ML20246K214
| ML20246K214 | |
| Person / Time | |
|---|---|
| Issue date: | 09/27/1988 |
| From: | Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| References | |
| FRN-54FR41178, RULE-PRM-50-49 NUDOCS 8905180004 | |
| Download: ML20246K214 (9) | |
Text
--
.u..
..,5
' DOCKET NUMBER CoM N nt t th PETITIONIRULE PRM 50-(/f n
, g g p, PA y-// ?g]
for publication
[7590-01}
NUCLEAR REGULATORY COMMISSION 10 CFR Part 50 gg. OCT 20 Pl2 :19
[ Docket no. PRM-50-49]
.y.
Ohio Citizens for Responsible Energy, IncSY"'
Denial of Petition. for Rulemaking AGENCY: Nuclear Regulatory Commission.
ACTION: Denial of petition for rulemaking.
SUMMARY
- On December 1,1987, the Ohio Citizens for Responsible Energy (0CRE), Inc., filed pursuant to 10 CFR 2.802 a petition for rulemaking.
OCRE requested that the NRC amend 10 CFR 50.12(a)(2) to remove the provision which would permit the NRC to grant a licensee an exemption from a rule in 10 CFR Part 50 on the grounds that the rule imposes on the licensee " undue... costs... significantly in excess of those contemplated when the regulation was adopted, or... of those incurred by others similarly situated...." OCRE argues that the amendment it proposes is necessary to bring 10 CFR 50.12(a) into conformance with j
UCS v. NRC, 824 F.2d 108 (D.C. Cir. 1987), which held, among other things, that the NRC may not take economic costs into consideration in i
establishing or enforcing the safety standards required for " adequate protection" of the public health and safety. The issues raised by the petition have already been fully considered and resolved in the 1985 rulemaking on 9 50.12 and the 1987-88 renewed rulemaking on the backfit rule, 10 CFR 50.109. The resolutions of the issues were in accordance with principles which either appear in, or are consistent with, UCS
- v. NRC. The NRC is denying the petition for the same reasons that the l
51g04BBOW
[
so-o en
l 2
[7590-01]
]
3 NRC rejected earlier arguments against the cost provision in 9 50.12(a).
In particular, because 6 50.12(a)(1) explicitly bars any exemption which i
would threaten " adequate protection," Q 50.12(a) is in conformity with UCS v. NRC.
ADDRESSES: -Copies of the petition for rulemaking and the NRC's letter to the petitioner are available'for public inspection or copying in the NRC's Public Document Room, 2120 L Street, NW., Washington, DC, Monday through Friday, between the hours of 7:45 am and 4:15 pm.
FOR FURTHER INFORMATION CONTACT:
Steven F. Crockett, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone-(301)492-1600.
SUPPLEMENTARY INFORMATION:
The Petition Section 50.12 of 10 CFR sthtes, in pertinent part, (a) The Commission may... grant exemptions from the requirements of the regulations of this part, which are --
(1) Authorized by law, will not present an undue risk to the public health and safety, and are consistent with the common defense and security.
(2) The Commission will not consider granting an exemption unless special circumstances are present.
Special circumstances are present whenever --
(iii) Compliance would result in undue hardship or otbr L
costs that are significantly in excess of those contemplated l
when'the regulation was adopted, or that are significantly in excess of those incurred by others similarly situated;...
.q 3
[7590-01]
OCRE proposes that paragraph (a)(2)(iii) be deleted and the remaining subparagraphs of paragraph (a)(2) accordingly redesignated, and that a new paragraph (a)(3) be added to read as follows:
The Commission will not consider granting an exemption which has as a motivation or consequence cost savings or other financial benefits to licensees, and the Commission l
shall not consider any economic costs to licensees in.its evaluation of any exemption request.
OCRE argues that, without the amendments it proposes, Q 50.12(a)(2) will not be in conformity with the Federal Court of Appeals for the District of Columbia Circuit's decision, UCS v. NRC, 824 F.2d 108'(1987),
which concerned the "backfit rule", 10 CFR 50.109.
There the Court held, i
in pertinent part, that "the [ Atomic Energy] Act precludes the NRC from taking costs into account in establishing or enforcing the level of adequate protection, but allows the NRC to consider costs in devising or administering requirements that offer protection beyond that level." 824 F.2d at 114.
OCREassertsthat"[t]herecanbenodoubtthattheregulationsin 10 CFR Part 50 form the basis of the adequate protection standard."
Petition at 4.
OCRE cites two judicial rulings to support its assertion:
It claims that the Commission's Appeal Board " declared" that "the sine qua non of adequate protection to public health and safety is compliance with all applicable safety rules and regulations promulgated by the l
Commission." Petition at 4-5, quoting Maine Yankee Atomic Power Company (Maine Yankee Atomic Power Station), ALAB-161, 6 AEC 1003, 1009 (1973).
OCRE moreover says that it is "significant" that the Court in UCS v. NRC 4
"placed major reliance on Maine Yankee in buttressing its interpretation l
l p
4
[7590-01]
of the~ Atomic Energy Act."
Petition at 5, citing UCS v. NRC, 824. F.2d at 117.
On the basis of its assertion that compliance with the regulations a
is necessary for adequate protection, OCRE concludes that 10 CFR-1 50.12(a)(2)(iii) " stands in defiance" of the Court's ruling.in UCS v. NRC 1
Secause the rule " explicitly allows economic costs of compliance... to form a special circumstance justifying non-compliance with, by means of exemption from, the NRC's adequate protection standards." Petition' at 5.
Reasons for Denial The issues raised by OCRE'in this petition were thoroughly discussed Lin the rulemaking leading up to the 1985 revision of 5 50.12, and those issues were resolved in that.rulemaking in accordance with principles which either appear in, or are consistent with, UCS v. NRC.
In particular, OCRE's assumption that compliance with the regulations is necessary for adequate protection was considered and rejected by the Commission in the rulemaking in 1985 on 9 50.12, and again in the renewed rulemaking in 1987-88 on the backfit rule, 10 CFR 50.109.1 In the Federal Register notice setting forth the proposed revisions to 6 50.12, then-Commissioner Asselstine, who soon thereafter dissented from promulgation of the backfit rule (50 FR 38097, 38106-110; September 20,1985), proposed that the revisions include the cost provision OCRE INo purpose would have been served by soliciting public comment on 1
issues already resolved in recent rulemakings.
Thus the NRC has not sought public comment on OCRE's petition.
i 5'
[7590-01]
now petitions to'have deleted-(50 FR 16506,16510, col.1; April 26 j
l 1985).
The purpose of the provision was not, as 0CRE believes, to make -
1
-way' for " pleas of poverty" by utilities (see petition at 5).
The provision focused not on the utility's financial condition but rather on the possible failure of the pertinent regulation to foresee extraordinary costs.
This part of the rule, and indeed the whole rule, simply acknowledges what is acknowledged in any reasonable jurisprudence, namely, that foresight is limited and, therefore, that any rule must make room for unforeseen exceptional situations.
In response, the Union of Concerned Scientists (UCS) argued that the Commission did not' have statutory authority to consider economic factors in granting an exemption.
On this ground, UCS opposed several provisions of-the proposed revisions to 6 50.12, not just Mr. Asselstine's cost proposal.
See 50 FR 50764, 50767, cols. 2-3.
Indeed, UCS went the larger step -- fully consistent with the proposition that compliance with the regulations is necessary for adequate protection -- and argued that the Commission had no authority to issue exemptions at all.
Id. at 50766, cols. 2-3.
UCS explicitly stated the assumption OCRE now relies on, namely, that "the regulations establish the minimal requirements for safe operation of a nuclear power plant...."
Id. at 50768, col. 1.
L The Commission rejected UCS' assertions and in so doing enunciated propositions which have been either explicitly upheld by the Court in UCS
- v. NRC or are fully consistent with the Court's holdings.
First, the Commission emphasized that the rule " requires a safety finding that the exemption will not present an undue risk to the public health and safety....
It is only after these statutorily based I
l
6
[7590-01]
l findings have been made that the Comission may then consider whether the additional requirements for the grant of an exemption have been met, some i
of which include economic considerations."
Id. at 50767, col. 3 (emphasis in original).
In UCS v. NRC, the Court clearly held that the Atomic Energy Act permitted cost considerations once adequate protection was established. Noting that "no undue risk" and " adequate protection" were equivalent phrases, 824 F.2d at 109, the Court ruled that, "[i]f the Commission wishes to do so, it may order power plants already satisfying the standard of adequate protection to take additional safety precautions. When the Commission determines whether and to what extent to exercise this power, it may consider economic costs or any other facto r. "
Id. at 118 (emphasis in original).
Second, the Commission explained the relation between adequate protection and compliance with the regulations:
[W]hile it is true that compliance with all NRC regulations provides reasonable assurance of adequate protection of the public health and safety, the converse is not correct, that failure to comply with one regulation or another is an indication of the absence of adequate protection, at least in a situation where the Commission has reviewed the noncompliance and found that it does not l
pose an " undue risk" to the public health and safety.
50 FR at 50768, cols. 1-2; see also id. at 50771, col. 3.
In the recent rulemaking to conform the backfit rule to the Court's holdings in UCS v. NRC, the Commission affirmed this account of the relation between adequate protection and compliance with the regulations.
In that rulemaking OCRE argued, as it does here, that the regulations
" define" adequate protection.
From this assertion, OCRE concluded that the Commission cannot apply cost-benefit considerations to a proposed rule without applying cost-benefit considerations in setting the
7
[7590-01]
standards of adequate protection, contrary to the Court's principal holding in UCS v. NRC.- See 50 FR 20603, 20609, cols. 1-2.
In response, the Commission said that the rules do not, strictly speaking, " define" adequate protection, and they only presumptively assure it. Not only may there... be individual cases that require actions that go beyond what is necessary under the regulations to assure adequate protection, there will also be times when the NRC issues a rule which requires something beyond adequate protection.
This follows directly from the Commission's power under section 161 of the Atomic Energy Act, affirmed by the Court, to issue rules or orders to " minimize danger to life or property."
See 42 U.S.C. 2201; see also UCS v. NRC, 824 F.2d at 118.
If a proposed rule requires something more than adequate protection, applying a cost standard to the proposed rule will not be introducing cost considerations into the setting of the adequate protection standard and is therefore permitted.
Id. at 20609, col. 2.
Similarly, if a rule requires something more than adequate protection, or if adequate protection can be secured by means other than those set forth in the rule in question, then consideration of eiforeseen extraordinary costs in response to a request for an exemption which would not present an undue risk to public health and safety does not introduce cost considerations into enforcing the adequate protection standard and is therefore permitted.
I Neither of the two judicial decisions 0CRE cites are to the contrary.
In Maine Yankee, the principal issue was whether a licensing board had to look beyond compliance with the regulations to determine whether there was reasonable assurance of adequate protection. The Appeal Board did not, as 0CRE claims, " declare" that compliance with the regulations is a " sine qua non" of adequate protection. The Board was a good deal more restrained.
It said that, "on the face of it," certain statements in the Atomic Energy Act "would appear to suggest" that d
8
[7590-01]
1 compliance was the sine qua non of adequate protection.
See 6 AEC 1009.
i From this hypothetically stated proposition, the Board concluded that.-at l
least in the. case before the Board, where no showing was made that l
compliance with the regulations fell short of adequate protection, "the demonstration of compliance with the regulations entitled the Board below to find adequate protection to the health and safety of the public".
Id.'
at 1010.
The Board hypothetically assumed here that compliance with the regulations was necessary for adequate protection, but the Board could just as easily have reached the same conclusion by hypothetically assuming that compliance with the regulations would provide an even greater level of safety. than adequate protection.
Neither does UCS v. NRC support 0CRE's claims. OCRE sees
" significance" in the extent to which the Court " relied" on Maine Yankee.
However, the Court uses Maine Yankee only to show that the Commission itself had long ago held that the Atomic Energy Act prohibited the consideration of economic costs in making adequate protection determinations.
See 824 F.2d at 117.
To make its point, the Court draws on a different part of Maine Yankee than OCRE does. See Id. The Court nowhere says that compliance with the regulations is necessary for i
adequate protection, nor does the Court even quote the language OCRE quotes from Maine Yankee.
Indeed, it would have been surprising if the Court had said such a thing, for the Court affirms the Comission's power to require, by rule or in specific cases, more than adequate protection.
See, e.g., id. at 118. From this it follows that some rules may require more than adequate protection and thus that exemptions from these rules f
t
9
[7590-01]
may be granted on the specified costs grounds if the exemptions do not present undue risks to public health and safety.
Because the issues 0CRE raises in its petition were fully considered in the 1985 rulemaking on 10 CFR 50.12 and were resolved in that l
l rulemaking in accord with principles which either were affirmed by l
UCS v. NRC or are fully consistent with it, OCRE's petition to have 9 50.12 amended is denied.
Because the petition raises no new policy issue, and because the denial of the petition relies wholly on existing Commission precedent, the denial is being issued over the signature of the Executive Director for Operations.
Dated at Rockville, MD thic p day of h 1988.
For the Nuclear Regulatory Commission, 4
/
4Tict
- SteUlo,
~
Execu e 0ir ct. for Operations.
)
I 1
l 1
4
________ _ __ - _ __ a