-34. The Commission determined that
., the Appeal Board too exceeded its authority and i jg, versed on that point, stating that it alone could direct the NRC staf f in a matter beyond the confines of a proceeding. CLI-80-12, 11 NRC 514 (1980). See also Metropolitan Edison Co. (Three Mile Island Nuclear
._ Station, Unit No. 1), CLI-82-31, 16 NRC (Oct. 14, 1982) (under notice et hearing, 'JRC regulations, and i
AEC, Licensing Board had no authority to impose civil
! penalty) . If NRC Boards, acting on delegated 4
Cemission authority, may not order matters for I
censiderati:n he/end the secpe of the preceeding, it f:1':ws
. a f:rt.:r that pe :tteners may net seen :
=cr.pel :nat wr.:,:n the Scards may net Order.
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beyond the scope of the proposed action, those issues are routinely rejected. In broad-based initial licensing proceedings, the NRC requires matters to be heard to be tied to the specific action. Florida Power & Light Co. (St. j Lucie Nussear Plant, Unit 2 ) , ALAB-661, 14 NRC 1117, 1123 n.15 (1981). Parties are not permitted to stray beyond the confines of the proceeding even when raising other perfectly ,
s i legitimate concerns. Id. This practice applies even more o forcefully in more limited licensing actions, such as i amendment proceedings. Commonwealth Edison Co. (Zion ;
l Station, Units 1 & 2), ALAB-616, 12 NRC 419, 426-27 (1980).
l In amendment cases, NRC practice forbids the litigation of i issues related not to the proposed licensing action, but only to the more general question of facility safety.
Thus, established agency practice is consistent with the policy recognized in BPI that it is within the agency's prerogative to define the relevant issues to be heard with regard to a licensing proceeding it initiates.
In the absence of any clear contrary legislative intent, this settled agency interpretation of the authority afforded it under '"'-
its organic statute should be given deference by this Court. E.c., Ford Motor Credit Co. v. Conance, 452 .
. ., U.S. 155, 158 n.3 (1981) (per curiam); Udall v. Tallman, 380 U.S.1, 4 (1965) ; Natural Resources Defense Council, Inc. v.
NRC, 666 r.2d 595, 603 (D.C. Cir. 1981); Natural Rescurces
- e f ense 0
- uncil, Inc. v. NFC, 647 T.1d 1345, 1370-71 & n.12, 1259 (D.C. Cir. 1951) (R0binscn, J., encurring). It w'!
this line of authority the Ccmmission used to reject petitioner Bellotti's unsupported assertion that the Atomic Energy Act guaranteed him an adjudicatory hearing.
B. The NRC Did Not Abuse Its Discretion in Defining the scope of the 3 earing Relating to the Enforcement order.
1 I
since we think there can be no dispute that it is i 1
within the general authority of the Commission to define the scope of its hearings, whether in enforcement matters or
{
otherwis'e, the petitioner's real disagreement with the {
agency is whether the exercise of authority in the instant l l
case was arbitrary. With regard to the Pilgrim facility, in I j
line with its settled practice, the Commission proposed to !
limit any hearing to whether the enforcement order modifying the licenae should be sustained. The commission did not seek to cpen discussion whether additional enforcement with respect to Pilgrim was necessary but only whether the particular action it had taken had a basis in fact. This limitation of the offered hearing l'ay well within the NRC's legal authority and was reasonable agency action. l First, as a legal proposition, the NRC's conduct in anyorcement cases is little more than a straightforward application of the settled principles discussed above. When I the subject matter is enforcement, however, we believe this authority applies with even mere vigor.
Enforcement action by a regulator is the paradigm
- f ns::t n:r.try s:-i:r.. See ?: rte: Cour.:y cha::er ef the
- aak Walt:r
- e s;ge v. MFC, 606 T. d 1363, 1369 0.C. C r.
1979); Drake v. Detroit Edison Co., 453 F.Supp. 1123, 1131 (W.D. Mich. 1978). In enforcement cases, the agency interprets whether the particular conduct of those'it regulates rises to the level of a violation, and if so, the seriousness of the violation. In setting enforcement action the agency is guided by the principle that it must protect the public health and safety, but without arbitrarily harsh j or unnecessary consequences to the licensee. As the agency strikes this discretionary balance, it will of ten occur that no party will be in full agreement with the agency's action.
Obviously, the licensee would hope the action would be less severe. Others, such as petitioner Bellotti, may hope for the opposite. Thus, the agency has the task of deciding the appropriate remedy in a particular case, including the scope, the timing, and the format of the remedial action.
.See FTC v. Universal-Rundle Corp., 387 U.S. 244, 251 (1967);
Mooq Industries, Inc. v. FTC, 355 U.S. 411, 413 (1958). So 1
too, it should be accorded wide dis.cretion in determining )
the scope of any hearing convened with regard to such m
enforcement actions.11#
The only remaining threshold question is whether the Commission acted properly within its discretion in l
s !
11/ It is clear that there is no general right to seek private enforcement of the Atomic Energy Act against NRC licensees. Simnons v. Arkansas Power & Light Co.,
655 F.2d 131, 134 (6th Cir. 1981) and cases cited therein. The remedy available to those who complain about the lack of compliance with NRC requirements by a ,
Licensee is to bring the matter to the agency's attention under NRC regulations provided for that purpose and, if dissatisfied with the NRC's response, seck judicial review in a court of appeals. Id.
accord Seacoast Anti-Pollution League v. NRC, ~ ; ~
No. 81-2146, slip op, at 5-6 (D.C. Cir. Oct. 8, 1982).
The agency, however, retains sole discretion whether to take particular enforcement action. As this Court made clear in Porter County Chapter of the Izaak Walton League v. NRC, 606 F.2d 1363, 1369 (D.C. Cir. 1979):
The agency is not buu.id to launch full-blown
_, proceedings simply because a violation of the n". ' statute is claimed. It may properly undertake preliminary inquiries in order to determine ,
whether the claim is substantial enough under the
, statute to warrant full proceauf ngs.
Accord Illinois. v. NEC, 591 F.2d 12, 13-16 (7th Cir.
- 1979). Given the undisputed suthority to determine any enforcement action is warranted, the agency surely has the discretion to limit the scope of the action and any hearing requ; red th3reen :: -he matters f:und in I
v;;.a ::., a..d whe t..a r t..e a::::.. shculd be su staine d.
1 1
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l limiting the scope of this proceeding. E Weighing against unnecessarily expanding the scope of the offered hearing as a matter of discretion is the agency's legitimate concern about commitment of its limited resources. Two years ago in Public Service Company of Indiana (Marble Bill Generating Station, Units 1 & 2) , CLI-80-10, 11 NRC 438, 441 (1980),
'the Ccmmission declared its administrative policy that "the
'public health and safety is best served by concentrating inspection and enforcement resources on actual field ,
inspections and related scientific and engineering work, as opposed to the conduct of legal proceedings." If the agency
. has statutory discretion to so allocate its resources, that discretion is reasonably exercised by engaging agency personnel in activities that most ef fectively fulfill its statutory responsibility to protect the public health and E Although the petitioner makes reference to this Court's decision in Shelly v. NRC, 651' T.2d 780 (D.C. Cir.
1980) (per curiam) , cert. granted, 451 U.S. 1016 (1981), as somehow supporting its interpretation that section 189a requires he be af forded a hearing in this instance, Sholly has no relevance here. In Shelly, the Jssues before this Court were whether, in issuing an scrdei authorizing venting of krypton gas, the NRC was amending the THI-2 license and whether, by rendering ,a finding of "no significant hazards consideration," the agency could make an amendment ef fective without having to afford a prior hearing. The Shelly decision did not deal in any way with the agency's authority to limit
.. the scope of a hearing, the issue before this Court.
Moreover, Shelly did not decide the legitimacy of NRC enforcement action resulting in the issuance of an i , ediately ef fective license ecdificatien in ac:ctdance v;th 5 ". S .C. $ fi:(es and 10 CTF. S 0,204, en a finding that the public health and st.fety .*equired such actien.
I safety E In its Marble Hill decision, the Com:nission also noted that the agency's policy of directing agency resources toward the inspection rather than th's adjudication process was effectuated by drawing the scope of the enforcement 4
hearings narrowly, thereby encouraging the licensee to consent to, rather than contest, enforcement actions:
l Such a policy would be thwarted if licensees which consented to enforcement actions were routinely
- ubjected to formal proceedings possibly leading to more severe or different enforcement actions. Rather than consent and risk a hearing on whether more drastic relief was called for, licensees would, to protect their interests, call for a hearing on each enforcement order to ensure that the possibility of less severe action would also be considered. The end result would '
be a major diversion of agency resources from project inspections and engineering investigations 'to the conduct of hearings.
i 11 NRC at 441-42. This additional concern also supports the I reasonableness of the ager.:y's determina: ion to limit the scope of hearings on enforcement license =odification !
orders. This is especially so when, as here, the petitioner has adequate administrative avenues within which to present its concerns.
Under 10 CFR S 2.206, a procedure is available whereby petitioner Bellotti can request that the agency
,7. '
I M/ The Commission's concern over the use of staf f
- resources rests on more than speculation. If the agency were to define the scope of hearings on i
enforcement license modification actions more broadly,
! , as petitioner asserts it should, over the past two fiscal years the agency staf f might have been 1 wolved i
in eight additicnal adjudications with regard to I reaeter f acilities. See U. S. Nuclear Regulatory l C:r. < ' n , 19 5 '. Annu a l Ee:Crt 95-99 U ne !?i2): U.S l Nuclear Tsega.a cry C:r.C n, 19 6 0 Ar.r.u ti Re::rt 15;-154
(.Ma r . 19 5 '. ) .
institute a proceeding to further modify the Pilgrim license ;
l i
to include whatever remedial actions he believes are i I
appropriate or, if he believes it is necessary, suspend or l revoke the license. It is within the agency's discretion to deal with such requests without a formal, trial-type adjudicatory proceeding. Porter County Chapter of the Isaak
! Walton League v. NRC, supra. If the agency's staff denies l l ~
l
- such a request for relief, it must do so in writing with )
supporting reasons and the Commission will review that i decision sua sponte to ensure that the staff has not abused i
l its discretion.18/ Moreover, a final agency decision with 4
} regard to petitioner's request would be subject to judicial review in the courts of appeal. Seacoast Anti-Pollution
, Loaque v. NRC, supra; Rockford League of Women Voters v.
NRC, 679 T.2d 1218,1220-21 (7th Cir. 1982). Thus, parties like petitioner are not being refused access to the administrative process, but rather are being invited to use that process in a manner which affords the Commission an i
! opportunity to receive and satisfy their concerns while l still making the most efficient use cf limited agency 1 .
,M '
1 I
18/ If the staf f agrees with the petitioner that the concern raised is substantial, the staf f will order j Iurther enforcement action. In its recent decision in 4
Washingten Pcb. Power Supply Sys. (WTPSS Nuclear l Project Nos.1 & 2), CL1-82-29, 16 NRC (Oct. 7,
~
i 198-), the Cc . .ission reaf firred its belief that the agency has afsishfully discharged" its resp:nsibility to give full censideratten to petitlens seeking relief under section 2.206. CL:-3:- ), slip. cp. at 12-13.
i
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19/
resources.--
Finally, it should be noted that what the petitioner seeks here, in the guise of a hearing request, is to have an NRC adjudicatory board oversee the prospective development and implementation of the required plan by BECO and the NRC staff, According to the petitioner, Pet. Br. at 8-9, 21-22, because the agency found inadequacies in the licensee's management controls as a basis for its order, the "proceeding" in this instanca must deal with that general I subject and, accordingly, he is allowed to litigate any l l
contention about the past, present, or future conduct of BECO management, any purported safety issues that subject l raises, and the need for improvements to correct such alleged problems. In effect, petitioner Bellotti sees the license modification as affording him the opportunity to 11/ hhe only response made by petitioner to the I availability of section 2.206 procedures is that it is !
foolish to submit a section 2.206 petition "dealing I with the same issues" as the the ongoing license l codification proceeding. Pet.',Br. at 20. As will be !
illustrated below, however, what petitioner wants goes !
f ar beyond what the agency is exploring with BECO now. l His concerns presumably include other aspects of BE90's '
operations at Pilgrim (since petitioner is concarned about the suf ficiency of proposed action) and the
. rospect that BECO might f ail and the NRC might neglect
. "p'o t correct the particular matters now being reviewed.
It is clear that all of the above could be subject to appropriate proceedings later. Moreover, there is no
._ barrier to petitioner providing ccaments and input to the NRC staf f now in the informal followup to the order. Indeed, the Ccmmission in its July 30 order appears to have anticipated that such a dialogue might resolve all concerns. CLI-82-16, slip. cp. at 5. Up to this peint, hcwever, positiener has neither dent:f ted any areas the SE: and 3I;; have neglec td n:r cthe.w:,se part:.:ipated.
l s e ,-
I initiate and participate in an adjudicative investigation of the management and safety of the Pilgrim plant. Such an employment of an adjudicatory board would go f ar beyond the board's usual function of considering whether a particular licensing action is adequately supported and consistent with public health and safety. Petitioner's assertion is also I
flatly contrary to the NRC's administrative practice. See supra note 13. The agency did not abuso its discretion by ,
i limiting the offered hearing so as not to embrace such a continuing supervisory activity within its scope.
For the above reasons, the agency acted within its I legai authority in fixing the scope of any proposed hearing on this enforcement action to the matters raised in the NRC's order. Petitioner simply offers no cot.trary authority rele/ ant to this conclusion. Moreover, the NRC's action was
' reasonably within its discretion and was not arbitrary. The Commission's finding that petitioner's concerns are outside the scope of the proceeding should be upheld.D ,
i E Petitioner Bellotti has not indicated that he is seeking to intervene in any hearing as the
,xepresentative of an "interested state" under section
, s'27 4 o f the AEA , 4 2 U . S . C . 5 20 21. In any event, an 4 interested state's participation would also have to ,
take place within the limitation on the scope of a hearing found in the notice of hearing. See 10 CFR
$ 2.715(c); Pacific Gas and Elec. Co. (Dia5To Canyon Nuclear Power Plant, Units 1 & 2), CLI-81-22, 14 NRC
- 598, 610 (1981).
i II. PETITIONER RAISED NO AFFECTED INTEREST WITHIN THE 5EANING OF SECTION 189a WITH RISPECT TO THE NRC ACTION.
As argued above, the Commission acts within its discretion in refusing a hearing to persons who propose to litigate only issues outside the scope of the proceeding.
In the present case, it is also apparent that petitioner Bellotti lacked standing to intervene in the BECO license modification proceeding, because he is not adversely I I
affected by the order.
The Commission has interpreted the phrase "person whose interest may be affected," by applying the prevailing judicial concepts of standing to determine hearing and intervention rights. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), CLI-76-27, 4 NRC 610 (1976). That standard has been consistently applied in NRC proceedings to determine whether a prospective intervenor should be admitted. See, e.g., Public Service Company of Indiana, supra, 11 NRC at 439; Exxon Nuclear Co. (Ten Applications for Export Licences for EURATOM Nations),
CLI-77-24, 6 NRC 525, 530-31 (1977). As a result, the
, Commission employs the two-prong test for standing by which a potential intervenor must allege (1) some "injury in fact" has occurred or probably will result from the licensing
~
action involved, and (2) some showing that his interest is arguably within the "zone of interest" protected by the statute. 11 Moreover, in formulating the "injury in f act" test, the C:.. issi:n has rercqnt:ed tha: the pr:per
criterion is whether a cognizable interest of the petitioner might be adversely affected if the proceeding has one outcome rather than another. Id.
In this instance, in line with the scope of the January 18 order, petitioner Bellotti stands to suffer no harm adverse to his interests by the outcome of the proceeding. Of the two possible outcomes of any hearing, only one -- rescission of the staf f's order requiring the preparation and implementation of the BECO plan -- would have been adverse to his professed interests; that outcome, however, will not occur because the licensee has not requested a hearing to contest the order.31/ The other outeeme, af firmance of the staf f's order, is one that he supports and, as such, does not adversely af fect his interest. Cf. Envi:enmental Defense Fund v. Costle, 631 F.2d 922, 925, 932-937 (D.C. Cir. 1980), cert. denied, 449 U.S.1112 (1981) (persons seeking relief beyond scope of EPA cancellation order not entitled to ,a hearing) . Accordingly, petitioner Bellotti had n3 s;anding to intervene in this proceeding because he suffered no injury in fact and his av.
11/ The order modifying BECO's license was made immediate,1y ef fective and was not contested by the licensee. These f actors distinguish the instan: case from cases like Dairyland Power Coop._ (Lacrosse Boiling Water Reactor),
LBP-80-26, 12 NRC 3 6 7, 374-75 (1980). In Dairyland,
.. af ter a matter was contested and referred to a Board for resolution, intervention within the scope of the preposed enforcement action may be permitted because pe :::eners ceuld sh:w an adverse effect frem a later
- aff decis:c equire the preptsed a:tien.
request for a hearing under section 189a was properly denied.11 Finally, pJtitioner does not raise any other ,
considerations that compel a contrary result. Pet. Br. at 21-22. Petitioner has at least two untried mechanisms, see supra note 19, by which to bring his concerns to the l
l Commission. Neither can be definitively labelled a futile 1
l exercise, especially given the Commission's endorsement of 1
them in its July 30 order. These methods, the section 2.206 petition and informal staf f action, reasonably hold open the prospect of accommodating petitioner's legitimate concerns l and giving him his chance "to make a contribution to the
~
continuing dialogue between the commission and Leston i
l Edison," Pet. Br. at 21, but in a way that does not commit resources to formal adju' aations if there ir. no legal or substantial policy reason to do so. The FAC regularly sends petitioner summaries of the NRC/BECO meetings that also note the upcoming meeting and copies of the correspondence and the BECO plan. To date, the petitioner Bellotti has offered l nothing concrete by way of substantive technical input to JW.
~
11/ \
Unlike a court, the commission, as a matter of agency i
' discretion, may convene a hearing at the request of a, person who lacks standing. In this case, the l -
Commission's additional decision not to invoke its 1
discretion to convene a formal hearing was, under the
. circumstances, also a reasonable one. Portland Gen.
Elec. Co. (Pebbla Springs Muclear Plant, Units 1 & 2),
I CLI-76-27, 4 NRC 611, 616 (1976). Petitioner has not centested this portion cf the Cer..issien's ceder and it is net at .ssue here, ,
i i
j l
l 1
the NRC process except to complain about the f ailure of the agency to grant him what be is not entitled to -- a wide ranging, unconfined adjudicative probe of BECO. Finding no reason to convene such a hearing, the agency quite reasonably declined petitioner's request.
CONCLUSION s
For the above reasons of f act and law, the agency's denial of the request for a hearing should be affirmed and the petition dismissed.
Respectfully submitted, b- Mg LEONARD BICKWIT, JR. ANTHONY C. LIOTIA General Counsel Acting Ass't Attorney General Land r.nd Natural Resources Division
- b. 4::, .h . $~ d I. LEO SLAGGIE s D #'%
I D. A e c56 W
Acting Solicit /4
%- g, DIRX SNEL g NANCY B. FIRISTONE g'g a . f/
, /_ U.S. Department of Justice ri:A - p Washington, DC 20530 MARK F,. CHOPKO JOHN F. KLUCSIT.
G. PAUL BOLLWERK III Attorneys
, ., U.S. Nuclear Regulatory Coyission
- Washin,gton, DC 20555 i
l . Dated: October 28, 1982 i
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Addendum Contents !
d i
I 1 1. 42 U.S.C. 5 2239
- 2. 10 CFR $ 2.104
- 3. 10 CFR $ 2.105 l
- 4. 10 CFR $ 2.202 )
i l S. 10 CFR $ 2.004 ,
6, 10 CFR $ 2.206 1 I 7. 10 CFR $ 2.703
- 8. 10 CFR $ 2.717 :
l
- 9. Boston Edison Co. (Pilgrim Nuclear ,
Power Station) CLI-82-16, 16 l NRC (July 30, 1982) e n
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4 .
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Atomic Energy Act of 1954, 5 189 42 U.S.C. 'i 2239 l
1
! 2239. Hearing and judietal remw I (a) In any proceeding under this th apter, for the tranting, sas.
Pending, revoking, or emendlar of any license or construction per. !
mit, or application to transfer control, nd in any proceeding for the '
lasuance or modification of rules and regulations desung with the setivities of 11ccasoes, and in any proceeding for the payment of ,
compensation, an award or royalties under sections 2183, 1187, 2236(c) or 2228 of thl title, the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceedinr, and shall admit any such person as a party to such prxeed!nr. The Commission shall hold a hearing after thirty days' l
notice and publication once in the Federal Rettster, on each applica. i tion under section 2133 or 2134f b) of this dtle for a construedan '
permit for a faellty, and on any application under section 2134(c) of this title for a construction permit for a testing facility. In cas- ;
es where such a construction permit has been tasued following the holdlar et such a hearing, the Commission may, la the absence of a request therefor by any person whose Interest may be*affected, ts.
tue an openting license or an amendment to a construction permit or an amendment to an operatint !! cense without a hearing, but I upon thirty days' notice and publication once la the Tederal Resis.
ter of its Intent to do so. The Commisalon may dispense with such i thirty days' notice and publication with respect to aar applicadon for an amendment to a construction permit or an amendment to an operating license upon a detarmination by the (Nmmission that the I amendment f avolves no significAnt hasards consideraden.
l
' (b) Any final order entered in any proceed!nr of the kind speci.
fled in subsection (a) of this section shall be suk.' ct to judicial re.
view la the manner prescribed is the Act of December 23,1950, as l smanded, and to the provisions of section 10 of the Admtatstrative Procedure Act, as amended. l i
l
. l
} .
2.
Om i
l
. = - - - _ - - . . _ _ . - - _ . . . . . . - -- . . _ = -
- * * - f a).The applicant has described the s 5.lel %In *( harlas.
- proposed design )f the facility. Incited.
tal in the case of an app!! cation on Ing. but not limited to, the artnetpal l
which a hearing la required by the Act architectural and engineering criteria
- or this chapter. or in which the Com. for the design, and has identifled the i mission finds that a hearing ta re. major features or components incorpo.
' guired in the puttle interest the Se0 rated therein for the protection of the 4 retary will lasue a notlet of hearing to health and safety of the public be published tri the Fusman. Rootsrum (6) Such further technical et design as required by law at least fifteen (15) tr. formation as may be required to days, and in the case of an spellcation complete the afety analysla. and concerniag a tonstruction permit for a vhith esa reasonably be left for latte i facility of the type deteribed in consideration will be supplied in the t 50.21(b) or i 50.22 of this chapter or finaJ safety analysis report:
a testing facility, at least thirty (30)
(c) Safety features or coanpontnts, it days, prior to the date set for hearing any. which require resenteh and devel.
in the notlee.'In additlem in the esse opment have been described br the of an application fee a construction applicant and the applicant has idenu. I permit for a facility of the type de. fled. and there wit! De conducted, a ro. !
aeribed in f so.22 et this than r. er a seareh and development presrsm res.
t sting faculty, the neuce tot ergg
. sonabir designed to reselte say safety
"" questions associated tith such fes.
' hla u$ e a$ soon as ,
a tef:'on'etK' e"L'l' M!'"f a" '" T *En"t M . E r = ain e l thm la masonable assurance that u) i
'ursuant to I t10leaxts* such safety questions will be utisfae. '
I' des t etermine the 4, *epCeluty My msoW at er Wm h latest of the application en the baats of its
' date stued in the applictuon for um. j technical adequacy as reu as com. pletion of the proposed facGit3 and
- leteness, the nottee shan be lasued as W taMag inu Mdertuon me slu i soon as practicable aftee the applica. criteria contalnd la Part 100 at this tion has been tendered.The notlee Mg chapter the proposed facGity enn be
- constructed and operated at the pre.
0 The tlas place. and nature of posed location wlJhout uritue risk to I ' the hearing and/or prehearing confer, the health and safety of the publie l
- g til) Whether th'e appiteant is techtti.
I t s') s'uthority under rhtch the (
hearing is to be held: ently qualtfled to design and construct '
d the proposed facilityt (31 The matters of fact and law to be till) Whether the applicant is finan.
considered; and clally quallfled to dealta and construct 3 i4) The time sithin which answers the pmposed iact11tyt I to the nouce shall be fild. Ov) Whether the lasuance of a 1 in)In the case of an app!! cation for a constructlen permit for a facility on permit foe' the construction of the fa.
I ci!!ty will be irtimical to the esenmon I which the Act requires a hearing, the notice of hearing wiu, except as pro, defense and security or to the health 4 vided in paragraph (4) of this settlen and safety of the public:
tv) If the application is fee a con.
! . and unless the Commission deterTnines struction permit for a nucJest power otherwise, mate in trnalementation of reacter, a testing facility, a fuel repro.
I paragraph tas3) of this section:
! (1) That,if sne proceedlas Is a con. eessing plant, or other faellity whose iested procevens. the presiding offl. construction sr opersuon has been de.
j cer sin consider the fenesing naaues:' termined by the Cernanission to haft a d) Whether in aceerdance with the significtat impact on the e..'etronment.
provtsions of iSchalof this chapter; the.her. In Accordanet twh u.e re.
eutrements of Part 51 of this chaptet.
the construction permit should be
. 11 the asitre of hrsnas rencernina an tasued as emposed.
J apointaisen per a ewwamtlen ermit for a A f acilltry the tne enirrtare in i 60.:lisi oc (2) That. !! the proceedias is not a i
t no. et iam essoire er a trwins faciliar contested proefeding. the swsiding of.
3 eos nst sperdy the tiac and stan. of lait tal fleer till determine 4) 31thout con-1 hanns, a smewema natire 5 di b" P* duednt a de novo evaluntjon of the ap
- . .itu in ihr ristau, Itasseres th6cu uti allestion, whether the application and 7.Na,7,N iY I
~'
nna, r,' the record of the proceeding contaja i auffleient informadoA and the revier o.w neun e. sam the on=dma stricer mar of the anglication by the Commis-i n,muni. tar renrememme of the intoal
'~
ston's staff has been adequate to sur
, tumnne ter a tem sair er nemene a re. port affirmative findings on (bx1) (D 1 m hennas utneus scam prouew through till) specified in this section 1 uuns as. sm noner.
i , m ie .n i am w - gunusnt and a negath e finemt en (20Mivl
- a. e, ge.w An of
- 114. v m ea - s:cetf tet in th:2 se: tion ;repeset to M q ,e w .u. w.c w x nasniis mp % -. ace we the issusnee of the co .stiv:-
n e ra t Wtem"" M ^"
- 14cn :ermit rt:csed ty the Direct:r l et Suttear Reneter Regulation er De
I
- 10 crR 5 2.104 (cont.
)
rector of Nuclear Material Safety or (4) Whether the aDptlesnt is technl.
Safegvards, as appropriate, and (!!) if etlly and financially quaJlfled to tne application is for a construction engage in the activities to be author.
permit for a nuclear power reactor, a tsed 0v the operating license in actord.
t est ing facility. a fuel reprocessinal ante with the regulations la this chap.
plant. or other facility whose construe. ter:
i tuon or operation has been determined (5) .Whether the appilcable provi. .
tr.e the Commiss!on to have a signifl. slons of Part 140 of this chapter have I cant Impact on the environment. . baen natistled: ,
whether the revier condved by the 18) Whether lasvance of the licettae Commlulon pursuant to ine National vill be talmicaJ to the common de.
Ent-tronmentaj Poljcy Act,'p* EPA) has fense and security or to the health been adequate. and safety of the public: and ,
(3) That regardless of rhether the t't) If the top!! cation is for an oper. 1 proceeding is contested or uncontest. atlng lleense for a nuclear power rest. -
ed. the presiding officer v111. in accord. tor, a testing facility or a fuel reproc.
ance eth Part 51 of this chapter.. essing plant. or other facDity whooe (t) Detennine whether the require- operation has been determined by the ,
menp of secilon 102(2) (A) (C) and Commission to have a significant t it) of the National Environmental Impact on the entironment. whether. '
Policy Act and Part 51 of this chapter la accordance rtth the requiremenu have been ccmplied with in the pro. of Part '51 of this chapter, the operat.
creding: Int lleense should be lasued as pro.
(til Independently consider the (1nal posed. ' -
balance among confileting factors con. (d) In an appliention for a construe.
tained in the record of the proceed!ng tion permit or an operating license for eth a view to determining the appro- a faellity on which a hearing is re.
priate action to be taken; and . quired by the Act or this chapter. or trl (111) Determine whether the con. whleh the Commission finds that a struction permit should be tasued. hearing is required in the public inter.
dented. or appropriately conditioned
- est to consider the antitrtss4 aspects of to protect emironmentaj values. the f.pp!!cattert. the notlee of hearing tc) In the cue of an appileation ft:r sill. unless the Contmlaslot deter.
an operating lictrse in which a hear. mines otherrise, state:
tng rtil be held. the notlet of t. rating Ili A time of the hearing. vi et!!
rill, except as provided in paragraph be as soon as praetleable after re.
tdi of this sectica and urtless the Com. ctlpt of the Attorney Ocners!*s addee mission determines otherese. state. in and compilance with sections 105 and tmplementatien of paragraph (ax31 of 189a of the Act and this ps.rt:' i this section, that the presiding officer ell consider any matters in centrover. .t ,cs u s to set are tlw hansre pimesant '
- sT arnong th8t partjes and may. There is the Aternic g. nmo Act of 1964. as amme. l he of she detertaines that a serious re. lanoe 41
- b the baue pursuant to ttv Na.
emirorumental, or ceramon de. Ilonal I;mironmemal Poincy Ars of teos,
. safety'a,nd fense security matter has not been , 'Aa mmuhlre W sumansion tear of inw raised by the paetles consider such A *'t.h '"** l' *m'*ns" in which an othar matter uithin the purrier o!! . "" U" d*" I * *** '***" p"* H ha (1) Whether thert is reumabte f.'.' ftW prtoe to Demaet 19. LFft and pre.
surance that consuvetion of the facill. emalttaa la sharts a m44tm twa a for anti.
tr will be substantially completed on a trums mice of an soollensten ser an esersu.
tna stes me to > b rgs innare are16en toen tunely tasts, la conformity rtth the has been maec p a peraen wwe intem.ned construction permit and the appiles. or neuuht W itmett written not hre to inw tion u amended, the arovisions of the Commimen to inirm ne ? ince,ewenini o Act, and td, regulations in this chad. pmnH orern*ns for llw facubr le ooialn
- tert a seterminatten of anttines e,rweecradons 4 21 Whether the faelllty n'lll operate er io aannte a )erweletional tambi for nuru e,1rrminatten siihin 28 mars after t he state -
in conformity TtLh the app!!callon as 6f outurauen in the harma 7tnumna hr amended. '.he armisjons of the Act. not.rv er niins et ilm soonraut=1 tur an 99
. and Ihe retulatters in thlA chapter =. rrating hmW" er Dvmber 19, gaio. 4 hWh.
"cr ta tairr. the commt non mav ==. a 4
t t31 Whethee there is reasertable as. l suranee: H Tha: the activities te be " N P"ri'en o. m n or earsinw iew
- authertzed D7 the operat 3g gge,gs, shien contains or ennaliinn. .perinust in esn be conducted thhout enc.vwering t to Alb of int etuoice twfon. nw anoint.:
the health ar.d salcty of trie public. acres.
.e re, or uw sa9henoon in unativ n~
anc tui tnu such aetmties ull te een- !
- 3. g p e, gn et ==.D.*
- re %M n I r r f
- I U a -
l
. . e r.s .n t n w.m e n 1 I
. e 10 CFR $ 2.104 (cont.)
(2) The presiding officer for the hearing who shall be either an admin.
Letrative law judge or an atomic anfety and lleensing board estabilAhed by the Commlaston or by the Chief Aaminis.
trative Judge of the Atomic Safety and L! censing Board Panet:
(3) That the presiding officer att consider and decide whether the setty.
Itlas under the proposed !! cense would create or maintain a situation incon.
aistent with the antitrustsan de.
acribed in section 10Sa of the Act: and t4) That mat ters of radiological health and safety and common Js
' tense and securtty. and matters raised under the National Environmentaj Poller Art of 1969. will be considered at another hearing for which a notlet stl be pub!Lahed pursuant to part.
graphs tal and (b) of this section.
unless othersise authorised by the Commisalon.
(e) The Secretary s112 rive timely notlee of the hearing to aJt parties and to other persons, if say, entitled by .
law to nottre. The Secretary will trans.
mit a notice of hearint on an appuca. .
tion for a faelllty lleense or for a U. .
cense fer receipt of nate twdlonctive material from other persons for the pttrpose of commercial disposal by the l nste dispesaJ licensee or for a lleense to receive and possess high level radio.
native nate at a geologic repository operations area pursuant to Part 60 of this chapter to the Governor or other appropnate offletaJ of the State and to the chief executive of the munleipality in which the facility is to be loented or the activity la to be conducted or. It -
the f acility la not to be located or the activity conducted withln a mimletpal.
- lt y, to the chief executhe of the county (or to the Tribal organtsatlen.
1 .
If it la to be so located or conducted sithin an Indian reservations, e s.v. t att. 84 St at. Sla, u anwaco e42 U.S.C. 23 32.114. :*.33. =29a a n: arr. 4 41.
Pua. L a3.10168 Stat. 94a e4: ll.S.C. =0lt s u ',
wv. Ont, u ammai d. Pua. L.93-438,84 Siat.
- 1:42. Pua.' L H.M. It Sin. 4t3 '4: t!.1.C.
1441 n 1:1 yR 377.Jan.13.194 1 '
~
.D
Aw L: A 3 6 4V3 tas44J a . ,
e 2.laa . Win uf propmed artle. (c) If an appHeaWn for a Mcmae is ta) If a htaring La not required bT complete enough to permit all evajus.
the Act or this chacter, and if the tions, other thain completion inspec.
tion, necessary for the tuvance of a Commtaslon hu not found that a cortstruction permit and operating II.
hetring is in the public interest. It will. cense, the notict of proposed lasunnet pner to teting thereen. cause to be pubitshed in the TODAL RtolsTu a of L construction permit may provide notlee of proposed action sith resped that on completion of construction to an application fort and inspection the operating fleense till be' lasued without further prior all A lleense for a facilltr. nottet.
(2) A lleerue for rectist of rute ra. tdl The notice of proposed action dioactive materlaj from other persons for the purpose of commercial !lsposaJ rtil provide that. *t hin thirty (301 days from the date el publication of by the raste disposal licemee,,,,or the notice in the rotaA2. Rzst:Tta, or (3) An amendment of a lleense spech such lesser period authorised by law as fled in paragraph ta)(1) or (2) of this the Commlaston may specifr.
section and which invoires a slan!II. (1) The applicant mar file a request cant hazards consideration: for a hearing: and (4) A liceme to recalve and possess (2) Any person whose interest may high. level radicactive rute at a geo- be affected by the proceeding may file lo:ic repository operattom tres pur74 a peutton for lears to Intervene, ant to Part 80 of thLs chapten tex 1) !! no request for a heartar oc tS) An amendment to a lleense spech petition for leave to latervent la filed fled in pararraph inx4) of this tection. sithin the time prescribed in the or an ninendment to a construction au. notlet. the Director of Nuclear Rese.
thorir.ation tranted in proceedings on tor Regulation or the Dirtetor of Nu.
an application or such a licertse. Then clear MatariaJ Safety and Safeguards, meh amendment would authertae at. u appropriate, may take the proposed uena which may significantly aff tet tr.tlen. Inform the appropetate State the health and safety of the public; or and locaJ officials, and publish in the (4) Any other lleertse or amendment as to which the Commtssion deter. TtacaA2. Rzctsru a notlee of Lasunner mines that an opportunity for a public of the license er ether action. *
. (2) If a request for,a hearing or a,pe.
heartnr should be s(forde6 tition for leave to interTetic la filed (U In the cue or an application for an operaune lleense for a facility of a rtthin the time ' prescribed in the t vpc desc?tted in 130.21tD1 or 130.22 notiet. the 1 residing offleer who shall of this chapter or a tetine facility. a be an Atomic Safety and Uren41ne nottee of opponunity for hearing shall Board estabitshed by the Commiclon l be luurd u noon u practiemble a.!ter or by the Chief AdminLMrathe Judge '
t hc applicsuon hu been deeketed.
of the Atomic Safety and Urens!nr I ag) In the rue of an appilcation Mr Board Panel, rLil rule on the request a tiernAe to regelve me possess hlW and/or pet!Uon. and the Secretary or inct radionethe rute at a geologic re- the presiding officer will lasue a notice peitory operstleM area. a notice of of hearing or an appropriate ordee,
' Die prelld!ng officer designated to opportun'ty for hearing u required rule on a request or petitlen concern.
by this paragTaph, shall be published Ing the antitrust aspens of an applica.
- prior to Commission action author. , tien may be either an Administrative tzzng recaist of such rastec this re. Law Judge or an Atomic Safety ard quirement is in addition to the proce. Deensing Board.
cures set out in i 2.10lt f x 8) and ((1 Applications for facility licenses t 2.104 at this part, which protide for i a hearing on the application snor to under section 103 of th? Act and for '
usugace of a cortstruction s'ithonza. facility operating licenses under sec. I tio n. - # Uon 104b of the Act as to shich any '
(b5 The nocet of proposu action person Interrened or sought by timely sill set forth: riitten notice to the Commission to (1) The naturt of the action pro.
interven* in the construction permit .
posed; proceeding to obtala a determination (2) The manner in which a copy of of antitrust considerations or to ad.
- [he safety taalysts and of the ACRS vtnee a juttsdictional basis for such report. If any, may be obtained or ex. determination are also rubject to the prottsierts of 11 *.101tb) anc; 2.100td).
smined.
e4: U.S.C. :I3:.:113. :::22. ::3 e i I:1 FR 377. Jan.13. lH7 as ammdes at 38 T'R 1015 . Scst.11.1933;31 Mt 1: Tie Sam.
- 30. IIH: 34 TR STC*. June 21. lHt. 34 F"M 11:11.'m II*: 'l F'. 4 8 8 13 Ht: 15 m 1H!s. M. :s M a r. 11. : sil. 3; ry 11131. .'m JL. lii:; 31 TR : sit t M. $
107 al rR 9313. Avr. 1s. ;9*L 44 TR
. ret 23. len t: 44 yn $3:34, Nes, g
. , , 10 CFR S 20202 (1,982)
I sJt2 Order to shew savee.
(t) ne Executjve Director for Oper.
stlons during u emergency u deter. (c) If the truser demands a hetring, mined by the EDO. and Director of Nucleu Reactor Regulation. Director the Commiasion sin lasue an order:
cf Nuclear Matertha Safety and Safe.
designating the ume and place of hearing, guards. Director. Office of laspection (d) At naswer or atlpuladen may and Enforcement, ud Director. Office consent to the entry of an order in of Admintstration, u approprtAte may substantially the form proposed la the insutute a proceeding to modify. sus- order to show cause.
pend, or revoke a license or for such l other setton u may be proper by serv. (e) ne consent of the Ucenset to l the entry of an rirder shall constitute j ing on the licensee sa order to sher a vsJvar by L.he licensee of a hetring. t cause which sill: .
findings of itet and conclusions of law.
(1) A.Dere the violattens sith which and of au right to seek Commianton i the Utensee la charged. or the poten. and judjcial review or to contest the2 usur huardous condidons or other talldity of the order in any forum.' i facts detmed to be sufficient ground
'for the propcted teilon: The order shad hate the same forte (2) Provide that the lleensee may fDe and t!!ect as an order made after' i hearing by a prealding otDett or the I a writtan answer to the order under Commissierb olth or afftrinatjen within twenty (20t (f) When the Executkve Director for days of its date, or such other time u Optratjona, during an einergency a.s may be specirled in the order, determined by the EDO. or the Direc.
(3) Inform the Uettset of his right. ter of Nuclear Resetor Reguladors DI.
within twenty (20) days of that date of rector of Nuclest Material Safety and I the order, or such other time u may, Ea.ferutids. Directer. Office of 1:. spec.
be epectfled la the order, to demand t, bearing.
Uon and Enforcement, a.: appropriate. l finds that the public health, aa.1ety, or l (4) Specify the tasues; and ,
interest *o requires or that the viola. ;
(5) State the effective date of the Uca La ulful, the erder to show cause '**
order. .
may provide, for stated tensena, that i (b) A Utenset may respond to as the proposed action be tempersrtly ef.
order to show cause by filir.g a written feture pending further order, answer under otth or affirmation. The ,g,,, g g g, p,g, g g3,9,3, g, g,,t, ,,, ,4 3 answer shtU specifica.Dy tdtnit or deny each t!!erstjen or charge made in the U.S c. 2:01t sec. 3cL Pub. L 03-438. 64 order to sher cause. and may set forth stat, g3 3 n: gre,3,4gn I the matters of f act and law on which (3177t 371. Jan.11.1942. as amersete at :s l tht lletnaet relies. The antser may I t t4 H. m.
g,oI83 g; $ geg) demand a hearing.
10 CFR $ 2.204 (1982) !
lIJS4 Order for miodinestien ef itense.
The CommL1sion may modify a D.
conse by tasuing an amendment en notice to the licenset that he may i demand a hearing with respect to al!
d i
,77. '
or say part of the ameridrnent within )
trenty (70) elays from the date of the i
' nctiet or such longer perted as the '.
l i
. no Jet may provide. The Ernendment stil become effective on the expiration
.% of the period during which the lletns.
et tray demand a hetting, or, in the I tvent that he demands t hearing, on !
the date specified in an order m*4r '
felloung the httant. When the Com.
mLisicn finds that the public health. 1 safety, or inttrest so recutres, the i c?:e? .s y t e .m ti e e f f ett:v t !mm edb l
4 t')
- 1 FR lt!!3 Se: R 1943) i
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10 CFR S 2. 206 (1982)
- 2.2n kom f r eccen vnd.e tht .+ specuen and Enfereersent. u appro.
part, i prime shall either institute the re.
(a) Any person may file a request for' quested proceeding la secordance with the Dire %er of Nudent Reacter Regv. this subDart or shall advise the person 1stloa Director of Nudear Matertal the made the request in writing that 8t'ety and Safeguards. Director.! no proceeding MU be instituted in Olfice of Ir.spection and Enforcement.; whole er in put. Mth respect to his as appropriate, to insutute a proceed.-
request, and the rosaens therefer.
- tas pursuant to i 2.202 to modify sus,
, ttXD Dioctor's decialons under thist, pend or revoke t Ucensa, or for such section W11 be filed with the Offlee oli ether neton as may be proper. Such a the SecreLary. Within tweatyaftve (34)' i request shall be addressed to the Dl. days tit 41 the dMe of the Director's '
rector of Nudear Reseter Regulsuon. decisten under this sectien that no Directer of Nudear Materis! Safety proceeding will be instituted or other and Safeguards. Diretter. Office of in. &ction taken in whole or la part, the spetuon sad Enforcement, u appr,. Camrnission may on its own moUon priate, and shtu be filed either,11) By rvview thM decision. in whole or in delivery to the Pubtle Document part to determine Li the Diretter has Room at 1111 R Strett NW. Wuhing, abused his discreuen. This review ton. D.C. or (2) by mtQ or telesrta power does not limit la any way althu addressed to the Director of Nuclear the Commission's supervisory power Renater RegulatJon. Director of Nude. .
tr Matartal Safety and Safeguards. Dt. not delerated staff actaene or the '
Commission's power to seneult with rector. Office of Inspection and En.
I forcement, u tasreprista. U.S. Nucle. the staff on a fortna) er informal basis ..
tr Reruistory Commisalon. Wuhing, retsteing lastituuso of prbceedings
- l under this secuen.
ten. D.C. 20535. The retutsts shall (2) No pettuon or other request for speelf; the neuen requested sad set
)
forth the facu that constitute *..e Commisalon redew of a Dl rector's de.
buis for the retuut. cision under this section wc1 be enter.
tained by the Commission.
(b) Within a reuenable time tfter &
requtst purtunnt te Ottt4TEph (t) of' N L8 W8M M k MM. S4 this secucn hu teen received. the Dt.
rector of Nudte Renzter Regulauen. kINgpt 1. Mt. 44 8'.at. 4la H2 Otretter of Nudetr Materinj Safety til F1t 1:383. Act. S. t914. u amendu 42 and Safegvtida. Director. Offlee of in. FM 3 240. July to ten: en F1t 't:4se. Nee.
] A.Isect e
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10 CFR S 2.703 (1982) 12.103 Notire of hearing. e (t) In L procteding til thjch the terms of a notice of hearing tre not others16e prescribed by this part, the order or nouce of hearing s1D state; (1) The nature of the hearing. and its time and place, or a statement that the time and place riu be fixed by sutsecuent order.
(3) The lertJ tuthority and jurisdic.
Con under which the hearing is to be held; (3) The matters of fact and law u.
- setted or to be considered: and (4) The time within which an answer shall be filed.
(b) The time and place of hearing s stJ be fixed sith due rettid for the convenience of the parties or their represent &Uves, the nature of the pro-cetding, and the pub!!c interest.
10 CFR $ 2.717 (1982)
J!rfiel e of presid af ffl tr. upon the explrttien of the period (t) Unleu others*.se ordered by the s%htn which the Commission may Comtatssten, the junsdiction of the direct that the record be certified to it presiding cfficer designated to conduct for final decistott er when the Com.
t hatnns over the proceed!ng, includ* g.atsien reniers a final decision, or lag modons and proceduttj matters. then the presiding officer shall haves commences when the proceeding ecm* tithdttrn himself from the case upon mensts.11 no presidt.mg officer hu cortsidering htmuf f disqualilled, been destgr.ated, the Cnlef Ad.r.inis* thithever is ettliest.
tituye Law Judge hu such jurudic. (b) The Director of NucJett Reactor don or, if he is untrtDtble, another . Rerulttien or Director of NucJett Mt. .
teministrstivt he judse han such ju. terial. Safety tad Stfeguardt. u appro.
risdiction. A proceeding is deemed to Britte, may issue an order tad take commente when a nouce of hetting or Eny otherwhe proper administiture a notice of proposed &ction pursutat artjon sith respect to a licensee who is to I t.105 ts issued. When a notice of a party to a pending proceeding. Anr hennag provides that the presiding o!* crder related to the subject matter of
,ficer ts to be an administrsute lar the pending proceeding may be modi.
.udge, the Chief Admittistrstive !ar tied by the pres, ding officer u appro-Judge stil-(esightte by order the Ed. priate for the */urpcne of the proceed.
- (n g, ministrtuve law judge who is to pre.
side. The presiding officer's jurudic, tit TR 10113. &en.17. 3643: 31 TR 1:T14.
tion in each proceeding stil terminate Sect. 30. lHl. u arnmded se 31 rn :sitt, Dec. St.1913) e
. ,3 - . .
UNITED STATES OF ANERICA NUCLEAR REGULATORY C0tti!SSION .
COPNISSIONERS:
Nunzio J. Palladino, Chairman ,
Victor Gilinsky - -
John F. Ahearne Themas M. Roberts James K. Asselstine says JUL 301982 In the Matter of ,
r BOSTON EDISON COMPANY Docket No. 50-293 (EA-81-63)
(Pilgrim Nuclear Power Station)
ORDER CLI-82-7 6)
On January !.8,1982, the Office of Inspection'and Enforcement :
issued an Order modifying the operating license for the Pilgrim Nuclear i Power Station, a Boston Edison Company (BECO) facility in Plymouth, Massachusetts. The order provides that "(c)entinued operation of the !
Pilgrim facility requires significant changes in Boston Edison Company's i control of licensed activities." It requires the company to develop and implement 'a Co."prehensive plan of action that will yield an independent I i i appraisal of site and corporate management organizations and functions,
- . l recennentations for improvements in management controls and oversight, l
l I and a review of previous safety-related activities to evaluate l ccmpliance with NRC requirements." Order Modifying License Effective Inre.ediately, Docket No. 50-293 (January 18, 1982) at 6, orinted at 47 Fed. Rec. 4171 (January 23,1932)(hereinafter,' Order"). ]
- i
) Cn Ett r.t ry l' 1932 , tr.e A t*.O r*ie Y O e r e * ! '. f0r One C0 m:nwe3I*,n cf t
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in a proceeding for modification of the Pilgrim operating license. In 1 support of his petition, the Attorney General alleges a I
non-discretionary right to intervene in the proceeding, pursuant to ;
section 189a of the Atomic Energy Act, prior to any further NRC action l l
with respect to the January 18,1982 order.
For the reasens set forth . , ,
. . 'l 4
below, we deny his request.
As a matter of law, section 189a does not provide a l 1
non-discretionary right to a hearing on all issues arguably related to 1
an acknowledged enforcement problem without regard to the scope of' the * - - '
l enforcement action actually proposed or taken. In order to be granted leave to intervene, one must demonstrate an interett affected by the
- action, as required by 10 CFR 2.714. BPI v. Atomic. Enerov Comission_,
- 502F.2d424(0.C.Cir.1974). The scope of the action initiated by the Comission may be limited and defined by the Comission. Tha Comission l l
may limit the issues in enforcement proceeding's to whether the facts as
) , stated in the order are true and whether the remedy selected is supported by those facts. Public Service Comoany of Indi'ana (Marble Hill Nuclear Generating Station, Units 1 and 2), Ct.1-80-10,11 NRC 438, i
. =5 '
i .
j .- l l
i
3 at 441-42 (1980)M The order in this case limits the scope of a l proceeding in this way. It states that in a hearing the issue would be whether, on the basis of matters set forth in the Order, the Order should be sustained. Order at 9-10.
In this case, the Attorney General asserts four concerns with :
respect to the Order:
O In that order the Cearnission stated the legal and policy considerations in support of this view,11 NRC 438, 441-42 (footnotesomitted): ;
The reasdns for this are simple. Ye believe that public health and safety is best served by concentrating inspection and enforcement resources on actual field inspections and related scientific and engineering work, as opposed to the conduct of legal proceedings. This consideration calls for a policy that encourages licensees to consent to, rather than contest, enforccment actions. Such a policy would be thwarted if licensees which consented to enforcement actions were routinely subjected to fonr.a1 proceedings possibly leading to
' more severe or different enforcement actions. Rather than i
' consent and risk a hearing on whether more drastic relief was '
called for, licensees would, to protect their own interests, call for a hearing on each enforcement order to ensure that the possibility of less severe action would also be !
' considered. The end result would be a major diversion of l agency resources from project inspections and engineering investigations to the conduct of hearings. In our view cases I
such as Mooo Industries (v. FTC, 355 U.S. 411 (1958)], clearly
, pennit an agency to acopt a policy which avoids such a result.
Finally, the NRC already provides a separate procedure, under 10 CFR 2.206, for any interested person to seek -
l enforcement actions beyond those adopted. Furthennore, in appropriate cases enforcement orders may provide a broader scope, as has already been done in certain orders related to
, .. the ihree Mile Island Nuclear Station. The order in this case, hcwever, was limited to the issues noted above, and as such would not grant standing to parties seeking additional reedi e s .
I
i l
.* 1 o .* .
a
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l (1) Without participating in the review of BECO's proposed corrective actions, the public can have no assurance that continued operation of the facility will not jeopardize their health and i
safety. Petition at 3; !
(2) If the NRC requires the wrong. or insufficient changes in BECO's management systems and controls, an esisting threat to public health and safety will continue, i
(3) If NRC fails to require timely managaznent changes this - -
. threat will continue; and (4) If BECO fails to properly implement necessary management changes this threat will continue indefinite 1x, Attorney General's I Brief at 5. .
These concerns are beyond the scope of the proceeding. %e Attorney General does not oppose the issuance of the Order nor does he raise in his petition or brief any suggestion that it is unsupported by the facts it sets forth. Indeed, far from disputing the facts set forth in the l
Order, the Attorney General recites them to show the need for NRC I action. Attorney General's petition at 3. If anything, the Attorney General suggests that these facts not only suppo t this Order but also support' further NRC action. Consequently, the Attorney General is not entitled as of right to any fonr.a1 hearing in the proceeding with respect to these concerns. Nor do we believe that, under the
~
circumstanus, a discretionary hearing should be held. See_ Portland se-eral Electric Co. (:e:ble Springs Nuclear Plant, Units 1 and 2),
- U.75-E7, ' NRC 610, i'.5 (1975). The NRC staff wili give full anc fair
5 i
i
, . consideration to any of the Attorney General's expressed concerns regarding future actions in this case, and we believe that this informal process will prove to be a satisfactory way of resolving those concerns.
If for any reason the Attorney General believes his concerns have not
- received adequate attention or he desires mee formal consideration of them, he may file a request for further enforceent action pursuant to 10 CFR 2.206. Should any Comission analysis or infonnation in a 2.206 petition show that the NRC-ordered modification program has not been l either sufficient to address the prob 1ms or properly reshnded to by the licensee, the licensee bears the risk of further action as appropriate. In this way, the Comission believes that the public l health and safety has been properly and adequately' protected by its l actions.
The Attorney General's request for a hearing is therefore denied.
- Comissioner Gilinsky dissents and would grant the petition.D
- l i
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. 2. '
~~ D Comissioner Gilinsk was not present when this Order was afiirmed,
! but had previously i dicated his disapproval. Had l Cemissiener Gilinsky been present, he would have affirmed his prior vote.
I l
s 6 , .
It is so ORDERED.
For the Comission OAA MCh /
- +'
,0.p, Acting Se/cretary JOHN of G.the MQYLEComission g
i I k%gd<o
<p M.N Y '
h* $:5 Dated at Washington, DC '
this 30th day of July, 1982. . -
4 b
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CERTIFICATE OF SERVICE I hereby certify that on this 20th day of October, 1982, copies of the foregoing "Brief for Respondents' have been served upon counsel for all parties by placing copies in the mail, postage prepaid, addressed to the following: I James R. Gomes, Esq.
' Assistant Attorney General Environmental Protection Division One Ashburton Place 19th Floor Boston, MA 02108 Thomas G. Dignan, Jr., Esq.
Ropes & Gray 225 Franklin Street Boston, MA 02110 Nancy B. Firestone, Esq.
Appellate Section LandDepartment U.S. and Natural ofResources Justice Division Washington, DC 20530 s
A'd
^J c G. PAUL BOLLWERK III
[ db4,,- ~
Attorney i Office of the General Counsel '
U.S. Nuclear Regulatory ;
Commission Washington, DC
' 20555 octo$er 28, 1982
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