ML20236B124
| ML20236B124 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 01/14/1988 |
| From: | Crockett S NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Wessman D NRC |
| Shared Package | |
| ML20236B042 | List: |
| References | |
| FOIA-88-198 2.206, NUDOCS 8903200359 | |
| Download: ML20236B124 (44) | |
Text
-- x, January 14, 198[
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Dear Dick Wessman,
Here is a copy of-Massachusetts' brief seeking. judicial review of the Director's decision denying MASSPIRG's 5 2.206 petition on management, emergency planning, and containment issues at Pilgrim, I will be writing the brief for the NRC and no doubt will need to talk to you from time to time. _Please, if you will, read MA's brief and let me know soon if there's anything you.want to make sure does-not get left out of our.
brief and which you think a lawyer might be apt to overlook. l l Yours, Steve Crockett OGC, 41465 8903200359 890310 PDR FOIA JOHNSON 88-198 PDR
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i UNITED STATES COURT OF APPEALS
-FOR THE FIRST CIRCUIT l
)
MASSACHUSETTS PUBLIC INTEREST )
.-- RESEARCH GROUP, el al., )
)'
, Petitioners ) l
)- ,
- v. ) No. 87-1865 e ).
UNITED STATES NUCLEAR )
REGULATORY COMMISSION, et al., )
)
Respondents. )
)
PETITION FOR REVIEW OF A DECISION OF THE NUCLEAR REGULATORY COMMISSION.
BRIEF OF INTERVENOR COMMONWEALTH OF MASSACHUSETTS s
i JAMES M. SHANNON, ATTORNEY GENERAL l .
George B. Dean i
Assistant Attorney General One Ashburton Place I
Boston Massachusetts (617)-727-1083 Dated: January 11, 1988
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D.
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TABLE OF CONTENTS I. STATEMENT OF THE CASE . . . . . .. . . . .. . . . . . . . 1
,. II. STAT'E MENT OFfTHE FACTS .. . . . . . . . , . . . . . . . . . 4 A. The NRC Regulatory Scheme.. ... . ... .. . .- .' 4.
B .- Pilgrim Nuclear Power Station . . . . . .c. . .. .. '8-C. The 2.206 Petition . . .. . . . . . . . . . . . . . 10 -
D. FEMA's Analysis Of. Pilgrim Emergency l Planning / Preparedness. . ...;. . . . . . 12' E. The " Interim Director's Decision" . .~..;. . . . .- 16 III.' STANDARD OF REVIEW 1 .. . . . . . .c.,, . .. . . . . . . . 20-
- IV. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
. . . . .. 21 V.
SUMMARY
OF-ARGUMENT . .. . . . .. . . . . . . . . . . . . . . 22 VI. ARGUMENT . . . . . . ... . . . . . . . . . . . ' . . . . 24 A. The NRC's Denial Of.The Request To: Initiate Enforcement Proceedings With Respect To Pilgrim Emergency Planning and Preparedness Was Arbitrary, Capricious, An Abuse Of Discretion, And Otherwise !
Not In Accordance With Law . . . . .. . . . . . . 24 B. The NRC's Denial Of The Request To Initiate Enforcement Proceedings With Respect To' Pilgrim's l Reactor Containment's Safety Was Arbitrary, l Capricious, An Abuse'Oif Discretion,:And Otherwise i Not In Accordance With~ Law . . . .. . . . .- . . . 29 '
C. The NRC's " Interim Director's Decision" Is A. Final. .
Agency Action Subject To Judicial Review Under The Administrative Procedure Act . . . . . . . . . .. . 30 VI. CONCLUSION . . . . . . . . . . . . . . . . . .. . . . . 34 U
_ _ _ . . _ _ _ _ _ ._ __l
v b
TABLE OF AUTHORITIES JUDICIAL DECISIONS:
Bellotti v. NRC, 725 F.2d 1380 (D.C.Cir. 1983) . . . . . . 9, 33 Center for Auto Safety v. Dole, 828 F.2d 799 (D.C.Cir 1987) . 25 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 1 l
(1971) . . . . . . . . . . . . . . .. . . . . . . . . . . . . 20 l County of Rockland v. NRC, 709 F.2d 766 (2nd Cir.) cert. denied ,
464 U.S. 993 (1983). . . . . . . . . . . . .. . . 26, 27, 28,29,32 l
In Re Three Mile Island Alert, Inc., 771 F.2d 720 (3rd Cir. 1985) . . . . . . . . .. . . . . . . . . . . . . . 27 )
l l Lorion v. NRC, 785 F.2d 1038 (D.C.Cir. 1986) . . . . . 20, 24, 30 l Motor Vehicle Manufacturers Assn. v. State Farm Mutual Insurance Co., 463 U.S. 29 (1983) . . . . . . . . . . . . . . . . . 24, 27 Natural Resources Defence Council v. NRC, 680 F.2d 810 (D.C.Cir.
1982) . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33 q Oystershell Alliance v. NRC, 800 F.2d 1201 (D.C.cir. 1986) 27, 28 Port of Boston Marine Terminal Association v. Reder1aktiebolaget Transatlantic, 400 U.S. 62 (1970) . . . . . . . . 23, 31, 32, 33 l
1 Sierra Club v. NRC, 825 F.2d 1356 (9th Cir. 1987). . . . . . . 32 )
i Union of Concerned Scientists v. NRC, 824 F.2d 108 (D.C.Cir.
1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1
United States v. Nixon, 418 U.S. 683 (1974) . . . . . . . . . 25 ADMINISTRATIVE DECISIONS:
l Boston Edison Company (Pilgrim Nuclear Power Station) LBP-72-25, 5 AEC 103, aff'd ALAB-83, 5 AEC 354 (1972) . . . . . . . . . 8 Consolidated Edison Company (Indian Point Units 1, 2, and 3) CLI-75-173 (1975) . . . . . . . . . . . . . . . . . . . . . . 28, 30 Consolidated Edison Company (Indian Point, Units 2 and 3) CLI--
82-38, 16 NRC 1698 (1982) . . . . . . . . . . . . . . . . 28, 29
STATUTRS:
5 U.S.C. 704 . . . . . . .. . . . . . . . . . . . . . . 21, 31 5 U.S.C. 706(1). . . . . . . . . . . . . . . . ... . . . . 25
. 5 U.S.C. 706(2)(A) . . . . . . . . . . . . . . . . . . . . . 20 28 U.S.C. 2342 . .. .. . . . . . . . . . . . . . . . . . . 1 42 U.S.C. 2011 . . . . . . . . . . . . . . .. . . . . . . . 4 i
l 42 U.S.C. 2131 . . . . . . . . . . . . . . . . . . . . . . . 4 42 U.S.C. 2133 . . . . . . . . . . . . . . . . . . . . . . 4, 5 i
42 U.S.C. 2232(a) . . . . . . . . . . . . . . . . . . . 5, 22 42 U.S.C. 2236 . . . . . . . . . . . . . . . . . . . . . . . 5 i
42 U.S.C. 2237 . . . . . . . . . . . . . . . . . . . . . . . . 5 l l 42 U.S.C. 2271 . . . . . . . . . . . . . . . . . . . . . . . 5 I 42 U.S.C. 2282 . . . . . . . . . . . . . . . . . . . . . . .- 5 REGULATIONS:
10 C.F.R. 2.206 . . . . . . . . . . . . . . . . . . 2, 16, 28 10 C.F.R. 2.206(a) . . . . . . . . . . . . . . . . . . .. . 10 10 C.F.R. 50.47(a) . . . . . . . . . . . . . . . . . . . . . 8 10 C.F.R. 50.47(a)(2) . . . . . . . . . . . . . . . . . 7, 26 s
10 C.F.R. 50.54(q) . . . . . . . . . . . . . . . . . .. . . . 8 I 10 C.F.R. 50.54(s)(2)(ii) . . . . . . . . . . . . . . 5, 8, 27 10 C.F.R. 50.54(s)(3) . . . . . . . . . . . 7, 22, 24, 25, 26 44 C.F.R. 350.7(d) . . . . . . . . . . . . . . . . . . . . . 7 44 C.F.R. 350.9 . . . . . . . . . . . . . . . . . . . . . . 7 44 C.F.R. Part 350 . . . . . . . . . . . . . . . . . . . . . . 7 MISCELLANEOUS AUTHORITIES:
m 1980 Memorandum of Understanding Between NRC and FEMA To Accomplish a Prompt Improvement in Radiological Emergency Planning and Preparedness, 45 Fed. Reg. 5847, 5848 (1980) . . . 7 1985 Menorandum of Understanding Between NRC and FEMA Relating to Radiological Emergency Planning and Preparedness, 50 Fed. Reg.
. 15,465 (1985) . . . .'. . . . . . . . . .. . . . . . .6, 7, 25 Emergency Planning Around U.S. Nuclear Power Plants, House Report No.96-413, 96th cong., 1st Sess. (1979) . . . .. . . . . . . 6 i e I and III Three Mile Island: A Report to the Commissioners-and the Public, U.S. Nuclear Regulatory Commission Special Inquiry Group (1980) . . . . . . . . . . . . . . . . . . . . . . . . . 6 Notice of Proposed NRC Rule Making, 44 Fed. Reg. 75,167 (1979) ,
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l President's Commission on the Accident at Three Mile Island --
The Need for Change: The Legacy of TMI (1979) . . . . . . . . 5 S. Rep. No. 1699, 83rd Cong., 2d Sess. 2 (1954) . . . . . . . . 4 Staff Report to the President's Commission on the Accident at Three Mile Island -- Emergency Preparedness, Emergency Response (1979) . . . . . . . . . . . . . . . . . . . . . .. . . . . . 5 l
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1 UNITED STATES COURT OF APPEALS ;
FOR THE FIRST CIRCUIT '
l
)
MASSACHUSETTS PUBLIC INTEREST )
RESEARCH GROUP, et al., )
)- .l Petitioners ) !
) '
v.- ) No. 87-1865 l
)-
UNITED STATES NUCLEAR )
REGULATORY COMMISSION, et al., )
)
Respondents. )
)
PETITION FOR REVIEW OF A DECISION OF THE NUCLEAR REGULATORY COMMISSION BRIEF OF INTERVENOR COMMONWEALTH OF MASSACHUSETTS l
l I. STATEMENT OF THE CASE This Petition for Review was filed on October 1, 1987 4 pursuant to the Hobbs Act, 28 U.S.C. 2342.- Review is sought of the August 21, 1987 denial by the U.S. Nuclear Regulatory Commission ("NRC") of a petition flied by Petitioners, Massachusetts Public Interest Research Group, Inc., et al.
("MassPirg"), seeking the initiation of NRC enforcement action against the Boston Edison Company ("BECo") with respect to the operation dnd condition of the Pilgrim Nuclear Power Station 1
- l
(" Pilgrim" or the " Plant").(1)
(" Commonwealth") The Commonwealth of Massachu and BECo were allowed to intervene in separate .
i Orders of this Court dated October 21 1987.[2]
and O t b On October 27 and November 5, c o er'30, respectively, the NRC moved to dismiss the petition on the grounds that NRC d :
ecisions not to take enforcement action are not dismiss the Commonwealth as a party on thsubject to e grounds that the-Commonwealth had not participated below .
BEco filed a separate motion to dismiss thOn November 5, unreviewability. e appeal on grounds of The Commonwealth and MassPirg have filed i
separate responses to each of these motions .
pending before this Court. The motions are By an Order of this Court dated December 1987, ,
28 the Parties were directed to addressowing "Whether the August 21, 1987 the question:
foll agency decisio n, which decided two of the three grounds petitioners raised, but r s eserved decision on a third issue (alleged management deficiencies) is a final agency 1.
Petition" 1986 pursuantrefer to to the petition flied withAso used en herein, th 10 C.F.R. 2.206 the NRC on July 15, "MassPirg Petition" refer to the Court. Petit The term " Appeal" and
! ' ion for Review before the 2.
On October 19, 1987, 2.206 request with the NRC. the Commonwealth fried a 10 C.F . .
R i be similar to those soughtof Tht enforcement request sought proceedings the initiation that, request in the Golden Petition.in many material respe seeks enforcement action with respect While the grounds for concluding that Pilgrim poses a thto the same three health and safety, the bases for the requestreat to the public are different in many respects, particularly which are discussed _ infra at pp. 12-16, in the reliance upon e conclusions ated Review,"
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' decision which should be reviewed by this' court at'this time in advance-of'the agency's' determination of the management-issue."
Pursuant.to this Court's Order dated December 8, 1987, the'
.j Commonwealth submits this brief on.the merit's, l!
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. II. STATEMENT-OF THE FACTS A. The NRC Regulatory Scheme
'With the enactment of the AtomicIEnergy Act of 1954,_
Congress for1the first timeJauthorized. private' commercial r production and utilization of nuclear material. 42-U.S.C. 2011 et seq.(as amended). Recognizing that nuclear technology.
"' pose (d) grave threats to_the very-existence of civilization'..., Congress imposed an expansive and stringent
. scheme by which the government would regulate every aspect of the new industry." Union of Concerned Scientists v. NRC, 824 F.2d 108, 115 (D.C.cir. 1987) quoting S. Rep. No. 1699, 83rd Cong., 2d !
Sess, 2 (1954). Congress has charged the NRC with the. -
responsibility of assuring that the possession'and use of nuclear fuel will " provide adequate protection to the' health and safety of the public."(3) Union of Concerned Scientists v._NRC, supra.
An NRC permit is required for'the construction of a nuclear l power plant and an NRC operating license ~is required _for the operation of a plant. 42 U.S.C. '2131 Land 2133. NRC permits I'
and licenses as well as the continued operation of_ nuclear power
- 3. Under_the Atomic Energy Act of 1954, the' Atomic-Energy Commission ("AEC") was charged with the responsibility to both promote and regulate civilian use of nuclear energy By 1974, however, Congress recognized that a conflict exited between the two roles. In the Energy Reorganization Act of 1974, Congress-1 divided the agency's responsibilities. The role of promotor was. j assigned to.what is'now the Department _of Energy andLthe role of i regulator was assigned to the' newly created NRC.- The intent was L
to provide a strong regulator. P.L.93-438, 88 Stat. 1233 l
(1974), codified at 42 U.S.C. 5814 et seq.
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i plants are conditioned upon conformance with rules or regulations adopted by the NRC to meet its statutory obligation to protect ~ j 4
the public health and safety. 42'U.S.C. 2133(a).and'2232(a). j
, The NRC .ls empowered to enforce its rules' and regulations _and: has.
at its disposal a variety of enforcement tools:~ the authority to revoke, suspend or modify licenses, the authority to: impose civil-
- penalties, and the authority to. issue cease:and desist orders.
l 42:U.S.C. 2236,_2237, 2271, and 2282. . See generally S. Rep.
No.91-553, 91st Cong., 1st Sess., reprinted in U.S. Code Cong. &
Ad. News 1607 (1969).
AmongLthe conditions imposed upon licensees by the NRC to protect the public health and safety are those'related to emergency planning and preparedness.[4] The NRC's current emergency planning rules are an outgrowth of the lessons learned. I from the 1979 accident at the Three Mile Island. nuclear station.
Numerous government studies and hearings were conducted-of the l causes and response to that accident. Based on those studies and its own analysis, the NRC reconsidered the. role ofLemergency preparedness in ensuring the protection of the public health and i
safety and, in December, 1979, issued' proposed regulations.(5]' '
.j
- 4. For convenience of exposition,-the terms " emergency 1 planning" and " emergency preparedness";are used interchangeably 'I herein and are intended to reference the requirement of an NRC l L
rule that the state of emergency preparedness at a nuclear power
" provide reasonable assurance that adequate protective measures '];
can and will be taken in the event of a radiological emergency."' q 10 C.F.R. 50.54(s)(2)(ii). j
- 5. hee generally President's Commission on the Accident-at Three Mlle Island -- The Need for Change: The Legacy of TMI (continued...) 1 5 1 i
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l The NRC proi.ded the following rationale for the regulatory l change:
The proposed rule is predicated on the Commission's .
considered judgement in the aftermath _of the accident l
. at Three Mile Island that safe siting and design- l engineered features alone do not optimize protection of i the public health and safety. Before the accident it l
. was thought that adequate siting'in accordance with ;
existing staff guidance coupled with the defense-in- l depth approach to design would be the primary public protection. Emergency planning was conceived as a secondary but additional measure to be exercised in the l unlikely event that an accident would happen. The Commission's perspective was severely altered by the unexpected sequence of events that occurred at Three Mile Island. The accident showed clearly that the protection provided by siting and engineered safety features must be bolstered by the ability to take protective measures during the course of an accident.
... A conclusion the Commission draws from this is that in carrying out its statutory mandate to protect the public health and safety, the Commission must be in a position to know that off-site governmental plans have been reviewed and found adequate.
44 Fed. Reg. 75,169 (1979).
1 On December 7, 1979, President Carter, acting on the same l reports, directed that the Federal Emergency Management Agency l
(" FEMA") " assume the lead responsibility for all offsite nutlear emergency planning and response." 50 Fed. Reg.15,465 (1985)(Notice of Revised Memorandum of Understanding Between FEMA and NRC). FEMA was and is the Federal agency with experience in emergency planning. Its expertise was necessary to. augment the 5(... continued)
(1979); Staff Report to the President's Commission on the Accident at Three Mlle Island -- Emergency Preparedness, Emergency Response (1979); I and III Three Mlle Island: A Report to the Commissioners and the Public, U.S. Nuclear Regulatory Commission Special Inquiry Group (1980); Emergency planning Around U.S. Nuclear Power Plants, House Report No.96-413, 96th Cong., 1st Sess. (1979).
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l NRC's technical capabilities which'did~not included adequate 1 experience or expertise in emergency planning. This directive _ !
1 resulted in a. January 20, 1980 Memorandum of Understanding i L ("MOU").between the:NRC and the' FEMA which,1in pertinent part,.
provided.that FEMA was to "takeithe lead in off-site emergency-planning and, review-and assess' State and local emergency plans.
for adequacy." 45 Fed. Reg. 5847, 5848 (1980). Although:it-is.
the product.of two revisions,Jthe current'MOU continues to provide that the FEMA will take the lead-role in assessing offsite (state and local government) planning for a radiological emergency and provides that the NRC will take.the lead role.in.
assessing the adequacy of onsite (licensee) emergency planning.(6] 50 Fed. Reg. 15,467. See also 10 C.F.R.-
50.47(a)(2) and 50.54(s)(3)(setting forth the same allocation of responsibility).
The regulations adopted by the NRC~1n the aftermath of the accident at Three Mlle Island provide that "no operating license
- 6. Pursuant to the Memorandum of_ Understanding, FEMA has adopted regulations that set forth criteria 1and processes by-
- which it provides formal approval of offsite radiological emergency response plans. 44 C.F.R. Part 350. Emergency response plans.are assessed for adequacy and determinations are made as to the state of preparedness for their implementation.
In addition to requiring. exercises-and drills of the plans (44 C.F.R. 350.9), the FEMA regulations require a. written ~ statement by the Governor of the State or.his designee that the state and local plans together are, "in the opinion.of the-state, adequate i to protect the public health and safety of its citizens'living within the emergency planning zones (for which' approval is sought) .1 by providing reasonable assurance that. State and' local governments can and intend to effect appropriate protective measures offsite in the event of a radiological emergency. 44 C.F.R. 350.7(d).
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- _ _ __ - _-___-__- - _ ________ - __- ._ - - - - _ _ _- - - _ - _ = _ _ - . _.
e will be issued unless a finding is made by NRC that there is i reasonable assurance that adequate protective measures can and will be taken in the event of a' radiological emergency." 10 C.F.R. 50.47(a). For nuclear power plants (such as Pilgrim) which already had operating licenses on the effective date of the new regulations and for all other plants after an operating license has initially been granted, the NRC regulations require licensees to maintain adequate emergency response plans. 10 C.F.R. 50.54(q). The regulations further provide that:
If after April 1, 1981, the NRC finds that the state of emergency preparedness does not provide reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency
... and if the deficiencies ... are not corrected within four months of that finding, the Commission will determine whether the reactor shall be shut down until such deficiencies are remedied or whether other enforcement action is appropriate. In. determining whether a shutdown or other enforcement order is appropriate, the Commission shall take into account, among other factors, whether the licensee can demonstrate to the Commission's satisfaction that the deficiencies in the plan are not significant for the plant in question, or that adequate interim compensating actions have been or will be taken promptly, or that that there are other compelling reasons for continued operation.
10 C.F.R. 50.54(s)(2)(li).
B. Pilgrim Nuclear Power Station The Pilgrim Nuclear Power Station is owned by a group of electric utilities and is operated by BECo pursuant to an operating licence granted by the NRC in 1972. See Boston Edison Company (Pilgrim Nuclear Power Station) LBP-72-25, 5 AEC 103, aff'd ALAB-83, 5 AEC 354 (1972). The plant has an approximate 8
General net capacity of 687 megawatts and is-powered by a Id. 5 AEC at 107.
Electric Mark I nuclear reactor. l shortcomings, Pilgrim has long been plagued by operationa and civil having accumulated a history of regulatory violations 1002-09 (tabulation of Pilgrim's penalties. See RA at Among the more significant enforcement
~ enforcement history).
issued an Order Modifying License to BECo on events, the NRC i n of false January 18, 1982 as a result of BECo's submiss o the error was information and delay in notifying the NRC when 1mposed a civil penalty on That same day, the NRC discovered. the largest penalty at that time BEco in the amount of $550,000, NRC, 725 F.2d 1380, See Bellotti V.
ever assessed by the NRC.
1381 (D.C.Cir. 1983). i were first Radiological Emergency Response Plans for Pilgr m 81, in response submitted to the NRC and the FEMA on Juneted16, on19 August 19, d
to the new NRC emergency preparedness rule a op These plans 1980. (RA at 1564)(FEMA Self-Initiated Review).
In a review of were reviewed and an exercise was held A issuedin an 1982.
the plans and the results of the exercise, FEM l d d that the
" Interim Finding" in September, 1982, that conc u eRA at 446.
plans and the state of. preparedness were adequate. sary before FEMA did note that certain remedial actions were n issue an approval of the plans and state of it could Id.
In the ensuing years, FEMA sought, without preparedness. the plans and success, to secure further actions with respect to As a consequence of this lack of preparedness. RA at 1564-70.
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= progress, FEMA instituted a "Self-Initiated Review" of the plans.-
,- and the state of preparedness and, as is discussed infra at'pp.
12-16,_ concluded that the plans and state-of preparedness were inadequate.[7]
C. .The 2.206 Petition The 2.206 Petition whose denial'is the subject'ofLthis Appeal was filed on July 15, 1986.with'the NRC's. Director of' Nuclear Reactor Regulation. The Petition conformed to.the.
requirements of.10 C.F.R. 2.206(a) and specified the action requested as follows:
The action requested is that an order.be Issued to the l
Boston Edison Company to show-cause as to why the Pilgrim I Nuclear-Power Station Station:[ sic]
(" Pilgrim) should not remain closed and or have its operating license suspended by [the] NRC'unless and until that time-at which the licensee demonstrates conclusively to the NRC and the-public:- (1) that its' management is no longer hampered by the deficiencies
~
l noted by the petitioners hereins (2) that the Radiological Emergency Response Plan fully' comp 1'ies with 10 C.F.R. 50.47 and 10.C.F.R. 50.57, [and) is given high organizational-priority and sufficient funding by the licensee, the Federal-Emergency Management Agency (FEMA), the Massachusetts. Civil Defense Agency (MCDA) and local governments; and (3) that-the inherent design flaws noted by petitioners-
, herein which render Pilgrim I's containment structure extremely vulnerable in most accident scenarios have-been overcome to the extent.that the public health and-safety will be assured.
- 7. The Commonwealth had earlier reached the same conclusion. See n. 11, infra.
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4 (RA at 957).(8) The Petition set forth the bases for the requested action in three separate " parts."
With respect to the allegation that BECo's management of the 1
. Plant is deficient and that "its continuing operation of.the Pilgrim plant poses an extremely serious and unacceptable health and safety threat to the citizens of the Commonwealth," RA at 960), the petition set forth bases for concluding-that BECo has' managerial deficiencies in eleven specific areas of plant operations and a. general inability to correct those deficiencies.
RA at 961-79.
As bases for the request for the initiation of enforcement l action in regard to emergency planning and preparedness, the !
l Petition set forth the following: (1) inadequacies in the ;
1 provision of advance public information regarding emergency l actions (RA at 983-84), (2) inadequacies in the systems for notification to the public of an accident (RA at 984), (3) deficiencies in the evacuation plans, including unrealistic evacuation time estimates (9), the lack of workable plans for.
- 8. The reference to the N3C's emergency preparedness regulations contains an' apparent typographical error. Instead of 10 C.F.R. 30.57, the correct citation is to 10 C.F.R. 50.54, the regulation specifying conditions incorporated in every licence, including emergency preparedness requirements. See pp.
7-8, supra.
- 9. Evacuation Time Estimates ("ETE's") are a key decisionmaking tool in an emergency. Incorrect and, in particular, overoptomistic ETE's could in the event of an.
ace dent cause decisionmakers to select evacuation when other l pro;ective responses such as sheltering would better protect the l public. SAe generally RA at 26 (Manual of Proctective Action Guides),
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v special needs and transport' dependent populations, and the failure to ensure that the resources necessary.toLeffect an evacuation will be available (RA at 984-85), (4) inadequacies in
. the medical facilities available to treat' victims of radiological contamination (RA at 985-86), (5) Inadequacies in the size of the emergency planning zone ("EPZ") (RA at 986-87), and (6) inadequacies in the level of coordination among and the priority l given to emergency planning and preparedness by BECo, federal, state, and local governments (RA at 987-89).
As bases for the request for the initiation of enforcement action in regard to Pilgrim's. reactor containment structure, the Petition set forth the following: (1) that internal NRC l analysis indicated that General Electric Mark I pressure-l suppression reactor containment systems, such as that at Pilgrim, I
l were vulnerable to failure in certain circumstances-(RA at 989-93); and (2) that demonstrated shortcomings in the NRC's l analytical technique for assessing vulnerability to severe accidents result in a tendency to underestimate the probability of such accidents. (RA at 993-94). The Petition then asserted that, "in the sobering light of the Chernobyl disaster," the recognized vulnerability of Pilgrim's reactor containment 1
structure "is threatening public health and safety within the region." (RA at 987-89)
D. FEMA's Analysis Of Pilgrim Emergency Planning / Preparedness 12 l
As discussed above, supra at pp. 6-7, pursuant to a Presidential Directive and the MOU between FEMA and the NRC, FEMA takes the lead role in reviewing offsite emergency plans and the state of emergency preparedness for the purpose of determining their adequacy. Thus, the NRC forwarded the emergency preparedness portions of the enforcement request to FEMA on August 4, 1986 and on August 11, 1986, requested that FEMA review the issues presented therein. Slip at 12-13 (RA at 1693-94).
FEMA, in turn, sought information and comments from the Commonwealth, BEco, and other parties that may have been in possession of information useful to its review. FEMA Self-Initiated Review and Interim Finding, TAB II, pp. 2-3 (RA at 1632-33).(10]
BECo submitted comments to FEMA under cover of a letter dated October 29, 1986, FEMA SER, TAB II, p. 2 (RA at 1632), and in an oral communication, the Commonwealth " indicated that it had no comments on the (P]etition." Id. Under cover of a letter dated December 22, 1986, however, Charles Barry, Secretary of the
- 10. The reference to "Self-Initiated Review and Interim
- Finding" is to a FEMA report wit.h a cover bearing its insignia and the title given above. Two other FEMA reports (" FEMA COMMENTS On The Report To The Governor On Emergency Preparedness For An Accident At The Pilgrim Nuclear Power Station" and
" Analysis Of Emergency Preparedness Issues At Pilgrim Nuclear Power Station Raised In A Petition To The NRC Dated July 15, 1986") are attached to the report at TABS I and II, respectively.
Supporting documentation is attached at Appendices 1 through 7.
This material is included in the Record Appendix at 1559-679.
For convenience of reference, citation to the FEMA Self-Initiated Review and Interim Finding will be in the form: " FEMA SER, p.
(RA at I." Citation to the attached reports and documentation will be in the form " FEMA SER, TAB _, p. _ (RA at )" or " FEMA SER, APP. _, p. (RA at )" as appropriate.
13
j Massachusetts' Executive Office of.Public Safety, submitt'edsto w
FEMA for review a document entitled: " Report to the Governor on Emergency Preparedness-for an' Accident at the Pilgrim Nuclear
]
, . Power Station."[11) Id. In, January, 1987,' Secretary Barry.
submitted another document for. review:- a report prepared for BECo by the Impe11 Corporation entitled, " Evaluation of!Offsite Emergency-Preparedness in the Area Surrounding the Pilgrim Nuclear Power Station." Slip at 13. (RA at'1691)(12).
Simultaneous with the initiation of the NRC requested ,
-(
' review, FEMA determined that it would conduct a review of' _
j l
emergency preparedness for the Pilgrim.plantfand informed'the- l Commonwealth of this' decision-in a letter dated September 15, 4 1
1986. FEMA ~SER, p. 8-(RA at 1570).- On January 14, 1987,-FEMA.
informed the NRC that requests to review the. reports submitted.by BEco and the Commonwealth might delay its review of the issues raised in the Petition. Slip at 13 (RA at 1694). In a memorandum dated March 31, 1987, FEMA confirmed an agreement with the NRC that, FEMA (would] respond to the NRC's request:for an evaluation of the offsite emergency planning and
, emergency preparedness issues raised in the petition in a consolidated fashion which will address the issues
- 11. On the basis of thorough review of the Pilgrim radiological emergency response plans and of'the stateLof preparedness, the Massachusetts Executive Secretary lfor'Public Safety concluded that there was not a reasonable assurance that adequate protective measures could and'would be takenLinLthe event of an accident at Pilgrim. RA at 1039.
- 12. Reference herein to the NRC~ decision below, Boston Edison Company (Pilgrim Nuclear Power Station, DD-87-14, 26 NRC (1987), will be in the form, " Slip at __ (RA at )."
14
raised in the.2.206: petition, the two reports that-OPS
[ Massachusetts Executive Office'of1Public. Safety]~has- 3 requested FEMA toLreview (the Barry and Impell-reports), FEMA's'self-initiat'ed. review,cand other .i
. relevant available information. (
l RA, p. 1395. <
On August 6, 1987, FEMA forwarded the' consolidated 1
. evaluation - .the FEMA SER.-- to theLNRC. In'its^ consolidated evaluation,1 FEMA' concluded:
that the Massachusetts plan is inadequate to protect'
~
the health and safety of.the public.in the event of.an-accident at the Pilgrim Nuclear Power Station'and cannot be implemented-until the inadequacies noted in the Self-Initiated Review and Interim Finding are corrected.
FEMA SER, p'. 49 '(RA at 1611). In particular, FEMA found'that the following six deficiencies required it to withdraw its 1982
]
)
" Interim Finding" that the-state of emergency preparedness was adequate to protect the public health and. safety:
- 1. the lack of evacuationLplans for public and private schools and daycare centers;
- 2. the lack of a reception center for people evacuating to the north;
- 3. the lack of identifiable public shelters for the beach population;
- 4. the inadequacy of the planning for the evacuation of the special needs population; ;
- 5. the inadequacy of the planning for the evacuation of the transport dependent population;
- 6. the overall lack of progress in planning.and apparent diminution in emergency preparedness.
FEMA SER, pp. 1-2 (RA at 1563).
Notwithstanding this finding of inadequacy, in an attachment to the FEMA SER dated July 29, 1987 and entitled, " Analysis of 15
v-1 Emergency Preparedness Issues At Pilgrim Nuclear Power Station- l
~ Raised In A Petition To The NRC Dated Jul'y 15, 1986,"' FEMA stated that,
[its] analysis of the seven alleged deficiencies in off- )
site emergency planning indicates that the information in the petition did not' sustain the contentions based on the state of the record at the time'the petition was ;
reviewed...
J t
FEMA SER, TAB II, p. 4 (RA at 1634). The FEMA was careful to l note that, for the reasons given in'the main report, it was in ;
agreement with the general thrust of some of the issues raised in i the Petition, but stated that its analysis of the issues raised in the Petition did not consider all of information then l available. It referenced the main report for its-current conclusions . Id. In particular, although FEMA concluded that at the time the Petition was reviewed it did'not sustain the assertion that emergency preparedness with respect to special i needs and transport dependent populations was inadequate, it quallfred that conclusion by reference to its finding of inadequacy reported in the main report. FEMA SER, TAB II, pp.
24, 25, 29-30 (RA at 1654, 1655, 1659-60). Similarly, FEMA qualified it conclusion that the Petition did not sustain its assertion concerning a lack of coordination and prioritization with a reference to its finding in the main report. Id. pp. 43,
- 45. (RA at 1673, 1675)
E. The " Interim Director's Decision" 16
m On August 21,-1987, the NRC's Director of N uclear Reactor Regulation issued an " Interim Director's'D 3 2.206" which addressed the ecision Under)10 C.F.R. 6 and'which is the subject matter of the Petit 2.206 r the decision, ion for Review. In
\
the NRC denied the request for the init at i ion of'
- enforcement proceedings "in regard to the (Pilg i r m)' radiological emergency response plan" and "in regard'to the!
. issues." ; Slip at'35-36 (RA'at containment 1715-16).
It stated that "[a]
final Director's Decision.regarding manageme n ti !
ssues cannot be rendered until the management deficiencies have b 1 een suitably
)
addressed by the licensee and the staff complet es its- I assessment." Id.
at .11 ( RA a t 169 2 ) . It, on the request for the initiation of enforceme n tthus, deferr ,
action in regard to management issues, stating that that portion of the MassPirg petition would "be addressed in a subsequent fi Id.[13] nal decision." i
\
The rationale given by the NRC for its A ugust, 1987 decision i to deny the request for the initiati j
?
with regard to the radiological emergency action of enfor follows: on plans was as the seven issues in offsite anning emergency plIn tliei ssed each of raised information in the Petition didinnot sustain e the sub Petitioners' contentions when compared t the
_the time [ late 1986) the Petition was reviewed.o...the record at ~
13.
the AugustAs 21,is1987 discussed at greater length at pp.
, infra, the request that enforcement proceedings bdecision ecisionby
~
onthe NRC I to emergency planning and reactor safety i e initiated ssues.
with regard
{
17 ;
-l
m 4
- )
On the-basis that FEMA's analysis ofithe Petition's j specific issues did not sustain the contentions, this portion of the Petitioners request istdenied.- 1
~
- Iji. .at 141(RA atIl695)(emphasis supplied).; The'NRC did acknowledge ~that FEMA had agreed with "the general thrust of some ) !
of-the-conclusions of the petition"'and that PEMA's own."Self-- i Initiated Review," issued on August 4, 1987,_had found offsite planning and preparedness for Pilgrim to be inadequate, but_it.
did not indicate what, if any, weight it gave to these FEMA conclusions in its decision to deny thel request for the initiation of enforcement proceedings. Instead, tit stated that "the emergency planning issues identified by FEMA ~are matters of serious concern" and that "[t]he determination whether to restart the Pilgrim plant-Will involve, in necessary part, consideration of the resolution of emergency-planning issues identified by
-FEMA." As regards the reactor containment safety issues, the ;
I NRC concluded: )
l the Petitioners have not presented sufficient evidence.
to indicate that the Pilgrim Station should not operate while risk-reduction improvements are being considered.
That is, there is not sufficient evidence of either design flaws at Pilgrim or high risk to warrant a Show Cause Order for the plant to remain closed 1or to suspend the operating license.
Id. at 34 (RA at 1714). This conclusion was premised upon findings that: 1. all of the reactor containment issues raised'-
in the internal NRC analysis relled upon in the Petition.had been resolved, Id. at 21-26 (RA at 1702-07); 2. design differences t
between the Chernobyl reactor and those in the United States (particularly Pilgrim) indicate that Pilgrim is not vulnerable to 18
1
- j
~ l the type of-accident that~ occurred at.the chernobyl reactor Id,g d .
at 26-29 (RA at 1707-1710);. and 3. that the results of various studies confirm the "overall conclusion"of low-severe accident- !
q i
risk at the Pilgrim. utility". M.;at 32-(RA.at ~1713). !
. 1 4
I l-
-l 19 i
_ _ _ _ _ _ _ _ _ _ _ _ . _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . . _ _ _ _ . _ _ _ _ _ _ _ . _ _ _ _ _ _ _ . . . _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ . _ _ . _ _ _ _ _ _ _ _ . . _ . _ _ _ _ _ _ __ _______._..__m_ _ _ . _ _ _ _ _ _ _ _ _ _ _
l l
l 1
III. STANDARD OF REVIEW The standard of review against which the NRC's Interim-Director's Decision is to be' assessed is the standard set forth
't in Section 706(2)(A) of the Administrative Procedure Act. Lorion l
- v. NRC, 785 F.2d 1038, 1042-(D.C.Cir.'1986)("The NRC's denial of
- 1 a request for a show cause order will be upheld as longLas all i the necessary factors were considered, and provided that the statement of reasons given permits a rational understanding of I
-E the basis for the decision." (emphasis in original and quotes I
omitted]). 'The NRC's action is to be upheld only if the Court finds that it was not " arbitrary, capricious, an abuse of-discretion, or otherwise not in accordance with law." 5 U.S.C.
706(2)(A). Although the NRC's " decision is entitled to a-presumption of regularity .... that presumption is not to shield
[its) action from a thorough, probing, in-depth review." l Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971). The Court must determine "whether the decision was l
based on a consideration of the' relevant factors and whether ,
there has been a clear error of judgement." Id. 401 U.S. at 416.
l l
20 l
l
\
we r-4 I
)
IV. STATEMENT OF.THE ISSUES. PRESENTED.FOR REVIEW ~
A. Whether The NRC's Refusal To. Initiate.
' Enforcement ^ Action With' Respect To The State Of Emergency Planning And. Preparedness For An Accident At Pilgrim Was' Arbitrary, Capricious, Or An. Abuse.Of; Discretion Where FEMA Had Found Such Planning And Preparedness To Be Inadequate And The NRC Did Not' Explain Why, Notwithstanding The FEMA Finding,.It Did Not Believe:That Enforcemer? Action Was Necessary B. Whether The NRC's Refusal To-Initiate t
Enforcement Action With Respect To The Adequacy Of The Pilgrim Reactor Containment Structure Was Arbitrary,-Capricious,;Or An Abuse'Of Discretion Where The'NRC Failed To Address Material Evidence'And Provided No Explanation Of Its Consideration, If'Any, Of The Evidence
{
C .
Whether~An " Interim Decision" By The NRC .
Denying The Initiation Of Enforcement-Action With Respect To Emergency Planning And Reactor Safety Issues Is A~ Final Action For Purposes Of 5 U.S.C. 704 Where The NRC Deferred Action On Whether To' Initiate Enforcement Action With Respect To ALThird l , Issue, Adequate Management D. Whether A Decision By The NRC To-Deny A Request To Initiate Enforcement Action Filed Pursuant To The NRC's Regulations Is. Subject To Judicial Review 21 l-l'
V.
SUMMARY
OF ARGUMENT The NRC is required by law to assure that the state 1of
. emergency planning at nuclear power plants "will ... provide adequate protection to the health and safety of the public," 42 U.S.C. 2232(a), and under its own regulations, the NRC is required to weigh the findings of FEMA in any finding it makes-with respect the adequacy of offsite emergency planning. 10 C.F.R. 50.54(s)(3). In its refusal to initiate the requested enforcement action with respect to the inadequate state of emergency planning as requested by MassPirg, the NRC gave-no weight to the finding by FEMA, the federal agency with the i acknowledged expertise in such matters, that the state of I emergency planning for Pilgrim was not adequate to provide a reasonable assurance that adequate protective measures can and i
will be taken in the event of a radiological emergency.at-Pilgrim. Nor did it explain its action. Thus, the NRC's refusal to initiate enforcement action with respect to the. inadequacies in the state of emergency planning / preparedness at Pilgrim was
. arbitrary, capricious, and an abuse of discretion.
Further, the 2.206 Petition raised issues concerning the adequacy of the NRC's assessment of the risks posed by Pilgrim's-reactor. It set forth evidence in support of its conclusion that the NRC had underestimated the risks posed by Pilgrim and that the plant should be shut down pending remedial modifications.
The NRC did not address this evidence in its decision and, thus, no determination can be made whether or not the NRC considered 22
3 4
i' the evidence. The NRC is, however, required to provide an expanation that would allow such a determination. Its failure to do was arbitrary, capricious, and an abuse of discretion.
The NRC's'" Interim Director's. Decision" is a final action f )r purposes of the Administrative Procedure Act. Agency actions l are to be considered " final" for purposes of judicial review when
, "the process of administrative decisionmaking has reached a. stage l where judicial review will not disrupt the orderly process of adjudication and ... legal consequences will flow from the agency action." Port of Boston Marine Terminal Association v.
Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71'(1970). In its own words, the NRC has declared its action with respect to the request for enforcement action on the subjects of emergency planning / preparedness and reactor safety to be final. The NRC will not give any further consideration to MassPirg's request for enforcement action on these subjects. Substantial legal consequences adverse to the interests of MassPirg and the Commonwealth flow from the NRC's decision and judicial review is
, now necessary tt rotect those interests.
23
l i
l VI. ARGUMENT '
A. The NRC's Denial Of The Request To Initiate Enforcement Proceedings With' Respect To Pilgrim Emergency. Planning and Preparedness Was-Arbitrary, Capricious, An Abuse Of Discretion, And Otherwise Not In Accordance With Law )
i The NRC's decision to deny MassPirg's request to initiate
- 1 enforcement proceedings in regard to emergency planning and t
preparedness for an accident a Pilgrim should be reversed. An administrative agency is required to base its actions on a consideration of all of the relevant factors and to provide an explanation of its decisions which include a " rational connection between the facts found and the choices made." Motor Vehicle I
Manufacturers Assn. v. State Farm Mutual Insurance Co., 463 U.S.
29, 43 (1983)(quotations omitted); Lorion v. NRC, 785 F.2d 10;8, 1042 (D.C.cir. 1986)("an agency has a duty to consider all the evidence, and to explain its decision fully"). In its decision, the NRC did neither. Although clearly required to base its i findings as to the adequacy of offsite emergency preparedness on ;
the " findings and determinations" of FEMA, 10 C.F.R. 50.54(s)(3), the NRC arbitrarily gave no consideration to FEMA's ,
August 4, 1987 finding that the state of offsite emergency l
.i preparedness for Pilgrim was inadequate. It acknowledged the i
existence of the FEMA finding, but arbitrarily did not consider it in its decision on the enforcement request. No explanation I
was given for the failure to consider the FEMA finding and there is no connection, rational or otherwise, between the FEMA finding 24 L
i t
that planning.and-preparedness.sre inadequate'and.the NRC's
.]
-decision to. withhold 1enforcement action.' As'such, the NRC's decision:Was arbitrary, capricious.and.an abuse'of discretion.
The Court should. reverse.the=NRC and-order it:to institute the' j requested enforcement proceeding with respect to the state'of
emergency planning and preparedness at Pilgrim.[14]. 5 U.S.C.
706(1)(" reviewing court.shall -- (1)-compel agency action unlawfully withheld or unreasonably delayed").
The requirement that the NRC give consideration to'the findings of the expert federal agency, FEMA, in reaching determinations with respect to the adequacy of emergency planning and preparedness is embodied in the-agency's own regulations. 10 C.F.R. 50.54(s)(3). It- has the ~ force' of. law. United States v.
Nixon, 418 U.S.
683, 695.(1974); Center for Auto Safety v. Dole, 828 F.2d 799, 803 (D.C.Cir 1987). The NRC promulgated this. l regulation because it believed that assuring adequate emergency preparedness was essential to its fulfillment of its statutory mandate: the protection of the public health and safety.
45 Fed. Reg. 55,403, 55,404 (1980)(" adequate emergency preparedness ll 1s an essential aspect in the protection of the public health and safety"). The requirement is also incorporated in the Memorandum-of Understanding entered into by the NRC and FEMA ~in response to' a Presidential Directive. Memorandum of Understanding, .II i
- 14. At the very least, the Court should remand the matter to the NRC with instructions to explain why such proceedings-are not'necessary the FEMA findings. to protect the public health and safety in light of 25 i
i
("the NRC responsibilities for radiological emergency 1
. preparedness are: ... 3. To review the. FEMA findings and i
determinations as to whether offsite plans are adequate and can be implemented.").
, In determining whether the state of emergency preparedness for a plant is adequate, Section 50.54(s)(3) of the NRC's regulations provides that:
The NRC will base its findings on a review of the FEMA findings and determinations as to whether State and local emergency plans are adequate and capable of being implemented, and on the NRC assessment as to whether the licensee's emergency plans are adequate and capable.
of being implemented. ...
10 C.F.R. 50.54(s)(3). Although the NRC does have decisionmaking authority.on the question of whether the state of 1
emergency preparedness for a plant is adequate or requires enforcement action, it must review FEMA's findings and determinations in its exercise of this authority.[15) County of Rockland v. NRC, 709 F.2d 766, 770 (2nd Cir.) cert. denied 464 U.S. 993 (1983).
. That the NRC did not consider, much less base its decision upon, FEMA's August 4,'1987 finding of inadequacy is plain from the terms of the decision. The decision to deny MassPirg's request was explicitly made on one basis: that in it's July 29, 1987 report on the issues raised in the Petition, FEMA had "found that the information in the Petition did not sustain the
- 15. Indeed, in NRC licensing proceedings, "a FEMA finding will constitute a rebuttable presumption on questions of adequacy and implementation capability." 10 C.F.R. 50~47(a)(2)(emphasis supplied).
26
-v d
Petitioners' contentions when compared to the record at the time .
[ late 1986] the Petition was reviewed.'" Slip at 14 (RA at 1695)(emphasis and bracketed material added). FEMA's August 4 report and finding are referenced and the NRC alluded to.an intention to give consideration to the FEMA finding of inadequacy j at some time in the future, but the NRC's decision on the MassPirg request was made "notwithstanding" this information, ld-This failure of the NRC to consider the August 7, 1987 FEMA finding of inadequacy in its decision on MassPirg's request'for enforcement action should not be countenanced by this Court. The NRC had an obligation to consider all relevant information in the administrative record. Oystershell Alliance v. NRC, 800 F.2d 1201, 1204-05 (D.C.Cir. 1986); In Re Three Mile Island Alert, Inc., 771 F.2d 720, 732 (3rd Cir. 1985).
The fact that FEMA devoted it attention to its own "Self-Initiated Review" and did not consider information obtained after November, 1986 in its analysis of the issues raised in the Petition does not excuse the NRC's failure to consider all of the i information it had available when it made its decision. FEMA had earlier explained how it intended to proceed in its review of the emergency planning issues for Pilgrim. RA at 1395. The NRC had the authority to resolve the issues presented in the Petition and in the exercise of that authority it was required to consider all of the information available. That information included FEMA's agreement with the " general thrust" of the basis for the Petition 27
and its finding of inadequacy based upon information considered in its "Self-Initiated Review." ' Slip at 141(RA at 1695).
While there is precedent to the effect that the NRC is not strictly bound by " FEMA findings and determinations" and that-it may, after consideration of specified factors, determine that, notwithstanding a FEMA finding of inadequacy, no enforcement action is necessary, this precedent does not suggest, much less hold, that the NRC need not consider FEMA findings. County of:
q Rockland v. NRC, supra, 709 F.2d at 775-77. The NRC is, as any H other agency, required to " examine the relevant data and articulate a rational connection between the facts found and the
, choices made." Motor vehicles Manufacturers Assn v. State Farm 1
Mutual Insurance, supra; Oystershell Alliance v. NRC, supra;.
The NRC decision involved in County of Rockland v. NRC, supra, is illustrative of the required decisionmaking process- !
i consideration of the relevant factors and information and an- I explanation of the choices made. See Consolidated Edison Company (Indian Point, Units 1 and 2), CLI-82-38, 16 N.R.C. 1698 (1982).
l There, after careful consideration and weighing of the factors l prescribed in 10 C.F.R. 50.54(s)(2)(11) --
"the relative significance of the deficiencies, whether adequate interim compensating measures have been or will be taken promptly and whether there are additional compelling reacons for continued operation" - , the NRC reviewed the FEMA findings [16] and
- 16. It should be noted that the-FEMA findings involved in the Rockland County case were much more optimistic than those (continued...)
28
J 1
oncluded "that, on balance, no enforcement action should be taken l at that time." County of Rockland v. NRC, supra, 709 F.2d at I b
776-777. In those circumstances, the Second. Circuit held that the l NRC did not act arbitrarily, capriciously, not in accordance with 1
law or abuse its discretion by declining to initiate enforcement. !
' l action notwithstanding a FEMA finding of inadequacy. Id. -Those !
, circumstances are not present here. The NRC, here,. arbitrarily ignored the best expert information available to it on a central aspect of the MassPirg Petition and on an issue essential to its I statutory mandate to assure the public health and safety. As l such, the decision was arbitrary, capricious, an abuse of discretion and contrary to law. It should be reversed. l B. The NRC's Denial Of The Request To Initiate ;
Enforcement Proceedings With Respect To Pilgrim's }
Reactor Containment's Safety Was Arbitrary, Capricious, An Abuse Of Discretion, And Otherwise Not In Accordance With Law l
I The NRC's decision to withhold the initiation of enforcement i action in regard to the safety of Pilgrim's reactor containment l
structure should be remanded. The NRC did not consider all of the relevant evidence nor did it provide an explanation of its i 1
decision that permits "a rational understanding of the basis for l
16(... continued) !
involved here. As stated by the NRC, " FEMA has concluded that I the remedial actions that have been accomplished and those l scheduled in'the next few months constitute offsite plans that l will be feasible and capable of implementation." Consolidated ;
Edison Company (Indian Point, Units 2 and 3) CLI--82-38, 16 NRC j 1698, 1702 (1982). No such optimism is present in the present FEMA evaluation.
j '
i 29 i
i
- -l t
i.
the decision." Lorion'v. NRC, supra,L786 F.2d'at.1042. (quoting '
from Consolidated Edison Company (Indian Point. Units 11,.2,Eand 3)-
CLI-75-173, 175 (1975), in.a description of the requirements for a' valid NRC decision to deny a 10 C.F.R.- 2.206 request). .The decision 1makes no reference to the evidence set forth in the Petition that,.as. applied by the NRC, theianalytical technique of-probablistic risk assessment tends-to. produce underestimates'of the risks of a severe accident and, therefore, that the threat to the public posed by-the Pilgrim plant.has been underestimated.
Compare RA at 992-94(Petition) with RA at 1711-13(NRC Decision). .
Instead, the decision concludes without explanation that the results of certain studies " support our overall conclusion of low-severe-accident risk at-the Pilgrim utility."~ Slip at 32 (RA' at 1713). There is no indication of'whether the NRC' considered the evidence in the Petition. It cannot be determined from the i'
decision whether the NRC considered the evidence, but found=
either thatLit was not credible or-that it-was insufficient to I
cast doubt on its assessment of the risk-of a severe accident at l l
Pilgrim and, derivatively, on its assessment of.the_ necessity of enforcement action, or whether it did not consider the evidence at all. The NRC was, however, required to provide an explanation 1
for its decision that would allow such determinations to be made.
Its failure to do so requires that its decision be remanded for ,
an adequate explanation.
-i C. The NRC's " Interim Director's Decision" Is A Final Agency Action Subject To Judicial' Review Under The Administrative Procedure.Act l
30 l
'1 Asiinterpreted byfthe courts, the " final = agency action" requirement ofLthe Administrative Procedure'Act is' satisfied where the agency's decisionmaking process has progressed to the' 1
' point where1 judicial' review will-not' disrupt:that process and
" legal consequences.will flow from:the agency: action." Port of R Boston Marine Terminal Association v. Rederiaktiebolaget
. Transatlantic, 400 U.S. 62, 71 (1970).'- Applying this analytical' framework to.the.NRC's " Interim Director's Decision," it is
.f manifest that that. decision constitutes a " final agency-action" within the meaning of Section 704 of the Administrative Procedure j Act. 5 U.S.C. 704.
b l
The NRC has given its final word on-the' question of whether to grant the request for the initiation of enforcement' action on either or both the emergency preparedness and' the reactor. safety:
]
issues. It declined to initiate the requested enforcement' action with respect to either of these issues in an order'which, under the NRC's interpretation of its regulations, became a." final action of the Commission" when the Commission did not institute a review of that decision within twenty five days of its filing with the NRC's Office of the Secretary. (RA at'1681). Its notice of the decinion leaves no doubt but that with respect to the Petition these issues will not be addressed again:
The Director of the Office of Nuclear Reactor Regulation has determined that the Petition, with the exception of the license management. issue, should be denied. ... That portion of the Petition concerning licensee management will be addressed in a-subsequent response.
Id.
31
lit does not matter that as part of its statutory responsibility the NRC is required to give continuing consideration to the adequacy of emergency preparednessfand plant design and may, at some future date, consider the' initiation of enforcement action on'its own initiative in regard to these.
issues. County of Rockland v. NRC, supra,-709 F.2d at 775
("Otherwise, the Commission potentially could insulate itself.
i from appellate review simply by labeling a decision as ' interim' l or subject to reexamination." 709 F.2d at.775, n. 12). The question is whether the NRC's decisionmaking has reached a stage, where judicial review will not interfere in the adjudicatory process and where legal consequences flow from its action. Port k of Boston, supra.
Here, the NRC's decisionmaking process has crossed that threshold. The decision to deny the request to initiate enforcement action in regard to emergency preparedness and/or reactor safety was one on the-merits. It was not, as in Sierra l Club v. NRC, 825 F.2d 1356 (9th Cir. 1997)(scheduling of hearing and briefing) and Natural Resources Defense Council v. NRC, 680 F.2d 810, 815-817 (D.C.Cir. 1982)(imposition of alternative,
" legislative" procedures), a procedural order. -Judicial review of the NRC's decision on emergency planning and reactor will not interfere with the NRC's consideration of the request for the initiation of enforcement action in regard to management issues 32
y.
s since the.NRC did not consider'them to be interdependent in its earlier decision.[17)
Moreover, as regards the request for the initiation of enforcement action with respect to emergency preparedness and reactor safety matters, the NRC decisionmaking process has been completed. There will be no further development of the record or
, decisionmaking with respect-to these issues. Thus, there will be no benefit to the court as a result of a deferral of judicial i review and no waste of judicial resources as a result of multiple, fragmented appeals on the same subject. Cf. Natural Resources Defense Council v. NRC, supra, l
As regards the-second prong of the analysis prescribed in Port of Boston, supra, substantial and tangible legal j consequences do flow from the NRC's decision. The NRC has.
decided that it will not institute, at the Petitioners' request, 1 enforcement proceedings with repect to emergency planning and reactor safety issues. The Petitioners thus have no access to a f hearing. Bellotti v. NRC, 725 F.2d 1380 (D.C.Cir. 1983). f i
}
- 17. The Commonwealth submits, however, that the issues raised concerning the adequacy of BECo's management of Pilgrim add. great weight to the emergency planning and reactor safety issues. Considered in the light of the questions regarding BECo's management, the case for enforcement action on the these l two matters is more compelling. Emergency planning for a poorly !
managed and.possibly unsafe reactor is of even greater j importance to protecting the public. The decision to separate -j the issues may itself have been arbitrary.
J l
33 '
_-- _ - - - - - - - - - - - - - - - - - - - J
v f
F i
VI. CONCLUSION l
)
WHEREFORE, for all of the forgoing reasons, the Commonwealth l submits that this Court should remand the NRC decision and order the NRC to:
- 1. Initiate enforcement action with respect to the issue of-emergency preparedness at Pilgrim, and j R
- 2. to consider all of the evidence on the issue of the I safety of Pilgrim's reactor containment structure and to either j initiate the requested enforcement action or provide a complete explanation of the reasons for a decision to withhold such l action.
)
RESPECTFULLY SUBMITTED, I
{
James M. Shannon !
Attorney General of Massachusetts c gd %.6 >
Assistant Attorney Genaral l Department of the Attorney General One Ashburton Place Boston, Massachusetts 0i'108 (617) 727-1083 !
1 I
l Dated: January 11, 1988 i
34 i II
___________-___ - _ D
'I UNITED STATES COURT OF APPEALS-FOR THE FIRST CIRCUIT
, ) i MASSACHUSETTS PUBLIC INTEREST )
RESEARCH GROUP, et al., .)
1 f
)
Petitioners )
)
. v. -) No. 87-1865
)
UNITED STATES NUCLEAR )
REGULATORY COMMISSION, et al., )
)
Respondents. )
)
l PETITION FOR REVIEW OF A DECISION OF THE l NUCLEAR REGULATORY COMMISSION ;
j STATEMENT O'F PETITIONERS MASSPIRG ET AL.
In the interest of economy of both party and judicial resources, Petitioners MassPirg et al. join in the foregoing Brief'of j Intervenor Commonwealth of Massachusetts and adopt'the arguments made and positions taken herein as their own.
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William S. Abbott / i Simonds, Winslow, Willis & Abbott 50 Congress Street Boston, Massachusetts 02109 (617) 523-5520 l
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Dated: Jan'uary 11, 1988 1
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- ( 704. Actions reviewable l Agency action made reviewable by statute and' final agency action for I which there is no~ other adequate remedy in a coun are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling ,
not directly reviewable is subject to review on the. review of the final - '
agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for s' declaratory order, for any form of reconsideration, or, unless the agency otherwise -
requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.
~( Sept. 6,1966, P. L.89-554, Q 1, 80 Stat. 392.)
g 706.- Scope of review To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or ' applicability of the terms of an agency action. The reviewing court shall-(1) compel agency action unlawfully. withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be-(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority. er Gmtstions, m short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title (5 USCS QQ 556 and 557] or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole
- record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.
(Sept. 6,1966, P. L. 89 554, Q 1, 80 Stat. 393.)
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v 0 3J03 Order to show emeen.
(0) The Execuute Director for Oper '
Ottons durtar an emergency as deter-mined by the EDO. and Director of Nuclear Reactor Regulauon. Direstar g of Nuclear listorial Safety and Safe-l Director. Office of Inspection oreement, and Director. Office I
I Administration, as appropriate may l l"'utute a proceeding to modify. sus-pend. or revoke a license or for such
- ther action as may be proper by serv.
ing on the licensee an order to show
$use which will:1) Allege the violations with which the gloonsee is CWed, or the poten-Many basardous conditions or other gects deemed to be sufficient ground gor the proposed action-
, (3) Provide that the licensee may file a written answer to the order under oath or affirmauon within twenty (30) days of its date, or such other time as l may be specified in the order; (3) Inform the licensee of his right.
within twenty (30) days of that date of the order, or such other time as may ~
be specified in the order, to demand a - -
hearing".
(4) Specify the issues; and !
(S) State the effecure date of the order. (
(b) A 18anname may respond to an order to show cause by filing a written g answer under oath or affirmadon. The
- answer shall specifically admit or deny each allesnuon or charse made in the order to show etune, and may set forth -
- the matters of fact and law on which the lleensee relles. The answer may demand a hearing (c)1f the answer d= mand = a hearing, the ra--imason wiu issue an order deelsnating the time and place of heartag.
(d) An answer or supulauen may sensent to the entry of an order in substantially the form proposed in the order to show emuss.
(e) The consent of the 1kunsee to the entry of an order shall constitute a salver by the lleensee of a heartas.
findings of feet and conclusions of law,
, and of all ylsat to seek Chemianian and Judietal review or to contest the
, j
- ~~ 'Elidity of the order in any forum, b order shall have the same force
- Ed effect as an order made after hearing by a preshling offleer or the Comminulon. .
(f) When the Execuuve Director for during an essersency as u >
- by the EDO. or the Diree-ter of Nuclear Reactor Regulauen, Di-tester of Nuclear 38atertal Safety and Safeguards. Director. Offire of Inspec-tion and Enforcement, as appropriate, s finds that the pubtle health, safety, or interest so requires or that the viola-tion is willful, the order to show cause may provide. for stated reasons, that the proposed action be temporarily ef.
fective pending further order.
[37 FR 371. Jan.13. test, as manended at as FR 10163. Sept.11.1983; 43 FR 18444. Apr.
19,1978; 48 FR Stae, Jan. 11,1900)
v g tJes Asemeses for neuen mader tids emb. this secti:n has been moelved, th Di-
- ,,,g, rector of Nuclear Reactor Regulation.
(a) Any person may file a request for Director of Nuclear Material Safety the Director of Nuclear Reactor Regu. and Safeguards. Director Office of In- I lation. Dimeter of Nuclear Material spection and Enforcement, as appro. '
Safety and Safeguards, Director, priate shan either institute the re.
Office of Inspecuon and Enforcement, questod proceeding in accordance with -
as appropriate, to lastitute a proceed- this subpart or shall advise the person
, ing pursuant to I 3.303 to modify, eus- who made the request in writing that i pend or revoke a license, or for euch ne proceeding will be insututed in - i other action as may be proper. Such a whole or in part, with respect to his muest shall be addmed to the Di' request, and the reasons therefor, rector of Nuclear Reactor Regulation * (c)(1) Director's decisions under this Director of Nuclear Material Safety section will be filed with the Office of and Safeguards, Director. Office of In* the Secretary. Within twenty.five (28) spection and Enforcement, as appro- days after the date of the Director's
, priate, and shan be filed either: (1) By decision under this secuon that no delivery to the Pubile Document proceeding wSI be lastituted or other Room at 1717 H 8treet NW., Washing
- action taken in whole or in part, the Co==laston may on its own motion ton. D.C., or (2) by mail or telegmn !
addressed to the Director of Nuclear review that decision. In whole or in ;
Reactor Regulation, Director of Nucle
- part, to determine if the Director has !
at Material Safety and Safeguards, Di* abused his disestion. This review 1 r, Office of Inspecuon and En- power does not limit in any way either l ornement, as appropriate, U.S. Nucle- the Commission's supervisory power ^
at Regulatory Commission. Washing. over delegated staff actions or the ton. D.C. 30685. The -requests shan Comunission's power to consult with J l
y the action requested and set the staff on a formal or informal basis -
i rth the facts that consutute the regarding insutution of praa==Maan he request. under this secuen. !
(2) No peution or other request for
- (b) Within a reasonable time after a request pursuant to paragraph (a) of Cammi==ian review of a Director's do. -
J'!
1 cision under this section will be enter- g tained by the Pa==lasian 4-tat FIL 13383. Apr. S.1sT4. as mamandad at 43 FIL 38340. July 14.1FFT; 45 FR 1840s. Nov.
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