ML20248B540
| ML20248B540 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/31/1989 |
| From: | Traficonte J MASSACHUSETTS, COMMONWEALTH OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#289-8707 OL, NUDOCS 8906090090 | |
| Download: ML20248B540 (96) | |
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UNITED STATES OF-AME2ICA .gg Jg1 -2 P4.:09 NUCLEAR REGULATORY COMMICSION
' ATOMIC SAFETY AND LICENSING' BOARD' CFf !CL
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'Before the Administrative' Judges:
Ivan W. Smith, Chairman Dr.fRichard F. Cole Kenneth A. McCollom L.
g
)
'In the Matter of ) Docket Nos. 50-443-OL
) 50-444-OL PUBLIC SERVICE COMPANY ) (Off-Site EP)
OF NEW HAMPSHIRE, ET AL. )
)
L(Seabrook Station, Units 1 and 2) ) May 31, 1989
)
f MOTION OF THE MASSACHUSETTS ATTORNEY GENERAL TO HOLD OPEN THE' RECORD'PENDING LOW POWER TESTING AND THE REQUIRED YEARLY ONSITE. EXERCISE'
'AND FOR OTHER RELATED RELIEF INTRODUCTION: GENERAL OVERVIEW OF THIS MOTION The Massachusetts Attorney General (" Mass AG") moves that this Board hold open.the record in the Seabrook full-power L proceeding pending two events both of which are material and ,
i relevant to the issuance of a full-power. license. These events are: 1)'the testing. presently contemplated pursuant to a recently issued low-power operational license; and 2) the required yearly onsite exercise presently scheduled for the 8906090090 890531 j PDR ADOCK 05000443 l 0 PDR 1su
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week of Sept $mber 25, 1989. In addition, the Mass AG requests that this-Board assert its jurisdiction over any litigation arising from these two material events, schedule a pre-hearing conference pursuant to 10 CFR 2.751a, 2.752 and 2.714 at which a schedule for the filing of contentions may be set, and permit the Mass AG.(and other Interveners who may be so inclined) the necessary access and observational opportunities to enable the timely formulation and filing of contentions.
This motion addresses the following issues:
A. Jurisdiction of this Board B. Materiality of Low-Power Testing to a Full-Power H License C. Materiality of the September 1989 Onsite Exercise to a Full-Power License D. Extent and Nature of the Hearing Rights that Attach to all Issues Material to a Full-Power License
- 1. Basis for Request that Record on Full Power be Held Open
- 2. Need for a Schedule in Light of the Commission's Catawba holding E. Access is Necessary to Provide Interveners Meaningful Right to a Hearing on these Material Issues
- 1. Access to Relevant Documents
- 2. Observational status F. Need for Expedited Disposition of this Motion and Request for Schedule for Briefing and Argument ARGUMENT A. JURISDICTION OF THIS BOARD In light of recent guidance from the Appeal Board there can be no doubt that this Board has general jurisdiction "over all
gmatters pertaining now or in the future to the application for
-a license to_ operate Units 1 and 2 [ sic]'of the Seabrook:
Station...." ALAB-916, May-24, 1989 Appeal Board Memorandum
.and Order at 6.of slip opinion (emphasis supplied).
(Attached as' Exhibit 1) . . The issues raised by this motion and the matters sought to be litigated by the Mass AG pertain directly.
to-the issuance of a full-power license and as such are within the jurisdiction of this Board.
B. MATERIALITY'OF LOW-POWER TESTING FOR.A FULL-POWER LICENSE In what follows the Mass AG sets forth in some_ detail the basis for his claim that low-power testing is an event (or series of events) that is material and relevant to the determination by the Commission to issue a full-power license.
- 1. The: testing,. authorized in this case pursuant to a low-power license, is required by the_ Commission's' regulations.
An application for an operating license must set forth "[p]1ans
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for preoperational testing and initial operations." 10 CFR 50.34(b)(6)(iii). These plans are set forth in the PSAR and are reviewed by the NRC Staff pursuant to the Standard ReviOW Plan and several Regulatory Guides. See Seabrook SER, NUREG-0896, i
March 1983, Chapter 14 (Attached as Exhibit 2). This test i program must be inclusive enough to " demonstrate that structures, systems, and components will perform satisfactorily in service" (SER at 14-4), and the results must be such that the " successful completion of the program will demonstrate the functional adequacy of plant structures, systems and
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components." Id. (Emphasis supplied.) See also 10 C.F.9.
50.56, 50.57 and Part 50, App. E, XI and Part 50, App. A, GDC 1, 14, 18, 21, 30, 31, 32, 37, 40, 43, 46, 53 and 54. (All of which require testing of specific systems and components.) It is on the basis of this testing program, inter alia, that the Commission will make the requisite finding that the Seabrook
" facility will operate in conformity with the application as amended, the provisions of the Act, and the rules and regulations of the Commission." 10 C.F.R. 50.57(a)(2). See also 50.57(a)(1) and (3).
- 2. Successful completion of an adequate low-power test is
! a precondition for the issuance of a full-power license in those circumstances in which that testing is authorized under a separate testing license, i
- a. As the Appeal Board has noted:
i Low-power testing is a normal, necessary and expected step in the life of every nuclear plant. This is true whether such testing is planned under the authorization of a separate fuel loading and low-power testing license . . .
or scheduled as the first step toward operation under the authority of a full-power license.
Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 794-95 (1983). Because the Commission has determined that in this case low-power
! testing should precede the issuance of a full-power license, 1
the successful completion of that testing itself becomes an l issue material and relevant to that full power license. If this were not the case, then the Commission's statements i
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i l
l-h regarding the relationship between a further delay in low-power:
i testing-and'a concomitant-delay in full-power' licensing would
.be senseless-'and. unsupported. See, e.g., CLI-89-08, May 18,'
1989, slip opinion:at 27.
b.- . Successful completion.of an adequate low-power
. testing program is also'a' precondition to full-power licensing because of the purposes which. low-power testing serves.
Specifically, low-power testing should " allow the early discovery and correction of unforeseen but possible problems which may prevent or delay full-power operation. . . .
Long Island Lighting Company, (Shoreham Nuclear Power Station),
CLI-85-12, 21 NRC 1587, 1590 (1985)(emphasis supplied)
(Attached as Exhibit 3). Thus, low-power testing may well reveal " undiscovered design and construction defects." 47 Ped.
Reg. 30232, 30233 (July 13, 1982).
- 3. The Commission itself views preoperational and low-power testing as material to its full-power licensing decision. See portions of NRC's Brief For Respondents,-dated July 1983 filed with the D.C. Circuit in UCS v. NRC, No.
'82-2053, 735 F.2d 1437 (1984) attached as Exhibit 4. However, the NRC has asserted (and no doubt will again assert) that such "preoperational tests, low-power tests and power ascension tests are not the subject of Licensing Board hearings."
Respondent's Brief at 15 n.7. However, this position is no longer tenable in light of the D.C. Circuit's decision in UCS
- v. NRC. The Court held that:
n l
t L once a hearing on a licensing proceeding is begun, it must encompass all material factors bearing on the licensing decision raised by the requestor.
735 F.2d at 1443. (This case is attached as Exhibit 5.) Because the successful completion of an adequate low-power test program is material and relevant to the issuance of a full-power license, the Mass AG has a right to litigate that testing.1!
1/ As is clear from a review of UCS v. NRC and the relevant portions of the NRC's brief attached as Exhibit 4, the Commission defended its challenged 1982 rulemaking setting emergency exercises outside of the adjudicatory hearing process while maintaining such exercises as material to a licensing decision by comparing them to preoperational testing which the Commission asserted is similarly material but not litigable. In developing this comparison, the Commission expressly highlighted the extent to which both emergency exercises and preoperational testing involve issues of judgment concerning complex matters.
In fact, the Commission noted that:
The full scale exercise is analogous to the evaluation of plant systems at operating power levels during power ascension testing. Where problems are discovered, they are addressed before full commercial operation is achieved. On the other hand, the applicant's emergency plan is akin to the design of the facility. . . .
Pre-operational testing is no less crucial to plant safety than the full-scale exercise is crucial to measuring emergency preparedness. . . .
48 Fed. Reg. 16691, 16692, 16694 (April 19, 1983).
The Commission no doubt believed that since preoperational testing assertedly is not litigable and emergency exercises are analogous to that testing, the Court would find that such exercises need not be litigated. The Court, of course, ruled directly contra and held that the exercises are material to licensing and, therefore, litigable. Although unchallenged from that day to this, the NRC's assumption that it can by fiat exclude from litigation the low-power testing program which it acknowledges is material to a full-power license directly contradicts the decision of the Court in UCS v. NRC. For the same reasons the NRC argued to the D.C.
Circuit that preoperational testing is analogous to emergency exercises and should be treated similarly, the Commission cannot exclude such testing from the adjudicatory process without contravening UCS v. NRC.
L C. MATERIALITY OF THE SEPTEMBER 1999 ONSITE EXERCISE A partial participation onsite emergency exercise is l presently scheduled for the week of September 25, 1989. (See May 5, 1989 letter of William Lazarus to PSNH attached as Exhibit 6.) This emergency exercise is a requirement for the issuance of'any full-power license to Seabrook after June 27, 1989 (i.e., one year after the last onsite exercise). This requirement is unambiguously set forth at Part 50, App. E, IV, F.1:
If the full participation exercise is conducted more than one year prior to issuance of an operating license for full power, an exercise which tests the licensee's onsite emergency plans shall be conducted within one year before issuance of an operating license for full power.
As an emergency exercise material and relevant to the issuance of a full-power license, the Mass AG has a right under the Atomic Energy Act to litigate the results of this exercise.
UCS v. NRC.
The Commission as recently as May 1987 tacitly acknowledged the Mass AG's right to litigate an onsite exercise prior to the issuance of a full-power license. In promulgating its Final Rule setting two years as the timing requirement for a full participation exercise prior to full-power licensing, the Commission noted that a " pre-operational onsite exercise will continue to be required one year prior to full-power operation." 52 Fed. Reg. 16823, 16825 (May 6, 1987) (Attached as Exhibit 7). The Commission noted further that:
it is clear that the results of exercises are litigable in the operating license proceeding, irrespective of when those exercices are held, so long as the holding of an exercise is a pre-license requirement.
Id. at 16827.
Finally, in response to a public comment concerning the retention in the new rule of the one-year requirement, the Commission stated as follows:
Summary of Comment
. . . Edison disagreed with the last two sentences of the proposed rule which require the Applicant to conduct an exercise'of its-onsite plan if the offsite exercise is more than one year prior to issuance of the operating license.
Edison argued that the additional test would be of marginal value and might tend to introduce additional-issues into the operating license hearing. On this basis Edison recommended deletion of the last two sentences of the proposed rule.
Commission Response The Commission disagrees that a pre-operational onsite exercise within one year before issuance of a full-power operating license is of. marginal value . . .. And since, unlike the situation with offsite exercises, no one has identified any existing response or timing difficulty with the onsite requirement, we find no reason to revise the requirement at this time.
Id. at 16824-25.
D. EXTENT AND NATURE OF THE HEARING RIGHTS THAT ATTACH TO ALL ;
MATERIAL ISSUES
- 1. Request That The Record Be Held Open Pending Completion of Low-Power Testing and the September Onsite Exercise.
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4 I' A n
L. n -It is clear.that once it is determined that low-power.
. testing and the September onsite exercise are material and relevant to the issuance of a full-power license, th'e Mass AG
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has a right to litigate'these. events. UCs v. NRC at 1443.
- Moreover, this public hearing right istimpermissibly burdened i
if the Mass AG must seek to reopen closed proceedings in order !
l to secure these hearing rights. Id. at 1444. Put another way: to the extent.that low-power test'ing.and the next annual onsite exercise are themselves material to'a. future full-power license, the full-power record should not be closed before the !
Mass ~AG has had an. opportunity, pursuant to the Commission's j procedural regulations, to litigate these events. Just as the Interveners did not have to reopen the record._to litigate the: !
June 1988 exercise, so they should not have to do so to !
' litigate low-power testine or the 1989 onsite-exercise, the j successful completion of which.is a condition of full-power j licensing. To this end, the Mass AG requests that this-Board 1
hold.the record open pending the admission of any-acceptable i I
contentions filed in response to these two events, j
- 2. Pre-hearing conference, late-filed contention standard and Catawba i The Mass AG also requests that a pre-hearing conference be !
set at which a schedule can be determined for the filing of j contentions arising out of low-power testing and the September j Q
-1989 onsite exercise. Further, the Mass AG seeks clarification i
as to whether any contention arising therefrom is subject to j 1
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the late-filed contertion standard. Cf. Duke Power Company (Catawba Nuclear Station, Units 1 and 2) 17 NRC 1041 (1983).
(Attached as Exhibit 0.) Obviously, if the Board holds a pre-hearing conference and sets a schedule for the filing of contentions, as it did for the June 1988 exercise, such contentions should not Le subject to the late-filed contention standard. In any event, the Mass AG requests that a deadline for the submission of contentions be established so that in the event the late-filed contention standard is applicable, the Mass AG can have notice as to when, after these future events, contentions, although " late-filed," are still filed with " good cause . . . for failure to file on time." 10 C.F.R. 2.714(a)(1).2/
E. ACCESS IS NECESSARY TO PROVIDE MEANINGFUL RIGHT TO A HEARING With regard to both low-power testing and the September onsite exercise, the Mass AG requests that this Board provide reasonable access and observational status to the Mass AG and his experts so that he inight meaningf ully observe both events.
Such access should include, but not ba limited to, all documents generated prior to, during and after low-power testing and the September onsite exercise which are relevant to an assessment of the performance of both the plant and all plant systems tested and the emergency onsite staff.
2/ Obviously, intelligible contentions cannot be filed before the events occur. If every contention filed after the event is nonetheless late-filed under Catawba, then the Mass AG seeks a schedule so that he can establish " good cause" for the failure to file on time.
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F.
REQUEST FOR EXPEDITED DISPOSITION OF THIS MOTION The Mass AG seeks expedited disposition of this motion because the ongoing low-power testing program is possibly of short duration and, in the event the Board grants this motion in whole or in part, the request for access and observational status vis-a-vis this testing program requires immed4. ate relief.
Respectfully submitted, COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON ATTORNEY GENERAL
) (b nn Traficonte ief, Nuclear Safety Unit epartment of the Attorney General One Asnburton Place Boston, MA 02108-1698 (617) 727-2200 DATED: May 31, 1989
l l
UNITED STATES OF-AMERICA f$fi NUCLEAR REGULATORY COMMISSION l
l ATOMIC SAFETY AND LICENSING BOARD '89 JJN -2 P4 :10 Before the Administrative Judges: g, ,
00Ln! !n .
Ivan W. Smith, Chairman F- > N t, Dr. Richard'F. Cole Kenneth A. McCollom
)
In the Matter of ) Docket Nos. 50-443-OL
) 50-444-OL PUBLIC SERVICE COMPANY ) (Off-Site EP)
OF NEW HAMPSHIRE, _E T_ _A _L . )
)
(Seabrook Station, Units 1 and 2) ) May 31, 1989
)
CERTIFICATE OF SERVICE I, John Traficonte, hereby certify that on May 31, 1989, I made service of the within MOTION OF THE MASSACHUSETTS ATTORNEY GENERAL TO HOLD OPEN THE RECORD PENDING LOW POWER TESTING AND THE REQUIRED YEARLY ONSITE EXERCISE AND FOR OTHER RELATED RELIEF by first class mail and in hand as indicated by (*) to:
- Ivan W. Smith, Chairman *Kenneth A. McCollom Atomic Safety & Licensing Board 1107 W. Knapp St.
U.S. Nuclear Regulatory Stillwater, OK 74075 Commission East West Towers Building Docketing and Service 4350 East West Highway U.S. Nuclear Regulatory Bethesda, MD 20814 Commission Washington, DC 20555
- Dr. Richard F. Cole Atomic Safety & Licensing board U.S. Nuclear Regulatory Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814
i
'. i r l
-
- Robert?R. Pierce,,Esq. .
- Thomas G. Dignan, Jr., Esq.
h . Atomic. Safety & Licensing Board. Katherine Selleck, Esq'.
L '
U.S.fNuclear Regulatory Commission. Ropes.&' Gray
? ' East' West Towers Building. OnefInternational Place-
.4350iEast' West-Highway 4 Boston, MA 02110 Bethesda, MD: 20814'
- H.~JosephHFlynn, Esq.
- Sherwin'E. Turk, Esq.
. Assistant General Counsel U.S. Nuclear Regulatory.
Office of General Counsel Commission Federal j Emergency - Management. Office of the GeneralEcounsel' r
. Agency :15th Floor
.500:.C' Street, S.W. 11555.Rockville Pike
. Washington, DC '20472 ^ Rockville,sMD 20852:
Atomic Safety & Licensing Robert A.'Backus, Esq.
AppealJBoard. . Backus, Meyer.& Solomon U.S. Nuclear Regulatory- -116 Lowell Street Commission. P.O. Box 516 Washington,LDCm 20555 Manchester, NH 03106 Atomic' Safety'&ELicensing, Board Jane Doughty U~.S. Nuclear Regulatory: Commission Seacoast Anti-Pollution League
' Washington, DC: 20555 5 Market Street Portsmouth, NH 03801 Charles P. Graham, Esq.. Barbara St. Andre, Esq.
' Murphy ^& Graham Kopelman & Paige, P.C.
33 Low Street. .
77 Franklin Street
'Newburyport,'MA 01950 Boston, MA 02110
= Judith H.-Mizner, Esq. R. Scott Hill-Whilton, Esq.
79 State' Street' Lagoulis, Hill-Whilton 22nd Floor- & Rotondi Newburyport, MA 01950 79 State Street Newburyport, MA 01950
.DianneLCurran, Esq. Ashod N. Amirian, Esq.
LHarmon,; Curran, & Towsley 145 South Main Street Suite ~430 P.O. Box 38 2001 S Screet, N.W. Bradford, MA 01835 Washing'.:on, ' DC 20008 Senatou Gordon J. Humphrey Senator.Gordon J. Humphrey U.S. Senate One Eagle Square, Suite 507 Washington, -IK: 20510- Concord, NH 03301
-(Attn: Tom Burack) (Attn: Herb Boynton) 2-
John P. Arnold, Attorney General Phillip Ahrens, Esq.
Office of the Attorney General Assistant Attorney General 25 Capitol Street Department of the Attorney Concord, NH 03301 General Augusta, ME 04333 William S. Lord Board of Selectmen Richard Donovan Town Hall - Friend Street FEMA Region 10 Amesbury, MA 01913 130 228th Street, S.W.
Federal Regional Center Bothell, WA 98021-9796 COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON ATTORNEY GENERAL nn Traficonte
[/
lef, Nuclear Safety Unit epartment of the Attorney General One Ashburton Place Boston, MA 02108-1698 (617) 727-2200 DATED: May 31, 1989
____________L
EXHIBIT 1
5
~ CM'ETC UNITED STATES OF AMERICA W#
NUCLEAR REGULATORY COMMISSION ,
ATOMIC SAFETY AND LICENSING APPEAL BOAR Administrative Judges: 7f r
- u .
Alan S. Rosenthal, Chairman May 24, 1989 Thomas S. Moore (ALAR-916)
Howard A. Wilber
> 5fRVED MAY 251989 In the Matter of )
)
PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL NEW HAMPSHIPJ!:, et al. ) 50-444-OL
)
. (Seabrook Station, Units 1 ) (Offsite Emergency and 2) ) Planning Issues)
)
John Traficonte, Boston, Massachusetts, for the intervenor Attorney General of Massachusetts.
Thomas G. Dignan, Jr., George H. Lewald, Kathryn A.
Selleck, Jeffrey P. Trout, Jay Bradford Smith, Geoffrey C. Cook, and William Parker, Boston, Massachusetts, for the applicants Public Service Company of New Hampshire, et al.
Sherwin E. Turk for the Nuclear Regulatory Commission.
MEMORANDUM AND ORDER Before us is the May 23, 1989, motion of the intervenor 1
Attorney General of Massachusetts seeking directed certification (i.e., interlocutory review under 10 CFR l 2.718 (i)1) of a May 22, 1989, oral ruling of the Licensing Board in this operating license proceeding involving the Seabrook nuclear power facility. That ruling " expunged" for 1 .
I See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478, 482-83 (1975).
+
J c_ I
2 lack of jurisdiction over the subject matter a portion of a previously-admitted contention (MAG EX-19) proffered by the
)
Attorney General. Because of the apparent necessity for a prompt decision on the motion, we directed'that the responses of the applicants and the NRC staff be in our hands by 9:00 a.m. this morning.2 Upon consideration of the motion and the responses, we conclude that interlocutory review is warranted and that the challenged ruling is erroneous. Accordingly, we grant directed certification and reverse the ruling.
A. Insofar as here relevant, contention MAG EX-19 asserts (in Basis D) that the June 1988 exercise of emergency response plans for the Seabrook facility disclosed that the computer model utilized to develop protective l action recommendations (PARS) contained fundamental flaws.
This contention was submitted by the Attorney General on September 21, 1988, in accordance with a schedule 2
See May 23, 1989, order (unpublished). The need for expedition rested on the fact that the applicants' request for the ruling in question was promoted by a pending motion
' filed by the Attorney General with the Commission on May 22, 1989. See Tr. 22,178-79. On behalf of other interveners as well as himself, the Attorney General has asked the l
Commission in that motion to reconsider its denial in CLI-89-08, 29 NRC (May 18, 1989), of intervenor motions seeking a stay of the issuance to the applicants of a l license authorizing low-power testing of Seabrook. In calling for reconsideration of CLI-89-08, the Attorney General explicitly relied upon the pendency of the now expunged portion of his contention MAG EX-19.
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promulgated by the Licensing Board' assigned to. consider "offsite emergency planning issues." In an unpublished-December-15, 1988, memorandum and order, the Board' admitted, inter alia, that portion of the contention.
'In expunging Basis D for the contention in its oral ruling now under attack, the Licensing Board (through its Chairman)-explained that it was without. jurisdiction to consider that Basis. This conclusion stemmed from the-insistence of the Attorney General that a precondition to low-powerLoperation is an acceptable computer model for PARS generation. According to the Board, it lacks the jurisdiction to entertain so-called " low-power" issues.3
.Apparently, the Board believes that such issues come within.
the exclusive province of the separate Licensing Board that had been established some time ago to consider safety and onsite emergency planning issues.4 B. The directed certification motion at hand would have us review the conclusion of the Board below respecting the outer bounds of its jurisdiction. The first question we must address is whether the standard for interlocutory review of Licensing Board action is here satisfied. Given the proscription against interlocutory appeals found in the 3
Tr. 22,220-21. .-
See Tr. 22,190.
4 Commission's Rules of Practice, we exercise most sparing our discretionary authority to embark'upon such review.
Specifically, we observed more than a decade ago that (a]1most without exception in recent times, we have undertaken discretionary interlocutory review only where the ruling below either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic structure-of the manner.groceeding in a pervasive or unusual We need not decide whether, as the Attorney General maintains, his motion satisfies the first prong of this test. For, be that as it may, we are persuaded that the challenged ruling "affects the basic structure of the proceeding" in a " pervasive" manner. Surely, a Licensing Board determination as to what type of issues are before it to consider and decide (as opposed to being before some other Licensing Board assigned to the same proceeding) goes to the " basic structure" of the proceeding. And that this Licensing Board's view of its jurisdictional boundaries has been pervasive in effect is reflected by the recollection of its Chairman that the Board was "always aware that [it was]
5 See 10 CFR 5.730 (f) .
6 !
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977) (footnote omitted).
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the offsite board.[and had] repeatedly turned down contentions which would go onsite."
l C. We now turn to the merits of the ruling below. It is settled, of course, that a licensing board must confine'-
l itself to those matters with respect.to which it has been -
given authority to act. In circumstances where, as here, there is more than one board assigned to consider aspects of a particular licensing. proceeding, this means that each must
'be careful not to invade the territory that has been carved out for another. This consideration led us last year to reverse an action taken by one licensing board.in the shoreham' operating license proceeding to the extent that that action materially affected the disposition of issues pending before a second board in that proceeding.8 For these reasons, the Licensing Board in the -
proceeding at bar correctly focused on the question of the scope of its jurisdiction vis a_ vis that of the so-called.
"onsite" Board. "Unfortunately, however, it came up with the
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wrong answer. This is apparent from a, notice issued last
^
- 7 Tr. 22',182. See also Tr. 22,191 ("We have never consciously
- taken jurisdiction over matters that we felt arguably would have been [for] the Onsite Board").
See Long Island Lighting Co. (Shoreham Nuclear Power' l Station,. Unit 1) , ALAB-902, 28 NRC 423, commission review declined, CLI-88-11, 28 NRC 603 (1988).
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January 10 by the Chief Administrative Judge of the Licensing Board Panel.
The primary purpose of that notice was to advise the 4 a
parties o'f certain changes in the composition of the Licensing Board assigned to offsite emergency planning matters (i.e. , the Board that issued the ruling at hand) .
But the notice went on to address specifically the matter of that Board's jurisdiction:
At present, a separate Licensing Board of limited jurisdiction (sometimes referred to for convenience as the "onsite" Board), exists to hear and resolve issues related to " safety and onsite emergency planning issues." Notice of Reconstitution of Board (September 9, 1985). See Unpublished Order (Instructions Re Submissions),
dated October 7, 1985. In view of the existence of two Licensing Boards in this proceeding, the l
jurisdiction of each Board should be stated clearly.
The instant Board (sometimes referre'd to for convenience as the "offsite Board"), as reconstituted herein, stands in the shoes of the original Licensing Board constituted November 30, 1981 in response to the October 19, 1981 notice of hearing. See 46 Fed. Reg. 51,330 (1981). Thus, the Licensing Board reconstituted herewith has general jurisdiction over all matters pertaining now or in the future to the application for a license to operate Units 1 and 2 of the Seabrook Station not otherwise expressly assigned to the onsite Board.'
l There is no room for serious doubt that, at least in j the absence of contrary directions from the Commission, the l
' Notice of Reconstitution of Board, 54 Fed. Reg. 2009 (1989) (emphasis supplied).
l l
7 Chief Administrative Judge of the Licensing Board Panel is empowered both'(1) to establish two or more licensing boards to hear and decide d'screte i portions of a licensing ,
proceeding; and (2) to determine which portions will be considered by one board as distinguished from another.10 Thus,-the allocation of jurisdiction set-forth in the January notice was well within the Chief Judge's authority and, as-such, is entitled to full respect.
This being so,.the pivotal consideration is whether the
_ substance.of. contention MAG EX-19 has been " expressly assigned" to the "onsite" Board. Our review of the annals of the proceeding indicates that that Board has a single issue remaining for its_ determination: the adequacy, from the standpoint of-full-power operation, of the applicants' arrangements for public notification in Massachusetts of a radiological emergency.11 While acknowledging that the 10'See, generally, 10 CFR 2.704, 2.721. Needless to say, that power must be exercised within the confines of the totality of issues that are properly before one Board or
% another as a result.of the notice of hearing or some Commissica directive.- See Northern Indiana Public Service Co. (Bailly_ Generating Station,. Nuclear 1), ALAB-619, 12 NRC TI8, 565 (1980); commonwealth Edison Co. (Carroll County Site), ALAB-601, 12 NRC 18, 24 (1980); P,ortland General Electric Co. . (Trojan Nuclear Plant) , ALAB-534, 9 NRC 287, 289 n.6 (1979); Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170-71 (1976).
SeeCLI-88-08,28NRCk19 (1988); S3 Fed. Reg.
(Footnote Continued) l l
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8 L "onsite" Board's current jurisdiction is so limited, the staff tells us, in effect, that both Licensing Boards had lost jurisdiction over the issue raised by contention MAG EX-19 at the time the contention was filed. The staff does not elaborate on this thesis and we do not find any foundation for it. In September, there clearly was room to advance a low-power issue before some Licensing Board and the authority.of such Board to act on MAG EX-19 was not subsequently withdrawn. Moreover, also contrary to the staff's seeming belief, once MAG EX-19 had been admitted to this operating license proceeding by the Board with general
, jurisdiction, it.was not necessary for the Attorney General to file the identical contention a second time before another Licensing Board merely because the subject of the contention had both full and low power ramifications by reason of the Commission's regulations.12 Any other conclusion would occasion the dual litigation of the same issue with possibly inconsistent results.
f (Footnote Continued) i 40,804 (1988); 54 Fed. Reg. 6463 (1989) (the publication of a' notice of reconstitution of the "onsite" Board that specifically refers in its caption to the " notification system" and carries the implication that this is the only issue now before that Board).
1 See 53 Fed. R'eg. 36,955 (1988) (codified in 10 CFR 50.47 (d) ) .
L.
9
' "' For their part, the applicants maintain that the "offaite" Board lacked " plenary" jurisdiction over MAG EX-19 f when it admitted the contention. Our tracing of the jurisdiction of the Licensing Boards demonstrates that that belief is simply wrong. On the date the contention was admitted, the "offsite" Board stood in the' shoe's of the .)
original Board.13 l
l For the foregoing reasons, directed certification is granted; the Licensing Board's May 22, 1989, oral ruling expunging a portion of contention MAG EX-19 is reversed; and the cause is remanded to the Licensing Board with instructions'to reinstate that portion of the contention.
'It is so ORDERED.
. FOR THE APPEAL BOARD p
^ _
^^h
_ ;T ^ ^ had Barbara A. Tompkins' Secretary to the Appeal Board 13 See 54 Fed. Reg. 2009 (1989); 53 Fed. Reg. 40,804 (1988); 52 Fed. Reg. 35,820 (1987); 52 Fed. Reg. 2966 (1987); 50 Fed. Reg. 37,608 (1985); 47 Fed. Rag. 38,656 (1982); 46 Fed. Reg. 59,667 (1981).
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l EXHIBIT 2 l
l l
i l
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\ '
14 INITIAL TEST PROGRAM An-initial test program will be conducted at the Seabrook Station'to demon-strate that plant. systems, structures, and components will perform in a manner that will not endanger the health and safety of the public. The principal objectives that of this program are to ensure, to the maximum extent practicable,-
(1) the plant has been properly designed and constructed and is capable of operating safely at performance levels specified in the FSAR (2) the plant operating and emergency procedures have been verified by trial use to be adequate (3) the plant operating and technical personnel are knowledgeable about the
. plant equipment and procedures and are prepared to operate the facility in a safe manner The initial test program will include a preoperational test phase and-initial startup test phase. Preoperational testing will consist of individual system and integrated system tests performed before (and in some cases after) initial.
core load on essentially completed systems and structures. These tests will demonstrate, to the maximum extent practicable, the capability of systems, structures, and components to meet performance requirements.
Initial startup testing will consist of those single- and multi-system activi-ties scheduled to be performed during and following fuel loading. This will include precritical tests, initial criticality, low power tests, and power ascension' tests. This testing will demonstrate that the plant will operate in accordance with design and the ability of the plant to respond properly to anticipated transients.
4'
" -Tha staff. review of FSAR Chapter 14 concentrated on the administration of the test program and the completeness of the preoperational and startup tests. The review included the SER-CP, licensee event report (LER) summaries for operating reactors of similar design, Standard Technical Specifications for Westinghouse PWRs, post-TMI-related testing requirements (in conformance with NUREG-0660 NUREG-0694, and MUREG-0737), and startup test reports for other PWRs.
The criteria of SRP 14 were used to determine the acceptability of the applicant's test program. The review covered several aspects of the initial
. test program,-including the following major considerations:
(1) Test procedures have been developed using input from the NSSS vendor, the' '
architect-engineer, the appicant's engineering staff, and other equipment
. suppliers and contractors as needed. Operating experiences at similar plants were factored into the development of the test procedures.
1 i
Seabrook SER 14-1 _ _ _ _ _ _ _ _ d
L
'(2) Tests are-being conducted using approved test procedures. Administrative controls cover-the completion of test prerequisites, the completion of necessary data sheets and other documentation, and the review and approval of modifications to test procedures. The applicant stated that administra-tive procedures also cover implementation of modifications or repair requirements identified as being required by the tests and any necessary retesting.
(3) The results of each test are reviewed for technical adequacy and complete-ness by personnel including the.NSSS vendor and architect-engineer as appropriate. Preoperational test results are reviewed before fuel loading, and the startup test results from each activity or power level will be reviewed prior to proceeding to the next activity or power level.
(4) Normal plant. operating and emergency procedures are used in' performing the initial-test program, thereby verifying the correctness of the procedures to the extent practicable.
(5) -The applicant's. schedule for conducting the initial test program allows adequate time to conduct all preoperational and startup tests. Preopera-tional test procedures will be available for review by the NRC Regional Administrator at least 60 days before scheduled implementation. Startup test procedures will be available for review not less than 60 days before the scheduled fuel loading date.
(6) The abstract of each test procedure presented in FSAR Chapter 14 was reviewed. The staff verified that there were test abstracts for those structures, systems, components, and design features that:
will. be used for' shutdown and cooldown of the reactor under normal plant conditions and for maintaining the reactor in a safe condition for an extended shutdown period will be used for shutdown and cooldown of the reactor under transient (infrequent or moderately frequent events) conditions and postulated accident conditions and for maintaining the reactor in a safe condi-tion for an extended shutdown period following such conditions
- will be used for establishing conformance with safety limits or limiting conditions for operation that will be included in the fecility Technical Specifications
- are classified as engineered safety features or will be relied on to support or ensure the operations of engineered safety features within design limits are assumed to function or for which credit is taken in the accident analysis of the facility, as described in the FSAR
- will be used to process, store, control, or limit the release of radioactive materials.
Seabrook SER 14-2 i
(7) The test objectives, prerequisites, test methods, and acceptance criteria for each test abstract were reviewed in sufficient detail to establish that the functional adequacy of the structures, systems, components, and design features will be demonstrated.
(8) The test program's conformance with applicable RGs was reviewed. In addi-tion to RG 1.68, Revision 2, the review included RG 1.18, Revision 1, )
4 December 1976; RG 1.20, Revision 2, May 1976; RG 1.30 (Safety Guide 30), j Revision 0, August 1972; RG 1.37, Revision 0, March 1973; RG 1.41, i Revision 0, March 1973 RG 1.52, Revision 2, March 1978; RG 1.68.2, Revision 1, July 1978; r<G 1.79, Revision 1, September 1975; RG 1.80, Revision 0, June 1974; RG 1.95, Revision 1, January 1977; RG 1.108, Revision 1, August 1977; RG 1.116, Revision 0-R, May 1977; RG 1.128, Revision 1, October 1978; RG 1.139, Draft 1, Revision 0, May 1978; and RG 1.140, Revision 1, October 1979.
h The applicant made a number of changes to the initial test program because of staff comments c Examples of,these changes include the following:
(1) Testing was added to ensure that electrical and transformer capacities were adequate to handle all ESF loads. !'
(2) Acceptance criteria for the major preoperational and startup tests were '
expanded to ensure that quantifiable and referenceable data were available to establish that the actual test objectives have been attained.
(3) Testing was added to demonstrate that chemical and radiochemical control and analysis systems function as described i~n the FSAR.
(4) Testing was added to demonstrate that emergency feedwater pumps would start repeatedly upon demand.
(5) Test descriptions were modified to more fully demonstrate the ability of the emergency diesel generators and their support equipment to provide reliable emergency power.
(6) Testing was added to demonstrate that, for hot containment penetrations where coolers are not used, concrete temperatures do not exceed design limi.ts.
(7) Testing was added to verify that the process computer imputs and process instrumentation agree and that the related calculatio'.3 are performed correctly.
(8) Dynamic and static load testing was added to verify that all fuel handling and transfer equipment is capable of performing its intended function safely.
Based on its review, the staff concludes that the initial plant test program will be acceptable and meet the requirements of 10 CFR 30.53 with regard to '
initial testing of radiation detection and monitoring instruments; 10 CFR 50.34(b)(6)(i
- with regard to the inclusion.of plans for neconarational I testing and initial operations in the FSARJ~10 CFR 50, Appendix B,Section XI Seabrook SER 14-3
with regard to a test program to ensure that all testing required to demonstrate >
that structures, systems, and components will perform satisfactorily in service I is identified and. performed in accordance with written test procedures that !
incorporate the requirements and acceptance limits centained in applicable l design documents; and 10 CFR Part 50, Appendix J, Section III.A.4 with regard to a preoperational measurement of the overall integrated leak-tightness of the l primary reactor containment building under specified pressure conditions.
The staff further concludes that theLinitial test program described in the Seabrook application will meet the acceptance criteria of SRP 14.2 and that the.
successful completion of the program will demonstrate the functional adequacy of plant structures, systems, and components.
This review and evaluation was performed with the assistance of Battelle Pacific Northwest Laboratories personnel.
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Seabrook SER 14-4
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EXHIBIT 3 i
l
Cite as 21 NRC 1587 (1985) CLI 8512
)
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMIS810NERS:
Nunzio J. Palladino, Chairman Thomas M. Roberts James K. Asseletine Frederick M. Bemthal Lando W. Zech, Jr.
In the Matter of Docket No. 50-322 OL 4 LONG 18 LAND LIGNTING COMPANY
- (Shoreham Nuclear Power Station) June 20,1988 4
I The Commission reaffirms the holding of CLI 84-9,19 NRC 1323 i (1984), that where an environmental impact statement has been pre-pared for full power operation, the National Environmental Policy Act (NEPA) does not require the Commission to prepare a supplemental en-
! vironmental impact statement ("SEIS") which weighs the costs and j benefits oflow power operation on the assumption that there will never
! be full-power operation.
t 5
NEPA: ENVIRONMENTAL IMPACT STATEMENT (NEED FOR LOW-POWER TESTING)
!- Even if full-power operation is uncertain, the benefit to be gained i.y from low power operation (i.e., early identification of problems to 2 '
assure that full power operation will not be delayed, if and when it is au-thorized) is enough to permit a finding that the benefits of low power y operation outweigh its costs.
s 1587
D FEDERAL PREEMPTION While parties are entitled to challenge the sufficiency of radiological emergency preparedness for a nuclear power plant, the Commission's ul. q j
c timate finding on the adequacy of preparedness is controlling,
':), )
1 l-ORDER
.u I'.. ,
On March 6,1985, the State of New York and Suffolk County filed a
[d
- p '*
- " Renewal of Request for NRC Supplementation of the Shoreham Fels l' ;it as Required by NEPA." For the reasons set forth below, we deny the re-l'I d quest.' in support of their request, Interveners assert that because of the I'y Ag uncertainty of full-power operation due to the State and County's refusal to participate in emergency planning, the Commission is required under l
.44 8 h the National Environmental Policy Act to supplement the 1977 Shore- j
,,g,' '
ham Final Environmental impact Statement (EIS). In that EIS, the Commission weighed the costs and benefits of full power operation. In-(9
,p sg g
.e g .
tervenors in essence argue in their Request that because of a decision by a New York Supreme Court adverse to LILCO on emergency planning l
! i./, ' issues, it is reasonably foreseeable that Shoreham will never operate at I full power.2 Thus, Interveners contend, because low power testing will further irradiate the core and contaminate the remainder of the primary
,' 7
/
coolant system without the compensating benefits of full power opera-tion, i.e., generat, ion of electricity, the EIS should be supplemented to assess the costs and benefits oflow power testing assuming no full power
- j. operation. It is unclear whether Suffolk County continues to press this argument, however. The Suffolk County Attorney told us in a June 4 oral argument that the County will begin to participate in the Shoreham i emergency planning process, that full-power operation is possible, and 1j. that the Commission is not required under NEP A to prepare an SEIS for
, ,l low power operation of Shoreham. On the other h.nd, at the same oral f argument, some County legislators asserted that this is not "the Coun-
' ty's" position.
i a i .
I On November 20.1984. sufrolk County riled a Petiuon ror Review or ALAB 788. In its Peuuon.Suf-rolk also requemed the Commission m reconsider CLI-84 9. Our earher decision not to prepare an $f.11 The Commission declined to reconsider CLI-84-9 in the context or the Peution for Revww. Laust of
' April 18.190s. from S. Chilk to H. Brown. That dectston was not a denial or Interveners' March 6 re-quest. Interveners renewed their NEFA arguments in their "Peuuon ror Reconsideration orCLI 85 l."
dated May 7.1985. at 41.
2 since that ume, there has also been a Federal Distnct Court decision adverse to LILCo.
f*i 1588 l
l Regardless of what is "the County's" position, for reasons we have given earlier, we do not believe that uncertainty over the pending full-power issues mandates a Supplemental Environmental Impact Statement or some renewed cost /benent analysis. See CLi 84 9,19 NRC 1323 (1984); 10 C.F.R. f St.92(a). While the New York State and Federal court decisions affect the degree of uncertainty over whether Shoreham will get a full power license, so do many other interlocutory events, the County's apparent change of position being just one recent example.
The present uncertainty over Shoreham's full-power license is not a new factor outside the range of possibilities initially considered by the Com-mission when it determined that the EIS for full power operation satis-fled NEPA despite the pendency of Shoreham contested issues.
Moreover, the " uncertainty" which the Interveners perceive regarding eventual full-power operation of Shoreham stems from their view that adequate emergency planning cannot be achieved, even with their coop-eration. Accordingly, the Interveners have (at least until recently) refused to cooperate in the plan, apparently as a way to prevent any fur-ther steps toward what they regard as a quixotic venture.
We note that our Licensing Board in its decision of April 17, 1985 !
(LBP 8512,21 NRC 644), has found that an adequate emergency plan j is in fact achievable if the State and County participate in emergency planning, as all other local and State jurisdictions have done when so called upon. Like any litigants before us, these Interveners may chal-4 lenge the adequacy of this Board's determination, but they may not
{
simply substitute their own judgment for the Commission's regarding j what the public health and safety requires for licensing the operation of a nuclear power plant. Congress has entrusted the protection of public health and safety in matters concerning nuclear power to the Commis- f, sion, not to Suffolk County or New York State. See Pact /ic Gas & Electric l
Co. v. State Energy Resources Conservation and Development Commission, 461 U.S.190,205 (1983). Accordingly, we believe that the County and the State must recognize that when a health and safety issue has been 9 fully litigated before the Commission, the Commission's finaljudgment, $
subject to judicial review, must be the controlling determination, even if
- some continue to disagree with it.
Thus, while we express no opinion concerning the Board's decision while it remains under administrative review, we are confident that if l
the Commission upholds the Licensing Boald's finding that an adequate 9 emergency plan is feasible with State and local participation, the State and County will accede to that judgment and will provide the participa- i 1 tion needed to make the plan successful. In short, we shall not take as
! l 1589 l
I i
an element of uncertainty in the eventual full-power operation of Shore-ham the possibility that either the State or the County will refuse to cooperate with LILCO on the basis of their own conception of what radi-ological public health and safety requires. rather than on the findings of
'l the Commission.
- Furthermore, even were we required to perform some cost / benefit '
y analysis at this interim stage of these proceedings, we would not say that
'- the uncertainty of Shoreham full-power operation is so great that it necessitates avoidance of the environmental effects oflow-power testing.
,i The environmental effects of low-power testing are well known, i.e., ,
h,. moderate irradiation of the core and contamination of the remainder of p the primary coolant system, with no significant impact on the surround-ing environment by releases of effluents during normal operation. These g
i effects of low-power testing are subsumed in the FEIS's analysis of the
' far greater, but nonetheless very small impacts from full-power opera-tion. In our view, the benefits of low-power operation clearly outweigh 4 the environmental costs. ,
,, The primary benefit of early low-power operation is that it will allow -
the early discovery and correction of unforeseen but possible problems ,
4' which may prevent or delay full-power operation at an enormous ex- ,
g' pense to LILCO and/or its customers.3 Thus, early low power testing . I greatly increases the possibility that if and when the plant is ready for .
full-power operation, the benefits of that operation will be . 'alized with-out delay. This benefit does not require speculation over the outcome of I the full power proceeding. So long as an applicant is willing to invest the j substantial effort and money necessary to attempt to obtain a full-power j license, the possibility of full power operation at a future date gives sub-
! stantial value to low power testing. Moreover, whenever a low-power i
' motion has been filed where full-power issues are also pending (a +
common occurrence), there is always uncertainty over the outcome of i l '
the full power proceeding. Delaying the low power license until that un-
' certainty is eliminated irretrievably deprives the applicant and its cus-tomers of the substantial benefits of early low-power testing.
To refuse to authorize low-power operation whenever there is uncer-tainty over whether full power operation will be authorized would
! ignore Commission regulations which allow low-power operation when there is reasonable assurance that it will present no undue risk to the j public health and safety notwithstanding the pendency of full-power I
3 We note that low-power test programs ror recently licensed reactors have idenufied problems which have taken many months to correct and consequently have delayed rull-power operanon. At Pato verde, a pressurized water reactor, ror example, a coolant pump desi5n problem idenufied dunns emual testmg took over 1 year to correct.
1590
issues.10 C.F.R. 5 50.57(c). This regulation is premised on the idea that the inherent benefits of early low-power testing outweigh the uncertainty that a full-power license may be denied. We see no reason to refuse to recognize this premise in this case. In short, the sooner low-power test-ing is begun, the greater the probability that it will serve the purpose for which it is intended, i.e., to facilitate the earliest possible full-power op-eration of the plant in the event that the Commission finds reasonable assurance that full power operation will present no undue risk to the public health and safety.
Accordingly, we again deny Interveners' request to delay Shoreham low power operation pending the preparation of an SEIS.
Commissioner Asselstine disapproved this Order and provided the at.
tached separate views. In response to the separate views of Commission-er Asselstine regarding the value oflow-power testing, we point out that the principal benefits of low power testing are threefold: (1) testing and evaluation of plant systems which cannot be tested or operated at zero power conditions; (2) evaluation, assessment and familiarization with technical specifications and implementing procedures for the opera-
, tion of the plant while at low power; (3) operator and plant staff experi- '
ence on the actual plant in a critical but still low-power operation.
During low-power testing, plant systems such as control systems, tur-bines and electric power conversion systems, and other steam-driven equipment can be tested and functionally evaluated. Also during low-power testing, core physics calculations, basic thermal-hydraulic per-formance, and other core operating parameters can~ be further verified.
If necessary, repairs or modifications of equipment and operating proce-
, dures may be made. Low power testing provides an opportunity to assess technical specifications and implement procedures which cannot
, be accomplished at zero power. The low-power test program affords the operator and plant staff valuable experience in the actual operation of the plant and of the plant systems interactions, which otherwise cannot be totally compensated for by simulator training. Low-power test pro-grams for recently licensed BWRs have provided invaluable experience to the plant staff and enabled testing of plant systems. For example, at Limerick the turbine and power conversion systems were successfully j tested, and experience was gained at Grand Gulf and Limerick on imple-menting the technical specifications. In addition, historically, plant i equipment testing led to the identification and timely correction of equipment and procedural problems.
1591
l 1
1- i j- It is so ORDERED.
i t i i For the Commission 4
1:
II SAMUEL J. CHILK i
Secretary of the Commission v
k Dated at Washington, D.C.,
!. this 20th day of June 1985.
I' It
- ( SEPARATE VIEWS OF COMMISSIONER ASSELSTINE 4 The Shoreham case is unique. In no other case have the State and
, local governments refused to participate in emergency planning and pre-g paredness. In no other case have both State and Federal courts found that, in the absence of governmental participation in emergency re.
( sponse, the utility does not have the legal authority to carry out portions of its emergency plan. Before a full-power operating license can be issued for Shoreham, the Commission must be able to find that "there is reasonable assurance that adequate protective rneasures can and will be taken in the event of a radiological emergency." 10 C.F.R.
i 50.47(a)(1) (emphasis added). Absent participation by the State and County in emergency planning and preparedness, the Commission is un-likely to be able to make such a finding.
There is then a reasonable likelihood, which is much more likely than when the original EIS for Shoreham was completed, that Shoreham might never receive a full-power license. Given this change in circum-
! stances, the Commission should perform an environmental evaluation, including a cost / benefit balance, of the issuance of only a low power license. The somewhat crude weighing of costs and benefits in the Com-mission's order is clearly not sufficient.
The Commission's response to this is threefold. First, the Commission says that it will not consider as an element of uncer.ainty the refusal of the State and County to participate in emergency planning and prepared. I ness for Shoreham. The Commission has confidence that, if the Com- I mission finds that an adequate emergency plan is feasible with State and local participation, the State and County will accede to that judgment <
I and will in fact participate in emergency planning and preparedness. The i
1592 t ;
Commission's reasoning is overly optimistic at best, at worst simply ig-nores reality. The Commission refuses to take the statements of the State and County at face value,i but prefers to rest its decision on some hope that the State and County will "see the light." Further, if the Com-mission intends to rely, in the face of continued State and County refus-als to participate, on the Commission's confidence that should an emergency occur the State and local governments will in fact partic;pate in an emergency response, that confidence would hardly support a find-ing that the emergency plan will be carried out. And, if the State and County do not participate in planning and drills, the Commission's confi-dence certainly would not support a finding that the State and local governments can adequately carry out the plan. The Commission's re-fusal to recognize the State and County unwillingness to participate as creating uncertainty about the likelihood of full-power operation at Shoreham is unfathomable.
The Commission next claims that uncertainty about the issuance of a full-power license for Shoreham is not a new factor outside the range of possibilities initially considered by the Commission when it determined i
that the EIS for full-power operation satisfied the National Environmen-I tal Policy Act (NEPA) despite the pendency of Shoreham contested issues. Obviously there is a possibility in every contested OL proceeding that some issue might arise that would prevent the issuance of a license to operate the plant. However, the Shoreham case is not a case where, before the licensing proceeding has begun and without more informa-tion, the Commission is being asked to consider in the abstract whether some issue might possibly prevent operation of the plant. Rather, in this case we have significant new infcarmation which indicates that there might in fact be a bar to full-power operation. The question is whether in light of this new information the Commission should first consider the costs and benefits of that action before permitting contamination of the plant. I believe that reasoned decisionmaking requires no less. And, j the caselaw indicates that the Commission may be legally required to do so. See Environmental Defense Fund, Inc. v. Andrus,619 F.2d 1368,1377 i
(9th Cir.1982).
I Further. the Commission seems to base its confidence on the statements of the County Attorney that sufrolk County will begm to parucipate and upon the sufrolk County Executive's agreement with LILCo to do so. I am not willing to be quite as optimisuc as the Commission majonty is on this score:
0 there to a dispute between the Executive and the Legislature on the Executive's authonty to carry out the agreement and in fact a New York state court has recently nuthfied the agreement at the request of the County Legislature; the state has not entered into the agreement or agreed to participate in the t drill; and. even of the agreement is ulumstely upheld. there is nothms in the agreement which prohibits
{ the County from litigatmg the results of the emergency dnll. This dispute could 30 on for quite some time.
~
7 l
i Finally, even though it says it is not required to do so, the Commis-sion then proceeds to conduct a crude balancing of the costs and benefits of permitting the plant to operate at low power. The Commission says that the costs have already been considered because they are subsumed
,!j .
within the greater effects of full-power operation. And, according to the i t '
Commission, the substantial benefits of low-power testing clearly out-
. weigh the costs. Under normal circumstances the Commission might f>
~
have a point. However, this case is unique. New circumstances have rI arisen which prevent the Commission from assuming that full-power op.
! eration will occur. Thus, the Commission cannot merely assert that the
/(} ;.- effects oflow-power operation are subsumed in those of full-power oper-ation. Further, the benefits cited by the Commission 2 assume that there
!- will be full power operation. If there will not be full-power operation.
(' then there is no benefit to the early identification of problems which the pa Commission identifies as the primary benefit oflow-power operation.
pg- Clearly, the Commission's balancing was not a careful one. The Com-mission should carefully and in detail consider the costs, benefits and f,' ' likelihood of Shoreham never being permitted to execed 5% of power.
4 The superficial, hurried effort reflected in the Commission's order dee;
, not amount to a reasoned consideration of the issue.
P i
2Even the Commission's asserted benefits of low-power tesung are overstated. An operaung hcense hmited to 5% of rated power as of hmited unhty to the operator of a bothng water reactor (BWR) such as shoreham. Little testing cats be accomphshed at that power level that cannot also be completed with-out taking the reactor beyond cold criticahty. T1 do substanual tesung of a BwR plant the operators must be able to take the plant to 20% or more of rated power. Further, the Palo Verde expenence se early idenurication of problems does not supptert the Comminaion's argument. The design problems {
cited by the Commission at Palo verde were discovered durms the hot funcuonal tests of the plant we6 g before a lou-power hcense was issued. These extensive tests have already been completed at 5hurcham.
1594 e - - ,
m
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l 1
EXHIBIT 4 eulte 9
l IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 82-2053 UNION OF CONCERNED SCIENTISTS, Petitioner, v.
1 U.S. NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents.
ONPETITIONFORREVIEWOFFINALORDEROF-THk
__ UNITED STATES NUCLEAR REGULATORY CCMMISSION BRIEF FOR RESPONDENTS HERSEL H. E. PLAINE General Counsel - FRANK H. HABICHT Acting Assistant Attorney General E. LEO SLAGGIE Acting Solicitor ANNE 5. ALMY BLAKE WATSON Attorneys MARE E. CHOPRO DAN N. BERKOVITE Appellate Section Attorneys LandDepartment and Natural of Resources U.S. Nuclear Regulatory U.S. Justice Divisic Commission Washington,.DC 20530 Washington, DC 20555 JULY 1983 !
1' i
- 2. Review and Consideration of Operating License The proposed design of the facility must meet certain minimum requirements called " General Design cri-teria." 10 C.F.R. Part 50, Appendix A (1983) . The General Design criteria " establish the necessary design, fabrica-tion,. construction, testing, and performance requirements for structures, systems and components ... that provide i reasonable' assurance that the facility can be operated without undue risk to the health and safety of the public."
Id., Introduction.1 For an operating license, the appli-cant must file a final safety analysis report (FSAR) , which is to include technical information about the plant, such as descriptions of plant structures, systems, and components.
10 C.F.R. 50.34(b). The FSAR also must describe managerial and administrative controls to assure safe operation (part of the quality assurance program), proposed technical I
For example, Criterion 2 requires that systems, structures, and components shall be designed to withstand.
earthquakes, tornadoes, floods, and any other appropriate natural phenomena. 10 C.F.R. Part 50, Appendix A (1983).
Criterion 16 requires that a reactor containment system be designed "to establish an essentially leak-tight barrier against.the uncontrolled release of radioactivity to the environment." Id. Criterion 1 requires that all structures, sysEems and components important to safety be
" tested to quality standards commensurate with the importance of the safety functiero ao be performed," and that appropriate records of the testing shall be maintained' throughout the life of the plant. Id ._ Thus, the plans for the facility must include not only plans for equipment, but must also include plans for testing all equipment important to safety.
e
i i.{s l-specifications, and plans for preoperational testing, normal operation, physical security of the plant, dealing with threats, thefts, and industrial sabotage, and coping with emergencies.
Just as the plans for equipment and procedures must include provisions for testing the adequacy of such equipment and procedures, the plans for physical security and for coping with emergencies must include provisions for testing their adequacy.
10 C.F.R. 50.34 (c) , 50.47 (b) (14) .
In order to authorize the issuance of an operatir.q license, the Licensing Board considers, inter alia, whether there is reasonable assurance that the plant will be com- ,
pleted in a timely manner in conformity with the con-struction permit,2 the application, and NRC regulations, and whether the activities sought to be authorized can be information' describing the appliAn application for a construction for an antitrust reviewi and a ". cant, information necessary preliminary safety. analysis report"-(PSAR),
regardin which consists of technical information 50.34 (a) g the proposed plant. 10 C.F.R. 50.33, 50.33a, At a minimum, the PSAR must contain a description the preliminary design of the facility, "a preliminaryan analysis and evaluation of the design and performance of structures, systems, and components of the facility with the objective f rom operation of assessing the risk. to of the facility . . public
," a health and safety the applicant's organization, training, preliminary planand and operations, for with emergencies.a discussion of the' applicant's preliminary plans for cop 10 c.F.R. 50.34 (a) .
the Licensing Board essentiallIn reviewing an application for a construc applicant has shown there is "y decides whether the proposed facility can be constructed reasonable assurance and operated at ...
thethe proposed safety of the location without undue risk to the health and public."
10 C.F.R. 2.104 (b) (1) (d) .
7
E l
conducted without endangering the health and safety of the public. 10 C.F.R. 2.104. The Licensing Board itself, however, does not decide that the plant in fact is in a condition to operate safely, but only decides contested l
issues and renders an initial decision whether to authorize the issuance of a license. 10 C.F.R. 2.760, 2.760a, 2.764 (e) . The Commission actually issues the permit or license.. 10 C.F.R. 2.760a, 2.764, 50.56, 50.57. The Commission's decision considers, inter ella, whether con-struction of the facility has been completed satisfactorily and whether there is reasonable assurance that the activities to be authorized by the' operating license can be conducted without endangering the public health and safety and that such activities will be conducted in compliance with NRC regulations. 10 C.F.R. 50.57. The Commission may condition the issuance of a license upon the satisfactory ecmpletion of testing. 10 C.F.R. 50.56, 50.57. That the.
plant actually_haa_been constructed in conformance with the applicant's plans and that all required tests have been passed is decided by the Commission's staff and normally is not the subject of any hearing.3 3
The adequacy of the planned testing program may be contested before a Board before the program is authorized.
10 C.F.R. 50.57(c). Like the full-power analogue, only those matters contested will be litigated; uncontested matters are resolved by the staff. See generally Pacific Gas & Electric Co.- (Diablo Canyon Nuclear Plant, Units 1 and 2 ) , . LBP-51-21, 14 NRC 107 (1981).
appropriate state and local governmental entities. 10 C.F.R. 50.33 (g) . Just as the General Design Criteria in Appendix A require that the design of structures, systems and components important to safety include provisions for testing those systems, Appendix E requires that plans for coping with emergencies include provisions for testing-those plans. Furthermore, as in the case for plans for hardware structures,. systems, and components important to safety, plans for coping with emergencies r are proper subjects for hearings before the Licensing Boards.
C. Prepperational Testing Prior to the issuance of an operating license, . an 1
applicant must conduct preoperational tests to ensure that structures, systems, and components will perform satisfactorily in service. 10 C.F.R. Part 50, Apps. A, B.
"The primary objectives of a suitable [testl , program are (1) to provide additi'onal assurance that the facility has been adequately designed ... and (2) to provide assurance that construction and installation of equipment in the 4 facility have been accomplished in accordance with desi n."
U.S. Nuclear Regulatory Commission, Regulatory Guide 1.68,
" Initial Test Programs for Water-Cooled Nuclear Power Plants," at 2 (1978), J.A. . Testing is a complex, lengthy, and laborious process whereby a multitude of interacting systems and components important to safety are
i tested;to determine whether.they have been constructed' properly.6
' Among the components to be tested are those to be used-for shutdown and cooldown.of the plant, those estab- '
lishing conformance with safety limits, those classified as engineered safety features, those assumed to function in case'of an accident, and.those that will be used to process, store,~ control, or limit the release of radioactive <
materials. Valves, pumps, fans, batteries, steam gener-ators, the pressurizer, instruments, and the reac, tor vessel The control rods, are examples'of components to be tested.
purification' systems, electrical systems, fuel storage and handling system's, normal and emergency heat removal systems, and radiation protection systems are examples of systems All test results, whether requiring that must be tested.
.6 As with'the design of the plant, the NRC does not provide precise specifications for the applicant Instead, the NRC to' follow pro-in establishing a testing program.
video general guidance as to what a-preoperationalSee testing NRC program should contain if it is to be approved. Regu )
Cooled Nuclear Power Plants," (1978), J.A. ____.
The NRC states that the program ...should be designed the effects of to simulate, "to the extent practical, control system and equipment failures or malfunctions that could reasonably be expected to occur during the plant lifetime.
To the extent practical, the plant conditions during the. tests should simulate the actual operating and emergency conditions to whichId. theat structure, 4.
system, or component may be subjected."
14'
subjective or objective evaluation, are considered outside of the hearing process.7 D. The Challenged Amendment on Emergency Exercises The Commission described the original rule es a:i
" interim upgrade of-NRC planning regulations;" 44 Fed. Reg.
at 75170, J.A. ; _see text at note 4, supra. _
In its original proposal, the Commission stated it " anticipated that further changes in the emergency planning regulations t
[ may be proposed as more experience is gained with implement-ing these revised regulations ... (T]hese proposed rules may require further modifications." l44 Fed. Reg.at75170, J . A . _ _ _ _,. On December 15, 1981, th4 Commission proposed two such modifications-. 46 Fed. Reg. 61132, 46 Fed. Reg. 61134 (1981), J.A. .
In the modification at issue in this lawsuit,8 The NRC Office of Inspection and Enforcement reviews '
Or audits selected test procedures and results. Reg.
Guide 1.68, supra note 6, at 19, J. A. . All of this may Occur af ter the Licensing Board's finding that there is reascnable assurance that the plant can be opere.ted safely and in accordance with design. The NRC wuggests that the applicant formulate plans for this testing before the hearings on the construction permit. Id. at 4, J.A. ..
In addition to preoperational tests, an applicant must perf orm low-power tests (up to 5% rated power) and power ascension tests before commencing full-power operation.
Thus, testing continues to be performed right up until full-power operation is authorized. Like preoperational tas:s, low-power tests and power ascension tests are not the ~
sch act of Licensing Board hearings.
I paragraph Theotherprobosedrulechangewouldaddanew (d) to i C.F.R. 50.47 to provide that no NRC or F32Cs review, finding or determination concerning the state ,
1
I-L ARGUMENT I.
THE COMMISSION HAS DISCRETION UNDER THE ATOMIC ENERGY ACT'TO EVALUATE EMERGENCY PREPAREDNESS EXERCISES OUTSIDE THE PRE-LICENSING ADJUDICATORY HEARING PROCESS.
The Commission has determined that exercises to evaluate emergency preparedness shall be treated as part of i
the operational inspection process, which includes tests conducted prior to startup to assure that regulatory requirements have been met and that the reactor can operate without undue risk. In normal circumstances the design of reactor systems and the plans for testing them, but not the
.results of preoperational tests themselves, are proper subjects for the adjudicatory hearings that may be held before the operating license issues. UCS and the Attorney General of Massachusetts argue that applying this same procedure to emergency preparedness exercises violates the Atomic Energy Act. They contend that the NRC may not close I
the hearing record prior to emergency preparedness exercises even to obtain significant advantages in timing and effi- '
ciency, without violating the requirement of Sec-tion 189 (a) (1) that in a licensing proceeding the Commission
{
"shall grant a hearing upon the request of any person whose )
interest may be affected. "
42 U.S.C. 2239 (a) (1) .
Pet. Br. at 29, Mass. Brief at 3.
\
The Commission does not believe its discretion to '
structure the licensing process is so narrowly confined by this bare hearing requirement. Instead the commission 26
interprets the Atomic. Energy Act as allcWing the agency discretion to resolve rtain issues relevant to. issuing a reactor operating licen_a outside the adjudicatory process-if.there ar~e sound reasons for doing so consistent with the statutory purpose.
The Commission's conclusion that it has discretion to treat emergency preparedness exercises in such a manner is consistent with the language and the legislative history of the Act and. reflects the practical realities of the licensing duties which Congress imposed on the agency.
The Commission's interpretation of.its authorizing-statute.
is entitled to deference and should'6e upheld. Udall v. _
-Tallman,.380h.S.1, 16 (1965); Power Reactor Develc) ment go. v. International Union of Electrical, etc_. Workers, 367 U.S. 396, 408 (1961); Natural Resources Defense Council v.
NRC,1666 F.2d 595, 603 (D.C. Cir. 1981); NRDC v. NRC, 647 F.2d 1345, 1370-71-& n.18, 1389 (D.C. Cir. 1981) (Robinson, J.E concurring).
Section 189 (a) (1) of the Atomic Energy Act imposes only a gene'ral requirement that the NRC hold a hearing upon '
request then considering whether to grant an operating license:
In any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license . . . ,
the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, to such proceeding. and shall admit any such person as a party l
- Section 189 (a) (1) is silent, however, en the scope of such hearings, and so is the regt of the Act. As for judicial interpretations, the petitioner has cited thia Court's 27
tentative statement in _Siegel v. Atomic Energy Commission, 400 F.2d 778, 784 (D.C. Cir. 1968), that '(t]he hearing granted by the Act presumably must embrace all relevant matters." Pet. Br. at 35. The petitioner asserts that any
-issues of fact which "have a material bearing" on the decision to permit operation, like results of emergency
_ preparedness exercises, are clearly " relevant" and therefore cannot be excluded from the section 189 hearing under any circumstances. Pet. Br. at 36. This approach to the Atomic Energy Act may seem not unreasonable at first ' glance, but it is unsupported by legislative or judicial authority.14 It .
also leads to serious practical difficulties, for there are important matters like preoperational testing that are
" relevant" or " material" in UCS's sense but cannot reasonably be dealt with in the adjudicatory hearing -
process.
The Commission's interpretation of its discretion is consistent with-section-189 and is more reasonably suited to the actual circumstances involved in licensing decisions.
14 Siegel proposition. v. AEC itself is not authority for such a 406~f.2d 778 (D.C. Cir 1968). In Fjpgel this Court focused before licensingona what plant issues the commission rather than on the scop:,had cc consider of the hearing before the licensing boards. Thus, although Siegel is authority for the evident proposition that a licensing decision, the case does not represent a closely considere analysis of how matters relevant to whether a plant operate short, must be dealt with in the licensing process.mayIn Siegel does not stand for petitioner's proposition that all matters which bear on the permissibility of plant hearings. operation are subject to litigation in adjudicatory 28
1 l
The Commission has identified in its denial of UCS's peti-tion some of the serious problems an unduly simple and absolute . view of the Sec.189 (a) hearing requirement would ~
3 create:
The Commission has the discretion to separate matters which properly belong in the licensing phase from those which belong in the post-adjudicative operational phase.
If this were petitioner and commenters do notnot true ----and so argue the the Commission.would be obligated to hold open the hearina record until a plant had been fully tested at commer ~
cial power levels, given.the real possibility that a plant-system'may not_ function as projected in the early stages of~the safety h~ earing. Pre-operational testing is no.less crucial to plant safe'ty tha(n] th's full- q scale exercise is crucial to measuring e.mergency preparedness . . . . I It is nonetheless clear that the record of the licensin proceedin .must close on all {
matters at some logica point, an the Commission has judicially-recognized discretion to select that point
.on a rational basis, f i
48 Fed. Reg. at 16694, J.A. .
As this statement indicates, the Commission must structure its licensing proceedings to cope with the fact that the issues " material," in the petitioner's sense, to the safety of plant operation cover a wide spectrum, ranging )
\
from matters which can be resolved with efficiency and '
timeliness in adjudicatory hearings to last-minute tests which obviously cannot be the subject of hearings unless the
^
licensing board is to sit in the reactor control room.15 1$G enerally, legislative history on the scope of the hearing required by Sec.189 (a) is sparse and unilluminating except for an analysis by the staff of the Joint Committee on' Atomic Energy (JCAE) , which strongly supports the Commission's reliance on its staff rather than a licensing board to confirm that certain licensing requirements have i
1
u , -
L Where a matter is not obviously inside orLoutsid e the range
'of issues appropriate'for hearings, the~ Commission must have
. discretion to make a reasonable choice.
l Congrvas.in passing the Atomic Energy Act created an agency with discretion to make the decisions necessary to create-a reasonably efficient licensing' scheme. This Court, also in Siegel, has made plain that the Commission's discre-tion is unusually broad rather than unreasonably confined:
(The Atomic Energy Act is) a regulatory scheme which is virtually unique in the degree to which broad respon of close prescription in its charter as to how it shall' proceed in achieving the statutory objectives.
400 F.2d,-supra at 783. i See also North Anna Environmental Coalition,v NRC, 533 F.2d 655, 658-59 (D.C. Cir. 1976).
Under this-grant of discretion as applied to the present :
been met.
used by Congress in developing the present form ofIn'a report tha
'section 199 (a) (1) ,
the JCAE staff stated:
[A Licensing conditions in any) decision on whether a constructionBoard permit or a license should issue. In so doing, it
.. sh should specify whether a further hearing should be held or whether reports of AEC hazards analysis staff orto. de staff inspectors might suffice. In to be placed in the public record many cases safety could procedure. be adequately ser,ved by the latterthe public interest in satisfactory to the applicant or to the staff, theIf conditiens propo Board should provide for conferences in order to consider possible alternatives compatible with its
' objectives which would-be more satisfactory.
Sess.,
(Comm. Print 1961).
Improving the AEC Regulatory Process, Vol. I, 72-73 30
case the Commission has authority to make a reasonable decision whether, in order to meet the timing requirements for emergency preparedness exercises and the need for a reasonably expeditious licensing process, licensing board initial decisions on an operating license shall normally be made before these exercises are held.10 Petitlener's position that the Commission is compelled by Section 189 (a) to hold open the adjudicatory hearing record to include.the preparedness. exercises cannot '
be reconciled with its apparent' concession that preopera-tional testing need not be the subject of public hearings.
48 Fed. Reg. at 16694, J.A. . Such tests are required by Commission regulation, e.g., 10 C.F.R. 50.56, and clearly bear on whether the plant can and will be cperated in conformity with regulations and without undue risk. Yet there was never any dispute in this case about the Com-mission's longstanding practice of delegating the evaluation 16 We reemphasize that under the present rule the results of preparedness exercises, like other preoperational test results,1 remain part of the input to a final decision on whether the requirement of 10 C.F.R. 50.47 (a) is met, that there be reasonable assurance that adequate protective measures can and will be taken in a radiological emergency.
"The Commission agrees that the full-scale offsite exercise is one important indicator of the actual state of emergency preparedness. For this reason, the Commission continues to require that the exercise be conducted, and significant I deficiencies corrected or mitigated, before full-power f operation is authorized for the facility." 48 Fed. Reg. at
- 16692, J.A. The NRC did not, as alleged by
[
commenters, remove emergency planning generally from the licensing process. Id. at 16694, J.A. .
of!these tests to the. technical staff,.a practice which UCS appears to accept.
UCS attempts to distinguish preopera-L tional testing as a kind of trivial exception to th e hearing r
. requirement,
' - ~ -
involving no more than "relatively simple
)
questions capable of yes-no answers on such things as i j
whether valves will open and close," Pet. Br. at 56, n.19 We have devoted a section of the statement of facts
, supra, 4 to describing in some detail the elaborate and often evalua- l' tive testing which takes place outside the adjudicatory i process, so that it will be clear to the court that the petitioner's charac'terization.is incorrect. 3 The evaluation l of operational tests involves something more than walking
{
around the plant in shirt sleeves with a hard hat, flash-i light, and clipboard, marking up'a checklist while tapping on dials.
Engineering judgment is often necessary to determine which tests are to be conducted, and to what degree various components and systems must be tested .
Judgment must be used to decide whether the test results ,
which may include unanticipated responses, actually demon- '
strate-t. hat there is reasonable assurance that systems or >
components will perform satisfactorily in operation. In this key aspect petitioner's attempt to draw a fundamental distinction between preoperational testing and evaluation of emergency preparedness exercises fails.
Evaluation of emergency preparedness exercises does involve judgment, but so does preoperational testing. It is entirely reasonable that the two be treated similarly in the licensing process .
32
_ ______ - - - - _ - - - - - ~ - - - -
l l
The licensing framework which excludes preopera- '
tional test results from hearings has existed for over twenty. years. The' Commission has evaluated preoperational tests in approximately seventy licensing decisions without holding adjudicatory hearings on the results. This proca-dure has not been challenged by Congress, despite intensive legislative focus on Commission licensing and hearing procedures. "It may of ten be shaky business to attribute significance to the inaction of Congress, but under;these circumstances, we think it is fair to read this history a's a de facto acquiescence in and ratification of the Commis-sion's licensing procedure by Congress." Power _ Reactor Development Co._, supra, 367 U.S. at 409; see also Public Service Co. of New Hampshire v. NRC, 582 F.2d 77 (1st Cir.),
cert. denied,'439 U.s. 1046 (1978).
In summation, the example of preoperational ;
testing confirms what reasoned analysis strongly suggests, that the Commission has discretion under the Atomic Energy Act to make important licensing determinations outside the adjudicatory process where there is good reason for doing so.17 Accordingly, the Court should reject the argument 1
UCS argues, Br. at 41-42, 51-53, that FEMA's views
.that exercises are important to its final findings on a power plant make it illegal for the NRC to exclude the results of exercises from hearings. The impact of FEMA's comments in the rulemaking is examined in detail in the second portion of this argument, infra at 37-38. For purposes of this portion, we' note that FEMA's views are not binding on the NRC (10 C.F.R. 50.47 (a) (2) , 45 Fed. Reg.
33
by petitioner and Massachusetts that the Commission's rule, whether reasonable or not, is a violation of the Act.
II.. THE COMMISSION'S DECISION TO CONSIDER EMERGENCY PLANNING AND PREPAREDNESS ISSUES IN"THE SAME MANNER AS OTHER SYSTEMS ISSUES IMPORTANT TO SAFETY HAS AMPLE SUPPORT IN THE RECORD AND IS REA3ONABLE.
- 1. Need for the Rule The Commission's rule is a. response to competing concerns arising from the NRC's regulatory requirement for reasonable assurance of adequate emergency planning and preparedness before a nuclear plant may be permitted to operate. See 10 C.F.R. 50.47 (a) (1) . On the one hand, an ;
opportunity for the public to litigate every issue relating to emergency preparedness issues in an adjudicatory hearing may contribute to raising the level of safety at the facility. On the other hand, because a substantial amount of time is usually needed to complete an agency I
adjudication, if the results of emergency preparedness
~
exercises must be litigated before licensing, than the actual status of preparedness at a plant by the time the 55402, 55407 (1980)). See County of Rockland v. NRC F.2d , Nos. 83-4003, 83-4037, slip op at 6-8~T7$ UIr7 May 277~T983). In addition, FEMA expressly defers to the NRC's views on the scope of hearings on power plants and the kinds of evidence that should be considered. We think FEMA's comments are best understood in terms of FEMA's commitment to the continuation of exercises geg se as an
.j- .important indicator of preparedness -- a matter not disputed by NRC and not a part'of this rulemaking or litigation. 48 Fed. Reg. at 16694-5.
34
- i
i l..
EXHIBIT 5
h UNION OF CON. SCIENTISTS v. U.S. NUC. REG. COM'N 1137 _
cite as 735 FJd ten (its4)
Act' require mie was issued in excess of Commission's
- urred when UNION OF CONCERNED SCIENTISTS. authority. Atomic Energy Act of 1954, 2xton never- Petitioner, t 189(a), as amended. 42
- U.S.C.A.
ek purchase ,
- v. 6 2239(a).
rather than '
I UNITED STATES NUCLEAR REC"LA. 2. Electricity >8.4 TORY COMMISSION and the United
.ority's insis. States of America. Respondents, Atomic Energy Act provision govern- l' linds, in the ing hearing requirements does not mandate prerequisite Attorney General of Massachusetts. hearmg when Nuclear Regulatory Com ris.
f r purposes Arkansas Power & Light Co.. et sion denies request that it institute license action under al., Intervene;s. amendment proceeding. Atomic Energy contravenes No. 82-2051. Act of 1954, 5 189(a), as amendeo. 42 U.S.
C.A. 6 2239(a).
b-5. conflicte United States Court of Appeals.
hich broadly 3. Electricity p8.4 District of Columbia Circuit.
requirement Argued Jan. 6,1984. Once hearing on nuclear power plant is totally un- licensing proceeding is begun, it must en.
- ourt's Blue Decided May 25, 1984. compass all material factors bearing on asons, I dis-As Amended July 2,1984. licensing decision raised by requester.
Atomic Energy Act of 1954. 6189(a), as amended. 42 U.S.C.A. 6 2239(a).
The Nuclear Regulatory Commission issued rule providing that Atomic Safety
- 4. Administrative Law and Procedure {
and Licensing Board need not consider re- " 473 I sults of emergency preparedness exercises When statute calls for hearing in adju.
in licensing hearing before authorizing full dication, hearing is presumptively governed power license to operate nuclear power by "on the record" procedures. 5 U.S.C.A.
plant. On petition for review, the Court of 65 554, 556, 557. _
l' Appeals, Wald, Circuit Judge held that s nee such rule denied right to hearing on 5. Administrative Law and Procedure material factor to be relied upon by Nucle- ##8 ar Regulatory Commission in making li- Administrators may not lightly side-censing decisions, such rule was issued in step procedures that involve public in decid-as the majon.ty excess of Commission's authority. Ing important questions of pubhc policy, over & Chip-, Order accordingly.
buy or seu o' 6. Electricity #8.4
' MacKir.non. Senior Circuit Judge, dis. Evaluation of radiological emergency
],8 noth'
- s to sented and filed opinion.
l exercises is not determination resting sole-I within the defi.
ly on test or inspection so as to qualify for majonty misper. 1. Electricity *8.4 generic exemption from hearing require-I d* ,, ""{*Q"8 d Rule providing that final Nuclear Reg . ment concerning operation of nuclear pow.
er plant. Atomic Energy Act of 1954, g , ,,i,,i, ulatory Commission issuance of full power d tendered per.
i 189(a), as amended, 42 U.S.C.A.
license to operate nuclear power plant be r terms proposed i 2239(s).
preceded by satisfactory completion of the joint venture.
emergency preparedness exercise and con-
"hj*aj,
- , clusion by Commission, based on such exer-jomt venture dio cise, dist there is reasonable assurance Petitian for Review of an Order cf the to return North. that adequate protective measures can and Nuclear Regulatory Commission.
.stily responsible he melled out in will be taken in event of radiological emer. William S. Jordan, III. Washington. D.C.,
gency denied right to hearing on material with whoin Diane Curran and Ellyn R.
factor to be relied upon by Commission in Weiss, Washington, D.C., were on the making license decision and, hence, such brief, for petitioner.
'i / . .
- m. = mw
~
l 1438 735 FEDERAL REPORTEN. 2d SERIES Dan M. Berkovitz, Atty., Nuclear Regu- an emergency preparedness exercise, and a
',, latory Com'n, Washington, D .C., with conclusion by the NRC, based on this exer.
whom Herzel H.E. Plaine, Gen. Counsel, E.
dlgj cise, that there is reasonable assurance Leo Slaggie, Acting Sol., Mark E. Chopko, that adequate protective measures can and
- l. , Atty., Nuclear Regulatory Com'n, Anne S.
will be taken in the event of a radiological Almy and Blake Watson, Attys., Dept. of emergency, UCS contends that this rule Justice, Washington, D.C.,
were on the denies its statutory right to a hearing on a brief, for respondents. Michael B. Blume, material issue in licensing proceedings, un.
Atty., Nuclear Regulatory Com'n, and Pe-der Section 189(a)(1) of the Atomic Energy ter R. Steenland, Atty., Dept. of Justice, Act (AEA or Act), 42 U.S.C. I 2239(a)(1)
Washington. D.C.,
also entered appear- (1976). Additionally, UCS also contends ances for respondents.
J that the Commission acted arbitranly and
!, Robert E. Zahler, Washington, D.C., with capriciously in promulgating the rule, in whom Hannah E.M. Lieberman, Wash. violation of the Administrative Procedure 9, ,,, ington, D.C., was on the brief for interve. Act (APA), 5 U.S.C. 5 706(2)(A) (1982).
, nor, Arkansas Power & Light Co., et al.
"* We find that because the rule denies a Ug Jo Ann Shotwell, Boston, Mass., was on right to a hearing on a matenal factor 4 the brief for intervenor, Atty. Gen. of relied upon by the Commission in making d8 Mass., Francis X. Bellotti and Stephen M. its licensing decisions, the rule was issued h.i Leonard, Asst. Atty. Gen., Boston, Mass., in excess of the Commission's authority e
also entered appearances for intervenor, under section 189(a), and must be vacated,
"{ Attorney General of Massachusetts.
j !. BacKcRot'ND
. Before WALD and GINSBURG, Circuit l Judges, and MacKINNON, Senior Circuit A. h uto g and Repuktog Be i** Judge. pr und In authorizing the NRC to issue licenses Opinion for the Court filed by Circuit for nuclear power plant operation, the AEA
! Judge WALD. delegates to the Commission broad discre.
l Dissenting opinion filed by Senior Circuit ti n t decide what information it requires Judge MacKINNON. tn making the licensing decision.5 The Act
, i provides that "the applicant shall state i WALD, Circuit Judge: such technical specifications I
. as the
[1] The Union of Concerned Scientists Commission may, by rule or regulation, i
' (UCS) petitions for review of a rule promul. deem necessary in order to enable it to find gated by the Nuclear Regulatory Commis. that the [ applicant's activity) . will pro.
I sion (NRC or Commission) providing that vide adequate protection to the health and an atomic safety and licensing board (li- safety of the public." 42 U.S.C. I 2232 l censing board) need not consider the re. (1976).
suits of emergency preparedness exercises The Act itself establishes a two step li-in a licensing hearing before authorizing a censing procedure. An applicant for a nu-full power license to operate a nuclear pow- clear power plant operating license must er plant, The rule provides, in lieu thereof, first obtain a construction permit.Section I
that final NRC issuance of the license must 189(a)of the Act mandates a public hearing be preceded by satisfactory completion of before a construction permit can be issued.8
' 1 Originally, under the AEA the Atomic Energy 2 Section 189(a) of the Act as amended in 1957, I Commission (AEC) issued licenses. In 1974, the Pub.L No.85-256, 5 7, 71 Stat. 579 (1957), in i AEC was abolished 6 and its licensing functions 1962. Pub.L No.87-615, fr 2, 76 Stat. 409
'ransferred
. to the NRC. Ser Pub.L 93-438, 83 (1962), and in 1983 Pub.L No.97-415. I 12(a).
Stat.1233 (1974) (codified at 42 U.S.C. 5 5814 96 Stat. 2073, reads I g
' (1976)). In any proceeding under this chapter, for the granting, suspending, revoking, or amending
UNION OF CON. SCIENTISTS v. U.S. NUC. REG. COM'N H39 Ciss as 735 F.2d 1437 (1964) iss exercise, and a After a permit is issued. the prospective condition of a nuclear reactor operating iased on this exer-operator must apply for a license. The Act license. Up to that time. state and local
.onable assurance requires a heanng before the license is measures can and governments prepared such emergency issued only if requested by an interested plans on a voluntary basis, if at all. Fol.
t of a radiological party.
,ds that this rule lowing the TMI incident, the President's if a hearing is requested, the Commis. Commission on the Accident at Three Mile to a hearirg on a g proceedings, un. sion, under its regulations, designates a Island found that "the [ emergency offsite]
he Atomic Energy licersing board to conduct the proceeding, response was dominated by an atmosphere
?.S.C. I 2239(a)(1)
The licensing board, however, determines of almost total confusion." Report of the only whether the issuance of a license is President's Commission on the Accident CS also contends ed arbitrarily and authorized, the Commission actually issues at Th ree Mile Isla nd-The Xeed fbr
.iting the rule, in the license at a later date. 10 C.F.R. Change The Legacy of T#l 17 (1979L il 2.760, 2.760a (1983). To authorize a li. The President's Commission recommended 4trative Procedure cense, the board must find that "there is that in the future before a utility was
'6(2)( A) (1982).
reasonable assurance that the activities to granted an operating license, offsite emer-the rule denies a be authorized by the operating license can gency response plans should be de'veloped a material factor be conducted without endangering the by state authorities, evaluated by the Fed-mission in making health and safety of the public "
10 eral Emergency Management Agency ne rule was issued C.F.R. 5 2.104 (1983). The scope of the (FEMA). and the means for implementing nission's authority board's hearing is determined by the specif- them put in place.
1 must be vacated. ic issues material to that determination The TMI episode also produced a shift in that are raised by the requesting party. the NRC's attitude about offsite emergen-
- otmo if the licensing board authorizes a li- cy planning. After the accident, the Com-
?rgulatory Back, cense. Prior to its issuance the NRC staff mission announced that it now " view [ed) conducta preoperational testing to ensure emergency planning as equivalent to l
- C to issue h.eenses that the operation of the completed plant siting and design in public protection." 44 operation the AEA comports with the expectations underlying Fed. Reg. 75169 (1979) (proposed rule on
.ssion broad disc
- the authorization. If in the course of this emergency response plans). In 1980, after rmation it requires final review significant safety hazards are rulemaking proceedings, the Commission decision.t The Act discovered, then additional hearings may published its first final rule addressing off-plicant shall state be held at the Commission's discretion. site emergency preparedness. Thic rule See generally Pacific Gas & Electric Co. provides:
ations as the (Diablo Canyon Nuclear Power Plant, Units rule or regulation, No operating license for a nuclear power 1 and 2),14 NRC 950 (1981).
reactor will be issued unless a finding is
' .t enable it to find made by NRC that the state of onsite tmty) , will pro. B. History of Emergency Preparedness a to the health and and offsite emergency preparedness pro-Exercises 42 U.S.C. 5 2232 vides reasonable assurance that ade-After the 1979 accident at Three Mile quate protective measures can and will Island (TMI) the Commission, for the first be taken in the event of a radiological shes a two step li- time, required offsite emergency plans as a emergency. l applicant for a nu-
- ating license must of any license or construction permit. or ap. where such a construction permit has been '
plications to transfer control, and in any pro. issued following the holding of such a hear-ion permit. Section '
ceeding for the issuance or modification of ing the Cummission may, m the absence of a stes a public hearing rules and regulations dealing with the activi- request therefor by any person whose interest M can be issued.: ties of licensees, the Commission shall may be affected issue an operatma heense or 1
grant a hearing upon the request of any per. an amendment to a construction permit or an et as amended in 1957, son whose interest may be affected by the 71 Stat. 579 (1957), in f pWing, and shall admit any such person amendment to an operatmg license without a hearing, but upon thirty days' notice and pub.
15 $ 2, 76 Stat. 409 8 as a party to such proceeding. 17:e Commes.
lication once in the Federal Register of its L. No.97-415, i 12(a), sion shall hold a hearing after ths):y ders' notice and publication once in the federal intent to do so.
Rega' sten on each apphcation 42 U.S.C.A. I 2239(a)(West Supp.1983)(empha-ler this chapter, for the /w a con. sis supplied).
revoking, or amending 8'*#'88" F""I' I" # 18#'#"7" In cases
, f3s r 2a-33 Nf
~
1440 735 FEDERAL REPORTER,2d SERIES 10 C.F.R. 6 50.47(a)(1) (1983). Pursuant to these compulsory exercises within the l
I the rule, FEMA is to make findings and scope of the licensing authonzation hear.
determinations on whether offsite "emer- ing.*
gency plans are adequate and whether there is reasonable assurance that they can C. The Challenged Rule on Emergency be implemented." 10 C.F.R. 50.47(a)(2) Exercises (1983). The Commission in turn will base its findings on the state of emergency pre- On July 13, 1982, the NRC issued an
, paredness on FEMA's findings, which con- amendment to its rule on emergency pre-
- stitute a rebuttable presumption as to the paredness, eliminating the emergency exer.
adequacy and implementation capability of cise as a prerequisite to authorization of a the energency plans. Id. nse. 10 C.F.R. 9 50.47(a)(2) (1983)
The rule, however expressly conditions [here,mafter referred to as the Amend.
, licensing of plants on satisfaction of six. ment). The Amendment added to the lan.
teen specific standards for emergency pre- U"I'. f the original rule the following 5
f' ~
paredness plans. One of those standards pronsiom requires that Emergency preparedness exercises
[p]eriodic exercises are (will be) conduct. are part of the operational inspection pro.
j !
ed to evaluate major portions of emer. cess and are not required for any initial gency response capabilities, periodic licensing decision.
drills are (will be) conducted to develop 10 C.F.R. I 50.47(a)(2)(198T. Despite this
, and maintain key skills, and deficiencies language, however, it left intact Appendix i identified as a result of exercises are E's requirement for emergency prepared-I i (will be) corrected.8 ness plans that full scale exercises be held 10 C.F.R. I 50.47(b)(14) (1983). For new within one year before full power operation
, plants, and the original rule's requirement that d
a full scale exercise which tests as much identified deficiencies be corrected. And,
, of the licensee, State and local [onsite in response to comments by interested par.
and offsite] emergency plans as is rea- ties, the Commission reiterated that " exer-
l sonably achievable without mandatory cise[s] will [still) be held before full power public participation shall be conducted [ operation), and all significant deficiencies within one year before issuance of will be properly addressed." 47 Fed. Reg. l the first [ full power] operating license. 30233 (1982). The Commission's rationale l'
l 10 C.F.R. Part 50, Appendix E, Section F1 for the Amendment was that it would allow (1983) (emphasis supplied). As originally exercises to be held at a time closer to full promulgated, the rule said nothing specific power operation of a plant, thereby making either way about including the results of them more meaningful. Sec 47 Fed. Reg.
- 3. This provision applies to existing operating 1),15 NRC 1549,1566 On hearing pnor to licenses as well as newly issued licenses. See 10 exercises, the inability of FEMA witnesses to C.F.R. Part 50 Appendix E,6 F 1.a. address details and problems of plan implemen.
I 4. In some cases, licensing boards apparently tati n precluded authorization), mod'fiedin rel-authortzed licenses without considerms emer.
mnt pr. U NRC M (1H3) On Ught of th j gency prcparsdness exercises. Sea, e.g.. Fenn. 1982 amendment to the rule on cmcrgency pre.
sylvania Power and Light Co. (Susquehanna paredness, no need for licensing board to wait _
Steam Electric Station Units I and 2).15 NRC f r final FEMA determination on adequacy of 771 (1982). In other cases, ths licensins board plans to hold further heanngs). Prior to the conditioned its authorization upon exercises amendment of the emergency preparedness '
demonstraung the adequacy of the emergency rule, we are aware of no case in which the t
=
preparedness plans. Sea, s.g., Southern Califor. Comtnission or one of its licensing boards nia Edison Co. (San On.ofre Nuclear Generating squarely addressed the issue of whether, in the Station, Units 2 and 3),15 NRC 1163,1210 face of a challenge to the lack of emergency i (1982); cf. The Cincinnati Gas di Electne Co. exercises, the board could authorize a license (Wm. H. Zimmer Nuclear Power Station, l' nit pnor to such exercises. ,
l 4
1
I;NION OF CON. SCIENTISTS v. U.S. NUC. REG. COM'N 1441 l Cite as 735 F.2d 1437 09se l within the 30233 (1982): 48 Fed Reg. 16693 (1983). It rescission of a license, should the " actual
- ation hear- t in no way contended in its explanation for conduct of an exercise identify fundamen.
I the rule, nor does it do so on this appeal, tal defects in the way that an emergency that the exercises are no longer material to plan is conceived." Id. The Commission Emergency its licensing decision. It argues instead distinguished such fundamental defects that, under the Amendment. "these exercis- justifying reopening of a hearing from
. issued an es are treated as part of preoperational those "which only reflect the actual state rgency pre. testing of nuclear plants. which as a matter of emergency preparedness on a particular egency exer, of longstanding regulatory practice has day in question." Id.
hation og n been conducted in the post-adjudicatory a)(2) (1983) Ph ase of licensing." Brief for Respon-dent, Summary of Argument (emphasis D. Postytmendment Developments the Amend.
d to the lan. supplied). Indeed. it concedes that its Following promulgation of the Amend-he following " evaluation of t.% exercise esults .[is) ment. UCS petitioned the NRC to again pc-t of the administrative recunifor the amend the rule to provide specifically for a
- 5
licensing decision and thereby subject to hearing on the results of the onsite and judicial review." Id. (emphasis supplied). offsite exercises. The Commission denied ispection pro- ,
In short, the odd choice of language in the UCS's petition, relying on the need for "the f ""Y I "Iti"I Amendment notwithstanding it seems clear full-scale exercise [to) be held as close in
, from the NRC's z.ceompanying explanation time as possible to commercial operation of Despite this and from its contentions on this appeal that the facility." Denial of Petition for Rule-act Appendix t interprets its own Amendment as retain- making, 48 Fed. Reg. 16693 (1983). The I ncy prepared- ing evaluation of the offsite emergency Commission stated that "it is clearly imp-reists be held exercises as a licensing prerequisite, but as ractical to hold the full. power proceeding
.wer operation taking the exercises out of the licensing record open solely for the purpose of liti-
.tirement that hearing, and making them instead part of gating the results of the full scale offsite e vected. And, the staff's preoperational testing.' exercises held at a time close to commercial mterested par' Prior to the promulgation of the Amend- operation." Id. '
ed that " exer- ment, several interested parties expressed ore fQpower concern that the change would eliminate At the same time UCS filed its rulemak-nt deftetencies public participation in the review and as- ing petition, it petitioned this court to inval-47 Fed. Reg.
sessment of exereses. The Commission idate the Amendment, on the grounds that alon's rationale responded that "such assessments are not it violates Section 189(a) of the AEA, 42
- it would allow .
necessary to make the kind of predictive U.S.C. 9 2239(a) (1976). by denying affect-
,e closer to full finding on emergency planning called for ed members of the public a hearing on
.hereby making by the regulations prior to license is- issues of fact material to the NRC's licens-er 47 Fed. Reg.
suance. Id. at 30233. It further noted ing decision, and that the Commission's hearing prior to that an interested party may seek to re- decision to adopt the Amendment was arbi-IMA witnesses to open a concluded hearing or petition for trary and capricious. We find that the of plan implemen-i), modified m rel- 5. The Commission said the Amendment merely the existing practices of explormg the exercise results in the licensing authorization heanng.
- 3) (in light of the clanfied that the findings on emergency plan.
on emzrgency pro- ning required by the onginal rule for issuance
- 6. Commissioner Gilinsky dissented from the sing board to wait of a license, were " predictive in nature and need challenged Final Rule (the Amendment) notmg:
m on adequacy of not reflect the actual state of preparedness at Itihe exercises never completely follow -
iss). Pnor to the the time the fmdmg is m de. 47 Fed.Res. (emergency preparedness plan (sl. And this
- ncy preparedness 30232 (1932). However, in asseuing the area happens to be one in which the nuclear case in which the Amendment's effect on public participation, the plant's neighbors have special competence.
, licensing boards Commission stated "the rule changes will have greater in some respects than that of NRC or of whether,in the the likely effect of limiting litigation of the FEMA. Tlv.tr comments can be particularly lack of emergency success of exercises in licensing hearings." 47 useful. These need not be presented in for-authorize a license Fed. Reg. 30233 (1982). thus acknowledgmg that mal hearings, but we should have some
, , the Amendment would to some extent modify means to receive and consider them.
l
c- 1 1412 735 FEDERAL REPORTER. Jd 5ERIES l l
l
) Amendment is :nva.id because :t denies (2) We find support for a tera, up ica statutonly presenbed heanng nghts non of section le9f ar s nearmg requ:remen l II. Scoer of THE LICENSING .n two of our own court S recent cases ;n Paoctrorso Lorton r. YRC. 712 F 2d 1472.1475 D c We address first the position of counsel CJ 19s3), cert. granted. - U 5 .y for Intervenor, Arkansas Power & Light e Ct.1676. 60 L.Ed 2d 152 i1964> 4e tea Company (UtilityHthat evaluation of that sect n 1s9tas does not m ar.date a j emergency preparedness exercises is part nearmg when the NRC den,es a request i of the NRC's ongomg monitont g funcuon "* 4 **"t"t* * "C'"S"
"**""'"Pr' l of operatmg power plants rather than part ceed n# L rt n rejected *.ne r ona.e ,
of its imual licensmg responsibilities.' The " *""" " '""# '
l Utility argues that the monitoring funcuon i XRC. 06 F 2d 1261 <D C C.r;9-'. I l
j1 encompasses "heensmg requirements" that which had he:d that i RC rejecuon or ,
are evaluated m a staff mspection pnor to or vu f such a regrest came arcer w
" " "' "" " ^ *** " * ""
, issuance (but after authorization) of a b-eense. Bnef for Intervenor Utihty at 32. "*P I "C'nw amencment. O m n. 1 j That argument is flawed. however.'oecause F M at a_.a m 4 at M n 'mu l I the Commission itself says that it rebes on e at approva! of Lomn s posioon a3 I "* **U In domg so. Lormn its assessment cf emergency exercises m deciding whether to issue a heense ' Clear- e n muon a.s specWeauon of u j
!y, then, those exeretses cannot be viewed act navants. suspensions, revoca.
'I as falling outside of the beensmg proceed- a ns. or amendments of any beense or mg. e nstruction permit-that require a hear.
- ng, citmg language of the seventh Cirewt j Our view tracks the !anguage of section that "[a]t least on a literal reading of see.
{ 189(a). That section does not differentiate den [ial of a] request tion [189) to between the "authonzauon" and the ' is- :nicate a revocation proceedmg was not an l 4 suance" of a license for purposes of guar- order final or otherwise, m a section anteeing a heanng on request. Since the
- [189(a)) proceeding" /d. at 1476 (quotmg i NRC, by its own regulations, has made Rockford League of Women roters r !
! correction of deficiencies identified m emer- .VRC, 679 F 2d 1218.1220 (7th Ctr.19s2n gency exeretses a requirement of its uiti. ;
l mate licensmg decision, it would seem to This court again adopted a !iteralist ap- '
l follow that results of these exercises must proach toward section 189(a) m upholdmg
- be subject to the section 189ta) heanng the NRC's narrowly defined scope of a requirement. heensmg amendment proceedmg m Bellotti l 47 Fed. Reg. 30235 (1982). the m.atenal on which the Commission rebes for i
- 7. Because we find that the Amendment contra. its decision") (emphasis suppbed).
' venes Secuon 189(s) of the AEC. 42 !.'.S.C. ,
) 2239(a)(1976), we need not decide if the NRC 10. Lonon decided that this court did not have , I acted arbitranly and capaciously in adopung it. Junsdiction to directly review aa NRC den.a4 af j
a request te msutute amendment proceedmss, 4
- 8. The NRC does not appear to have taken this Lonos rehed. however, on secuon 189(b) s ex- '
i posanon either in its bnef or at oral argument. press provision hmitmg this court: 'reviewmg l Although the NRC concedes that the assessment
' authorary to fmal orders entered pursuant to the of exercises as part of its hcensing decision. it kmd of proceedmgs' specified in 42 U S C.
emphaaanes the ongoing nature of the exercise
%ma ! as part ::f its argum=: 'or h re' 6 2239(a). [section 189(a) }." Lo non. 12 F 2d l )
at 1470. Thus, crucial to tne lonon noicing, i non to exclude exercise evaluations from hcens- was the interpretanon that secuon 189(a) pr>
ing hearmga, credmgs do not include requests to initiate >
- 9. Ses sagne text at note 4 (NRC regulanons censms amendments. See ad. at 1478 (" pre require excreases before license is issued). Bnef ceedmg' (in secuon 189(a) J cannot mean one for Respondent at 39 n. 20 (evaluauon of emer. thms for procedumi purposes and another for gency esercises is part of the "administrauve jurtsdicuona) purposes 7 i
l record as a whole, which by dehninon includes l
l l -
L - - - - - - - - - - - - - - - - - - - - - --- ---
r a literal applica. UNION OF CON. SCIENTISTS v. U.S. NIlC. REC.
che 73s r.2d i437 o,s.: }g3 C
. ring requirement recent cases. In h 25 F.2d 1380 (D.C.Cir.1983). In (3! When NRC advocates successfully '
1472,1475 (D.C. ciencie8 in managementfound serious of a nuclear plant deft. for a literal construction of 1s9
- U.S. ,104 m Massachusetts that posed threats to the requirement, it must take the bitte 2 (1984), we held 'f the sweet- If section IB9 tars precise lan-din the t. bf o$ur guage controls when interveners attempt not mandate a d:nies a request cense amendment which required the licen to obtain a heanng on a proposed amend-(mendment pro" see to submit, within 30 days a safet .r ent or to expand a proceedir.g to cover d the rationale of lated plan of action for NRC pp ova 8 ve8 t t s pr p sed amend.
tse Council, Inc. The Attorney General of Massa , ment. it also controla when the NRC or an 1- (D.C.Cir.1979), sought to mur;ane and requested a 189(a) terveur tries to hmit the heanng re-rejection or ap- hearing on, inter G. the adequacy of the quirement to less than the issues the NRC plan. This court hed that, despite the *
- defined as part of the "!icensing came under sec-a necessary first State of Massachusetts's obvious interest in e
, spded in Wat &c.eo nt. Lorion, 712 the safe operation of the licensee's plant, it Bruks r. AEC,476 F.2d 924 D.C.Cir 1973) had no cognizable adverse interest in the (petiti ners entitled to a heanng before 1479 n. ** (noting license amendment proceeding which in- AEC extended construction permit comple-cion 's position as volved only the issue of the Commission's tion datest see also 100 Cong. Rec.10686 doing so, Lorion order to the utility to develop a safety plan. {1954) (section 189fa) was amended to iecification of the "[T]he development of the plan of action #$8rly specify the types of Commission spensions, revoca- [took} place outside the proceeding" and actmties in which a hearing is to be re-f any license or was not part of the NRC's decision to quired"). Just as we ruled in Lorton that t require a hear- amend the license. Bellotti, 725 f.2d at until granted, a request for agency action ie Seventh Circuit 1382. We sustained NRC's reading of sec- specified in section 189(a) "is not a ' pro-al reading of see- tion 189(a) to grant a hearing only as to the ceeding' where the requestor has any right c} request . to issues material to the Commission's licens- to present evidence." 712 F.2d at 1478, so
. zeding was not an ing decision. must we now rule the converse, i.e., that ce, in a section In arguing that the Amendment contra- e 8 hearins n a licensing proceeding is at 1476 (quoting un, it must ene mpass au matenal fac-venes section 189(a), UCS does not object, Rmen Voters v. as did the petitioner in Bellotti, to the tors bearing on the licensing decision 20 (7th Cir.1982)). raised by the requester. Bee Porter Coun-Commission's restriction of the issues ma-l terial to its licensing decision. The Com- ty Ch@r of the Imak %#on League r.
- ed a literalist sp-mission,in this case, has defined as such an qRC, 606 F.2d 1363,1368 (D.C.Cir.1979) 49C) in upholding issue whether the preparedness plans pro- r such proceedings as are begun shall be fined scope of a {' vide adequate assurances of safety in case f rmal, public hearings").
- eeding in Bellott:,
of a ndiological emergency. It concedes The Commission and the Utility argue, commission relies for that in making its ultimate finding on this alternatively, that the Amendment st0! al-applied). l Issue it relies on emergency exercise evala- lows enough opportunity for public partici-ations. Thus, unlike in Bellotti, here ti.e pation in the assessment of the exercise is court did not have l
'$ j Commission hu removed from the licens- results to satisfy section 189(a)'s hearing ing hearing consideration oferidence that requirement. As stated above, the Com-n section 189(b)'s ex. it conarders relevant to a material issue in mission invites petitioners to reopen the m court's reviewins the section 189(a) proceeding as it has de. hearing if the exercise identifies fundamen-uered pursuant to the fined that iseus. Not only is this different tal defects in the emergency preparedness scified in 42 U.S.C j from the NRC position we condoned in plans. The Utility points in particular to he Lon n hold nr. Sc!!citi, Ts fact, it is in tension with Bellot- the Commission's willingness under the a section 189(a) pro- ti's conclusion, in the context of a license amended rule to reopen closed proevedings equests to initiate li- amendment, that "public participation is or institute new proceedings upon a re-e id. at 147s (-' pro-automatic with respect to all [section quest by an interested party alleging inade-
'h'*,","d a o her for 189(a)} Commission actions that are poten- quate emergency preparedness. See Brief tially harmful to the public health and wel- for Intervenor Utility at 45 & n. 23 see fare." Bellotti, 725 F.2d at 1383. also Brief for Respondent at 40 & n. 21 Ak
l l
1444 735 FEDERAL REPORTER,2d SERIES (pointing to willingness to reopen proceed. regulation,10 C F.R. 6 2.206, that governs ings in cases where other safety deficien.
l cies discovered). a request to imtiate an amendment pro.
I ceeding also governs the Commission's db..
l We do not think the Commission's over. cretion in denying a request to reopen a
,y ture is broad enough to comply with sec. closed proceeding. In short, we believe the tion 189(a)'s requirement. We held in (o. core question in this case is whether the l
rion that a request to initiate license NRC, consistent with section is9(ah may amendment proceedings under 10 C.F.R.
elimmate a maurial public safety related g,
6 2.206 (1983) is not a section 189(a) pro. factor in its decision from the beensmg ceeding. See 712 F.2d at 1478-79. Our hearing in the interest of makmg the pro.
rationale was that the Commission's recog. cess more efficient. We turn now to that e
q
- nized discretion to "make whatever unilat- question.
~ eral inquiries [it) deems necessary" in de.
ciding whether to grant a request for initia- !!!. Dtscacitos to I tstit THE Scnet or tion of a croceeding could not be squared StcTios 159(a) Horatscs
. ~
witti the requirement for a fullfledged [4] When a statute requires a " hear.
hearing in sectt sn 189(a) proceedings." /d. ing" in an adjudicatory matter, such as at 1475. We nt ted that "unless and until licensing, the agency must generally pro.
g j
{the request is) granted it is not a ' proceed. vide an opportunity for submission and ing' where the requester has any right to challenge of evidence as to any and all present evidence." /d. at 1476. The same issues of material fact.22 See General.lfo.
f ,
II. The Commission has nowhere obhgated ztself to hold any evidennary heanng or to reopen dure Act's ( APA) "on the record" procedures. 5
' U.S.C. ll 554. 556, 557 (1982). apply. See pur.
proceedings if an exercise " calls into question whether the requirements of C.F R. 50.47 can or ter County. 606 F.2d at 1368 n.12 (dicta staung will be met." 47 Fed. Reg. 30233 (1982). Its that "on the record
- procedures apply): see also i l City of west Chicago v. NRC. 701 F.2d 632. 642 comments upon adopting the Amendment state t . only that in such a case "a party . may seek to (7th Cir.1983) (dicta stating that the legisirm l reopen a concluded heanng or file a peutton for history of section 189(a) indicates that formal !
action pursuam to 10 C.F.R. 2.206." Id. (empha- proceedmgs are required for issuing a nuckar '
sis supplied). In denying I'CS's subsequent power plant bcense, but not for issumg a mate. l rulemaking petition. the NRC said: nal handling beense); but cf. 2 K. Davis. Ad.
(i]f . . . some key aspect of the plan turns out ministrative Law Treatise. 450 (2d ed.1979)
(enucmng reading of APA used by forter Coun.
to be inadequate or unworkable, or the jw:ig. ty ). Erst, lic.ensing is adjudicanon, and s hen a ments reflected in the planrung process are untenable, or major revisions will be neces. stetute calls for a hemnns in an adjudicanon the sary. the hearing cou!! be reconvened upon a heanng is presumptively governed by "on the showsng that the Commsssson's standards for record" procedures. See Seacoast Anti.Pollunon M' ' reopenmg have been mer.. Where appro- last e v. Castle. 572 F.2d 872. 87tw77 (lst Cir.),
pnate, any person may request that the Com. cert. denied. 439 U.S. 824. 99 S.Ct. 94. 38 led.2d mission insutute a proceeding to take immedi. !!7 (1978). Second. in 1961, the AEC specifical.
]' .
t ate action under 10 C.F.R. 2.206. Such action could include, m extraordmary circumstances, ly requested Congrrss to reheve it of its burden of "on the record" adjudications under 189(a).
suspension of the license pending correction see generally Stalf of the Jom Committee on of the deficiency. Atomic Energy,87th Cong.,1st Sess., Improving l, 48 Fed. Reg. 16693 (1983) (emphasis suppliedh the AEC Regulatory Process, Vol I(Comm. Pnnt see also id. ("if excretses showed that the plan 1961). Thereinafter cited as JCAE Report). In
... {was) seriously flawed . . reopenmg of the response. Congress enacted the present piovt. '
hearing tocord might be appropnate") (empha* s on permitting a license to be granted without s I.
sis supplied). Furthermore. these statements heanns when no hearing was requested. But it
! must be read in light of the Commission's prac. did not alter in any way the existing mterpreta-l tice generally not to reopen a heanne absent tion or definition of a 189(a) heantig thereby l "new information (that] would clearly mandate apparently reaffirming its intent that "on the
+
a change in result." Ceorgia Power Co. (Alvin record" procedures apply m licensmg. See W. Vogtle Nuclear Plant. Units 1 and 2),14 NRC S. Rep. No. 1677,87th Cong.,2d Sess. 6-7 (1962) 265, 271 (1981). U.S. Code Cong. As Adrnin. News 1962, p. 2207: ;
see also Independent Bankers Association v.
- 12. Although section 189(sys heanng provtsion Board of Governors of the red. Reserve Sys.,516 tacks the magic words "on the record," there is F.2d 1206.1218-19 (D.C.Cir.1975) (interpretmg much to suggest that the Admmistrative Proce. similar congressional acuon as indicatmg "on l
7 UNION OF CON. SCIENTISTS v. U.S. NUC. REG. COWN i
che as135 F.2d 1437 09m 1445
- 1. that governs tors Corp. c. Federal Energy Regulatory assigned the task of making a prelimmary nendmeist pro. Commtsston, 656 F.2d 791, 795 & n. 7 finding on the adequacy of offsite emer-mmission's dis. (D.C.Cir.1981); Public Sertice Co. c. Fed-gency preparation, require by rule an as.
it to reopen a cral Energy Regulatory Commission, fiOO sessment of emergency exercises, which wm believe the F.2d 044, 955 (D.C.Cir.), cert. denied. 449 s whether the U.S. 990.100 S.Ct. 520. 62 led.2d 419 they then rely on in determmmg the ade-m 189/a). .ay (1979); independent Bankers Association quacy of emergency plans to ensure the safety-related / eorgt n Board of Gorernors of Me surrounding community's safety in the the licensing Federal Reserve System. 016 F.2d 1206' case of a radiological accident ~u See 10
.aking the pro- 1220 (D.C.Cir.1975); see also Siegel t. C.F.R. Append.ix E i F 1.a. a1983); 44
.VRC, 400 F.2d 778. 784 (D.C.Cir.1968)("the C.F R. 9 3"30 9 (1983). Although in any rn now to that hearing granted by the [AEC] presumably particular heensmg pr eeeding, the exer-must embrace all relevant matters"). It is cise may n t raise any material issues 7HE scope or undisputed that the Commission must about the adequacy of the preparedness
\ RINGS make an ultimate finding in a licensing plans, the Commission cannot and does not uires a ., hear- proceeding that "there is reasonable assur- argue that assessment of these exercises is atter, such as ance that adequate protective measures immaterial to its licensing deetsion."
guerally pro- can and will be taken in the event of radio- The Commission argues instead that. al-ubmission and logical emergency." 10 C.F.R. 50.57(a)(1). though assessment of emergency e.sereises o any and all Both the NRC and FEMA which has been is generally material to the licensing deci-
.e General Jfo. the record" procedures apply in adjudications NRC. Nonethelea. FEMNs rule meludes eter-under the Bank Holding Company Act). Third, cises as a cntena for its " findings and determi.
rd" procedures. 5 more recer.tly in amending section 189(a) to nations as to the adequacy of the State and local
. epply. See Por. allow hearmgs after (rather than pnor to) a plans and the capabihties of the State and local 12 (dicta stating license amendment where the NRC de'ermmes governments to effectively implement these a apply); see also that the arnendment nvolves no signi'. cant haz. [ emergency preparedness) plans." FEMA Re.
701 F.2d 632. 642 . ards. Cont;ress agam assumed that tne amend. new and Approval of State and Local Radiologi.
ut the legislative ment hearings we:e "on the record." See, e.g., cal Emergency Plans and Preparedness. 48 Fed.
cites that formal H.R. Rep. No. 22. Part 2. 97th Cong.,1st Sess. 9 Reg 44332 (1983)(Final Rule). In commentmg isswng a nuclear (1982). Finally, over the past twenty years the on UCS's rulemaking petition that heanngs on ,
2r issumg a mate. NRC has consistently taken the position that the emergency exercises be held. FEMA stated: I 2 K. Davis, Ad. section 189(a) calls for "on the record" heartnp FEMA wishes to reaffirm the importance and 50 (2d ed.1979) in adjudications. See JCAE Report, supra, at salue of the joint exercise for FEMNs fmdmgs d by Porter Coun. 48-49 (1961) (Commission views statute, as concernmg the adequacy of offsite plans and ation, and when a amended in 1957. as requirms formal proce. preparedness. A full scale jome exercise . . is n adjudication the dures): Philadelphia Newspapers. Inc. v. NRC. necessary if FEMA is to certify m a finding erned by "on the 727 F.2d 1195 at !!99-1202 (D.C.Cir. 1984) that State and local governments are capable oast Antipollution (" Commission apparent [ly) interpret [s] . Sec- of protecting public health and safety in the
. 876-77 (1st Cir.). , tion 189(a) as requinng formal heanngs m li. event of an accident at a commercial nuclear Ct. 9s. 58 L.Ed.2d censing proceedings"). power plant.
M AEC specihcal. Nonetheless, we refram from holdir.g outnght Letter from Dave Mclaughlin. Deputy Associate
.e it of its burden , that section 189(a) reoutres "on the record" Director. State and Local Programs Support. to ms under 189(a). hearings in licensms ad, dications. The parties NRC (docketed Jan. 27. 1983).
nt C mmittee on did not brief this issue, and the Commission's Sess Improving regulations governing licensmg proceedings 14. Contrary to the dissent's suggestion other.
it.1 (Comm. Pring provide for hearing procedures that comport wise. Diss. Op. at n. 2, we do recogmze that the CAE Report). In with or even surpass those required by the APA Amendment makes the NRC's requisite findings he present provi. for "on the record" adjudication. Compara 10 on emergeecy preparedness more predictive in granted without a C.F.R. H 2.700,2.780 (1982) (NRC regulations nature. But even under this amended standard, requested. But it on heannss) with 5 U.S.C. 66 554, 556. 557 which is not challenged in this case, the NRC
- xisting interpreta. (1982)(APA "on the recora" adjudicatory proce. requires a successful evaluation of onsite and
) hianng, thereby i dures). De issue presented to us by the parties offsite emergency exercises before it issues a d nt that "on the is whether ths NRC can, in its discretion. bypass full power operstmg heense. See supra text at n licInsms. See i section 189(aTs heanns requirement altogether nn. 4-6. Our holdmg today m no way re.
'd Sess. 6-7 (1962) on issues material to its licensmg decision. flects on the propnety or impropnety of that modified substantive standard, it only requires
,' f,, ,
'), y,'. IL FEMA requires the exercises as a prerequisite that emergency exercise evaluations be subject
- t. R'#erw Sys.* *16 for its approval of state and local plans for to pubhc heanngs because they are material to I purposes of federal assistance but not for its the NRC's iicensing decision under the new .
indi t g "on Gndings on adequacy, which it submits to the standard. See infra text at n. 20.
I l
l l
m 1446 735 FEDERAL REPOR'iTR. 2d SERIES i sion, section 189(a) still leaves it discretion lays caused by licensing hearmRL Con.
to evaluate the exercises outside the hear-ing procedure preparatory to making its gress relieved the Commission of these ultimate finding on the adequacy of offsite burdens only to the extent of allowmg li.
preparation. Under its a:aended rule, the censing without a hearing in the absence of a request. Congress was influenced in
" exercises are treated as part of the preop- that decision by the Staff Report of the erational testing of nuclear plants, which Joint Committee on Atomic Energy,is as a matter of longstanding regulatory which stat 4d:
f' practice has been conducted in the post-ad- :
judicative phase of licensing." Brief for {t]he gravity of the safety questions ce.
al Respondents. Summary of Argument. It cided whenever a license is issued makes
- further claims that reading the AEA to it important to provide an opportunity l
.[. require hearings on all issues relevant to for interested members of the public to j licensing would place an unrealistic and attend and to furnish an inducement to 1j both applicant and staff to formu! ate u j g! r unreasonable burden on the NRC's ability to achieve its " statutory objectives in a thetr respective views in terms so suscep.
timely and efficient manner." Id. tible to lay understanding as the subject
< permits. Moreover, in doing "the home.
! , A. The Balence Beturen Efficiency of work" for such a hearing, the applicant Proceedings and the Public's Right to or the staff may view the problems they j a Hearing have been considering in a new perspec-y' tive and may become aware of a new
[5] We have already acknowledged that way to rethink or reexamine some facet
, the NRC has great discretion to decide of a problem.
i what matten are relevant to its licensing JCAE Report, supra note 12, at 49.
l decision, see Siegel, 400 F.2d at 783. We i ,
conclude, however, that its discretion to The NRC again went to Congress in 1982 limit public participation in resolving the complaining about the delay that publie matters it deems relevant is more circum- hearings on licensing normally cause, exae.
scribed as a result of section 189(a)'s hear
- erbated at that time by the logistical de., r
- ing requirements. Administrators may not ployment of the NRC staff to handle the lightly sidestep procedures that involve the Three Mile Island situation. It asked for l i public in deciding important questions of authority to grant interim licenses without ;
public policy. Environmental Defense a hearmg. At about the same time, in i Fund, Inc. v. Ruckleshaus, 439 F.2d 584, response to this court's decision in %lly
- r. NRC, 651 F.2d 792 (D.C.Cir.1981), racat.
594 (D.C.Cir.1971). "[T]he Commission is entitled to great freedom in its efforts to ed and remanded. - U.S. ,103 S.Ct.
,' structure its proceedings so as to maintain 1170, 75 L.Ed.2d 423 (1983), it asked for authority to issue license amendments their integrity while assuring meaningful public participation, but one of its goals without hearings if they involved "no sig- '
must be to assure that there is meaning- nificant hazards consideration." S. Rep.
l fut public participation." Bellotti, 725 No.113, 97th Cong.,1st Sess. 14 (1982), ,
l F.2d at 1389 (Wright, J., dissenting) (em. U.S. Code Cong. & Admin. News 1982, pp.
, go, ;598. Although Congress granted l phasis in origina4 the Commission partial relief on both re- {
' In this case, we believe the Commission quests, see 42 U.S.C.A. li 2239(a), 2242 4 has upended the balance struck by Con- (West Supp.1983), it stressed the impor- i gress between efficiency and public partici- tance of the section 189(a) hearing require-pa. tion. In 1961, the AEC requested that ment by requiring the agency to hold hear-( Congtess relieve it of the burdens and de- ings subsequent to the issuance of the tem-
' l$. The Joint Comminee was established in 1954 El 2251-2257 (1976). It was abolished in 1977.
to morutor for Congress developments under Ses 42 U.S.C. l 2258 (Supp. V.1981).
the; Atonne Energy Act of 1954. See 42 U.S.C, I
r N
-i
. ensi.ng hrrings. Con- IINION OF CON. SCIENTISTS v. I'.S. Nt'C.
Commission of thtse porary license or the license amendment
3 extent of allowing li- The House Report noted const Ci Permit was ;ssued to decid.
ering in the absence of the hearing pr cess serves a vital fune- issues matenal to the licen tion as a forum for raising relevant absent a specific ordcr of a futu e Staff Report of the v estn. mstmetion . by the licensing board. those de on Atomic Energy,88 and operation of a reactor, and for pro- bree had to Mft to staff i recommendations. Congress' of ha safety questions de. viding a means by which the applicant did not adop and the Commission staff can be held it opted instead for further p lic2nse is issued makes accountable for their actions regarding a before ficensing upon reques.iblic he 3rovide an opportunity particular facility. t oy any in.
mbers of the public to [T]he hearing terested party. See Pub.L Ni M-615 nish an inducement to process is essential to obtaining public 5 2. 76 Stat. 409 (1962).
confidence in the licensing process which believe Congress ve nd staff to formulate is needed if the nuclear option is to be well as the NRC staff preserved.
ews in terms so suscep- safe operation of nuclear power plants.
+tanding as the subject ll.R. Rep. No. 22, Part 2. 97th Cong.,1st ' " * ' " " "
'r in doing "the home.
Sess.11 (1982) (emphasis supplied), egis ative history for " 8NRC.
I" the statute or s position that htaring, the applicant The Commission points to one paragraph Congress granted it discretion t the problems y in the 1961 JCAE Report as showmg that from the hearing material issues i censing decision.
Congress contemplated reliance on staff,
- dae rather than a public hearing, to resolve Our decision that the hearing require -
' reexamine some issues of implementation left open after the ment of section 189(a) includes factual is-licensing hearing." See Brief for Respon- sues raised about the preparedness exercis-2 n:te 12, at 49. dent at 30. That paragraph, however, was es is not overly restrictive, in its support-ent to Congress in 1982 written in the context of a proposed proce- ing statement for the Amendment the tha delay that public dure, not ultimately adepted entailing a Commission said that "[t]he conduct of fu g n:rmally cause, exac-single public hear:ng prior to issuance of scale exercises early enough in the licens-e by the idiistical de- '
the construction permit with no subsequent ing process to permit the outcome exercises to be fully litigated at the [licens-1C staff to handle the hearing required before issuance of the ing) hearing is premature." 47
.ituation. It asked for operating license.i' See JCAE Report, su- 30233 (1982). If that is so, we s aterim licenses without pra note 12. at 72-73. Since that proposal to prevent the Commission from holdi
>ut the same time, in envisioned no further hearings after the specF' supplementary hearing solely on trt's decision m. bily 16. Congress allowed the NRC to grant tempo. a construction permit or a heense should is,
- o (D'C.Cir.198n, vacat- rary licenses without a pnor hearing as "an extraordinary and temporary cure for an extra- sue. In so doing, it should specify whether a
- U 0- ' 103 S~Ct. ordinary and temporary problem." H.it. Rep. further heann8 should be held to determme 23 (1983), it asked for whether the conditions have been satisfied, or No. 22. Part 2, 97th Cong.1st Sess. 9 (1982); see also Sen. Rep. No.113. 97 Cong Ist Sess.13 whether reports of AEC hazards analysis staff
. licInse amendments or staff inspectors to be placed in the public
- (1992). This authonty expired on December 31.
th:y m.volv,g uno sig. 1933. See 42 LI.S.C.A. t 2242(e) (West SuPp- record might suffice. In many cases, the pub-Consideration." S. Rep. 19s3). lic imerest in safety could be adequately served by the latter procedure. If condioons g.,1st.Sess. 14 (1982), The subsequent hearing for a temporary li-cense, althoush not soverned by the full proce- proposed by the Board are not satisfactory to Admin. News 1982. Pp- dural requirements applied to 189(a) heannss the apphcant or to the staff. the 8oard should tgh Congress granted by NRC regulat provide for conferences in order to consider
,,,, ,f ,,,,,,,,, ions, was,, to f,,,, afford " fullissus'
,ff ,ubstantial disclo" possible alternatives compat ble w th its ob-raised in connection with the issuance of any jectives which would be more sausfactory.
'.tial C.A. ilrelief2239(a),on both fe" I 2242 temporary operaung licence." H.R. Rep. No. 22. JCAE Report, supra note 12. at 72-73. >
l Part 2,97th Cong Ist Sess. II(1982) rempaets it stressed the .Imf I supplied). Furthermore, a full section 189(a) 1s. The proposed licensing procedure provided.,
. Ig9(a) hearing reQW hearing for a final operaung license had t he Board should decide that an operating D' "I'n'y to hold hear- concluded as promptly as practicable. 42 . license should issue t.fter publishing notice of
.h3 tesuance f the tem. C.A. I 2242 (West Supp.1983). intent to do so but wuhout a heanng unless it
- 17. That parasraph states determines that a heanns would be in the It was abolished in t977. public interest.
. (Supp. V. t981). [A Licensingl Board s ould be authonzed to JCAE Report. supre note 12. at 73.
Impose conditions in any decision on whether l
l.
/ k.
j 1448 735 FEDERAL REPORTER 2d SERIES
.i sues raisad by the emergency exercises fault was not unduly unsafe); Wesetng.
closer to the date of full power operation.d house Electne Corp. v. United States. 59B And certainly the Commission can 'imit F.2d 759, 771-73 (3d Cir.19791 INRC had that hearing to issues-not already litigat- broad discretion to impose moratonum on ed-that it considers matenal to its deci- decisionmaking regarding recycling of nu.
sion.
clear fuelin light of uncertainty about effi.
So viewed, we find that section 189(afs cacy of recycling). Under that standard, hearing requirement does not unduly limit the NRC could summanly dismiss any the Commission's wide discretion to strue. claim that did not raise genuine issues of
' ture its licensing hearings m the interests material fact about the fundamental nature of speed and efficiency. For example, the of the emergency preparedness plans. See
, Commission argues throughout its brief 10 C.F.R. 6 2.749 (1983). To avoid summa.
,, ; that the exercise is only relevant to its ry d:yvshion, a party would have to idento
,j'! licensing decision to the extent it indicates fy and support specific facts upon which a et that emergency preparedness plans are .easonable i@ence could be drawn that
- 'p fundamentally flawed, and is not relevant the plan provided inadequate assurances of
,l as to minor or ad hoc problems occurring safety. See id.; BPI v. AEC,502 F.2d 424, on the exercise day. Today, we in no way 428 (D.C.Cir.1974) (under section IE9 fan I: restrict the Commission's authority to " Commission [may] require that prospee.
1 adopt this as a substantive licensing stan. tive intervenor first specify basis for a dard.28 See Siegel, 400 F.2d at 753 (" broad hearing"); see also National Souvenir responsibility reposed in [the NRC]" Center, Inc. v. Histon'c figures Inc. 728 justified its decision that the secanty of a F.2d 503 at 512-513 (D C.Cir.1984) (statmg li power plant from enemy takeover is not test for genuine issue of material fact). If
, relevant to licensing); see also North a party's claim survived summary dispca.
Anna Environmental Coalition v. NRC, tion, the Commission might then use expe.
533 F.2d 655,689-90 (D.C.Cir.1976)(uphold. dited procedures to shorten the period be.
t ing decision in a particular licensing pro. tween the exercises and the date of li.
l ceeding that siting of plant on geological cense.88 However the Commission wishes
- 19. The Comminion dismissed this option as of evidence and s.ross exammation to relesant
" impractical" when at demed UCS's rulemaking and non repetitive matenal. See 10 CJ R.
, petition. 48 Fed. Reg. 16693 (1983). In doms 6 2.757 (authonty of presiding officer to regu.
so, however, it seems to have conceded that late procedure en a heanng). Although we do supplementary heanngs would a!!eviate the not express any opinion about the extent to problem of premature emergency exercises, but which the NRC could or should expedite proce.
nonetheless rejected such heanngs because "de. dures, we note past criticisms that it has oser.
I lay would occur without commensurate safety formalized its procadures. Ses Tourtellette. Nu.
benefit in the ordinary ca*e." /d. Our conclu. c' air Lcrisms Ut'gdt'ont Come Ort 18 the sion. that Congress did not authonze the Com. Ousgmin & F%, J.* Admin LRev. 367 (1981);
, mission to eliminate heanngs on issues matenal cf. Cotter, Nuclear Licensmg: Innovaten to its licensing decssion under an elficiency re. Ilsrough Ewfurion in Admmsstrative Hearmgs, tionale, precludes its rejection of a supplements. 34 Admin.I Rev. 497 (1982) (generally app!aud.
ry hearing,in favor of no heanns at all, on that ing recent efforts of NRC to expedite heanngs i , basta. See supris text at notes 12-18. but warning of pouible due process violauonst The dissent states that holding heanngs on
- 20. Of course. if such , standard were challenged emergency exercises evaluations could delay li.
In court, the NRC might still have to defend censmg proceedings "up to two years in cases l itself against allesauons that it had acted arbi. where the Comminion's decisions are appealed l tranly and capaciously. See 5 U.S.C. I 706 to courts." Diss.Op., text at n. 6. This not only fl98R 42 IJS C. $ 2230(b) (10'f) (inv ng We6 the potemial for time savmgs by use of I'
section 706). expedited procedures, but it incorrectly assumes that a license cannot issue until the Commission j 21. The Cotesion's regulations allow the li. and the courts affirm the licensing board dece cammr bosni to expedite proceedings by focus. sion. To the contrary, withm 30 days of the ing the proceedings on the key contested inues, board's decision. the Commission will deter.
see ag.,10 C.F.R. I 2.751 (preheanng confer. mme whether to stay the issuance of the license. ,
ence), and by strictly limiting the presentation 10 C.F.R. $ 2764(f)(2)(iii)(1983).
jj .
UNION OF CON. SCIENTISTS v. U.S. NCC. REG. COWN 1449 safe); Westing- ~" ## {
iited S ates, 598 t do it, the only central requirement is gress exempted from the formal hearmg 1979) WRC had that there be an opportunity to dispute procedures adjudicatory Mee:sions (that] '
i moratorium on issues raised by the exercises under the rest solely on inspections. tests. or elec-recycling of nu. relevant decisionmakmg criteria. tions," 5 U S C. 6 554(ax3)(1982). "because rainty about effi- those methods of determmation do not lend r that standard B. <tssessntent of Eier!ises as Preopera. themselves to the hearing process."
,1v dismiss any tional Testing S. Rep. No. 752. 79th Cong.,1st Sess.16 i l
Ynuine issues of Finally, the NRC justifies removing exer- (1945). The language of the APA exemp-adamental nature {
cise results from the licensing hearing be- ti n is circumscribed. and does not encom- j iness plans. See cause it believes they are more appropriate- pass all decisions which are based on evi. 1 To avoid summa- ly treated as part of the preoperational ce d kom tens or sspections.
I ld have to identi- *
- testing process. which has traditionally gh'd l
- ts upon which a been exempted from the licensing hearing. nfa d I be drawn that Brief for Respondent at 26. The AEA does away with hearings altogether and replace -
ite assurances of not explicitly except preoperational testing them with staff inspections as the sole EC,502 F.2d 124. from section 189(afs hearing requirement, method of developing evidence for its ulti-e section 189(a) but the NRC argues that such an exception mate decision. For example, under such a re that prospec- reflects the practical realities of the licens- broad reading, the NRC conceivably could cify basis for a ing duties which Congress imposed on it.
remove safi.ty review of nuclear reactor ^
i tional Soutenir The argument depends on two propositions: design from the license hearing bv reiving rigures Inc. 728 solely on tests and inspections to d'eterinine Cir.1984) (stating (1) that for certain NRC decisions public that the reactor operates safely. Obvious-hearings serve little purpose and those de-
,aterial fact). If ly, the test exemption is not so broad.
cisions should be excepted from section l <ummary disposi- 189(a) hearings, and (2) evaluations of In seeking to discern its limits, we look ht then use expe- emergency preparedness are such deci- to the legisir.tive history of the APA.n en the period be- sions. There, although Congress did not elucidate I the date of li- its reasoning at length, it cited the Attor-
>mmission wishes Although the AEA includes no excep- ney General's report that analyzed the ex.
tions to section 189(a). there is something emption as designed for on the spot deci-nmznon to relevant al. Se, to C.F.R. to be said for the first proposition: Obvi- sions made by a qmlified inspector who 3ing officer to regu-ously Congress did not mean to require a himself "saw t. i ad or examined" hearing where a hearing serves no pur- the evidence material to the decision."
'$,"8h
,y,n *', dj
,ould expedite proce.
pose. In determining the scope of such an There is no indication it was meant to apply
.ms that it has over. exception we look to the APA where Con- to decisions that are made by weighing See Tourtellotte, Nu. An operating license decision will be stayed Come On In. th, The most important e!cment in (al decision by the Commission . . [only) if it determines m.I..Rev. 367 (1981); [that falls within the exemption) is the judg.
that it is in the public interest to do so, based censmg.- Innovation on a consideration of the gravity of the sub. ment of the man who saw(.) . . tested . or nanutrative Hearings, . . examined [tne article to be approvedl.
s'antive issue, the likelihood that it has been Formal proceedings are not, of course, impos-
- 2) (gInerally applaud. resolved incorrectly below, the degree to to expedite hearings sible. A trial examiner could be designated:
which correct resolution of the issue would be the mspector could be summoned to testify, 4e process violations). prejudiced by operation pending review, and under oath. concerning his observations.. .
holding hearings on other relevant public interest factors.
ations could delay 11 But resort to formal procedure in this type of 10 C.F.R. $ 2764(f)(2)(i) (1983). administrative matter o two years m cases is not desired or ecismns are appe: led 22. The major case on the scope of the test ex- utilized . . because it gives no added protec.
it n. 6. This not only tion. The judgment would necessarily remain emption. Door v. Donaldson,195 F.2d 764 (D.C.
me savings b~ use of the determming element in the dectsion and, i Cir.1952), illuminates only to the extent that it it mcorrectly assumes in any event. inme immediate dects:en een.
states, tn cicta, that tne exemotion includes cernmg the fitness of an apphcant, or of an until the Commission " technical facts like the quality of tes or the licsnsing board deci, airplane. or a locomotive. or a ship, is neces.
condition of an airplane as to which administra-sary to protect the public interest.
ithin 30 days of the tive hearings have long been thought unneces-sary? 14. at 766. Attorney General's Committee on Administra-nmission will deter-tive Procedure. Final Report to the President Ssurnce of the license.
and to the Congress 37 (1941), reprrnted in ll nit.
(1983). 23 The Attorney General's report stated the fol. ed States Dep's of Justice. Attorney General's lowing raticnale for the test exemption:
Manual on the APA 45 (1947).
4 l
q' l 1450 735 FEDERAL REPORTER,2d SERIES evidence tendered by third parties. Where. The NRC also argues that Congress has j, as with preparedness exercises, the deci- acquiesced in the Commission's longstand-
@ sion involves a central decisionmaker's con- ing practice of conducting preoperational sideration and weighing of many others testing after the licensing heanng, and it ly]
- persons' observations and fint hand experi- now has the discretion to add emergency ences, questions of credibility, conflicts. exercise evaluations to the list of such 1 and sufficiency surface and the ordinary tests. It refers us to Power Reactor De-reasons for requiring a heanng come into relopment Co. v. International Union of a the picture.
Electrical Workers. 367 U.S. 396. 81 S.Ct.
[6] In light < ' the scope of the APA's 1529,6 L.Ed.2d 924 (1961). which involved a test exemption, we do not believe that eval- challenge to an AEC finding of adequate uations of emergency preparedness exercis- assurance of safety in a construction per.
es fall within the cacegory of determina- mit proceeding. Power Reactor read Con-tions that might be excepted from a section gress' failure specifically to require the s! , 189(a) hearing because they do not lend AEC to make a definitive safety finding at themselves to the hearing process. In the construction permit stage as acquies-
"f evaluating the exercises, the Commission cence in the Commission's practice of defer-does more than just review on the scene ring such a safety finding until the licens.
reports by NRC staff observers. Rather. ing stage. Id. at 408, 81 S.Ct. at 1535.
g the Commission is called upon to consider J. and weigh evidence presented by FEMA, We find this acquiescence argument un-f the licensee, and state and local officials as convincing for two reasons. First, it deals well as its staff in assessing whether the in the " shaky business [of] attnbut[ing]
exercises demonstrate that adequate emer. significance to the inaction of Congress."
gency preparedness plans can and will be Id. at 409, 81 S.Ct. at 1535. Usually, such implemented. In addition, the evaluation significance attaches to inaction only where 8 - of. exercises is itself just one, not the there is evidence that Congress was aware
" sole," factor in :.he Commission's overall of a problem. Power Recctor, for exam-determination, required under the rule, ple, involved an issue that had " time and that, in case of a radiological emergency, again been brought to the attention of the there is reasonable assurance that ade. Joint Committee" which has a special obli-quate measures can and will be taken to gation to apprise Congress of the " state of -
i protect the health and safety of the popula. the atomic energy industry." Id. at 408,81 tion around a nuclear power plant. Thus, S.Ct. at 1535. Also, the Court noted that
, we conclude that evaluation of emergency the regulation did not infringe on the statu-exercises is not a determination resting tory right to a definitive finding on safety l { solely on a test or inspection so as to quali- at a subsequent hearing. Id. at 411, 81 l , fy for a generie exemption from section S.Ct. at 1536. This case is different in both
- 189(a)'s hearing requirement.84 respects. s
- 24. The dissent appears to acknowledge no 25. The NRC als.o cites Public Service Co. v. NRC. .
582 F.2d 77 (1st Cir.), cert. damed. 439 US '
bounds on the Commission's discretion to re.
' 1046. 99 S.Ct. 721, 58 led.2d 705 (1978). to move material determinanons from the statuto.
ry hearing requirement and classify them as support its acquiescence argument. In that preoperational testing. It unquestmningly ac. case. the First Circuit deemed Congress to have cepts the NRC's undocumented position that the acquiesced in a rule that allowed the NRC to
- ' emergency exercise should be treated as part of assert jurisdiction over equipment associated 3
. preoperational testing. Diss.Op. at 14 9 1455. with a nuclear reactor (power lines), although
!' Under such a standardless rationale, there ap- there was no evidence that the ru,le was ever brought to Congresas or the JCAEs attention.
! pears to be nothing to prevent an agency from I.ike the rule in Power Reactor, however, that circumventing a statutory heanns requirement rule did not contravene any other clear statuto.
altogether by basing all of its entical determina-ry pr visi n (such as the provision for a hearing 8
tions on evidence denved from tests and inspec. on request). Obviously, there can be no general
- , tionS- S88 JNPre at 1449. proposition that courts should assume Congres- l i
, 1 l,
( A
p ,7 l
UNION OF CON. SCIENTISTS v. U.S. NUC. REG, COM'N 1451 hit Congress has Cite as 73$ F.2d I437 t:see) 5sion's longstand- Second, even if we were confident Con- cies). We thus find exercise evaluations tg preoperational gress had acquiesced in the Commission's sufficiently different from traditional pre-g hearing, and it practice of ' conducting posthearing preop- operational testing to render any inference o add emergency erational testing, we would not conclude of congressional acquiescence-even if it -
the list of such that its acquiescence covered evaluation of . were justifiable as to traditional testing-mer Reactor De- emergency exercises, an issue which has entirely too speculative with respect to itional f/nion of just arisen in the past year. . Preopera tion- emergency preparedness exercises.
U.S. 396, B1 S.Ct. al testing has traditionally involved testing
, which involved a of reactor systems to ensure that they Cectatos meet established, objective " acceptance cri-ding of adequate In order to facilitate licensing of nuclear teria." See, e.g.,10 C.F.R., Part 50, App.J.
construction per- power plants, and to ensure that emergen-(Primary Reactor Containment Leakage Veactor read Con- Testing for Water Cooled Power Reactorst ey preparedness exercises are conducted
- y. to require the The licensee conducts the tests and reports near enough in time to full power operation
, safety finding at to be meaningful, the NRC has ruled that the results to the Commission. Id. (Sec-stge as acquies- tion V. Inspection and Reporting of Tests). the exercises need not be conducted before 4 practice of defer. Assessing these test results falls squarely the licensing hearing; it still requires. how- .
ig until the licens- within the NRC staff's technical expertise' ever, that the exercises be conducted and
. 81 S.Ct. at 1535. Emergency preparedness exercises, on the demonstrate adequate assurance of safety nca argument un- ther hand, are not evaluated in terms of before a license will issue. Thus, the NRC -
First, it deals preestablished criteria; they are evaluated has removed from the hearing required by Lnsh att& ding] to ensure that they do not reveal any fun- section 189(a) material issues relevant to its damental inadequacies in the nature or im- licensing decision. On the basis of the h5. Usually, such plementation capacity of emergency pre- statutory language as well as a history of n:ction on y paredness plans. See 10 C.F.R. Part 50, congressional reaction to prior attempts by App. E (exercise to test "as much of the the Commission to eliminato or significant-2ngress was aware ferefor, for exa licensee, state, and local emergency plans ly restrict the scope of section 189(a) hear-as is reasonably achievable without mands- ings, we find that Congress did not grant
' hat had " time an tory public participation"). Exercise evalu- the Commission discretion to rerriove so he attention has a spec ations focus on the coordination of police, materal an scue as the results of offsite ass of the state o f re, medical and other service personnel , emergency preparedness from required who operate under the auspices of several sect on 189(a) hearings. The adoption of try. . Id. at 408,81 independent entities-the licensee, utility, such a rule was beyond NRC's statutory e Court noted that county, state and federal governments, authority; accordingly we vacate the
- fringe on the statu- Amendment.
even community volunteer agencies. Eval-e finding on safety untion of such exercises, insofar as it in- It is so ordered.
no. Id. at 411, 81 volves the adequacy of community prepar-a is different in both '
MacKINNON, Sem.or Circuit Judge (dis-edness plans, will be as much within out; side participants' expertise, or that of other senting):
federal agencies like FEMA, as within the Section 189(a) of the Atomic Energy Act
$#Yia[43N 1 Ed.2d 705 0975), to expertise of the NRC staff. See, e.g., Xat- provides for hearings on the granting of e argument. In that repolitan Edieos Co.,14 NRC 1211,1695 licenses,8 but the Act delegates to the Nu-e i (TM! Unit 1 Restart) (team of federal ob. clear Regulatory Commission (NRC) the re-
- '"$,Congnsapapt,
, w s servers from FEMA, EPA, DOE, NRC, sponsibility to determine the substantive equipment associated power lines), although l FDA, Public Health Service, U5DA and requirements for licenses. Thus, the scope that the rule was ever :
DOT reported exercise response deficien- of Section 189(a) hearings are necessarily r the JCAE's anention.
Reactor, however, that sional acquasacence in all longstanding NRC person whoes interest may be affected by the any other clear statuto- practicse: each case must be decided on its own proceeding. and shall admit any s,uch person as g cs , a party to such proceeding. U.S.C.
pesvision for a hearing
- 42 there can be no general 1. In any proceeding under this chapter. for the i 2239(a)(1) (1976): 42 U.S.C.A. 5 2239(a)(1)
.hould assume Congree. .
granting . . of any license ... the Commission gw,,, supp,g9g3),
shall grant a hearing upon the request of any M C_
l 1452 735 FEDERAL REPORTER,2d SERIES determined by the substantive require- the rule significantly revises the substance ments that the Commission's regulations of the basic finding that the NRC must provide are to be considered in connection make as to emergency preparedness. Un.
with any particular license. der the new rule, the NRC's required find.
Pursuant to Congress' delegation of li. ing is essentially predictive in nature:
i censing authority to the NRC, the Commis. [N]o operating license for a nue! ear pow.
l' sion has by regulation required the prepa. er reactor will be issued unless a finding i ration of emergency response plans. onsite is made by NRC that there is reasonable j and offsite, for nuclear power reactors. assurance that adequate proteette e As petitioner and respondent are agreed, measures can and will be taken in the these plans will unquestionably be subject event of a radiological emergency.
N j. to the Section 189(a) hearmg requirement. 10 C.F.R. 6 50.47(aNI) (1983); 47 Fed Reg.
i, in my view, the majority errs. however, in 30233, 30235 (July 13.1982) (emphasis add.
going further, to require substantially ed); see 47 Fed. Reg. at 30233 (NRC's dis.
,, broader hearmgs. Misapplying Section cussion of final rule, describing " predictive
- i f 189(a), the majority decision effectively ex- finding").8 Second, the Commission pro.
- pands the substantive scope of operating vides that low power licenses require only license hearings, by forcing inclusion of adequate onsite emergency plans; no off.
review of the emergency excretses that the site showing is required for fuel leading J .
l NRC requires later on as part of the final and low power operation. See 10 C.F.R.
testing process. The ultimate effect of this 6 50.47(d); 47 Fed. Reg. at 30232-33.8 Fi-Court's decision is to intrude upon the Com- nally, the regulation makes it clear that mission's exclusive authority to define the only the plans for onsite and offsite emer-l .i substantive requirements for an operating gency responses are subject to Section
' license.
l 189(a) hearing requirements. See 10 i Under the NRC's rules, prior to issnance C.F.R. 5 50.47(aX2); 47 Fed. Reg. at 30233.
Ib of a full power operating license, emergen. Thus, just as for the finalinspection and
- h. cy plans must be developed, subject on pre-operational testing of the plant, no i request to a public hearing, and emergency initial heartng rights attach to review of l
exercises must be conducted later in such a the results of required emergency exercis-
?
manner as to demonstrate the adequacy of es. The initial formal hearings concerning 1 l both onsite and offsite emergency plans, licensing authorization will not embrace the i The regulatory amendmenta here in ques- exercise or final testing results, although -
tion leave unchanged much of the Commis- the Commission may in its discretion allow l ,
sion's basic approach to emergency prepar- for such an expansion of hearings after p ,
- edness. The instant rulemaking does, how- exercises have been conducted. Beyond ever, accomplish several changes. First, this possibility, according to the NRC, a
. 2. The language of the prior standard placed a the requisite emergency preparedness finding, greater emphasis on the actuallevel of readiness Much of petitioner's bnef is devoted to attack.
for emergencies: ing the factual basis for the Commission's deter.
I l i No operating license for a nuclear power minations that a predictive finding is sufficient reactor wdl be issued utdess a findmg is made to fulfi!! its regulatory responsibilities, and that :
- by NltC that the state of oruns and o// site that predictive finding can be made pnor to '
% I emergency preparedness provides recionable conduct of exercises. The majonty does not l
- assurance ther adeguate protective measurce directly question the rule's change in the re l
, , can and will be taken in the event of a radio. quired substantive finding. In my view. how-logical emergency. ever, the ultimate effect of the matonty's deck (
10 C.F.it. l 50.47(aXI) (superceded): 45 Fed. sion is to undermine the Commission's decision '
D Res. 55402. 55409 (Aus,19.1980) (emohasis
-,l, to modify the substance of its licensing requare added). This sismficant change in the relevant ment as to emergency preparedness.
I substantive standard might obviously have a substantial effect on the scope of Section 189(a) 3. Petitioner does not challenge this espect of the hearmss. Yet the mayonty opinion fads ade. rule amendment. See Snef for Peutioner at l
quately to recosmza this change in the nature of 4-5.
6
i UNION OF CON. SCIENTISTS v. U.S. NCC. REG COM*N 1453 s the substance Cits as 735 F.2d it37 (1964) the NRC must hearing may be held only upon a motion by Congress enact (ed] a regulatory a party to reopen a concluded licensing puedness. Un- scheme which is virtually unique m the I
's required find- hearmg, or in conjunction with a well-degree to which broad responsibility is !
e in nature: grounded petition under 10 C.F.R. 6 2.206 reposed in the administering agency, free r a nuclear pow- to modify, suspend, or revoke a license, of close prescription in its charter as to See 47 Fed. Reg. at 30233. !
" how it shall proceed in achievmg the f, 'r s a I w uld uphold this rulemaking. The statutory objectives.
att protective Commission's determination that the re- Siegel v. 4tomic Energy Commission. 400 be taken in the l suits of emergency exercises may not be F.2d 778, 783 (D.C.Cir.1968) teiting Poker nergener injected into the Section 189(a) licensing Reactor Development Co. v. Internation.
3); 47 Fed. Reg. hearings is entirely consistent with the pre- al Union of Electrical Radio & .lfachine 1(emphasis add- dictive nature of the emergency prepared. Workers. 367 U.S. 396, 81 S Ct. 1529. 6 233 (NRC a dis- ness finding that the NRC has bound itself led.2d 924 (19611)(mphasis added). The bing " predictive to make, and does not conflict with the specific language of Section 189(al should statutory hearing requirement. It is my not be applied contrary to the context of ommission pm ws mquire only view that in reviewing the NRC's rule, we the Act to bring about more than is re-
< plans; no oS should not apply an overly literal interpre. quired by that section or by the statute as
'or fuel I ading tation to Section 189(a), against the basic a whole.
Su 10 C legislative ntent expressed throughout the Mindful of its tremendous safety respon-30232-33. Fi- statute. A statute is to be read in its sibilities under the Atomic Energy Act, the es it clear that entirety, and as Judge Learned Hand once Commission has been extremely vigilant in nd offsite emer- observed, "[t]here is no surer way to mis- requiring and updating very substantial
. ject to Section read any document than to read it literally safety measures to deal with the potential ts. See , Guiseppi r. Walling,144 F.2d 608, of radiological emergencies. The NRC's l
'I'
- g
- 624 (2d Cir.1944) (L. Hand, J., concurring). existing emergency preparedness regula-ansputt'on and And to this should be added that a sentence tions are a good example. The Commis-f the plant, n of an act should rarely be read literally sion,in order to ensure that adequate plans
- h to review of against the intent that permeates the rest exist to deal with emergencies, both onsite ermey exercis- of an act. As we observed concerning the and offsite of nuclear plants, has promul-
"* broad congressional intent expressed in the gated sixteen specific standards that emer-Atomic Energy Act:
gency response plans must meet.4 Some of esults, although 4. 10 C.F.R. I 50A7(b) provides:
discretion allow O) Arrangements for requesting and effec.
(b) The onsite and. excepi as provided in iively usms =ssistance resource have been
- Marings after paragraph (d) of this section. offsite emergen. made, arrangements to accommodate State lucted. Beyond cy response plans for nuclear power reactors and local staff at the licensee's nearsite Emer.
to the NRC, a must meet the following standards:- gency operations Facility have been made, l (1) Primary responsibilities for emergency and other organizations capable of augment.
i eparedness finding. response by the nuclear facility licensee and ing the planned response have been idenufied.
, devoted to attack. by State and local organizations within the (4) A stancard emergency classification and Commission's deter. Emergency Planning Zones have been as. action level scheme. the bases of which in-i inding is sufficient signed, the emergency responsibilities of the clude facility system and effluent parameters.
l nsibilities, and that various supporting organizations have been is in use by the nuclear facility licensee, and be made prior to specif cally established, and each principal re. State and local response plans call for re.
I mtjority does not
- sponse organization has staff to respond and liance on information provided by facility 11 change in the re-
- to augment its initial response on a continu. censees for determinations of minimum ini-In my view how. ous basis. tial offsite response measures.
t tha masority's deci- ' Q) On. shift facility licensee responsibilities (5) Procedures have been established for nmission's decision : for emergency respor.se are unambiguously nonfication, by the licenace, of Sta:e and local s licenang require. defined, adequate su.ffing to provide initial response organizations and for notification of redness- facility accident response in key functional emergency personnel by all organizations:
areas is maintained at all times, timely aus. the content of initial and followup messages ge tids aspect of the mentation of response capabilities is available to response organizations and the public has f for Petitioner at and the interfaces among various onsite re. been established; and means to provide ectly sponse activities and offsite support and re. notification and clear instruction to the popu-sponse activities are specified. lace within the plume exposure pathway
1454 735 FEDERAlo REPORTER 2d SERIES li - these standards involve highly technical required finding as to emergency prepared.
evaluations and requin minute knowledge ness is predictive in nature.
i
- of the operation of nuclear powc
- plants.
There can be nq doubt that the NRC, in In this rule, the NRC in the exere:se of
, promulgating these standards, has faithful- the judgment conferred upon it by the stat.
ly carried out its duty to ensure the safety ute, has sought to treat compliance with of the public. these exercise requirements on the same Ii basis as it does its pre. operational tests of The questions before this Court, of the plant itself. The two are very similar Il course, do not involve all of these stan- in nature and go hand.in hand. The Aton.ie
},'
dards, but rather revolve around the singu. Energy Act has never been mterpreted to lar (b)(14) requirement of emergency pre- require hearings on the results of the final paredness exercises. The nub of this case preoperational tests. This interpretation of is whether review of the results of these an Act whbh was first adopted in 1946, and
( q,.
exercises must be included within public the subsequent agency practice in an area 34 hearings under Section le9(a). In essence, over which Congressional oversight has
'.'F
, the Union of Concerned Scientists is at- been at its zenith, should not be ignored.
temptmg to compel the Commission to Hearings inevitably involve considerable
/; 4, '
change its regulations so that the emergen- delays, which can be extremely costly, es.
cy exercises will be treated as part of a pecially as the plant nears complete readi-
- licensing proceeding that may be subjected ness for full power operation, and as all j
,' to a hearing, rather than as part of the employees necessary to start operations final pre-operational testing. Thus, peti- are employed and on duty. The NRC has I
tioner seeks to inject the results of exercis- concluded, quite sensibly in my view, that -
j -
es into the formal hearing process. This exercises conducted to test emergency ji i effort is inconsistent with the Commis- plans, which are coordinated with public i! i ' sion's substantive determination thr.t the participation, would best be conducted Emergency Planning Zone have been estab.
lished. (11) Means for controlling radiotopcal ex.
posures, in an emergency, are established for (6) Provisions exist for prompt communica. emergency workers. The means for control.
tions among pnncipal response organizations
! ling radiological exposures shallinclude expo.
to emergency personnel and to the public. sure guidelines consistent with EPA Ernergen.
j (7) Informanon is made available to the ey Worker and 1.ifesavmg Acuvity Protecuve
- public on a penodic basis on how they will be Action Guides.
! notified and what their irutial actions should (12) Arrangements are made for medical be in an emergency (e.g listening to a local services for contammated injured indmdus!s.
broadcast station and remaining indoors), the (13) General plans for recovery and reentry pnneipal points of contact with the news me, are developed.
dia for dissemination of informauon during (14) Penodic exercises are (will be) con.
7 an emergency (including the physical location ducted to evaluate major portions of emergen.
or locanons) are established in advance, and cy response capabilities, periodic dnlls are procedures for coordinated dissemmauon of (will be) conducted to develop and maintain information to the public are established. key skills, and deficiencies identified as a re.
(8) Adequase emergency facilities and sult of excreases or dnlls are (will be) correct.
equipment to support the emergency response ed.
are provided and maintained.
(15) Radiological emergency response (9) Adequase methods, systems, and equip. trairung is provided to those who may be !
ment for asessemg and monitonng actual or called on to assist in an emergency.
potential offsite consequences of a radiologi- (16) Responsibilities for plan development cal emergency condition are in use.
and review and for distnbution of emergency -
(10) A range of protecuve actions have plans are established, and planners are prop.
heen developed for the pbme vtpesure pa:h. erly trained.
way EPZ for emergency workers and the pub.
- These standards are addressed by specific 11c. Gaall- for the choice of protecuve critena in NUREG 0654 FEMA-REP-1 enn.
- actions during an emergency, consistent with tied "Critens for Preparauon and Evaluauon Federal g*== are developed and in place, of Radiological Emergency Response Plans and protective actions for the ingestion expo. ;
and Preparedness in support of Nuclear Pow.
sure pathway EPZ appropnate to the locale have been developed.
er Planta-for intenm Use and Comment". l January 1980.
l i
UNION OF CON. SCIENTISTS v. U.S. NUC REG. COM'N 1455 Cits as 735 F.2d it.37 09e4) rgency prepared- ,
- e. close to the pris)perational testing of the that such deficiencies develop through the (
plant itself.' They both fit into the same results of the exercises, the Ccmmission n the exercise of {
regulatory scheme and require that plant assures that a previously concluded hear- {
>on it by the stat. operating personnel be on station.
ing could be reopened at the request of a compliance with The NRC's regulation does not exclude party. See 47 Fed. Reg. at 30233. Thus, a nts on the same '
erational tests of the interested public from participating in heanng is not foreclosed in a proper case.
the process of developing emergency pre- - That this final possibility for reopening are very similar and. The Atomic paredness. Far from it-the overall proce- of a public hearing poses a somewhat high-en interpreted to dures set forth by the Commission envision er entry standard for would be litigants is }
sults of the final public participation at a number of differ- not disconcerting. A higher threshold is l
. interpretation of ent stages. First, the public has a role in justified in view of the extensive prior con-actually formulating emergency plans, in-
>pted in 1946, and sideration and evaluation of the actual ex- !
actice in an area sofar as state and local governments must ercises to which emergency plans will have 21 oversight has be involved in generating such plans, in been subjected. Minor complaints should i not be ignored. coordination with the planning of the oper- not be encouraged, particularly at this late
>lve considerable ator. Second, the basic plans for emergen- stage, because of the tremendous delay l remely costly, es- ey responsiveness at any plant, concerning and the enormous cost that they can occa-
- 1. s complete readi- both ons"e and offsite readiness, are sub- sion-up to two years in cases where the ation, and as all ject to fiul hearings at the request of any Commission's decisions are appeakd to start operations intereated person at the formal licensing courts.' In practice, if petitioners prevail,
- y. The NRC has st.g.. See supra. Third, when the plans it will be necessary-unless very substan-in my view, that are subsequently tested, the public partici- tial delay in the opening of full power test emergency pates in the exercises themselves. Fourth, operation is to result-to move up the l
tated with oublic the Federal Emergency Management Agen- emergency testing exercises, removing '
cy (FEMA) participates as an outside ex- them further from the opening of plant st be conducted pert in the evaluation of the emergency operation. In such event, not only would l
' Iling radiological ex- exercises, and thereby has a role in guaran- the exercises themselves be less valuable,
- v. are estabhshed for teeing that preparedness is adequate and '"2t this shift would also require prelimi-
'e means for comrol-es shallinclude expo- that eerious deficiencies will not be over- nary employment of full operating person-e n looked. See 10 C.F.R. 5 50.47(a)(2): 47 nel for a longer period, with an attendant tw$EAy ,
Fed. Reg. at 30235-36. Finally, in the event substantial increase in the costa of bring-e me,de for medical 5. Concerning this point, the majority reads this 07f F.2d 222 (D.C.Cir.1982), rev'd sub. nom.
I I
d injured individuals. opinion far too broadly. See Majority Opinion Aferropolitan Edison Co. v. People Against Nucle-recovery and reentry at 1450, n. 24. Contrary to the majonty's sug. ar Energy, 460 U.S. 766.103 S.Ct. 1556. 75 gestions. I would not allow the NRC unbeunded led.2d 534 (1983h porrer County Chapter of s are (will be) con. authonty to replace all heanngs with tests and the Izaak Walton league of Amanca. Inc. v.
inspections. This opinion is of course limited to Nuclear Regulatory Comm'n, 606 F.2d 1363.
[metions periodicofdrills emergen. are the facts of this case, and to the NRC's particu-Jevelop and maintain 1366 & n. 5-6 (D.C.Cir.1979). Delays in this lar rulemaking here under review- an adminis-area are so numerous and so costly that the irs identified as a re. trative action which in my view is an entirely public will be paying billions of dollars for
+ are (will be) correct. reasonable exerstne of the Commission's broad years to come. A very recent editonal address.
statutory authonty. es the tremendous cost of the numerous delays mergency response
. those who may be in the construction of nuclear power plants in
- 6. The majority suggests that delays and assceist. the United States. Navarro, Seabrook failuret
, emsrgency. ed costs may be panly reduced by various meth-for plan development Only in Amanca, N.Y. Times, May 15.1984. at ods of expediting heanngs. Majority Opinion at A29 col.1. Focusing on the example of the nbution of emergency 1448-49, n. 21. I am of the firm opinion, nd planners are prop- Seabrook. New Hampshire, nuclear plant, the however, that this Coun's decision today- not- author pomts out that construction delavs for a withstanding the majonty's rather unrealistic years through protracted legal interventions. ef.
addressed by specific 4ellatics on socalled expedmng procedures, fective obstruction of its licensing process, and 4; FEMAREF-1 enti- which are largely untested and unprover>--will rtuct. and Evaluation other related delays, has substantially increased result in svbetantial delays and costs. Such both interest charges and construction costs on
- ency Response Plans judicially-imptised delays are endemic in at.
ppon of Nuclear Pow- the plant--.to the extent that the total cost has Une and Comment'*, tempts to bring nuclear power projects into op- soared to around $6 billion. The same plant eration. .See, e.g., Asople Agams:NuclearEnery could have been built in France for one. sixth
, v. United States Nuclear Regulatory Comm*n, the cost. Id.
I
!- 1456 i
! 735 FEDERAL REPORTER. 2d SERIES I ing a plant into operation. These are very
- 1. Federal Courts e724 senous impracticalities, to which the NRC has given close attention m choosing an An appeal from a court order enjoining i alternative course. The Commission has a union's executive board from commitnng no mandate to construe its charter statute the union to the sale or purchase of a new so as to maximize the delay in its adminis- national headquarters until the union con-tration. Accordingly, I must dissent from vention convened was moot; order had ex.
e the Court's decision in this case- pired by its own terms when the national l convention had met. !
- 2. Labor Relations pl37 o j ""y'" ?'1""2
.' Interpretation of a union constitution e' i rendered by officials of a labor organiza-
- . tion is entitled to considerable deference by
.i the reviewing court and should not be over-
. ,a i ,--
ruled unless the court finds that the inter-j pretation was unreasonable or made in bad
.i Gerard MONZILLO. et al members of faith.
j
,9 American Postal Workers Union.
AFL-CIO. Appellees. 3. Federal Courts p12 i
'- Federal courts lack jurisdiction to de-
! Morris BILLER et al.. members of Na- cide moot cases because their constitutional tional Executive Board of the American authority extends only to actual cases or controversies.
[' Postal Workers Union. AFL-CIO. Ap-pellants. FM h W
' ,L ,
' TRINE COUNCIL. et al., members of The Court of Appeals is not empow.
- ered to decide moot questions or abstract
' American Postal Workers Union. propositions, or to declare, for the govern-Cross. Appellants, ment of future cases, principles or rules of y,
law which cannot affect the restilt as to Morris BILLER et al members of Na- E" '" * ****
tional Executive Board of the American 5. Indunction p22 Postal Workers Union. AF1XIO. In general, a case becomes moot where Cross Appellees, activities for which injunction is sought Nos. 82-1937, 82-2035.
have already occurred and cannot be un-done.
United States Court of Appeals, District of Columbia Circuit. 6. Federal Courts #724
, Argued Sept. 28, 1983. '"""*"*I ** ""#*
Decided June 1,1984- properly ordered posting of bond, bond did l not preserve an appeal from a court order enjoining union's executive board from Appeal was taken from an order of the e mmitting union to sale or purchase of United States District Court for the Dis- uw national headquarters ud son mm trict of Columbia. June L. Green. J., enjoin- vendon emned due oer W eW ing union's executive board from commis- I ** "" ' " "# '" "
ting union to sale or purchase of new na- ""
tional headquarters until union convention convened. The Court of Appeals. Mikva, 7. Federal Courts #724 Circuit Judge, held that appeal was moot. Appeal from temporary restraining or-der is rendered moot by dissolution of un-Appeal dismissed.
derlying order.
I EXHIBIT 6 I
l l
l l
l l
l I t- _ - - _ _ _ _ . .__ l
ff ,'o,
, UNITED STATES f ( g NUCLEAR REGULATORY COMMISSION
{ } REGION l
'% 7***n*g 478 ALLENDALE ROAD KING OF PRUSSIA. PENNSYLVANIA 19400 MAY 0 5193g I.
Docket No.: 50-443 Ml 101983 Public Service Company of New Hampshire ATTN: Mr. Edward A. Brown, President gLA S!MT(UMT and Chief Executive Officer New Hampshire Yankee Division -
Post Office Box 300 Seabrook, New Hampshire 03874 Gentlemen:
Subject:
Emergency Exercise Objective and Scenario Guidelines In order for the Region to fully support the Seabrook Station partial partici-pation emergency exercise scheduled for the week of September 25, 1989 an adequate review of the exercise objectives and scenario is essential. The guidelines identified below will be used for the submittal and review of the objectives and scenario packages prior to the exercise. You will note that the schedule has been revised to reflect milestones established in FEMA's guidance memorandum EX-3 dated February 26, 1988. Region I has found that licensees generally comply with these guidelines, however, we recognize the need to stress the importance of both completeness and timeliness.
The following schedule should be used for all exercises:-
Days in Advance Infor1 nation to be Submitted 90 Description and scope of exercise, and the objec-tives to be fulfilled should be received in the Region I office. The objectives should include specific objectives to demonstrate, where appro-priate, the effectiveness of corrective actions taken in regard to problem areas which have been previously identified during NRC inspection, emergency exercises and drills and your internal-evaluation process.
75 NRC will provide comments, in writing, based on our review of'your submittal.
60 Complete exercise scenario package with modified objectivas, schedules, exercise rules, all controller, contingency and simulation information, all data, including plant data, radiation level and release' rate date, and samples of the data to be presented' should be received in the Region I office.
30 NRC will provide comments, in writing, based on our (and our contractor's) review of your submittal.
e Public~ Service Company % 0 5 793g of New Hampshire In order to protect the scenario from disclosure to participants, in lieu of normal' distribution, p. .se provide copies only as follows: two copies to the Chief Emergency Preparedness Section at the letterhead address, marked, "EMER-GENCY EXERCISE SCENARIO /0BJECTIVES"; one copy directly to Battelle Pacific Northwest Laboratory Attn: Mr. James Jamison, Emergency Preparedness Group.
Health Physics Department, 2955 George Washington Way. Richland,- Washington 99352; and one copy to the NRC Resident Inspector. If you anticipate that the established schedule will not be met, please notify us at the earliest possible date.
The NRC emergency preparedness specialist responsible for eval::ation of your -
exercise is Mr. Edwin F. Fox. Please identify the name, address and phone number of the individual on your staff with whom we should interface.
Your continued cooperation in thf s matter is greatly appreciated. If you have any concerns or questions, please contact Mr. Fox at 215-337-5044. -
Sincerely.
l Wil iam J #s C tef-Emergene pa' ess Section Facilities Radiological Safety and Safeguards Branch Division of Radiation Safety and Safeguards cc: J. C. Duffett, President and Chief Executive Officer, PSNH T. C. Feigenbaum, Vice President, Engineering, Licensing and Quality Program, NHY J. M. Peschel, Regulatory Services Manager, NHY D. E. Moody Station Manager, NHY P. W. Agnes, Jr., Assistant Secretary of Public Safety, Commonwealth of Massachusetts PublicDocumentRoom(PDR)
LocalPublicDocumentRoom(LPDR)
Nuclear Safety Information Center (NSIC)
NRC Resident Inspector State of New Hampshire Commonwealth of Massachusetts Seabrook Hearing Service List
- - - - - - - - - --i. mwr-.- -- . - . - -- -
i l
l:
EXHIBIT 7
3.-- --- -
i Federal Register / Vol. 52 No. 87 / Wednesday. May 6.1987 / Rules and Rerulatiors 16823 i.
I depends entirely upon facts within the regulartourof dutyof suchemployee, amer:dingits regulations to change se
.I knowledge of the Department of shall sufficientlyin advance of the timing requirements for a fuil Agriculture.The Department has no period of Sunday or boliday or overtime participation emergency preparedness alt erna tives to raising the ra tes. By la w, service request the Ve tennary Services exercise for powerteactors pnor to importers and exporters arerequired to, inspector in charge to furmsb inspection. Issuance of a full. power operating-i reimburse the Department for its coste laborainry testirg. carefication. or license (one authonzing operation above associated with services rendered. A quarantme service during such overtime. 5% of ratedpower of thereactor).The cost analysis was performed to or Sunday or holiday penod, except sa amendmentrequires a full participacou determineif fees forovertunaare provided in paragraph (b) of this secnon. exere:se,includmg Sta te and local adequate to recover the cost of shall pay the Covernment therefor at a governments. to be held withirt two t providing the services Unless the rates rate of $32.64 per wock-hour per years before theissuanca of a fuILpower l { are raised. the Department will not be employee on a Sunday and at the rate of operating license as opposed to the l t able to recover tha costa foc providing $24.48 per work. hour per employee for current requirement of withus one year.
l ! services outside regulady established holiday or any otherperiod: except that An exercise which tests the licenseefa l 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> or outside regular tours of duty for any services perfocmed on a Sunday onsita emergency plan, but which need i
0 hours. or holiday.etcept as.providedin not include State or local government l f Accordingly, pursuant to tha paragraph (b)of this sectionfor participation. ia still required to be held
( adr.itnistrative procedure provisions in 5 inspection orquarantine services within oneyear before issuance of a U.S.C. 553. we find for good causa that requested by an owneror operatorof an full-poweroperating license.
prior notice and other public procedure aircraft at an airport on a Sunday or This rule change is. unrelated to the .
with r.:spect to this rule are holiday which are performedwithin
- impracticable. unnecessary. and Commission's notice of proposed regularly established hours of service. or rulemaking that would establish crneria
( contrary to the publicinterest;we also at any time after5 p.m. or before 8 aan.
find good cause that this rule be made for the evaluation of emergency on a weekday. in connection with the planning fornuclear plantsin those effective less than 30 days after arrival in ordeparture from thaUnited publication of this document in the situations in which a State or locality States of a private aircraft or vessel, the has elected not to participatein the 7 Federal Register. total amount payable shall not exceed emergency planning process.
5
' Execudve Or&r 12372 fy t e C a oms S rvi e. ist ion ' * * ' *' '* *'"
i This prw.u/ activity is listed in the ay 6. 287.
and Naturalization Service. Public Catalog of FeueruIDomestic Assistanca Health Service, and the Department o{
! FOR FURTHER INFORMATION CONTACTt under No.10.025 and is subieet to the Agnculture. * *
- MichaelT.Jamsachian. Regulatory I provisions of Executive Order 12372. (b) * *
- When services ar, Applications Branch. Offica of Nuclear I which requires intergovernmental
- performed outside of theregularly Regulatory Research. U.S. Nuclear consultatica with State and local established hours of service on a Regulatory Commission. Washington, officials. (See 7 CFR Part 3015. Subpart holiday or Sunday or any other day, the DC 20555. Telephone (301) 443-76.57.
V). rate to be charged owners or operators suppt.suaNTARY INFORMATION k List of Subjects in 9 CFR Part 97 of aircraft shall be S28.08 per houron a Sunday and $21.08 perhour on a holiday I. Background Exports. Government e=ployees- or any other day, which charges exclude Impcrts. Livestock and hvestock This notice of final rulemaking will administrative overhead costs. change the timing requirements for a fall products. Poultry and poultry producta. . . . . .
Transportation. participation emergency preparedness Done in Washington DC. this 30th day of exercise for power reaetors prior ta pART97-OVERTIME SERVICES Apn!.1987. .
issuance of a full-power operating RELATING TO IMPORTS AND Bert W.Hawkins license. Itis unrelated to the EXPORTS Administmton AnimalandMontNeohh Commission's notice of pro;1 sed Inspection Service. rulemaking, published in the Federal l i
1.The authonty citation for Part 97 Register on March 8.1987 (52 FR 6980).
continues to read as follower
[FR Doc. 87-101B3 Filed 54-87: 8.45 am}
sumo coos um that would establish cntena for the
)
Authority 7 U.S.C 2290t 40 U.S.C.1741:7 _ _
evaluation of emergency planning for CML 2.17. 2.51. and 371.2(d). nuclearplants in tnose situations in
- 2. Section 97.I ts amended by revising NUCt. EAR REGULATORY whia a State locality has elected not to w the first sentence of paragraph (a) and COMMISSION p ticipate in the emergency plannmg the last sentence of paragraph (b) to read as follows: 10 CFR Part 50 The Commission published the proposed timing. requirements rule for i 97.1 Overtime worte at laboratories, Production and Utiliz.. ion Facilltles; border ports, ocean ports, and airports. Timing Requirements for Full comment on December 2.1986 (51 FR Participation Emergency 43309). A notica extending the 30-day (a) Any person, firm. or corporation comment period was published in the having ownership, custody. or control of preparedness Exercisea for Power Federal Register on January 7.1987 (52 animals. animal byproducts, or other Reactora Prior to Receipt of an FR 543). During the 40. day comment a commodities subject to inspection. Operating L! cense total of 18 public comments were laboratory testmg. certflication. or AceNcV: Nuclear Regulatory . received. Nine supported the proposed quarantine v.nder this subchapter and Commission. rule and nine opposed it. As indicated Subchapter G of this chapter, and who below, the Commission has reviewed ACTIONr Final rule.
requires the . rvices ci an employee of the comments and has decided to Vetennary Services on a Sunday or $UMM ARY: *D2e Nuclear Regulatory promulgate a final rule which includes a j holiday. or at any other time outside the Com . ssion (NRC or Commission) is number of modifications from the one 1
10824 Federal Register / Vol. 52. No. 87 / Wednesday. .\tay 6,1987 / Rules and Regulations that had been proposed.The Federal years,includinq remedial exercises 1; three-month extension).The Emergency Management Agency, by when necessary. perform this function frequency and circumstances memorandum dated March 27.1987, has satisfactorily. Exercises on a more surrounding these exemptions support advised the Commission ofits frequent basrs are not necessary to the Comrmssion's conclusion that S.2 concurrence in the final rule that is enable the Commission to determine one-year scheduhng requirement has being issued here. whether an emergency plan provides proven difficult to meet and that an When the Commission decided to reasonable assurance that adequate - emergency exercise conducted tr. ore require a full-participation emergency protective measures can and will be than one year before plant full-power planning exercise withir. one year prior taken in the event of a radiological licensing is adequate to assess the to the licensing cf a power plant. it emergency."10 CFR 50 47(a). propriety of an emergency plant.
based this scheduling decision on a Moreover, since the Commission's balance between the desirability for an As a result of the Commission's promulgation ofits original requirement experience with the one year pre-exercise close to the date oflicensing in for a full-participation exercise within licensing exercise requirements and order to assess the adequacy of the. one year of the licensing of a power FEMA and NRC experience with the emergency plan being tested and the plant it has also become clear that the two-year post-licensing exercise countervailing need to avoid scheduling resource and scheduling burdens requirements. which provides for and resource burdens. Based on the created by this timing requirement have remedial exercise when necessary, the s Commission's experience since the proven far more onerous than originally original promulgation of the scheduling Commission has determined that its expected. First, with the United States previous pre-licensing requirement for a requirement the Commission now Court of Appeals for the District of full. participation exercise within one believes that it is appropriate to strike a Columbia Circuit's decision in Union of year of the licensing of a power plant is new balance. The new rule strikes that ConcernedScientists v. NRC. 735 F.2d not necessary.The benefits of a pre-balance by requiring a full-participation
- 1437 (D.C. Cir,1984), cert. denied. 469 licensing exercise requirement can be emergency planning exercise within two U.S.1132 (1985), it has become fully achieved by allowing that years prior to the licensing of a power necessary to pernut htigationin requirement to be met within two years plant, the same scheduling requirement contested proceedings over the results of the licensing of a power plant.This mandated for full-participation of pre-licensing exercises.This litigation approach also should reduce the emergency planning exercises after occasionaUy has not been completed licensing. unnecessary scheduling and resource within the year following the exercise.
Since the promulgation ofits burdens that have become evident to the See e.g.. Long /s/ond Lighting Co. Commission based upon its experience emergency planning requirements in (Shoreham Nuclear Power Station. Unit with the one-year requirement.
1980. both the Commission and the 1). Such a delay makes it impossible to Federal Emergency Management comply with the regulatory scheduling II. Summary of Pub!;c Comments and Agency (FEMA) have gained much requirement and the dictates of UCS v. Commsma Responses experience in assessing the results of, NRC. Even when the delays do not and the requirement for, full- 2. Commonwealth Edison make compliance with both participation exercises. Most of these requirements impossible, they Summary ofComment.
exercises have been the post. licensing unnecessarily complicate both the Commonwealth Edison supported that exercises that NRC and FEMA licensing proceeding and the scheduling portion of the proposed rule extending regulations now require to be held every of the required pre. licensing exercise. from one to two years the period within two years. In setting the two-year Second, utilities are finding it difficult to which the pre. operational offsite requirement for operating plants in 1984, predict the actual date when their plants exercise must be held. However. Edison prior NRC and FEMA experience will be receiving an operating license. disagreed with the last two sentences of demonstrated that the reasonableness of Thus, experience is proving that it is - the proposed rule which require the .
emergency planning at a nuclear power often difficult to know precisely when applicant to conduct an exercise ofits plant can be fairly tested and the pre-licensing exercise should be onsite plan if the offsite exercise is more adequately assured by a full- .
scheduled to comply with the one-year than one year prior to issuance of the participation exercises which are held s equirement. operatinglicense. Edison argued that the every two years rather than un a more . Certainly, an important indicator of additional test would be of marginal frequent basis. 49 FR 27733,27734-27735 this difficulty is the fact that in the last . value and might tend to introduce (July 8.1984). Similarly, the Commission two years six plants thu have been additional issues into the operating has ccnckded that no safety awarded vpeal6s Ik.mmes hee wught ticense hearing. On this basis Eiscn requirement mandates a full- : - :: and received exemptions from the recommended deletion of the last two participation exercise within one year . scheduling requirements of the pre . sentences of the proposed rule, prior io plant licensing. To the extent. licensing exercise rule. See 52 FR 713 Commission Response.The that an offsite pre-licensing exercise is
~
(January 8.1987)(Shearon Harris . Commission disagrees that a pre-intended to reveal whether an_ .
Nuclear Power Plant: eight-month .
operational onsite exercise within one emersency plan has fundamental flaws, extension): 51 FR 41035 (November 12. year before issuance of a full-power that purpose can ce achieved at least as 1986) (Perry Nuclear Power Plant. Unit 1: cperating license is of marginal value.
well by an exercise held within two eleven. month extension): 50 FR 32129 The importance of annual onsite years ofIfcensing as within one year.Ig_ (August 8.1985)(1.imerick Generating emergency planning exercises by the the extent tM the exercise :s designed Station. Unit 1: two-week extension): /d. licensee's operational staff has already to test the preparedness of t3ese 28485 (July 12.1986)(Enrico Fermi been recognized in the Commission's individuals and organizations that must Atomic Power Plant. Unit 2: three-week regulations, which now require that after participate in offsite emeroency extension):id. 9917 March 12.1985) a facility is licensed to operate there planning. MU and FEMA experience (Waterford Steam Electric Station. Unit must be an annual onsite exercise. This witn poswicensing exercises has 3: five-week extension); id. 5829 annual emergency resporae function conymced us that exercises every two (February 12.1985) (Byron Station. Unit dnll ensures that the licensee's new
22 ~
Federal Register / Vol. 52. No. 87 / Wednesday. May 6.1987 / Ru:es and Regulations 16825
, pctsonnel are adequately and promptly 3. Hunton cnd IVilliams Commission Response. None required.
troned and that enis tng licensee
, Summary of Comment.This law firm 7. Seccocst Anti-Pollutica Lecgue
- personnel maintain eir emergency filed comments on behalf of Long Island response capabili,y.The existing Summuyof Comment The Seacoast Lighting Company (LILCO). LILCO requirement of a pre. operational onsita Anti pollution League (SAPL} cpposed stated that it supported the amendment exercise within one year pnor to full- and agreed with the Cammission's basic the amendment and agreed witn the power license issuance is consistent ~
views f Commissioner Asselstine, premise that the two-year interval was with this philosophy as well as the SAPL argued that emergency response adequate to ensure an acceptable level Commission's general destre to have of emergency preparedness. LILCO cited pen nnel opnimee fairly rapid pre. operational emergency planning ts experience with the Shoreham turnover, and therefore *,a full scale exercises as close as practicable to the exercise is needed annually." SAPL did facility as supporting the need for the t:me oflicensing. And since unhke the amendment. and disagreed with n t accept the Commission s reliance on situation with offsite exercises. no one Commissioner Asselstine's view that the the fact that State and local has identified any existing response or exemption process was the appropriate g vernments are often called upon to timing difficulty with the onsite means to address the problem.LILCO respond to a variety on non-nuclear requirement. we find no reason to revise did not offer any suggestions for emergencies.
the seguirement at this time. changes in the proposed rule. Commission Response.The Moreover, to mandate an onsite Commission Response. None required, Commission does not agree that two exercise within one year of operation years between full participation while requiring an offsite exercise 4 Mam.Lewc.
n exercises is unwarranted based on within two years is a recognition of the Summaryof Comment Mr. Lewis pusenel changes.The Commission's
. distinct nature of the participants opposed the proposed rule, stating that and FEMA s rules have. since 1984, invoh ed in each instance. The State and it would " weaken regulation innd pose a permitted the two-year cycle for full local emergency planning organizations danger to the health and safety of the participation exercises for operating that are pnmanly involved in offsite public by allowing unlicensed operators plants.The Commission s view was in L
emergency planning are in almost all more freedom to act with nuclear 1984. and is today. that there are more I instances organized and trained to deal hazards before having proven that they beneficial uses of State and local with emergency situations long before can act responsibly governments resources, such as l facility operation. While the offsite proyiing for additional training and Commissica Responsa. Licensees are
! emergency test is important to judge the not being granted any additional equipment. than using such resources to
{ ability of these existing organizations to " freedom" by this rule. The full suppo,rt an annual full participation respond to the particular of a participation exercise must still be held * * "C'8 '-
1 radiological emergency. in light of their prior to full-power operation of the The Commission does not rely solely i ongoing responsibility for all types of facility and a pre. operational onsite on the fact that State and local emergencies a demonstration of offsite exercise will continue to be required one governments routinely respond to a preparedness by such agencies within year prior to full-power operation. The variety of public emergencies. However, two years prior to licensing affords only change is the timing of the full the basic pnnciples involved in handling
. rearonable assurance of their participation exercise. nu-nuclear emergencies, such as ast as appli an skes a f 1- mielndustrio/Eorum r i a e or ale oftxc micals.
scale shift from a facility construction to The Atomic Industrial Forum (AIF) also apply in responding to a nuclear a facility operation mode within the last supported the proposed rule but pointed accident.This lends support to the rule twelve to eighteen months prior to out, with respect to its last two because State and local emergency operation as a general rule many new sentences, that Section IV.F.2 of response organizations are frequently
. Operational personnel are retained who Appendix E already requires a licensee called upon and must maintain a high must be ready to carry out the utility's to conduct annual exercises ofits degree of readiness independent of i onsite emergency response mergency plan. AIF suggested that this nuclear power plant exercises.
! responsibilities.I" ' ' --e tion was a redundant requirement and a Liz Callington of this distinctia>&eMhsComndssfon o entence of the
- themfore,th 9 la t t Summary of Comment. Ms. Cul!!ngton nnas inst an - - -- sheuld be P' P08' .ru,1e s .
g g g required withiabeamoflicensing to Commission Response.The g ,
provide ase6 applicant's Commission disagrees that the last two
- onsite response capabilities are- sentences of the proposed rule should be In extending the time period from cne year ade *t deleted, but has determined to revise to two, the NRC would be essentially handing
\
those sentences for purposes of clarity, to the unlities an acrou-the board offer of For the purposes of clarity. the totai nemption imm the nquinment to Commission is revising the last two (Also. in the interests of clarity, the preceding sentence is modified to pMP8M emer88ncy M8p cn plans for sentences, which provide that a pre- nact n Medcensins nh n i ta a an operational onsite exercise be held specify that an perating license "for full acceptable number of sheets of paper me power is to be taken,in this context, to submitted to the Commission with with'n one ear beiore operation above be "one authorizing operation above 5%
e power. appropriate title pages. Under this proposed of rated power." The prior reference to rule change, a utility could submit a xemned
, 2. Edison Electrielnstitute 5% of rated power was ambiguous.)
- copy of webster's Dictionary an ita
, emergency response plan.and have no Su nmoryof Comment.The Edison 6. Stone & Webster Engm.eermF deadhne for completing the plan itse!L as a Electric Institute supported the proposed Corporellon rnhty. for either exercising it, or rule and did not suggest any changes to Summaryof Comment. Stone ar demonstrating that it is feamble.
sts text or rationale. Webster supported the proposed rule Commission Response.The proposed Commission Response. None required. and did not suggest any changes. rule change is morelimited in scope
10826 Federal Register / Vol. 52. No. 87 / Wednesday. May 6,1987 / Rules and Regulations than the comment suggests. It does not permit the use t.f a two-year cycle for in an operatira license proceeding under l affect either the required content of the holding of a pca-operational offsite Section 189a of the Atomic Energy Act for a emergency plans nor the need to exercise. This timing would be hearing on the results of a full participation exercise such plans on a regular basis. consistent with the two-year cycle for "ucise, this requirement created some The amendment only extends from one the holding of a post operational offsite d'fficulty in scheduling the exercise s that it to two years the period within which the exercise for operating plants which has would all w time f i a heanng while stdl preoperational full-participation being conducted within one year of plant been intffect since 1984.
readmess t be licensed. In 1962 the exercise must be held. All other Sound principles of administrative Appendix E and 10 CFR 50.47 law dictate that where agency policy is 8
fhaIe e eney p pa es exerc se we e requirements must continue to be met as no longer correctly reflected in its rules
- not required for a Licensing Board. Appeal a prerequisite forissuance of an rulemaking should be undertaken and Board, or Commission decision, would have operating license, including the public comment sought.The allowed the exercise to be conducted close requirement that a pre-operational Commission now believes that a two- enough to a licensing decision to avoid this onsite exercise be held within one year year period between full participation diffkulty and to avoid annual pre-licensing before going above 5 percent of rated exercises should be used in all cases. exercises (47 FR 30232. luly 13.1982).
pow er. and therefore has proceeded with However. the Court of Appeals for the
. ~ rulemaking to codify this policy. District of Columbia Circuit vacated that
- 9. Ceorgio Power Company rulemaking. The court held that the Summary of Comment. The Georgia 11. Union of Concerned Scientists /New Commis:,on could not remove from the Power Company supported the proposed England Coalition on Nuclear Pollution heanng requirements of Section 189a of the Summary of Comment The Union of Atonne Enegy Act a materialinunelnant rule and did not suggest changes in its text.
' I'* II' i"8 d'CI'I " *"d 'h*' *h' Concerned Scientists (UCS) and the Commission Response. None required. New England Coalition on Nuclear f,"N*,$,'*,"",'f,[$',','*.,,'*,'d[cfenuI
,f '
Pollution (NECNP) oppose the rule on 735 F.2d 1437 (D.C. Cir.1964), cerc denied,
- 10. Nuclear information and Research Service the followin8 Brounds: 105 S.Ct. 815 (19e5).
l c 1. The Commission has not adequately h Commission has thus been left with a ammary of Comment. The Nuclsar explained its reasons for making a change in regulatory scheme for frequency of full Information and Research Service policy, participation emergency preparedness (N!RS) opposed the amendment, and 2. ne proposed rule ignores a distinction exercises that treats sites with an operating stated three reasons for doing so: previoudy drawn between pre- and post. hcense differently than sites without an operati nelexercises. operating beense.The Commission does not
- 1. Chan es [in emergency procedsres) will be mere h ely to occur in a new 6 ant where 3 e Commssion should have prepared a believe this disparity m treatment is backfit analysis for the proposed rule, warrantcd. The Commission is concerned last mmute alterations in technLal specifications. guidelines, newly trained Commission Response. The logic for about the burden the present rule may place operators. and actual equnment are common the proposed rule was stated in the on State and local governments. ne occurrences. It is prectr.4y this kind of notice of proposed rulemaking (51 FR 9"'"*"h*h"8"""*'"
change which marks i new plant from an participate in a fu!! participation exercise operatmg plant and which necessitates an 43369. December 2.1986). as follows: every two years is in addition to the exercise no more dian one year prior to The Commission in 1964 revised its requirement for their participation at sites hcensing. emergency preparedness regulations to relax without an operstmg license. Requirms
- 2. An exere'ae no more than one year prior the frequency of full participation exercises annual partic:pation at sites without to I censms *would ensure that any new by State and local governments for sites with operating licenses could thus place a government officials or workers are familiar en operstmg license. This was done in part sigmficant burden on State and local with the plans themselves. and are capab!s of because the Federal Ernergency Management government resources.
carrymg '. hem out." Agency (FEMA). based on its experience in The Commission in the pnor rulemaking ,
- 3. The one-year requirement has been observmg and evaluating exercises, adopted determined that emergency preparedness ~
t easily satisfied in most cases and a schedule a biennial. rather than an annual. would be adequate if State and local !
exemt. tion is an avanlable option where requirement for full participation exercises. governments participated in an exercise needod. Under the biennial requirement adopted by every two years.There seems to be little I the Commission. State and local governments reason why State and local governments Cxnmission Response Changes of the need only participate in one full participation nonetheless should have to participate in full tyre cited by NIRS do occur prior to exercise. at any sita. every two years. The participation exercises on an annual basis in '
iss Jance of an operating license and Comtnission revised this regulation because the pre-licensing stage solely because a thmughout the life of an emergency it found that annual exercises used a license did not issue within 365 days of the p!3n. However these changes would be disproportionate arnount of Federal. State, exercise.The o6 requirement should be that addressed in the util a emergency and local overnrnent resources, and that h participant t'e acequately in p ace and .
- plan.The proposed e retains the Igve, nments eque th Eameo m mPa me me . mu-gf uJ. His requirement that a pre-operational , { ate and
, , , , ,p ,,,
' # "' " ~ " " '
capabilities by respondmg to a vanety of an operstmg license. l'f"the exercise"# 'I onsite exercise be held within one year natural and man-made emergencies such as before going above 5 percent of rated chemical spills, on a contmuing basis. The demonstrates that preparedness was
~ power. Commission concluded that biennial full inadequate. then remedial steps including When changes in offslie emergency participanon exercises were adequate to another exercisa.if appropnete, can be taken. ,
procedures or offsite personnel occur. it protect public health and safety. The hloreover in eccord with the Commission's .
is the responsibility of the State orlocal Comminion in revising its regulations for full regulations for sites with operating Ilcenses, applicants will still have to conduct annual government to ensure that personnel are participauon exercises retained the exercises. l.e.. if the full participation ' l requirement f r annual exercises of each adequately trained to carry out their exercise is held more than one year before he's emergency plan (49 FR 27733. luly ,
functions under the plan. The licensee is e. 29s4j. issuance of the operatins license. then the 8 required by Commissicn regulations to The Commission did not make e similar applicant must cunduct an exercise of its assist in such training. See 10 CFR Part change regarding the required frequency of emergency plan before license issuance. ,
50 Appendix E. Section F (introductory full partic.pation exercises at sites without an However, that latter exercise need not paragraph). The proposed rule would operat ng hcense. Because of the opportunity insolve State or local governments.
l-l
l
- -_m _. > _ _ . __ _
l mm _..___,,,.m m .
l Federal Register / Vol. 52. No. 87 / Wednesday May 6.1987 / Rules and Regulations 16827 l'CS points out that in a 1982 ht:gation the results of the exercise.
rulemaking on emergency planning. the IJ Leum Drey under UCS v NRC. 735 F.2d 1437 (D.C.
Commission remarked on the Cir.1984). it is clear that the resulta of Summary of Commen Ms. Ny desirability of having the pre- opposed the rule change but stated no exercises are brimable in the coeratinn operational exercise close in time to acense proceeams, irrespective of when reasons.
commercial operation.The reason those exercises are neid, so long as the Commission Response. None required.
stated by the Commission was that the holding of an exercise is a pre. license
" exercises are best held at a later time, requirement. However. while the two 14. Kenneth Vickery when the operating and management year time period provided in this rule staff of the plant-who are central Summory of Comment. Mr. Vickery was not premised on the time needed to opposed the amendment, statir g that figures in an exercise-are in place and litigate the results of an exercise. as was "the NRC must know if the plants and trained in emergency functions."(47 FR explained earlier one of the factors on the surrounding areas are ready for 302:3. luly 13.1982). As was explained which the Ccmmission did base this accidents when starting operation since earlier, the Commission continues to amendment was the observed difficulty many serious accidents occur early in support this principle and has retained in some cases (although not in the the operating lives of nuclear power 1
the requirement that an onsite exercise Shearon Harris proceeding? in plants."
of the emergency plan be held within scheduling the exercise so tnat it would one year prior to operation above 5 Commission Response. See response allow time for a hearing while still being to comment of Wells Eddleman. *12 percent power. conducted within one year of plant above.
The backfit rule.10 CFR 50.109 readiness to be licensed. Another factor applies only where the Commission was the observed difficulty of utilities in n Rade M n seeks to impose new or different predicting a plant's readiness for a full-requirements on licensees. It does not Summery of Comment. This comment power operating license. In this was a duplicate of Comment #14.
apply where requirements are either situation. as in the case of the Sheaton relaxed or deleted. Harris plant, while the holding of ahe full M Mw. Mman. Potts & Trowbridge
- 12. Irells Eddlemen. et al. Participation exercise and the licensing Summary of Comment. This law firm hearing would be completed withm one Summry;f Comment. fA Eid!eman year, due to unanticipated construction fi!ed comments on behalf of 9 entities and others jotrung him oppose the holding nuclear power plant operating delays the plant would not be ready for licenses or construction permits. These amendment for the following reasons:
a full. power operating license within the commenters supported the proposed v . a one year time range before one year time frame.
operation above 54 power is a practical rule. fundamentally for the reasons cited With regard to the commenter's by the Commission m the notice of maximum for gmng an up to date " snap shot" asstssment of the level end capabihty . statement that nuclear accidents tend proposed rulemaking. The commenters P
.to occur early."it is correct that the also noted that the proposed rule uses
- h'@,8[n[tIo'pera't p y a existing when the few major nuclear accidents that have the term " full scale exercise" which is
- 2. De year is adequate to htigate the occurred. /.e. the Three Mde Island otherwise undefined in the regulations results ;f the exercise based on the shearon Accident and the Browns Ferry fire, did Hams proceeding. ar.d recommended that the term " full in fact occur early in the operational participation exercise" be used.
r . . nuclear accidents have s tendency history of the plants. However, the to occur early in the operation of a nuclear Commission Response. The term " full.
plant . . . . categ Three Mile Island and the number of these occurrences is far too scale exercise" has been replaced with small to establish a " tendency."In any - the term " full-participation exercise" 4 Theru is i gal because it is an case. the commenter's suggestion that and the lasuwo semences 01 me attempt to deny heanng rights to interveners the need for emergency preparedness proposed rule have been revised for in the Sheaton Hams case on the exemption may be heightened during the initial purposes of clarity.
granted from the existing one. year period of plant operation, even if well requirement.
taken, does not present a valid objection 27. C rolina Power andLight Compcny to this rule change because, for the Summary of Comment. Carolina Commission Response. The reasons given above. the rule chance Power and Light Company (CpSL)
Commission disagrees that a full supported the amendment and cited does not decrease the level of_
participation exercise is needed within emergency orecarew at a nuclear reasons similar to those given by the one year of operation to demonstrate rower oW -- Commission. CP&L noted that its recent adequate emergency preparedness. The The license and exemption have experience in licensing the Shearon s Commission has determined that a two. already been issued in the Shearon Harris facilit year cycle for full participation Harris proceeding. This rulemaking was ru!c change. y bore out the need for the exercises is sufficient for making a not the basis upon which a hearing on finding that adequate protective the exemption request was denied. Commission Response. None required.
measures can and will be taken in the Carolina Power & Light Co. et al. 18. North Carch.na Department of Crime event of an accident. (Shearon Harris Nuclear Power Plant) ControlandPublic Scfety The Commission has not based ita CLI-66-24. 24 NRC _ (December 5.
acceptance of the two year requirement Summaryof Comment. This 1986).Certainly,if the exemption for holding a full participation exercise regt est were pending,it would now be commenter supported the proposed rule on the time needed to litigate the results on three grounds:
mooted as a result of this rulemaking.
of such exercise. Rather, as indicated The scope of issues open for litigation 1. It above and in response to comment a 37pg.makes the NRC rule consistent with and increases internal consistency in may be changed by rulemaking.
U. the Commission has determined that NRC regulations.
Engaging in such rulemaking has been a two-year cycle is an appropriate 2. It reduces ur.due burdens on state and held by th : courts not to deny hearing local goven.ments.
period of time for holding full + rights of any person. See Siegel v. AEC. 3. It allows more time for htigation of the participation exercises. With regard to 400 F.2d 778 (1968). results of a pre operational exercise.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _-.h-
IM23 rederal Register / Vol. 52. No. 87 / Wednesday, hlay 6,1987'/ Rules and Regulations Commission Response. The reasons that the final rule has no significant Dranch. Office of Nuclear Regulatory given by this commenter support the environmentalimpact. This Rer.earch. U.S. Noclear Regulatory Cnmmission's position as stated in the determination has been mace because Commission. Washington. DC :ns55.
notice of proposed rulemaking. the Commission cannot identify any Telephone (301) 443-7657.
III. Commission Decision impact on the human environment associated with changing the timing of F,;,
The Commission has reviewed all full participation of State and local comments received and has decided to This final rule does not nodify or add governments in pre-licensing emergency to systems, structures, components or proceed with a final rule.The text of the preparedness exercises from within one proposed rule has been altered as noted design of a facility; the design approval year oflicense issuance to within two m the response to comments #5 and or manufacturing license for a facihty; or yers'
- 16 above.Upon publication of the The ne d for this rul ki '
b*E*' " " " "
ust l$ eld ifhin t o years pr to Infor atio accompa y g t i f nal issuance of a nuclear power plant rule. The alternative approaches that ursua 50 09 s e f operating license for operation above 5 this final ru!'
were consideren in this rulemaking percent rated power.lf the full proceeding were: Regulatory Flexibility Certification participation exercise is conducted more.
% than one year prior to issuance of an 1.To retain the requirement for a full In accordance with the Regulatory operating license for full power an paNicipadon emeise withime year of Flexibility Act of 1980. 5 U.S.C. 603(b).
onsite exercise which tests the '"z",*7, N,'"he$q the Commission certifies that this pie licensee's emergency plans shall be e No within two years ofissuance of an operatmg hcense. will not have a significant economic conducted one year before issuance of impact upon a substantial number of an operating license for full power. There were no environmentalimpacts small entities. The rule concerns the identified from either of the alternatives timing of a full participation exercise of Additw, nol M,ews of Commissioner considered.
Asselstme emergency plans for applicants for I In addition, when promulgating the nuclear power plant licenses.The original emergency planmns and i I continue to believe that the electric utility companies owning and requirement to conduct a full preparedness regulations in 1980 the operating these nuclear power plants participation exercise, which includes NRC prepared an " Environmental State and local government are dominant in their service areas and Assessment for Final Changes to to CFR do not fall within the definition of a participation, within one year prior to Part 50 and Appendix E of 10 CFR Part issuance of an operatinglicenseis 50. Emergency Planning R small bu11 ness found in the Small needed to provide an accurate and for Nuclear Power Plants , requirements (NUREG-Business Act.15 U.S.C. 632. or within timely venfication of the adequacy of 0085. June 1980), and concluded that the Small Business Size standards set emergency preparedness. The purpose forth in 13 CFR Part 121. Although part under the criteria of to CFR Part 51 an of this requirement is to provide an up- environmentalimpact statement was of the burden for the conduct of to-date assessment of the state of not required for the Commission,s emergency preparedness exercises falls emergency preparedness for a new plant emergency planning and preparedness on State and local governments. the at the time the plant receives an regulations, which included 10 CFR Part f nal rule. by changmg the frequency ei opere ting license. Thi,s requirement has been easily satisfied in most cases.In
- 50. App. E as hereby revised.NUREG-0685 may be examined in the I ',
, nt it c e d 8
bs e i the few cases in which there has been Commission's Public Document Room, final rule does not impose a significant
{
some difficulty, the Commission's 1717 H Street NW Washington.DC. economic impact on a substantial , j exemption process provides a suitable Copies are available for purchase number of small entities, as defined in '
alternate method for addressing the through the Superintendent of the Regulatory Flexibihty Act of1980.
situation. Given the satisfactory Documents. USCPO. Box 37082 Ust of Subjects in 10 CFR Part 50 experience with the current rule and the Washington. DC. 20013-7082.
benefit in having up-to-date and Antitrust. Classified information. Fire Paperwork Reduction Act prevention, Incorporation by reference.
accurate information on the state of emergency preparedness at new nuclear The final rule contains no information Intergovernmental relations. Nuclear ]
power plants. I would not relax the collection requirements and therefore is power plants and reactors. Penalty.
existing one. year requirement for a full not subject to the requirements of the Radiation protection. Reactor siting participation exercise. Paperwork Reduction Act of 1980 (44 criteria. Reporting and recordkeeping En vinonmental Assessment and Finding
- "O *
- of No Significant EnvironmentalImpact Regulatory Analysis
- i
, nd a @fM
(
The Commission has determined The Commission has prepared a Atomic Energy Act of1954, as amended.
under the National Environmental Policy regulatory analysis for this regulation. the Energy Reor anization Act of 1974 {
Act of 1969, as amended, and the The analyds examines the costs and as amended, and 5 U.S.C. 553. the NRC l Commission's regulations in Subpart A benefits of the action and the is adopting the following amendment to i of 10 CFR Part 51. that this rule is not a alternatives considered by the 10 CFR Part 50:
major Federal cetion significantly Commission. A copy of the regulatory affecting the quality of the human analysis is available for inspection and PART 50-DOMESTIC UCENSING OF environment and therefore an copying. for a fee, at the NRC Public PRODUCTION AND UTIUZATION environmentalimpact statement is not Document Room.1717 H Street NW., FACIUTIES required. See 10 CFR 51.20(a)(1). Washington. DC. Single copies of the ;
Moreover, the Commission has analysis may be obtained from Michael 1. The authority citation for Part 50 i determined, pursuant to 1D CFR 51.32. T.Jamgochian.llegulatory Applications continues to read as follows:
i I
Federal Register / Vol. 52. No. 87 / Wednesday. May 6.1987 / Rules and Regulations 16829 i Authority: Secs.100.103.104.105.161.182. pathway EPZ and each State within the 183.186.189. 68 Stat. 936. 937. 938. 948. 953, ingestion exposure pathway EPZ. If the full SUPPLEMENTARY INFORMATION:This M4. 955. 951 as amended. sec. 234. 83 Stat. parucipation exercise is conducted more than amendment is prompted by a report of a 1
1:44. as amended (42 U.S.C. 2132. 2133. 2134. one year pnor toissuance of an operating control restrtetion in the lateral control 2135. :201. ::32. 2:33. r36. 2239. :282); secs. licensee for full power, an exercise which system 001. as amended. 202. :08. 88 Stat.1242. as in this m,of,a cident,Boeing right control Model 767 airplane wheel tests the license (s onsite emergency plans amended.1244.1:46 (42 U.S.C 5841. 5842. shall be conducted within one year before 5&46). motion was restncted to about 20 issuance of an operettng license for full percent of full travel. This restriction Section 50.7 also issued under Pub. L 95- power. This exercise need not has e State or 601. sec.10. 9 Stat. 2951 (42 U.S C. 5851). local government participation.
has been attributed to interference Section 5010 also issued under secs.101.185. . . .
between a trailing edge flap drive vapor 68 Stat. 936. 955. as amended (42 U.S C. 2131. seal and the nght inboard aileron droop
, 2:35); sec.102. Pub. L 91-190. 83 Stat. 853 (42 Dated at Washington. DC. this 30th da of quadrant.The operator who reported U.S C. 4332). See: tons 50.23. 50.35, 50 55. 50.56 APd WC. the incident stated that the airplane pr.
e also issued under sec.185. 68 Stat. 955 (42 For the Nuclear Regulatory Commission. which it occurred had accumulated over l U.S C r35). Sections 50.33a. 50.55a and Samuel I. Chi!k. 14.000 hours0 days <br />0 hours <br />0 weeks <br />0 months <br /> time-in. service at the time Appendix Q also issued under sec.102. Pub.
Secretaryof the Commission. of the incident and that the vapor seal L 91-190. 83 Stat. 853 (42 U.S.C. 4332). n that attplane had not been altered Sections 50.34 and 50.54 also issued under [FR Doc. 87-10321 Filed 5-5-87; 8 45 am) 8 *'" COD 8 "*" since the airplane was new.This sec. 204. 88 Stat.1245 (42 U.S.C. 5844). operator also reported that the Sections 50.58,5091. and 50.92 also issued under Pub. L 97-415. 96 Stat. 2073 (42 U.S.C. interfering vapor seal could be rotated a
} C39). Section 50.7E also issued under sec. small amount by hand so that it would 1::. 68 Stat. 939 (42 U.S.C. 2152). Sections DEPARTMENT OF TRANSPORTATION
{ either clear or interfere with the aileron 50 80-50 81 also issued under sec.184. 68 Stat. droop quadrant.
Federal Aviation Administration i 954. as amended (42 U.S.C. =34). Section The FAA attributes the interference to
' 50103 also issued under sec.108. 68 Stat. 939, as amended (42 U.S.C. 2138). Appendix F also 14 CFR Part 39 the improper installation of a trailing edge flap drive vapor seal and its issued under sec.187. 66 Stat. 955 (42 U.S.C- fDocket No. 87-NM-30-AD; Amdt. 39-5620) r37). supporting structure, followed by a for the purposes of sec. r3. 68 Stat,958. as small amount of rotational migration of a manded (42 U.S.C. 2:73): il 50.10(a). (b). and Airworthineaa pirectives; Boeing the vapor seal while it was in service.
Model767 Series Airplanea The proper installation of a vapor seal (c). 50 44. 50.46. 50 48. 50.54. and 50 80(a) are issued under sec.161b. 68 Stat. 948, as is with its flanges aligned horizontally, ACENCY: Federal Aviation amended (42 U.S.C. CD1(b)): Ii 50.10 (b) and Administration (FAA), DOT. The vap r seaI n the aircraft with th.e (c). and 50.54 are issued under sec. 1816, 68 ACT1oN: Final rule. control restriction problem was reported Stat. 949. as amended (42 U.S C. rot (i)); and to have had its flanges aligned i l 50.55(e). 50.59(bl. 50.70. 50.71. 50.72. 50.73. vertically. With the horizontal and 50.78 are issued under sec.161o. 68 Stat. suuuAnv1This amendment adopts a ne a orthiness irective )
installation. migration of a vapor seal to
, 950. as amended (42 U.S C. 2201(o)).
7 the extent that control interference Appendix E-fAmended/ sfries airplanes, which requires a one- ld ' P
, 2. In Appendix E Section IV. time inspection of the trailing edge flap
[jignie es atpr ven &7s paragraph F.1 and footnote 4 to this drive vapor seals to assure that they are L mited. control wheel movement such section are revised to read as follows: installed correctly and rework. il as encountered by the previcusly
. . . . . necessary.This amendment is prompted mentioned operator could limit lateral by a report of a control restriction in the control of an airplane.!f the droop IV. Content of Emergency Plans la teral control system which resulted quadrant is forced to travel beyond an
- 1. A full participation
- exercise which tests froin an improperly installed vapor seal. interfering seal flange, the quadrant as much of the licensee. State and local This condition. if not corrected, could could become jammed in that position, emergency plans as is reasonably achievable result in insufficient control authority or which would result in a crew's inability without mandatory public participation shall in controls that are jammed with a to operate the ailerons on one wing and be conducted for each site at which a power related spoilers.That condition could 1
' reactor is located for which the first operating continuous rollinput.
license for that site is inaued after fuly 13. EFFECTIVE DATE:May 22.1987. render one control wheel ineffective and require the other control wheel to be re2. Th;s a4ercisa shall be conducted within ADDRESSES:The applicable service held in the cpposite petition to mr.intain two years before tne ianuance of the first information may be obtained from the operatmg license for full power (one level flight: roll control would be %
authorizing operation above 5% of rated Boeing Commercial Airplane Company. reduced significantly, power) of the first resctor and shallinclude P.O. Box 3707. Seattle. Washington The FAA has reviewed and approved participation by each State and local 98124.This information may be Boeing Alert Service Bulletin 767-government withm the plume exposure examined at FAA. Northwest Mountain 27A0074. dated March 20.1967, which Region.17900 Pactfic Highway South, describes inspections and rework Seattle. Washington, or Seattle Aircraft y F m smeiration" when used in conjunction procedures, if necessary, for the trailing
Certification Office. FAA. Northwest edge flap drive vapor seals to assure p$ icu$r s50e me7ns a ropriafe)s5[e local and Mountain Region,9010 East Marginal that they are correctlyinstalled<
Siate authonties and licensee personnel physically Way South. Seattle. Washington.
and actively take part in tesuns their integrated Since this condition is likely to exist FOR FURTHER INFORMATION CONTACT: or develop on other airplanes of the
'*P'f,' ','Y,,'*
, , *d','3',*
, , , $[,[,",,',',",d
, ",',$d,,,'* .* n Mr. Richard Yarges. Airframe. Branch, same type design, this AD requires that parncipanon" includes tesuns the maior observabia ANM-170S; telephone (206) 431-1925. a one-time inspection and tework. if poches of the onsite er i ffsiteo emergency plans Mailing address: FAA. Northwest and motahzation of Sisu. local and l'cen'" necessary, of the trailing edge flap drive Mountain Region.17900 Pacific Highway vapor seals to be accomplished in fo$,r Ey c. I p o [. South. C-68968. Sea ttle. Washir.gton , accordance with the aforementioned s 98168. service bulletin, j _ . _ _ . _ . _ _ _ _ _ _ _ _ _ __
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