ML20205D484

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Forwards Asselstine Dissenting Views on Order Denying Sierra Club Request for Hearing & Stay of NRC Decision Re Facility,For Inclusion W/Order Prior to Issuance
ML20205D484
Person / Time
Site: San Onofre Southern California Edison icon.png
Issue date: 02/12/1985
From: Davis P
NRC COMMISSION (OCM)
To: Bates A
NRC OFFICE OF THE SECRETARY (SECY)
Shared Package
ML20205D480 List:
References
FOIA-85-126 NUDOCS 8510160187
Download: ML20205D484 (10)
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OFFICE OF THE l February 12, 1985 MEMORANDUM T0: Andy Bates, Secy FROM: Pat Davis, OCM P D

SUBJECT:

DISSENTING VIEWS ON SAN ON0FRE ORDER Attached are Comissioner Asselstine's dissenting views on the order denying the Sierra Club's request for a hearing and a stay of the Comission's San Onofre 1 decision. Please see that they are attached to the Comission order when it goes out.

cc: Chairman Palladino Comissioner Roberts Comissioner Bernthal Comissioner Zech OGC OPE l

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8510160187 850926 PDR FOIA ZAELME85-126 PDR I

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DISSENTING VIEWS OF COMMISSIONER ASSELSTINE The central legal questier presented by petitioners' request for a hearing is whether the Commission's November 1984 "Contiocent Recission of Suspension" is a license amendnent. If it is an amendment, the Commission is most probably required by section 189 of the Atomic Energy Act (AEA) to provide an opportunity for a prior hearing if it cannot make a "no significant hazards consideration" finding. 1-lhetFer the Commission's November 1984 erder amends the license depends upon whether the Commission's original shutdown order of August 1987 was an amendment. If the 1982 order was mercly a license suspension and not an amendment, then the 1984 order merely lifts the suspension and no opportunity for a hearing is required. Deukmejian v. NRC, No 81-2035 (D.C. Cir. December 31,1984).

The Commission has concluded that the August 1982 order did not amend the San Onofre 1 license. The Connission says that the 1982 order is not an amendment because the purpose of the upgrade to .679 was to make the plant safer and that action neither contradicted tFe existing license nor did it call for additional autterization. Slip Op. at 7. We are told that allowing the plant to operate in the interim until the upgrade is completed was within the terms of the existing authority so that the requirement in the 1982 order that the plant remain shut dowr per.dir,g completion was a license suspension, r.ct a license amendment. The Connission majority says that it has complete discretion, then, to relax ary par'. of the order at any time. Slip Op. at 8. According to the Commission, it could have decided to incorporate the change in authority into the license, but again

that decision is the Comnission's. The Commission has, then, according to the majority, complete discretion to label its actions as either amendments or suspensions. Slip Op. at 8.

I cannot agree with the Commission's conclusions. I sympathize with the najority's desire to reteir maximum enforcement and regulatory flexibility.

I too believe that our enforcement process should not become freighted with overly conplex procedural requirenents. On the other hand, I do not believe that the Commission has complete end unfettered discretion to deternine when procedural rights accrue to interested parties and when they do not. I do not believe that the Conmission is correct when it seemingly asserts that any time the Commission goes beyond existing license to require an upgrade or safety inprovement the Commission has carte blanche to label that action an amendment or e suspension, and that that label is dispositive for purposes of determining whether the action triggers hearing rights er the part of third parties.

Unfortunately, the available law on the issue of what constitutes a license r

amendmert is screwhat less than clear. In addition, the courts do not appear to have specifically addressed the issue presented by this case.

The latest discussion of license suspensions and amendments appears in the Diablo Canyon case decided in December 1984 by the O.C. Circuit.

Deukmejian v. NRC. supra. The court decided that the Commission's decision to lift the suspension of the Diablo Canyon license did not trigger hearing rights under section 189 of the AEA. The court did not explain, however, how one determines whether a particular Commission action is an amendment l

or a suspension. The court said only that: "The lifting of a suspension does nothing to alter the original tenns of the license; indeed, it removes a significant impedinent to the enforcement of those terms." Id. at 48.

The court also appeared not to object to the statement it quoted from the Sholly E case that an amendment is something which " granted the licensee authority to do something that it otherwise could not have der.e under existing autberity." Deukmejian at 47.

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The Diablo Canyon case appears not to address the situation in the San Onofre 1 case, i.e. an order which requires additional measures beyond the license requirenents. The Diablo Canyor court said that where Commission action allows a licensee to de something it is not authorized to do under existing licensing authority, e.g. relaxes e license requirement, that action amends the license and triggers Section 189 hearing rights. And, where the Commission action suspends a license because a licensee is found not to be in compliance with its license and then the Comission, after i determining that the licensee is in compliance, lifts that suspension, third parties dn not have a statutory right to a hearing. In the latter case, the Commission's action in lifting the suspersicn does not create a right to litigate the Cennission's determination that the licensee is in compliance with the teras of the suspension order. Hcwever, the Court did not address the two ouestions relevant to the San Onofre situation: (1) whether and under what circumstances additional, new requirements beyond

-1/ Sholly v NRC, 651 F.2d 780 (D.C. Cir.1980) vacated en other grounds, 103 S.Ct. 1170 (1983).

what the license requires amend the license, and P) what Comission action with regard to these rew requirements triggers a right to a hearing.

The Comission urges that in the case of a safety irprovement whether a Commission action anends the license or merely suspends it depends solely l on Commission intent and the label the Commission attaches to the action.

There does not appear to be any reliable law on this subject which interprets the AEA. In Sholly, the Court indicated that Congress intended thet "any significant change in the licensing status of a nuclear power plant" gave rise to an opportunity to intervene before that change could occur. 651 F.2d at 791. However, the Diablo Canyon court cast doubt on the continued validity of that statement. The court said that this dictum in Sholly was " inadequate precedent for the proposition that any significant change in the licensing status of a nuclear pcwcr plant triggers the precedural protection of section 189 (a)." Deukmejian, slip op. at 48. The Court did not explain, however, what standard should apply for determining when a license is amended. It only said that a license suspension does not alter the terms of the license. To the best of my knowlege, no other case interpreting the Atomic Energy Act sheds substantial light on this issue.

Although it does not deal with Section 189 of the AEA, a case in which the C.C. Circuit interpreted the hoerir.g requirement of the Communications Act

! of 1934 may be helpful. Temmer v. FCC, 743 F.2d 918 (D.C. Cir. 1984). The i Court held that where a license is granted subject tc certain express l

conditions set forth in the license and the regulations, and the licensee

then fails to meet those conditions, action by the FCC to revoke the license is not a " license modification", but rather the enforcement of the original license conditions. The Court said that vbether the license has been modified deperds upon whether agency action "substantially affected" an unconditional right conferred by the license. Id. at 927-928. The Court also said that the label attached to the agency action was not dispositive and that a reviewing court "must look beyond the form of the license document and beyond the language employed by the FCC to describe its action." Id. at 927.

The Temmer standard is consistent with the court's Diabic Canyon decision.

I hesitate, however, tn make general pronouncements about when an upgrade to a plant constitutes an amendment of the license. I em also reluctant to conclude that the staff har rc flexibility to alter its decision about what change is needed at some later time. Such ar absciute rule could only lead to a reluctance on the part of the staff to issue enforcement orders because they do not want to get " locked into" a position. I think this issue is best handled on a case by case basis to ensure reasonable enforcement flexibility. However, for lack of something better I have used the Temmer standard as guidance in concluding that the 1982 order for San Onofre 1 amended the license. The order at issue here was a substantial change to a fundamertal part of the license, the seismic design basis.

Further, the Commission's order prohibited operation of the facility until the changes were completed. Thus, the order substantially affected a condition of the license. I therefore conclude that the 1982 order amended the San Onofre 1 license. By remcving the condition that the plant remain

shut down while the modifications were in progress, the 1984 order amended the license again.

However, deciding that a particular Comission action is a license amendment does not end the inquiry. We must also determine what hearing rights accrue. A case with some relevance to this issue is Bellotti v NRC, 1

725 F.2d 1380 (D.C. Cir. 1983). In Bellotti, the Comission issued an Order Modifying License which amended Boston Edison's Pilgrin crerating license to require development of a plan for reappctisal and improvement of 1 management functions. The Attorney General of itassachusettes petitioned to intervene in the enforcercnt proceeding and asked to litigate various issues related to compliance with the Comission order. The Court held that the Comission could properly deny the petition to intervene because the issues the Attorney General wanted to litigate went beyond the scope of the hearing as defined by the Comission's amendment order. The Court said:

The Commission's power to define the scope of a proceeding will lead to the c'erial of intervention only when the Comission amends a license to require additional or better safety reasures.

Then, cr.e who, like petitioner Bellotti, wishes to litigate the need for still more safety measures, perhaps including the closing of the facility, will be remitted to section 2.206's petition procedures.

i The Court says, then, that even where the Comission amends a license to reevire additional or better safety measures it can deny a hearing on that amendment to third parties. However, the court went on to say:

If, on the other hand, the Comission proposes to amend a license to renovc a restriction upon the licensee, the scope of the pro-ceeding is defined by that proposal and section 1P0(c) permits public

7-participation to oppose that relaxation. The upshot is that automatic participation at a hearing may be denied only when the Comission is seeking to make a facility's operation safer. Public participation is automatic with respect to all Comission actions that are potentially harmful to the public health and welfare.

This language is extremely broad and if read literally suggests that the need for a hearing depends upon whether the proposed agency " action" has the potential for increasing er decreasing public safety; if the latter, the public has an ratonatic right to a beerirg. If that test is applied to the San Onofrc 1 case the public bed ne right to a hearing on the issuance

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of the August 1,1982 order because it involved a safety improvement. The i

public would also have no right to a hearing on whether the terns of the order had been satisfied, but would have en automatic right to a hearing if the NRC were to relax the requirements of that order.

It is not clear what weight we ought to give the court's language because it appears to be dictum. Also, I cannot believe that the D.C. Circuit intended the anomaleus situation described above. A basis for the court's decision was the desire maintain enforcenent flexibility in the agency by not encumberino the erfercement process with numerous procedural requirements. 725 F.2d at 1382. The Court obviously was concerned about discouraging the use of orders because the Comission feared it would be

" locked in". On the other hand, the court obviously did not mean to exclude all public participaticn on enforcement matters especially where amendments to the license were involved.

Again, I hesitate to generalize because of the inpact such generalizations ,

could have on the agency's enforcement flexibility. However, in this case.

_p.

I believe that the modifications to the license and the issues involved are significant encugh that a relaxation of the conditions imposed by the 1982 order triggers the hearing requirement of Section 189. Indeed, these issues are of sufficient importance that even if a hearing is r.ot legally required the Connission should have granted a hearing es e matter of discretion.

Setting these procedural issues to one side, herever, I have ott.cr, nonprocedural concerrs abcut the decision to allow restart of San Onofre 1 at this time. The decision to put the licensee's cemitments into order fonn was based partly on er apparent reluctance by Southern California Edison (SCE) to complete the upgrade in a tirely menner and because of a concern that the plant did ret cycn meet the existing licensing requirement that the plant meet the seismic design basis of .59. I am unable to agree to an alteration of the order teccuse I do not believe these concerns have been adequately resolved. As long as the plert is permitted to operate, there is little incentive for SCE to complete the upgrade. In fact, the schedule for completion of the modifications set out in the Commission's Contingent Recission order seers to require little in the way of timely I

completion. Further, I am extremely uncomfortable with the staff's finding that the plant is " reasonably likely" to withstand an earthquake with ground motions of .5g. This does not eppear to be the same standard the staff would normally apply to issues such as this. Thus, the staff seems to be accepting a lesser margin of safety in determining whether the plant now meets its original seismic c'esign basis than it requires in other cases. This is particularly troublino in view of the staff's conclusion that the correct seismic design basis for the San Gnofre site is in fact

.679 rather than the .5g figure adopted at the time of licensing San Onofre 1.

r Finally, I am concerned by the fact that the motivating factor for the Commission's relaxation of its 1982 order was originally not a deternination that the changes are no longer necessary, but that it is too expensive to keep the plant shut down while they are made. As I have said before, I do not believe that the financial difficulties of licensees should be a factor in our decisions whether to relax safety requirements.

In conclusion, I believe the Cennission's 1982 order modified the San Onofre 1 license and that the 1984 order was a further amendment of the license. Section 189 of the Atcric Energy Act requires that a hearing be held in this case. I voted not to allow restart of Unit 1 in November of 1984, and I would nov grant the Sierra Club's request for a stay of the Commission's decision.

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