ML20236B146
| ML20236B146 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 03/01/1988 |
| From: | Crockett S NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Van Niel D Office of Nuclear Reactor Regulation |
| Shared Package | |
| ML20236B042 | List: |
| References | |
| FOIA-88-198 2.206, NUDOCS 8903200374 | |
| Download: ML20236B146 (54) | |
Text
-
_ . , . . _ ... o -]
-- ., 3
- Harch 1, 1988 E~
'lh 4/bJ h
f>
Note to: Dick Van Niel, NRR-From: ' Steve Crockett, OGC
Subject:
- Brief on Director's Decision on MassPIRG 2.206 i
Here is the final of the NRC's brief in the 1st Cir. case on Pilgrim. I have incorporated the staff's many helpful suggestions, except for the few that arrived while the brief was in the press. I'm sure I'll have' questions for you as oral argument approaches (some time in April).
1~
Steve ($kett, 41465 (34Iq6 J
I i
l l
s 8903200374 890310 PDR FOIA PDR JOHNSON 88-198 ,
o 'e c
., UNIT"ED STATES' COURT OF APPEALS-
, :FOR THE FIRST, CIRCUIT No. 87-1865 MASSACHUSETTS'PUBLIC INTEREST <
. RESEARCH GROUP,.INC., et al.,
Petitioners, and COMMONWEALTH OF MASSACHUSETTS Intervenor-
-Petitioner, v.
UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents, and '
BOSTON EDISON COMPANY
, Intervenor-
. Respondent. ;
ON APPEAL FROM A DENIAL OF A PETITION FOR ENFORCEMENT 4 i
BRIEF FOR RESPONDENTS WILLIAM C. PARLER LAURA E..FROSSARD General Counsel Attorney Land and Natural WILLIAM H. BRIGGS, JR. Resources Division ,
Solicitor U.S. Department of ;
Justice E. LEO SLAGGIE Washington, D.C. 20530 Deputy Solicitor STEVEN F. CROCKETT
- ROCHELLE H. GUNNER I Attorneys j i U.S. Nuclear Regulatory i Commission I Washington, D.C. 20555 March.1, 1988 h
m.
e
." TABLE OF CONTENTS Page TABLE OF AUTHORITIES.......................~............. iii STATEMENT DF ISSUES.c................................... 1 STATEMENT OF THE CASE................................... 3 I. Nature Of The C'ase............................ 3 j l
II. Statutory And Regulatory Background. . . . . . . . . . . 4 i A. Requests For Enforcement Action.......... 4~
E. Offsite Emergency Planning............... 7' '
l C. Containment.............................. 9 1
III. MassPIRG's 2.206 Petition..................... 11 A. The Emergency Plan Issues................ 12 1
B. Containment.............................. 13'
~
IV. The Director's Interim Decision............... 14 l
A. Emergency Planning....................... 16 q B. The Mark I Containment Issue............. 18 1
4
SUMMARY
OF ARGUMENT..................................... 25 ARGUMENT................................................ 27 I. This Petition Seeks Review Of Final A Action...............................gency
......... 27 II. The NRC's Refusal To Institute Discretionary Enforcement Proceedings At Petitioners' Request Is Not Judicially Reviewable.......... 30 III.'The Director Properly Resolved MassPIRG's !
2.206 Petition On Emergency Planning And Containment Matters........................... 32 .
A. The Standard Of Review Of The Commission's Denial Of Enforcement Action Is Highly Deferential............. 32 9
i O
~ _ _ _ _ _ _
t Page B. The Director's Action On MassPIRG's Emergency Planning Concerns Was Reasonable and Entirely Consistent With FEMA's Findings.......................... 34
- 6. The Director's Denial Of The Containment Allegations Raised In MassPIRG's 2.206 ,
Petition Was Reasonable And Adequately Dealt With All Allegations Raised By The Petitioner............................... 38 CONCLUSION.............................................. .
45 e
9 8
e 0
e 11
4 TABLE OF' AUTHORITIES ,
a CASES Page Judicial Decisions '
Baltimore Gas & Electric Company v. Natural Resources Defense Council, Inc., 462 U.S. 87
.(1983).............................................: 33, 39-Citizens for a Safe Environment v. Atomic Energy Commission, 489 F.2d 1018 (3d Cir. 1974)........... 28 County of Rockland v. NRC, 709 F.2d 766 (2d Cir. '
1983)...................................'..........
. 33 Eddleman v. Nuclear Regulatory Commission, 825 F.2d 46 (4th Cir. 1987)............................ 6' Florida Power & Light Co. v. Lorion, et al., 740 U.S. 729 (1985) -
6
~
Beckler v. Chaney, 470 U.S. 821 (1985)............. passim
, Illinois v. Nuclear Regulatory Commission, 591 j F.2d 12 (7th Cir. 1979)............................ 6 l l
. Lorion v. NRC, 785 F.2d 1038 (1986)................ 40 Ohio Citizens for Responsible Energy, Inc. v. NRC, l
803 F.2d 258 (6th Cir. 1986), cert. denied, U.S. , 107 S.Ct. 1893 (1987).................... 28 Port of Boston Marine Terminal Association v.
Rederiaktiebolaget Transatlantic, 400 U.S.~62 (1970)............................................. 27 Porter County Chapter of the Izaak Walton League of America, Inc., v. Nuclear Regulatory Commission, 606 F.2d 1363 (D.C. Cir. 1979)...................... 6, 33 Public Service Co. of New Hampshire v. NRC, 582 !
F.2d 77 (1st Cir. 1978)............................. 33 Rockford Leacue of Women Voters v. Nuclear ,
Regulatory Commission, 679 F.2d 1218 (7th Cir 1982)......................................... ...... 33 Siegal v. Atomic Energy Commission, 400 F.2d 778 l ,
(D.C. Cir. 1968).......................... 4........ 33 111
4 .
Page Thermal Ecology Must-Be Preserved v. Atomic Energy Commission, 433 F.2d 524 (D.C. Cir. 1970).......... 28 Three Mile Island Alert v. Nuclear Regulatory Commission, 771 F.2d 720 (3d Cir. 1985), cert,
~
denied, 475 U.S. 1082 (1986) , reh. den. , U.S.
(1986), 106 S.Ct. 2909...................,..... 32' Vermont' Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978)............................................. 4, 40 Administrative Cases Boston Edison Company (Pilgrim Nuclear Power Station), Interim Director's Decision Under 10 C.F.R. S 2.206, DD-87-14, 26 NRC 87 (1987)......... . passim 1 Boston Edison Company (Pilgrim Nuclear Power .
Station), DD-84-5, 19 NRC 542 (Interim Decision), l and DD-84-15, 20 NRC 157 (1984).................... 16
'I Consolidated Edison Co. (Indian Point Units 1, 2, and 3), CLI-75-13, 2 NRC 173 (1975)................
- 40 STATUTES -
5 U.S.C. S706(2)(A).................................... ,
32 28 U.S.C. s2342(4)..................................... 6 42 U.S.C. S 2 01 1 eji s e q . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 42 U.S.C. S2239(b)..................................... 6 42 U.S.C. S 5801 et seq................................. 4' REGULATIONS 10 C.F.R. S 2.202....................................... 5 10 C.F.R. S 2 . 2 0 2 ( f ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .' . . . . . . . 5 10 C.F.R. S 2.206 ........................ ............. ' passim '
10 C.r.R. S2.206(a).................................... i 5 >
iv
o 4
- m. - Page 10 C . F . R . S 2 . 2 0 6 ( c ) ( 1 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 10 C . F . R . $ 2 . 2 0 6 ( c ) ( 2 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 ,
10 C.F.R. Part 2, Appendix C............................ 4 10 C.F.R. $ 50.47....................................... 7 10 C . F . R . S 5 0 . 5 4 ( s ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 10 C.F.R. Part 50, Appendix E........................... 7 i
10 C.F.R. S 51.95....................................... 14 l 10 C.F.R. Part 73....................................... 43
{
FEDERAL REGISTER NOTICES l
45 Fed. Reg. 55,402 (1980).............................. 8 I 45 Fed. Reg. 58.,847 (1980)............. .................. 8 50 Fed. Reg. 15,485 (1985).............................. 8 50 Fe,d. Reg. 32,138 (1985).............................. 10 l TECHNICAL DOCUMENTS WASH-1400 (NUREG-75/014) , Reactor Safety Study: An Assessment of Accident Risks in U.S. Commercial Nuclear Power Plants, October 1975.................... 19, 43 NUREG-0474, A Technical Update on Pressure Suppression Type Containments in Use in U.S. Light Water Reactor Nuclear Power Plants, July 1978...................... 19
)
NUREG-1150, Reactor Risk Reference Document, Draft for Comment, February 1987................................ passim NUREG/CR-4594, Estimated Safety Significance of Generic Issue 61, June 1986................................... 23 l NUREG-0654, FEMA-REP-1, Rev. l', " Criteria for Preparation and Evaluation of Radiological Emerge'ncy i Response Plans and Preparedness in Support of Nuclear Power Plants."........................................ 7 l 4 .
V
____.__.-._.._._m_-----.___ - - _ - - -
Page FEMA Report, Analysis of Emergency Preparedness Issues at Pilgrim Nuclear Power Station Raised in a Petition to the NRC Dated July 15, 1986, July 29, 1987......... passim FEMA Report, Self-Initiated Review and Interim Finding i for the Pilgrim Nuclear Power Station, August 4, 1987. passim i
MISCELLANEOUS-Letter from Secretary Chilk to Sen. Golden, .
September 24, 1987.................................... 14 j Letter from'Dr. Pfanauer to Commissioner Hendrie, I June 10, 1978......................................... 19 D
5 e
4 T
vi
. l
- a UNITED STATES COURT OF APPEALS .
FOR THE FIRST CIRCUIT l
) .
MASSACHUSETTS PUBLIC INTEREST )
RESEARCH GROUP, INC.,,ej al., )
)
Petitioners, )
)
and )
)
COMMONWEALTH 0,F MASSACHUSETTS, )
)
Intervenor- .) ~
Petitioner,' )
{
) l
- v. ) No. 87-1865 l
) -l UNITED STATES NUCLEAR . ) ,
REGULATORY COMMISSION and the ) -
UNITED STATES OF AMERICA, ) -
) '
l Respondents, ) .
)
and )
)
BOSTON EDISON COMPANY, )
) -
l Intervenor- )
Respondent. )
)
l BRIEF FOR RESPONDENTS l STATEMENT OF ISSUES
- 1. Whether an NRC Director's decision not to take enforcement action requested by a member of the public under 10 C.F.R. S 2.206 is final agency action reviewable by this Court where the Director ruled that some of the grounds alleged by the 9
[___ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - _ . - . - - - - - - - - - - - - - -
2.206 petition were insufficient to justify the requested action but deferred ruling on the sufficiency of the other grounds.
- 2. Whether the Director's decision not to take the I discretionary enforcement action requested by the 2.206 petition is unreviewable as a matter of law.
- 3. Assuming arquendo that some denials of requests for enforcement action are judicially reviewable, whether the Director's decision to select a different enforcement action than the one requested by the 2.206 petition is unrevfewable as a matter of law.
- 4. Assuming arguendo that denials of requests for enforcement action are judicially reviewable, whether the Director's decision to deny the 2.206 petition's request for formal enforcement action was reasonable and fully in accordance l
with law, where that action was based on findings by the Federal Emergency Management Agency that the 2.206 petition failed to I sustain its contentions, and where the Director decided to keep Pilgrim shut down until emergency planning issues were resolved to the NRC's satisfaction.
- 5. Assuming ar'guen'do that denials of requests for enforcement action are judicially reviewable, whether the Director's denial was reasonable and fully in accordance with law, where the Director fully and fairly responded to the 2.206 petitioner's principal arguments about the containment structure -
at Pilgrim, but did not explicitly respond to purported evidence which was inadequately presented and irrelevant to the petition's
, principal arguments. .
2
v STATEMENT OF THE CASE ,.
I. Nature of the Case -
In this litigation the petitioners, Massachusetts Public Interest Research Group, Inc., other organizations, and certain individuals ("MassPIRG"), seek review of a decision by the Nuclear Regulatory Commission ("the Commission" or "the NRC")
in part granting, in part denying, a petition to the Commission
~
4 to take enforcement action against the. Boston Edison Company
(" Edison") for its operation of the Pilgrim Nuclear Power Station
(" Pilgrim")., Edison shut the Pilgrim Station down on April 12, 1986, some months before the petition for enforcement action was ,
l filed. The NRC will not permit Edison to restart Pilgrim until certain deficiencies in management and emergency planning have been resolved to the satisfaction of the NRC.
On review, MassPIRG argues that the Court should order the NRC either to initiate formal enforcement action or else to provide a more complete explanation of its decision not to take I such action.1 The Commission's response to.MassPIRG's 2.206 i i
petition was reasonable and was fully explained. MassPIRG's petition to this Court should be denied.
I On January 4, 1988 MassPIRG filed a motion requesting permission to join in the brief written by the intervenor-petitioner, the Commonwealth of Massachusetts.
e 3
v- ,
. 1
- i II. Statutory And Regulatory Background
.A. Requests For Enforcement Action I
Under the Atomic Energy Act of 1954, 42 U.S.C. S 2011 et seq., and the Energy Reorganization Act of 1974, 42 U.S.C.
S 5801 et seq., the NRC has broad authority to license and regulate the construction and operation of nuclear power plants.
. 1 Under this statutory authority, the agency has developed a j l'
detailed regulatory framework for the administrative processing and adjudication of applications for construction permits and operating licenses. See generally, Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, ,
526-27 '(1978).
. After receiving a permit or a license, the permittee or licensee remains subject to continuing NRC review and oversight aimed at ensuring the continued protection of the public health and safety through compliance with the Commission's requirements.
The NRC has a wide range of enforcement remedies with which to accomplish this goal, such as, for example, letters confirming-commitments by licensees, notices of violation, civil penalties, and orders modifying, suspending, or revoking licenses. See generally " General Statement of Policy and Procedure for~NRC Enforcement Actions," (" Policy Statement on Enforcement") 10 C.F.R. Part 2, App. C. " Ordinarily, a licensed activity is not suspended ... for failure to' comply with requirements where such
- r 4
failure is not willful and adequa,te. corrective action has been .
taken." Policy Statement on Enforcement ,Section V.C. (2) (e) .
, i I
In addition, and central to understanding the
~
procedural-posture of this case, the agency has provided in 10 1
C.F.R. S 2.206 that members of the general public can request, as l l
the petitioners in this litigation did, that the NRC modify, l l
suspend, or revoke a license, or take other enforcement action. -j A 2.206 petition must specify not only the relief requested, but also "... set forth the facts that constitute the basis for such l request." 10 C.F.R. S 2.206 (a) . The. petitioner may address the l request to one of several NRC staff Office Directors. The Director of the NRC's Office of Nuclear Reactor Regulation received the 2.206 petition in this case.
If the Director of the reviewing office flnde merit in the request for enforcement action, he or she may select the appropriate action to take from the wide range of enforcement ;
options identified above. One such option is ordering the licensee under 10 C.F.R. S 2.202 to show cause why the NRC should not " institute a proceeding to modify, suspend, or revoke a license or for such other action as may be proper." A 2.202 order chiefly lists the alleged regulatory violations or other I
facts that are grounds for the proposed enforcement action, informs the licensee that it must file an answer to the allegations, and informs the licensee that it may request a hearing on the allegations. Under certain circumstances, the enforcement action may be taken immediately. 10 C.F.R.
. S 2.202 (f) .
5 l
l If, on the other hand, the Director determines that no ;
i show cause proceeding is warranted, he must notify the person who submitted the 2.206 request of that decision in writing, and provide a written statement of reasons for that decision. While the regulations specifically provide that the Commission will not entertain appeals from the Director's decision, see 10 C.F.R.
S 2.206 (c) (2) , the Commission undertakes a sua sponte review of l each and every denial of a 2.206. petition to ensure that the Director has'not' abused his disc'retion. 10 C.F.R. S 2.206 (c) (1) .
If the Commission does not act to reverse or modify the Director's decision within 25 days, it becomes final agency I l
action. Id.
The filing of a 2.206 petition does not require the NRC I
to hold formal evidentiary hearings on the issues raised,by the petition. . Illinois v. Nuclear Regulatory Commission, 591 F.2d !
~
12, 14 (7th Cir.1979) ; Porter County Chapter of the Izaak Walton t
League of America, Inc., v. Nuclear Regulatory Commission, 606 F.2d 1363 (D.C. Cir. 1979); Eddleman v. Nuclear Regulatory Commission, 825 F.2d 46, 48 (4th Cir. 1987). See also Florida Power & Light Co. v. Lorion, et al., 470s U.S. 729 (1985).
Jurisdiction to review 2.206 denials, if they are reviewable at all, see Argument I below, lies exclusively in the United States Courts of Appeals. 28 U.S.C. S 2342(4); 42 U.S.C.
S 2239 (b) ; Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985).
e
v B. Offsite Emergency Planning ,
MassPIRG's claims in this case in part involve the '
Commission's emergency planning regulations, set forth in 10 .
C.F.R. S 50.47, 10 C.F.R. S 50.54 (s) , and 10 C.F.R. . Part 50, ,
Appendix E.- These regulations provide'a comprehensive framework for protection of the public in the event of a serious radiological emergency.2 The regulatory framework contemplates the submission,.
)
review, and approval of "onsite" and "offsite" emergency plans.
The "onsite" plans are submitted by a licensee, and are reviewed l and approved by the NRC staff. Onsite plans provide for correction or control of the emergen'cy condition, for protection of persons who are onsite, and for the licensee's recommending to governmental authorities measures to protect the public health. -
See 10 C.F.R. Part 50, App. E. No aspect of the Pilgrim onsite plan is at issue here.
The "offsite" plans, aspects of which are at issue here, are usually developed by the appropriate state and local officials with the assistance of the licensee. Offsite plans often rely in part on organizations, equipment, and facilities 1
2 Guidance on the regulatory requirements is provided in NUREG-0654, FEMA-REP-1, Rev. 1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and ,
Preparedness in Support of Nuclear Power Plants." NUREG-0654 was prepared and published jointly by the FRC and the Federal Emergency Management Agency (" FEMA"). This guidance, however, does not have the force of regulations. _
t 7
1 which are also available for use under an overall state or federal response plan for emergencies stemming from a . umber of i l
different natural and man-made causes.. The offsite plans for a j nuclear facility must identify the primary responsibilities for .
1 emergency response and assign these responsibilities to the
]
appropriate licensee or governmental organizations.. The adequacy of these plans at a given nuclear facility is evaluated jointly by the NRC and the Federal Emergency Management Agency (" FEMA") .
45 Fed. Reg. 55,402, 55,406 (1980).
The NRC and FEMA have executed a Memorandum of g Understanding (" MOU" ) in order to allocate and coordinate their respective responsibilities for reviewing offsite plans.
See 45 Fed. Reg. 58,847 (1980); see'also 50 Fed. Reg. 15,485 (1985)
(revised MOU). Under the MOU, FEMA.tak.es the lead in offsite emergency planning. It reviews offsite emergency plans.and makes findings and determinations on whether they are adequate and can be implemented. See 50 Fed. Reg. 15,486 (1985). Under the MOU, the NRC (1) assesses a licensee's onsite emergency plans, .(2) ,
verifies that those onsite plans are adequately implemented, (3) reviews FEMA's findings and determinations on whether the offsite plans .are adequate and can be implemented, and ,(4) retains final-authority to decide whether the overall state of emergency preparedness is adequate or whether there are shortcomings serious enough to warrant enforcement action. See 50 Fed. Reg.
15,487 (1985). -
8
, , .C. Containment .
Every nuclear power plant licensed in the United States must have a protective shell around the reactor, the cooling systems, and related systems. This shell, usually made offsteel or steel-reinforced concrete, is known as a " containment", and.is designed to "contain" radioactive material which might be released from the reactor during an' accident.
In a nuclear power plant, the principal sources of-protection of public health and. safety are good design,
, construction, and operation. Good design requires the ability to -
withstand certain kinds of accidents, which are thus known as
" design basis accidents". These are detailed in the NRC's Standard Review Plan, which is used to evaluate the design of each nuclear power plant. Design basis accidents represent a-
, wide spectrum of plant problems, some which might be expected to occur in the lifetime of a plant (such as a failure of its power systems) , and others which are considered to be very unlikely (such as major ruptures of piping systems). A plant designed to cope with these accidents incorporates multiple and backup safe.ty systems to protect the reactor should the principal operating equipment fail.
, Design standards for containment provide a degree of protection even beyond the protection provided by the multiple safety systems which protect the reactor. All containments,
, including the " Mark I" design at Pilgrim, must be able to 9
withstand certain highly unlikely events. For example, nuclear power plants are designed to withstand earthquakes, yet the containment must be able to cope with the. simultaneous occurrence of an earthquake and a rupture of major reactor coolant system ^
piping. Moreover, even though there are multiple and backup i
systems to keep the reactor cool, the containment is designed on the assumption that these safety. systems may fail and that, as a result, fission products may be released from the reactor! core.
However, containments are not required to be designed against extremely low probability " severe" accidents. Such accidents entail great damage to the reactor core and releases of' large amounts of fission products. " Policy Statement ~on Severe Reactor Accidents Regarding Future Designs and Existing Plants",
50 Fed. Reg. 32,138 (1985), 1 RA 921.3 Nonetheless, while not originally de' signed to protect against some severe accidents, reactor containments, the Mark I included, can provide considerable protection to public health and safety by reducing radiological releases from sue.h accidents.
The results of research indicate that most containments can in fact, withstand much more pressure than they were designed to withstand, and that they would very likely retain much, if not !
most, of the radioactive material which could e released from the reactor core in a severe accident. Boston Edison Co.
3
' All references to the Record Appendix submitted by MassPIRG' will take the form, "[ volume number] RA (page number (s) ] " .
10
(Pilgrim Nuclear Generating Station) , Director's. Decision, DD-87-14, 26 NRC 87, 98 (1987).
III. MassPIRG's 2.206 Petition >
On July 15, 1986,. some months after Edison shut Pilgrim down, MassPIRG and other organizations and individuals not involved in this litigation ("the 2.206 petitioners") petitioned the Commission under 10 C.F.R. S 2.206 to order Edison to show cause why Pilgrim "should not remain closed and or have its operating license suspended by NRC unless and until that time at which the licensee demonstrates conclusively to'the NRC and the public" that the deficiencies the 2'206 petitioners alleged had been corrected. The deficiencies alleged were in management, emergency planning, and containment design.. The 2.206 petitioners asserted that at least in the aggregate, these -
deficiencies required that the requested relief be granted.
2.206 Petition at 1-2, 38-39, 2 RA 957-58, 995-96. Only the l l
emergency planning and containment issues are presently before l this Court.
4 The management problems which the 2.206 petition listed were, as the 2.206 petitioners noted, well-documented in various NRC inspection reports, which constituted the bases of the 2.206 petition's claims concerning management. See 2.206 Petition at 5-23, 2 RA 961-79. The 2.206 petition said that, "[als such, (the problems) are not presented as specific violations whose past or ongoing presence at Pilgrim in themselves should warrant a plant shutdown; indeed, some are being dealt with by the '
~
licensee under close NRC scrutiny." Id. at 4, 2 RA 960.
Nonetheless, the 2.206 petitioners concluded that the problems (Footnote Continued) 11
_.______..._..-_-__.__--_-.___--_----____---a
v A. The Emergency Plan Issues The 2.206 petition alleged several deficiencies in the emergency plans for Pilgrim: (1) inadequate or nonexistent j advance information to the public; (2) inadequate notification to the public during an accident; (3) inadequate evacuation plans, in particular, (1) unrealistically low evacuation time estimates, (ii) unworkable. plans for evacuating the physically disabled, nursing home resi, dents, school children, hospital patients, campers, inmates of correctional facilities, and people without automobiles, (iii) lack of agreements with, and training for, transportation providers, and (iv) routes. inadequate'to handle the volume of evacuation traffic; (4) inadequate medical facilities for treatment of victims of radiation, and~no .
provision for distribution of radioprotective drugst.and (5) an emergency planning zone which is too small. Id. at 25-30, 2 RA at 981-87. Finally, the 2.206 petition argued generally that federal, state, and local governments were giving emergency planning a low priority and were not sufficiently. coordinated in a
their efforts. Id. at 30-32, 2 RA 987-89. j l
t (Footnote Continued) were " symptomatic of the long history of Boston Edison's !
incompetence as the manager of a nuclear facility. ... Thus, its continuing operation of the Pilgrim Plant poses an extremely serious and unacceptable health and safety threat to the citizens
', of the Commonwealth." Id.
12
. 4
_ - - ' ~ ~
~
B. The Containment Issues The 2.206 petition also alleged design deficiencies in the General Electric " Mark I" containment at Pilgrim. The 2.206 petition argued principally that containments like Pilgrim's perform poorly in severe accidents, and'that, "in the sobering light of the Chernobyl disaster," id. at 37, 2 RA 994, this poor performance should be of special concern. . Referring to concerns raised in a 1972 internal Atomic Energy Commission memorandum, see id, at'32-35, 2 RA 989-92, the 2.206 petition also charged that the Mark I could not even cope well with design basis accidents.
The 2.206 petition claimed that the NRC permitted plants with Mark I containments to continue to operate on the basis of quantitative techniques for assessing risk, called PRAs l (for "probabilistic risk analyses'"). The '2.206 petitioners further asserted, with little explanation or support, that these PRAs do not take into account various important accident scenarios and containment failure modes, many of which are particularly relevant t.o Mark I containments. Id. at 36-37, 2 RA 993-94 On appeal, MassPIRG raises only one containment-related issue, namely, that the Director did not explicitly answer the 2.206 petition's charge that PRAs do not consider several accident sequences particularly relevant to the Mark I containment. -
The 2.206 petition requested that the NRC require Edison to prepare a " feasibility study on all possible structural 13 ,
_ _ _ ______ = ___________ __- . _ _ _ - _ _ _ _ _
v 4
i modifications" to the containment before the NRC approved any particular modification of the containment. Idz at 39, 2 IUL at 996 (emphases added). The petition did not state why such a ,
study should be done, whether the " feasibility" that the 2.206 petitioners wanted studied had economic as well as technical dimensions, or whether the petitioners had any particular ;
I structural modifications in mind.5 IV. The Director's Interim Decision On August 21, 1987, the Director of the NRC's Office of Nuclear Reactor Regulation issued a written decision, Boston Edison Company (Pilgrim Nuclear Power Station), Interim I Director's Decision Under 10 C.F.R. S 2.206 (" Director's Decision"), DD-87-14, 26 NRC-87 (1987).6 In that Decision, the I Director granted the petition "to the extent Petitioners are 5
The 2.206 petition also requested that the NRC, " prior to making a decision pursuant to issuing an operating license suspension, schedule a comprehensive public hearing to address the issues raised by the petitioners herein. -
Such a hearing should address other related issues, including but.not limited to Pilgrim's relationship to present and future regional energy needs." 2.206 Petition at 39, 2 PA 996 The question of whether -
there is a need for the power a plant produces is generally settled during NRC review of the application for permission to construct the plant. See, e.g., 10 C'.F.R. S 51.95. The 2.206 petition contained no evidence on the region's present or future energy needs. The 2.206 petition did not say what "other related issues" should be addressed at the hearing it requested.
6 The Director's Decision became final agency _ action on September 15, 1987, after the Commission declined to take sua ;
sponte review. Letter from Secretary Chilk to Commonwealth 1
Senator Golden, September 24, 1987, 2 RA 1777.
1 .
14
v requesting that Pilgrim remain shut down until the NRC is satisfied that management and emergency preparedness issues are dealt with to the Commission's satisfaction." Director's Decision,-?6 NRC at'89. He' deferred decision on whether the management issues raised by the 2.206 petitioners warranted'an order to show cause.7 However, the Director denied the 2.206 petition's request that the NRC require Edison to show cause why its Pilgrim l 1
license should not be suspended until the emergency planning and I containment issues raised in the petition were resolved.8 MassPIRG's petition to the Court is directed solely to these denials concerning emergency planning and containment. -
d 7TheDirectoragreedwiththe2.206 petitioners"that i significant management deficiencies have existed at Pilgrim l Station." 26 NFC at 93. The Director described the steps the l licensee and the NRC were taking to correct those deficiencies. 1 See id. at 92-93. However, the Director deferred a complete ruling on the management issues raised by the 2.206 petition, "until the management deficiencies have been suitably addressed i' by the Licensee and the Staff completes its assessment." Id. at
- 93. The deferred ruling will also be the. natural place to consider the 2.206 petition's claim that, even if the alleged deficiencies do not, taken separately, justify initiating a show cause proceeding, all the deficiencies, taken in the aggregate, do justify such action.
~
8 The Director also denied the 2.206 petition's request that a " feasibility" study be done of "all possible structural modifications" of the Mark I containment at Pilgrim. He noted
, that, "[ alt the present time, neither the licensee, nor the staff, nor the Petitioners have-identified any structural modifications to the~ Pilgrim containment that would be warranted
. by severe accident considerations." 26 NRC at 106.
15
y
- t
~
A. Emergency Planning The Director based his decisions regarding emergency plasning issues entirely on two FEMA reviews submitted to the NRC .
on August 6, 1987.
The first of the two reviews, largely completed on I
December 20, 1986, analyzed'the issues raised in the July 15, l i
1986 2.206 petition, and was performed at the request of the NRC.
Director's Decision, Attachment A at 1, 4, 2 RA 1719, 1722. The analysis was prepared by FEMA. Region I with the assistance of the Argonne National Laboratory. Id. at 3, 2 RA 1721.
FEMA reported.that "[mlost of the issues raised in the 1986 petition are essentially identical to issues raised in a petition submitted to the NRC in 1983 by MASSPIRG, and to issues ]
previously examined by NRC and FEMA. Based on a previous analysis by FEMA, the NRC denied the 1983 MASSPIRG Petition on February 27, 1984." Id. at 4, 2 RA 1722. See Boston Edison l Company (Pilgrim Nuclear Power Station) , DD-84-5,19 NRC 542 (1984) (Interim Decision), and DD-84-15, 20 NRC 157 (1984).
Proceeding through the 1986 2.206 petition allegation by allegation, see id. at 5-48, 2 RA 1723-1764, FEMA concluded that "the informatio'n in the petition did not sustain the contentions l based on the state of the record at the time the petition was reviewed ..."9 Id. at 4, 2 RA 1722.
9
. MassPIRG is not challenging these FEMA conclusions in this litigation. ,
16
_________o
Citing FEMA's analysis of the 2.206 petition as his
-basis, the Director denied the 2.206 petition's request that the NRC issue a show cause order to Edison. 26 NRC at 95.
The second of FEMA's two reviews analyzed a different j set of issues involving the offsite plans, issues which FEMA had ,
first become aware of during a series of meetings with the !
Commonwealth and local communities in the Spring of 1986, before the 2.206 petitioners had submitted their petition to the NRC. j FEMA Self-Initiated Review, August 4, 1987 at 7, 2 Im 1569. On the basis of information gathered in those meetings and later, FEMA embarked on a self-initiated review of the overall state of emergency preparedness at Pilgrim. Id. at 7-8, 2 RA 1569w70.
FEMA completed its self-initiated review on August 4, 1987 and !
. submitted it to the NRC on August 6, 1987. 0 As a result of its self-initiated review, 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 Plant and cannot be implemented until the inadequacies noted in this Self-Initiated Review and Interim Finding are corrected. ... FEMA will continue to work with, and provide technical assistance to, the Commonwealth of Massachusetts in its effort to-fulfill its responsibility to develop a radiological emergency response plan to protect the health and safety of its citizens.
10 FEMA's review of the issues raised by the 2.206 petition
' was an attachment to its self-initiated review. See FEMA-Self-Initiated Review, Tab II, 2 RA 1627-79.
17
=-_x___-___________________-__
FEMA Self-Initiated Review at 49, 2 RA at 1611.
In response to FEMA's self-initiated review, the Director concluded that "the emergency planning issues identified by FEMA are a matter of serious concern. The determination whether to restart.the Pilgrim plant will' involve, in necessary part, consideration of the resolution of emergency planning issues identified by FEMA." 26 NRC at 95. The Director 1
therefore concluded that, "to the extent Petitioners are 1
requesting that P'ilgrim remain shut down until ... emergency .
preparedness issues are dealt with to the Commission's satisfaction, the Petition is granted." Id.
at 89.
. B. The Mark I Containment Issue The heart of the 2.206 petition's assertions concerning the Mark I containment was that "the high probability that Pilgrim's GE Mark I containment structure will not withstand 11 FEMA identified six. areas.of major concern, most of them having to do with evacuation: (1) a lack of evacuation plans for public and private schools, and daycare centers; (2) a lack of a reception center for people evacuating to the north; (3) a lack.
of identifiable public' shelters-for the beach population; (4)
! inadequate planning for the evacuation of the special needs l population; (5) inadequate planning for the transportation I
dependent population; and (6) an overall lack of progress in l planning and an apparent diminution in emergency preparedness.
{ FEMA Self-Initiated Review at 10-11, 2 RA 1572-73; 26 NRC at 95.
FEMA's specific concerns were, for the most part, different from MassPIRG',s specific concerns.
18
?'"*** '***7 _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _w
various severe accident scenarios is a very serious factor threatening public heulth and safety within the region." 2.206 Petition at 38, 2 RA 995.12 The basis for the 2.206 petition's assertion that there was a high probability that the Mark I would fail in a severe accident wc3 an estimate by the NRC that the Mark I containment 12 The Mark I takes a less brute force approach to containment then do many other designs. Rather than simply holding the released pressure in a large volume bounded by walls which can withstand very high pressures, the Mark I first
" suppresses" the pressure by passing it through a large pool of water. Director's Decision, Attachment B, at 1, 2 RA 1766. Thus the Mark I can be smaller than other containments and its walls can be built to withstand less preneure.
As reported in Section III.B aoove, the 2.206 petition also alleged that the design of the Mark I,is inadequate even for design-basis accidents. As evidence for this claim, the 2.206 petition resurrected Mark I issues. raised in 1972 by Dr. Hanauer of the AEC. These irsues, like the petitioner's emergency plenning issues, were based largely on matters resolved long before the 2.206 petition was filed. The 2.206 petition cited a 1972 internal Atomic Energy Commission memorandum by Dr. Stephen Hanauer, see 2.206 Patition at 32-35, in which Dr. Hanauer offered, as "an idea to kick around", see cover memorandum to ,
Hanauer 1972 Memorandum, 1 RA 8, the adoption of a policy of
" discouraging further use" of the Mark I containment design. See Hanauer 1972 Memorandum at 1, 1 RA 9. The suggested policy would not have applied to the more than a dozen plants then operating with Mark I containments. The concerns Dr. Hanauer raised were resolved by the staff in NUREG-0474, "A Technical Update on Pressure Suppression Type Containments in Use'in U.S. Light Water Reactor Nuclear Power Plants", July 1978, 1 RA 230, and later staff generic issues programs. Dr. Hanauer himself later concluded that, "... while we may yearn for ... greater simplicity ..., the problems of ... pressure suppression l containments (like the Mark Il are solvable, in my opinion, and the design safe, therefore licensable." Director's Decision, 26 NRC at 100, quoting June 20, 1978 Memorandum from Hanauer to .
Commissioner Hendrie at 2, 1 RA 229. See 26 NRC at 99-102; see also Director's Decision, Attachment C, 2 RA 1769-75 (NUREG-0474 summary of staf f actions on Dr. Banauer's concerns) .
19
i 1
)
had anywhere from a 10% to a 90% chance of failing in a' severe l accident. See 2.206 Petition at 38, quoting NRC official citing l 1
WASH-1400 (NUREG-75/014), " Reactor Safety Study: An Assessment 1
of Accident Risks in U.S. Commercial Nuclear Power Plants",
October 1975. )
In response, the Director explained that a decision whether to permit a plant to operate cannot be based only on an estimate of the probability of containment failure but instead must evaluate the overall risk to public health and safety:
1 The evaluation of severe accident vulnerability involves three distinct evaluations. First, the probability of an accident involving core damage. Second, the likelihood of containment failure and third, an assessment of the radiological consequences and public doses resulting from the accident. All three issues must be considered in making a determination on the magnitude of severe accident risk and what actions should prudently be taken to reduce those risks.
Director's Decision, 26 NRC at 104. The Director then proceeded to set out the results of each of the three evaluations.
The draft results of NUREG 1150 [" Reactor Risk Reference Document" (3 vols.) , Draf t for Comment, February 1987]
present the most recent program, whose intent is to accurately reflect the severe accident risk at a number of US nuclear power plants, and also to properly reflect the areas of uncertainty. This study included an evaluation for Peach Bottom, a plant quite similar to Pilgrim in reactor desien and containment { Peach Bottom.has a Mark I containment]. The study presented'the estimated mean frequency of core damage to be approximately one chance in 100,000 per year of operation.
Id.
In reporting NUREG-1150's estimates for the second of
, the three e3ements which must go into an evaluation of severe 20 1
L_----_--__---------_--------------------_----
~
accident risk, the probability of containment failure, the l Director amphasized the uncertainty of the calculation, and the
. efforts the Commission was making to resolve that uncertainty.
Draft'NUREG 1150 also investigated the probability of early containment failure following a core melt. This study concluded that our ability to accurately predict the response of a Mark I containment was limited for situations where it was subjected to the harsh temperature and pressure
, conditions following a core melt accident. As stated earlier, the report indicated that containment failure probability (for these extremely unlikely events) could likely range from 10 to 90 percent. j These uncertainties are currently the subject of research efforts to better predict the behavior of containments during severe accidents, so that a.more complete risk perspective can be assembled for guiding our regulatory activities. However, it is important that these-uncertainties be, properly characterized. They are not
- identified deficiencies in the BWR [ Boiling Water Reactor)
Mark I containments, which have been demonstrated to satisfy their design performance requirements ... . Rather, these uncertainties are areas which guide our research ,
investigations, whose goals are to provide improved l understanding of very unlikely risk situations at nuclear l l power facilities.
Id. at 104-05.13 i 4
It is important to understand that the 10 to 90% is a I
range of estimates for Mark I containment failure, and that the width of this range demonstrates the degree of uncertainty in the calculation. The 90% estimate is in the upper 5% of the many estimates which make up this range. See 1 NUREG-1150 at 4-12, Figure 4.2. Also, these are estimates not of catastrophic failure, but simply of some breach.of containment integrity, however small.
The 2.206 petition also asserted that, "(iln the sobering
' light of the Chernobyl disaster, the issue of the inadequacy of the GE pressure-suppression containment has been raised again."
2.206 Petition at 37, 2 PA 994. The central thrust of the Director's response to this claim was that the accident at l
Chernobyl did not change the NRC's assessment of how the Mark I would perform under severe accident conditions. The Director (Footnote Continued) 21
+ .
As noted in Section III.B a'bove, the 2.206 petition
, alleged'with little specificity that the NRC's techniques of risk l
assessment underestimated risk because they did not take into )
account several accidents and accident sequences relevant to the performance of the Mark I. The 2.206 for the most part simply listed'these accidents-and accident sequences, only partially identifying them.14 The petition described only one accident in-any detail.15 In his Decision, the Director addressed directly (Footnote Continued) listed aspects of the accident at Chernobyl which were necessary conditions of_that accident but-which are-not present in U.S.
reactors, such as, for example, a tendency to sudden increases in power under certain circumstances, a slow a'cting safety control ,
rod system, and graphite moderation. The Director concluded that l "the steam explosion in the reactor core-[at Chernoby1],;which l ruptured the reactor core and surrounding building, was caused by '
a nuclear physics design vulnerability.specifically prevented by-the Pilgrim design." See 26 NRC at 102-03..
14 For example, the 2.206 petition has the following description of something it alleges is not taken into I consideration in the NRC's PRAs: "A third type of scenario ...
involves station blackout sequences ... ." There follows a list of other accidents: "... interfacing loss of coolant accident
... sequences, Mark I/II sequences with exploding hydrogen in de-inerted containment, reactor vessel rupture, main. steam isolation valve ... leakage, and steam explosions...." 2.206 l Petition at 36-37, 2 RA 993-94. The agency of course'knows, for instance, what a steam explosion is, but there is~more than one kind of steam explosion of relevance to reactor safety, and there are many accident sequences involving such explosions, and many such sequences are in, fact considered in PRAs.
15 The 2.206 petition said of this accident: "For inst ance, L the safety / relief valves (SRVs) to limit reactor pressure by l
discharging to the suppression pool are located on the main steam <
lines inside the drywell. If a discharge line passing through the air space above the suppression pool were to break in the wet well space following a stuck-open CLV in that line, ' steam would bypass the suppression pool and rtpidly pressurize the containment' ... . " 2.206 Petition at 36, 2 RA 993 (citation omitted).
22 .
..d that one accident andLnoted that this-issue had been resolved io i the staff's. satisfaction in NUREG/CR-4594, " Estimated Safety Significance of Generic Issue.61," June 1986. Director's l Decision, 26 NRC at 101-102. Rather than address these remaining accidents one at a time,_the. Director assumed, as did the 2.206
{
l petitioners, that the probability that the Mark I would fail in a i severe accident might be high.16 Finally, the Director turned to the third element of the evaluation of severe accident' risk, the~ assessment of:the consequences of a severe accident. Here, he emphasized again that despite containment " failure" - that is, some, perhaps j quite small, breach in containment integrity -- the Mark'I containment would still provide a considerable amount of 1
)
protection to the public in the event of a severe accident. Most l
important, he concluded, the risk.of a severe accident at Pilgrim I was low. '
l Even allowing the large uncertainties which result in a high upper value for containment failure, the NUREG 1150 study estimated that the probability of a large reactor accident that results in 1 or more early fatalities ranged from 1 in one million to 1 in one billion. Given a severe .
accident, the probabilities of very high radiation exposure and the distances over which they would occur were also estimated to be reasonably small. The risk levels for Pilgrim would of course depend on its actual core melt probability, containment behavior, the local
- demography, and could vary somewhat from the results presented'in NUREG 1150. The results of this and related studies do, however, 16 Moreover, all of the accidents described by the 2.206 petition as being particularly relevant to the Mark I's performance in a severe accident are in fact taken into account by the NRC's techniques of risk assessment. See Argument III.C below.
23
- -*.so4.e m .
~
support our overall conclusion of low.sovere accident. risk at the Pilgrim utility. One contributing factor is ... that the massive reactor containment structure may retain considerable radioactive material following a core melt even if its pressure boundary is failed. In this regard, containment failures include cracks or other phenomena that result in loss of pressure integrity that can result in leaks but should not be viewed solely as catastrophic failure of the containment' structure. Plateout and deposition of raterial,within containments, even though there may be leakage, also increase the time available to implement effective evacuation activities.
Director's Decision, 26 NRC at 105.
The Director reported that there are continuing efforts to determine whether there are undue severe accident vulnerabilities at any plant. In particular, he said that plant-specific studies under the " Individual Plant Examination" program would begin soon. Id. at 105. He noted also that Edison was considering certain modifications to enhance the Pilgrim containment. Id. at 105-06 The NRC staff is now reviewing these risk-reduction modifications "to ensure that they do represent overall safety improvements and that they have no overall adverse safety impact on existing systems." Id. He added that the NRC "does not view any of these modifications as necessary before the plant restarts." Id.
The Director concluded that 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 or to suspend the operating license.
Therefore, this portion of Petitioners' request is denied.
Id. at 106. '
4 24
~
SUMMARY
'OF ARGUMENT The Director's Decision was final agency action even~ j though he deferred ruling on management issues: The Director's denial of certain relief has resulted in legal consequences to MassPIRG, moreover, judicial review of the Decision will not i disrupt the agency's decision-making on the remaining issues.
A refusal by the NRC to institute discretionary,L formal, enforcement' proceedings at the request of a member of the-public is not subject'to judicial review. Heckler v. Chaney, 470-0.S. 821 (1985). Even if Heckler does not bar all judicial' review of an agency's refusal to'take discretionary. enforcement action, it certainly should bar review where, as.here, an agency has selected one of several legitimate enforcement tools.
I; the Court decides that-the NRC's decision not to institute formal enforcement action is judicially reviewable, then the Court's intervention is limited to extremely compelling circumstances. Moreover, when reviewing decisions.that involve l complex regulatory matters which are within'the NRC's area of special expertise and at the frontiers of science, a reviewing court must generally be at its most deferential.
The Director's action'on MassPIRG's emergency planning i
contentions was reasonable and entirely consistent with findings by FEMA, the lead agency for review of offsite emergency planning for nuclear power reactors. Citing FEMA's conclusion that'the
, information in the 2.206 petition did not sustain MassPIRG's contentions, the Director denied the 2.206 petition's request for 25
- i institution of enforcement proceedings. However, citing FEMA's-conclusion that the offsite plan was inadequate in respects other than those alleged in the 2.206 petition, the Director also granted the 2.206 petition to the extent that'it was asking that Pilgrim remain shut down until. emergency preparedness issues were I resolved to the NRC's satisfaction. Thus, MassPIRG's argument that the NRC ignored FEMA's findings is without basis. Neither has MassPIRG offered any basis for preferring a shcnt cause order to the e tion the Director took on FEMA's negative findings.
Finally, in rejecting MassPIRG's claim that "the high probability that Pilgrim's ... containment structure will not withstand various severe accident scenarios ... threaten [s]
public health and safety ...", the Director responded fully' and
- fairly by demonstrating that the overall risk of a severe accident at Pil~ grim was acceptably low. On appeal, MassPIRG complains that the Director did not consider certain " evidence" that the NRC's quantitative techniques of risk assessment underestimate the probability that the Mark I containment might fail in a severe accident. However, rather than dispute the probability figures that MassPIRG put forward, the Director focussed on MassPIRG's claim that these figures threatened public health and safety. Moreover, the " evidence" was little more than a list of incompletely'y identified accidents which MassPIRG claimed PRAs do not take into account. The Director was not obliged to respond to such " evidence". Besides, as nearly as the
! ', NRC can determine which accidents MassPIRG was referring to, they are in fact taken into account in the NRC's PRAs.
26
q
' ARGUMENT j i
.-i I. This Petition Seeks Review Of Final Agency Action.
This Court has' asked-sua sponte "[w]hether'the. ]
August 21, 1987 agency decision, which decided.two'of the three grounds petitioners raised, but reserved decision on a third ~ !
f issue (alleged management deficiencies) is a final agency ]
decision which should be reviewed by this court at this time in-l advance of the agency's determination of the management _ issue."
Order of December 28, 1987. We believe the answer to the Court's l question is yes.
l As MassPIRG correctly points out, the Director.'s decisions on the separate emergency planning and containment.
issues meet the test of finality which has been established by the Supreme Court. Pet. Brief at 31. See Port of Boston Marine Terminal Association v. Rederiaktiebolaget Transatlantic, 400 1
U.S. 62, 71 (1970) (in determining finality of an agency decision the appellate court should consider "whether the process of administrative decision-making has reached a stage where judicial-review will not disrupt the orderly process of adjudication and whether rights or obligations have been determined or legal consequences will flow from the agency action"). The two issues
~
resolved by the Director have legal consequences and present entirely segregable factual claims whose judicial consideration will not disrupt any on-going agency proceeding. Thus, if petitioners had submitted separate 2.206 requests to shutdown Pilgrim on emergency planning and containment grounds, the 27
4 Commission's refusal to grant those requests would have '
, constituted final agency action for purposes of an appeal.
These principles do not fully resolve the finality question presented in this case, however, because petitioners submitted only one 2.206 petition, and that petition raised not only the emergency planning and containment matters on which the agency has taken final action, but also management concerns which have not yet been finally disposed of by the agency. Thus, this case raises the question of whether.the NRC's failure to resolve every issue presented in a 2.206 petition precludes a finding of final agency action on those issues which it has resolved. This novel question was not discussed by MassPIRG in its Brief, nor has it been directly addressed by any judicial' authority. '
It is clear that had this case involved an order issued in a licensing proceeding in which the Commission decided some but not all of the issues before it, there would be no final agency action for purposes of an appeal. The courts have repeatedly held that, in a licensing proceeding, the final agency action necessary to bestow Hobbs Act jurisdiction is the grant or denial of the license. Ohio Citizens for Responsible Energy, Inc. v. NRC,.803 F.2d 258 (6th Cir. 1905), cert. denied, 107 S.Ct. 1893 (1987); Citizens for a Safe Environment v. Atomic Energy Commission, 489 F.2d 1018 (3d Cir. 1974); Thermal Ecology Must Be Preserved v. Atomic Energy Commission, 433 F.2d 524 (D.C.
Cir. 1970) .
The order at issue in this case, however, is distinguishable from a similar order which might be issued in a 28
licensing proceeding. A licensing proceeding results in a single '
, agency action, the grant or denial of a license, which occurs' ,
only at the end of the proceeding. Thus, although the Commission may reject some of the objections to a proposed license in an interim licensing decision, no decision resulting in legal consequences to an opponent of the licensing occurs until the Commission issues a decision granting the license.
In the context of a 2.206 petition, however, the legal consequences flowing from such a decision are different. Here the petitioner is asking the agency for different relief, i.e.,
for a shutdown of the. facility for a specific reason. When that request is denied, legal consequences. flow to the petitioner because the agency has finally acted on the concern presented and refused to take the requested action for the requested reason.
The fact that there are other issues presented by the petitioner !
which may later result in a shutdown of the facility does not in any way detract from the fact that the agency's refusal to act results in legal consequences to the petitioner, i.e., final i
denial of a request for relief. I Finally, unlike the situation presented in a licensing proceeding, there are no considerations of judicial economy in a 2.206 case which would militate against a finding of finality. A i commission decision for petitioners on the management issues will not in any way moot the necessity for an appeal on the two issues involved in this case. Were the Commission to determine in the on-going administrative proceeding that Pilgrim should remain shut down due to insufficient confidence in its management team, 29
________i_____
- this deficiency could-be addressed and' corrected by Boston Edison and the plant could then be restarted. In order for petitioners to preserve their claim that the plant should not operate until emergency preparedness and containment issues are also addressed and resolved to their satisfaction, they must in any event file an appeal of the NRC's decision on those grounds at the conclusion of the administrative proceeding. .For this reason, a favorable decision for petitioners on the management issues will
! not in any way moot the necessity for an appeal on the emergency preparedness and containment issues.17 For all of the reasons discussed above, the Commission's August 21, 1987 order is a final appealable order within the terms of the Hobbs Act, 28 U.S'.C. S 2344..
l II. The NRC's Refusal To Institute Discretionary Enforcendnt .
Proceedings At Petitioners' Request Is Not Judicially )
Reviewable. l In our October 27, 1987 Motion to Dismiss, we made it 1
clea.r that Heckler v. Chaney, 470 U.S. 821 (1985), precludes judicial review of the NRC's refusal to take discretionary i
17 Permitting this appeal to go forward at this time also makes good sense from a practical standpoint. At the present time the Pilgrim nuclear facility is shut down. If the commissica erred in any respect in'its decision on the emergency preparedness and containment issues, judicial review now rather
, than later may enable the Commission to achieve a timely
. correction of any-such errors so that the plant's present shutdown need not be unnecessarily prolonged.
, 30 I
enforcement action. Rather than' repeat the arguments' set forth '
o in detail in those. earlier filed papers, we incorporate those arguments into this brief by reference.
In addition to the arguments raised in these filings, th'ere is a secondary, less sweeping, Heckler v. Chaney argument
- that certainly intercepts one claim which petitioners raise. l MassPIRG appears to complain, in part, that the NRC has not taken the precise kind of enforcement action which MassPIRG would prefer. Pet. Brief at n.14 and accompanying text. Thus, while the NRC has refused to allow the Pilgrim plant to restart until certain emergency planning concerns identified by FEMA's self-initiated review have been dealt with to the NRC's satisfaction, MassPIRG appears to argue that a license suspension and the institution of a formal show cause proceeding should have been the enforcement tools which the NRC should have employed to correct the emergency planning deficiencies that FEMA identified.
See Argument III.B, below. Even if Heckler v. Chaney does not l
bar all judicial attacks on an agency's refusal to take discretionary enforcement action, it certainly should bar an attack on the agency's selection of one among several legitimate enforcement tools. Such a decision is generally unsuitable for judicial review, because it is up to the sole discretion of the agency to determine the enforcement vehicle which best achieves the agency's objectives, exploits the strength of the agency's case, and makes the most efficient use of the agency's resources.
470 U.S. at 831-32. Moreover, there are absolutely no standards by which a court can review such an agency 31
._____ ___.___ _ _ _ O
.-m enforcement determination.10'
- III. The Director Properly Resolved MassPIRG's 2.206 Petition On ,
Emergency Planning And Containment Matters. -
A. The Standard Of Review Of The Commission's Denial Of-Enforcement Action Is Highly Deferential. ;
1 I
If, contrary- to our argument against reviewability, - see Argument II a.bove, the Court decides that the NRC's decision not
.to institute enforcement action is judicially reviewable, then'it must determine whether the decision denying the petitioners' 2.206 request is " arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C.
S 706 (2) (A) . Three Mil'e Island Alert v. Nuclear Regulatory Commission, 771 F.2d 720 (3d Cir. 1985), cert. denied, 475 U.S.
1082 (1986), reh. den., U.S. _
(1986), 306 S.Ct. 2909.
If the denial of a 2.206 request is reviewable at all, a Court's intervention is " confined to extremely compelling 10 In this case the Director's decision not to institute formal enforcement proceedings conserves agency resources while assuring that the emergency planning problems identified by FEMA-are satisfactorily addressed. Moreover, insofar as MassPIRG is concerned, there is'no practical difference between informal agency action and a formal agency license suspension and order to show cause. In neither case is there automatically a hearing in which the public has a'right to participate; to the contrary, unless Boston Edison requests a hearing there will be none in either case. Thus, even had the NRC taken formal enforcement action to suspend Boston Edison's license, the practical' result
, would have been precisely what has happened here -- no restart
, would be possible until. improvements in Pilgrim's emergency .
planning acceptable to the NRC are accomplished and no hearing would have been held unless Boston Edison had requested one.
32 e e
~
circumstances." Rockford League of' Women Voters v. Nuclear.
Regulatory Commission, 679 F.2d 1218, 1222 (7th Cir. 1982). As -
the Second Circuit explained in County of Rockland v. NRC, 709 F.2d 766 (2d Cir.'1983)., "our review is deferential because the commission and its staff have_special expertise and a wide range of experiences in nuclear power plant operation and safety." The D.C. Circuit has similarly held that in denying a 2.206 request, the agency "has substantial discretion to decline to initiate proceedings based upon this review, at least where, as'here, [it) i gives reasons denying or deferring'a hearing." Porter County !
Chapter v.: Nuclear Regulatory Commission, 606 F.2d 1363, 1369 (D.C. Cir. 1979).
1 Furthermore, when reviewing decisions that involve j complex regulatory matters which are "within (the NRC's] area of j special expertise, at the frontiers of science ... as opposed.to i
simple findings of fact, a reviewing court must generally he at 1
)
its most deferential." Daltimore Gas & Electric Company v. 1 Natural Resources Defense Council, Inc., 462 U.S.-87, 103 (1983). j 1
Moreover, the NRC's regulatory scheme is " virtually unique in the i
degree to which broad responsibility is reposed in the administrative agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory f 1
~
objectives." Punlic Service Co. of New Hampshire v. NRC, 582 '
F.2d 77, 82 (1st Cir. 1978) , quoting Siegal ~ v. Atomic Energy Commission, 400 F.2d 778, 783 (D.C. Cir. 1968).
l 4
l 1
33 i i
i
~
l5 B. .The Director's Action On MassPIRG's Emergency Planning-Concerns Was Reasonable-And Entirely Consistent With FEMA's Findings.
As recounted'in the Statement of the Case above, the .
l Director relied entirely on FEMA's findings in resolving the amargency planning concerns raised by the 2.206 petition. l In its review of the 2.206 petition,' FEMA found that most of the issues had already been considered-by' FEMA and the NRC in reviewing an earlier 2.206 petition from MassPIRG.
Moreover, it concluded 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 ... .
FEMA Review'of 2 206 Petition at 4, 2 RA 1634. Citing FEMA's analysis of the 2.206 petition, the Director denied the 2.206 petition's request for a show cause order. 26 NRC at 93-95. l At the same time that it issued its report rejecting the emergency planning allegations raised in the 2.206 petition, FEMA also issued a report which discussed different emergency planning concerns which had been uncovered as a result'of a FEMA self-initiated review of the overall state of emergency preparedness at Pilgrim. In this report FEMA concluded that "the Massachusetts plan is inadequate to protect the health and safety of the public in the event of an accident at ... Pilgrim . . .
FEMA Self-Initiated Review at 49, 2 RA at 1611. Citing this latter report, the Director granted the 2.206 petition, "to the extent that Petitioners are requesting that, Pilgrim remain shut down until ... emergency preparedness issues are dealt with to
. 34
- v. -
4
~
^ .the Commission's satisfaction." 26 NRC at 89;.see also id. at 95 (decision whether tou permit Pilgrim to restart will necessarily involve consideration of issues' identified by FEMA).
MassPIRG argues that "(tlhe NRC ... arbitrarily ignored the best expert information available ... on an issue essential to its statutory mandate to assure'the public health and safety."
Pet. Brief at 29. MassPIRG reaches this wholly erroneous conclusion by attempting t.o make it seem as if the results of l FEMA's self-initiated review were based on the evidence presented in its 2.206 petition, and by asserting that the Director improperly disregarded the results of the self-initiated review altogether in denying that petition. Thus MassPIRG asserts that- 4 l
"the NRC arbitrarily gave no consideration to FEMA's August 4, l f 1987 finding [the self-initiated review finding) that the' state of offsite emergency preparedness for Pilgrim was' inadequate. It acknowledged the existence of the FEMA finding, but arbitrarily ,
did not consider it in its decision on the enforcement request."
l Pet. Brief at'24.
There are two central flaws to MassPIRG's argument.
First, the Director did-not ignore any FEMA finding when he ruled on the 2.206 petition. That petition argued one set of deficiencies, which FEMA found not to exist, while FEMA itself found a quite different set of deficiencies. See Statement of the Case III.A, and n.11. Thus, FEMA's deficiency findings were l'
not made on the basis of the evidence presented in MassPIRG's l
2.206 petition. The Director could and did reasonably reject -
35
v that evidence without in any way contradicting FEMA's conclusion' about the condition of emergency planning at. Pilgrim.
MassPIRG tries to overcome this disfunction between the ;
deficiencies alleged by the 2.206 petition (and rejected by the Director) and the deficiencies found by FEMA by arguing that the 4 Director, in ruling on the petition, should have taken into j account the fact that FEMA's review of the petition agreed with' "the general thrust" of the 2.206 petition's claims about emergency plannin'g. Id. at 27-28, citing FEMA Review of.2.206 Petition at 4, 2 RA'1634 (emphases added). This assertion, however, runs into the second deficiency with MassPIRG's' claim.
. In fact, the Director certainly did take into account FEMA's agreement with the'" general thrust" of the 2.206 petition because he granted the petition "to the extent that Petitioners are requesting that Pilgrim remain shut down until ... emergency j preparedness issues are dealt with to the Commission's satisfaction." 26 NRC at 89; see also id. at 95, 106-07 MassPIRG cannot bring itself to acknowledge that, on the basis of FEMA's negative findings, the Director in part granted the 2.206 petition, at least to the extent that the petition was calling for adding emergency planning issues to the list of issues that had to be addressed before restart. Indeed, in its brief, 4
9 4
4 9
e 4
36
\ -
l 1 -
'MassPIRG cannot-even bring.itself to mention that the plan't is
. shut down.19 Thus, even if the results of FEMA's self-initiated review were relevant to a decision on whether enforcement action j is justified, MassPIRG has, in effect, prevailed on such.a claim.
The NRC will not permit Pilgrim to restart until the emergency planning concerns' identified in the FEMA self-initiated review.
are dealt with satisfactorily.
To the extent that MassPIRG may be arguing.that the NRC should have taken more formal, or different, enforcement action than it has taken, such as suspension of a license or issuance of a formal show cause order, Pet. Brief at 25, n.14, it has. offered no basis for overturning the Commission's selection of the enforcement action which it felt appropr'inte. Contrary to the I
, impression left by the MassPIRG, the NRC is not forced to. choose between doing nothing and suspending a license or issuing a show cause order. In this instance, rather than issue a' formal order ;
to the licensee to show cause, the NRC has chosen not to permit Pilgrim to be restarted until the issues raised by FEMA are 19 Ead the Director taken no action at all in the face of FEMA's negative findings, MassPIRG might have grounds to make such a sweeping statement as that "the NRC... arbitrarily ignored the best expert information available ... "
, Pet. Brief at'29, but the proper instrument for complaint would not have been~its brief but rather another 2.206 petition to'the Commission, arguing that the issues raised by FEMA required action. The Commonwealth has, in fact, filed a 2.206 petition calling for formal enforcement action on the basis of, among other. things, FEMA's negative findings. Id. at 2. That petitio'n has not been acted on by the NRC and is not before this Court.
37 -
e 9
8 .
resolved to the satisfaction of the NRC. This~is an. entirely appropriate and legally permissible way for the NRC to exercise its enforcement authority; moreover, it. yields' precisely the same result as the petitioners' suggested formal enforcement' action.
See n.18, above.20 l
l l C. The Director's Denial Of The Containment Allegations l
Raised In MassPIRG's 2.206 Petition Was Reasonable And Adequately Dealt With All Allegations Raised By The '
Petitioner.
The Director responded fully and fairly in rejecting MassPIRG's claim that "the high probability that Pilgrim's GE-Mark I containment structure will not withstand various severe accident scenarios is a very soricus facter threntaning public
. health and safety ... . 2.206 Petition at 38, 2 RA 995; see also id. at 5, 39, 2 RA 961, 996. Adter setting out the basis of the NRC's requirements for containment design, he showed that, contrary to MassPIRG's claims, the Mark I could more than adequately cope with design basis accidents. He then i demonstrated that there was no basis to MassPIRG's claims that I
the Chernobyl accident should somehow alter the NRC's estimates of how the Mark I would perform in a severe accident. Most important, he showed that although there was considerable 1
uncertainty about how the Mark I might perform in a severe 20
, I,n addition to failing on the merits, petitioners' attempt ,
to impose a different enforcement option on-the NRC runs squarely into Heckler v. Chaney. See Argument II above.
l .
38
accident, the overall risk of a severe accident at Pilgrim was*
acceptably low, and the risk of'a life-threatening severe accident at Pilgrim was even orders of magnitude lower. 26 NRC at 104-105: He indicated that the NRC continues to-study Mark I containment issues but concluded that the 2.206 petition provided no basis for initiating a show cause proceeding on containment {
issues at this' time.. Id. at 105-06. The Director's decision was based on an application of his expert technical judgment to the facts presented on the record and was adequately explained. Such a decision is clearly entitled to this court's deference and should be affirmed.21 Baltimore Gas & Electric Co. v. NRDC,.462
.e U.S. at 103.
MassPIRG in fact seeks review'of only a single aspect.
of the Director's long'and detailed response on containment j ,
issues. MassPIRG asserts that the Director's Decision is unlawful and must be remanded to the NRC because it makes no reference to certain evidence which MassPIRG alleges suggests that "the analytical technique of probabilistic 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 [,]" Pet. Brief at 30.
21 If MassPIRG or any other person has technical objections
.t:o the Director's reasoning or new information that might affect any ongoing technical controversy regarding containment safety,
. they are of course free to submit their views and materials to the Director for his further con' sideration, perhaps even in the form of another 2.206 petition.
4 0
6 39 ,
C _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ . _ _ _ _ _- _ . _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ . _ . _ _.. - _ _ _ _ _ _ . _ _ _ _ . _ _ . _ .
~
According to MassPIRG, the NRC failed to consider all the relevant evidence and failed to provide a statement of reasons that permits "a rational understanding of the basis for the decision" Id..at 29-30, citing Lorion v. NRC,.785 F.2d 1038, i
4 1042 (1986), quoting Consolidated Edison Co.~(Indian Point Units 1, 2, and 3), CLI-75-13, 2 NRC 173, 175 (1975).
We believe that any fair reading,of-the Director's-decision will show that it was both rational and readily understood. On turning to the " evidence" in the 2.206 petition which MassPIRG says the Director ignored, one finds that it is nothing more than a plain list, two paragraphs long, of accidents and accident sequences, all but one of.them very poorly identified, which the 2.206 petition summarily claimed were '
relevant to the Mark I's performance and were not taken into account by the NFCs PRAs. 2.206 Petition at 36-37, 2 RA 993-94, nn. 14 and 15 above (examples from the list). The significance of such " evidence" was not expla'ined in the petition, nor is it in any way obvious. The Director was not obliged to respond to it. Vermont Yankee Nuclear Power Corp. v. NRDC, 43,5 U.S. at 553-54 (agency proceedings not a game in which to make cryptic and obscure references to matters that "ought to be considered"
, and then to seek to have agency determination vacated on ground that agency failed to consider such matters). However, as noted ,
in the Statement of the Case IV.B above, the Director in fact addressed the one accident sequence which the 2.206 petition
', described in any detail.
4 9
40
.Apparently, the 2.206 petitioners cited th'ese accident sequences, which MassPIRG now emphasizes, for the first time, . in its argument to-this Court,.in order to show that the: actual risk of containment failure at Pilgrim is on~the high end of the range of the NRC's estimates of such failure. If so, the irrelevance of this material is clear because the'particular figures which the NRC has put forward as measures of the probability that the Mark I might fail in a severe accident were not a matter of dispute between the 2.206 petitioners and the Director. The 2.206 petitioners quoted with approval _ figures drawn from NRC sources, see 2.206 Petition at 38, 2 RA 995, and the Director explicitly acknowledged the figures. Director's Decision, 26 NRC at 104. -
Rather than. dispute the figures, the Director proceeded i
straight to the principal containment issue raised by the 2.206 )
petition, which was "the high probability'that Pilgrim's GE Mark I containment structure will not withstand various severe I
accident scenarios ...." 2.206 Petition at 38, 2 RA 995. The !
I Director observed that, even assuming this point, the petition overlocked other important factors -- such as the extremely low probability of an accident that would challenge the containment.
The Director concluded that, when these. factors were properly considered, the risk of a health-threatening severe accident at Pilgrim proved to be acceptably low. See Director's Decision, 26 NRC at 105.
In fact, the accidents and accident sequences merely listed by the 2.206 petitioners have been fully considered by the
,41
- - _ _ - _ _ - - _ _ - - _ - - - _ _ - _ - _ - - - - - - - - - - - - - - - - - ' - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ' ~ ~ ~ ~ ~ ~
w NRC, most of them in PRA's. Thus the 2.206 petitioners were not
, bringing to light significant new information never before weighed by the agency. Indeed, all of the accidents described by.
the 2.206 petition as being particularly relevant to the Mark I's performance in a severe accident,-see 2.206 petition at 36-37, 2 RA at 993-994, n.14 above, are actually incorporated into the quantitative risk assessments of the Mark I set out in the.
publicly available draft of NUREG-1150, the reactor risk reference document the Director so often cited in his treatment of the containment issues raised by the 2.206 petition.22 MassPIRG may not like the way in which the accidents listed in the 2.206 petition are ' incorporated into the 10RC's PRAs, or it may wish that some different version of a particular sequence were incorporated, but the 2.206 petition can hardly be said to g
have squarely presented such questions.23 l l
l 22 The following portions, in particular, of draft NUREC-1150 show which accidents and accident sequences the agency has l incorporated into its quantitative risk assessments of the performance of the Mark I (as installed at Peach Bottom): 1 NUREG-1150, SS 3.5 (core damage frequency), 4 .' 5 (containment failure), 7.5 (severe accident risk); 2 NUREG-1150, Appendix E (Peach Bottom results, esp. Table E.2, " Questions Posed by Event Tree" for containment). The fullest possible identification of these accidents and accident sequences can be.obtained by ,,
consulting the third reference listed at the conclusion of Appendix E, a study Sandia National Laboratories did of
! containment performance under severe accidents. .
23 For instance, the 2.206. petition says, "a third type of scenario ... involves station blackout sequences..." 2.206 Petition at 37,-2 RA 994. (Station-blackout is the loss of all
. oc power, caused by loss of offsite power and subsequent failure of the diesel generators.) As NUREG-1150 abundantly shows, the O
(Footnote Continued) 4 4
42
r
- If MassPIRG believes that the NRC's consideration of
, these accidents cnd accident sequences has been somehow deficient, MassPIRG can file.with the agency a petition which states its evidence on PRAs fully and makes a technical case. l 1
In sum, not only did the Director's Decision explicitly I'
and fully consider every factor fairly presented and necessary,to the resolution of the 2.206 petitioners' argument on containment, the NRC has also given full consideration even to the matters no I more than implicitly raised in the 2.206 petition, whether (Footnote Continued) '
NRC,'s assessment of the risk at the Mark I plant studied in
, NUREG-1150 considered several station blackout sequences.
Indeed, the NRC concluded that the principal contributor to the '
chance of core damage at Peach Bottom was st'ation blackout. See
>4 1 NUREG-1150, F 3.5 at 3-36 to 3-38.
i However, a few of the factors listed by the 2.206 petition, '
the factors not directly relevant to the calculation of the' probability of containment failure, are not directly considered ,
in the NRC's PRAs. For example, the NRC's PRAs.do not explicitly j consider earthquakes or sabotage. The probability of sabotage, in particular, is not susceptible to quantitative treatment. See 1 NUREG-1150, S 2.1 at 2-1. However, the NRC has considered the impact of external events, such as earthquakes, on its quantitative risk assessments, see, e.g., the quantitative results in the pioneering WASH-TIDO, MUREG-75/014, " Reactor Safety Study" (the predecessor to NUREG-1150) , Main Report S 5.4, at 66-68 (earthquake-induced accidents should not contribute significantly to reactor accident risk), and the NUREG-1150 results will eventually be enlarged to explicitly include the !
impact of external events. 1 NUREG-1150, S 11.4, at 11-5 to 11-6'. Moreover, the NRC's requirements on external events, sabotage, and other matters not presently considered in PRAs, are extensive and rigorous. See, e.g., the large body of regulations governing physical protection of plants and materials,'10 C.F.R. Part 73 and Appendices. Adequately low probabilities as calculated by PRAs, taken in conjunction with demonstrated compliance with such regulations as govern matters not yet incorporated into PRAs, provide a solid ground on which to base a judgment that a given plant is safe to operate.
I 43
pu relevant to the petitioners' ultimate claims on containment or
, not. The Director's Decision on containment issues is thus neither arbitrary nor capricious, and should therefore be affirmed. -
O 4
e e
e e
e e
44 ,
v.
c a_
t' o
CONCLUSION For the reasons given above, the Director's Decision l should be affirmed. l
~
1 Respectfully submitted,
& sf
- dA' ( $4 / WOb G WILLIAM C. PARLER '
LAURA E. FROSSARD /
General Counsel Attorney /
Land and Natural jy ,j /,f'<"
' l Resources Division
-t . r .m_) , ,m . U.S. Department of WILLIAM H.sBRIG S', JR. Justice So ici or Washington, D.C. 20530 0 <dt G '
E. LEO SLAGGIE' "
Deputy Solicitor / .
h
,f i STEVEN F. CROCKETT j l[ k. fbW L l ROCHELLE M. GUNNER Attorneys U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dated: March 1, 1988 9
4 4
8 '
e 45
.y-s 0 .
r* *
?
- CERTIFICATE OF' SERVICE I, Steven F. Crockett, hereby certify that service of the foregoing March 1, 1988 "Brief for Respondents" was made by .
mailing two copies thereof, postage prepaid, by first class mail, to:
William S. Abbott, Esquire Simonds, Winslow, Willis & Abbott 50 Congress Street.
I Boston, MA 02109 R. K. Gad III, Esquire Ropes & Gray -
225 Franklin Street Boston, MA'02110 4
George B. Dean, Esquire Assistant Attorney General Department of the Attorney General One Ashburton Place - 19th Floor Boston, MA 02108-1698 l .
1
$ . }h STEVEN F. CROCKETT Attorney U.S. Nuclear Regulatory-Commission i Washington, D.C. 20555 l (202) 634-1465 l
9 0
4 e
s W
e 4
0
.