ML20151W000

Expresses Appreciation for Arrangements for Recent Trip to Facility

ML20151W000
Person / Time
Site:	Pilgrim, 05000000
Issue date:	03/12/1987
From:	Zech L NRC COMMISSION (OCM)
To:	Mcbride M NRC
Shared Package
ML20151H158	List: ML20151H156 ML20151V979 ML20151W000 ML20151W004 ML20151W012 ML20151W020 ML20151W029 ML20151W031 ML20195G358 ML20195G375 ML20195G688 ML20195G695
References
FOIA-88-198 NUDOCS 8808230129
Download: ML20151W000 (30)

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1. 4,, UNITED STATES 8 n NUCLEAR REGULATORY COMMISSION  :

2 i WASHINOTON, D. C. 20666  !

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CHAIRMAN March 12, 1987 ll

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Dr. Martin McBride j U.S. Nuclear Regulatory Commission '

Senior Resident Inspector - Operations P.O. Box 867 Plymouth, MA 02360

Dear de:

1 Thank you for your part in helping my staff arrange my recent trip to l Pilgrim Nuclear Station. I found the visit valuable and I sincerely appreciate your efforts. l i

I thank you for the service you are performing for the Region, the NRC and our country.

With kindest regards, Since rely, M

Lando W. Z h , Jr.

1 8808230129 880728 PDR FOIA JOHNSON 88-198 PDR

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i (1AR 05 '87 11: 21

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P.2 SITE VISIT OF NRC CHAIRHAN ZECH 3/10/82 EXECUTIVE SESSION - Boston Edison Attendees:

Stephen J. Sweeney Chairman, President and Chief Executive Officer Ra*ph G. Bird Senior Vice President - Nuclear A. Lee Oxsen Vice President-Nuclear Operations Xenneth P. Roberts Nuclear Operations Manager and Director of Outage Management James M. Lydon Executive Vice President and e Chief Operating Officer Hv= L Yb J.R E , s n ac Gam cy-WATCH-LIST - 3/10. AFTERNOON SHIFT:

William Olsen Nuclear Watch Engineer Charles Leonard Nuclear Operating Supervisor Thomas Murphy Nuclear Plant Reactor Operator (Licensed)

David Proksell Nuclear Plant Reactor Operator (Licensed)

Michael Jones Nuclear Plant Reactor Operator (Unllcensed)

John Bar11aro Nuclear Plant Reactor Operator (Unitcoased)

, Joseph Nelson Nuclear Auxillary Operator (Radwaste)

Wtiliam Guest Nuclear Auxiliary Operator (RadWaste)

Reactor Operator _Trainen :

Brian Lewis Richard t,awless h

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i SITE VISIT OF NRC CHAIRMAN ZECH  !

3/10/87 l l

J (1300) EXECUTIVE OVERVIEH (!&S Building) -

o Staffing and Organization o Safety Enhancement Program (1330) PLANT TOUR o Plant Hock-up o Diesel Generator Room Diesel Generator Overhaul Appendix R Tle-Ins o Health Physics Checkpoint Personnel Monitors Oress & Shower Fac111tles o Reactor Bu11 ding 23' Elevation ,

Environinental Qual 1fIcation Motor Control Center Enclosures

- Pre-Action Sprinkler System ,

1 o Reactor Building 117' Elevation l

- Refuel Bridge I

- LPRM/ Dry-Tube Changeout o Reactor Building 91' Elevation

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- Control Rod Drive Rebuild 1 Tool Decontamination o Reactor Building 74' Elevation Reactor Water Level Modifications

- Post-Accident Samp1tng System

- Secondary Containment Dampers

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J SITE VISIT OF NRC CHAIRMAN ZECH

- 3/10/87 PLANT TOUR (Cont'd) o Reactor Building 51' Elevation

- Hydrogen Water Chemistry Penetrations & Tle-Ins

- Reactor Water Sampling Sink

- Analog Trip System Tle-Ins

- Pre-Action Sprinkler System

- Nekon o HPCI Quadrant

- Asbestos Removal

- RHR/CS Pump Project

- 5-Year Prev. Maint. on Turbine o RCIC Quadrant

- 5-Year Prev. Maint. on Turbine

- Motor-Operated Valve Prev. Maint.

o Radiochemistry Laboratory o Control Room

- Control Room Annex

- Supervisor Console

- EPIC Computer Implementation

- Recorder Replacement 4

(1515) OPERATOR INTERVIEWS (1615) PLANT TOUR o Turbine Deck

- Turbine Overhaul

- Hydrogen Water Chemistry

- Surry Event Pipe Examination

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e SITE VISIT OF NRC CHAIRMAN ZECH 3710/87 PLANT TOUR (Cont'd) o Cable Spreading Room Analog Trip System Tle-Ins and Panels

, o Technical Support Center

- EPIC Computer o Hydrogen Water Chemistry Modification

- Hydrogen Storage Area

- Hydrogen Generation Building o Additional 01esel (1700) EXECUTIVE SESSION (I&S Butiding)

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Noties: Th!s opir.lon is subject to fostr.a2 revision be. fore pubileAtlen in the FWeral Reportar or U.SJ.pp.D.C. R'eporta. Users are requested to notfy the Clerk of ar.y for=al errors in order that corrections may be

=ade before the bound volumes to to presa.

linitch States (Eauri af Appeals Foa THE DISTRICT oF COLUMBIA CIRCUIT No. 821932 ERANC:5 X. bel.LOTTI, ATTORNEY GENERAL OF THE Co.cioNWEALTE OT MASSACEUSETTS, PETITIONER v.

UNITED STATES NUCLEAR REod.ATORY CO3D113S10N and UNITED STATES OT AMT.RICA, RESPONDENTS ,

30STON EDISON COMPANY, INTERVENOR Petition for Review cf an Order of the Nuclear Regulatory Corratission Argued March 29,1983 Decided September 23,1983 l Amended October 7,1983 l

Jo Ann ShofweU, Assistant Attorney General of the j Comrnonwealth of Massachusetts, for petitioner.

1 Frcncis X. BeMotti, Attorney General of the Common- I wealth of Massachusetts, Pcule W. Gold, Stephen AI.

l Bills of costs must be fLled within 14 dars after entry of judgment. *the court looks with d!sfavor open motions to fue bills of costs out of time.

2 Leonard and James' R. Gomes, Assistant Attorneys Gen.

eral of the Commonwealth of Massachusetts, were on the brief, for petitioner. .

G. Paul Bollwerk,111, Attorney, Nuclear Regulatory

. Commission, with whom E. Leo Slappie, Acting Solicitor, Nuclear Regulatory Commission, Mark E. Chopko and John F. Klucsik, Attorneys, Nuclear ReEulatory Commis.

sion, Dirk D. Snel and Nancy B. Firestone, Attorneys, Department of Justice, were on the brief, for respond.

ents.

Thomcs G. Dipr.cn, Jr., with whom R.K. Gad, III, were on the brief, for intervenor.

Before: WRicET and BoRK, Circuit Judges, and MACEINNox, Senior Circuit Judge. 1 i

Opinion for the Court Med by Circuit Judge BoRK. -

l Dissenting opinion Bed by Circuit Judge WRIGHT.

EcRK, Circuit Judpe: Before us for review is an order of the Nuclear Regulatory Commission ("NRC" or "Com.

mission") denying a petition by the Attorney General of the Commonwealth of Massachusetts to intervene in an ,

NRC enforcement proceeding. The proceeding modined '

Boston, Edison Company's license to operat4 its Pilgrim Nuclear Power Station located in Plymouth, Musachu.

setts. The Attorney General, Francis X. Bellotti, claims a right of int 4rvention and a hearing under section 189(a) of the Atomic Energy Act, 42 U.S.C. I 2239(a) (1976) i (amended by Pub. L. No.97-415, ! 12,96 Stat. 2067,2073 (19S3)). The crux of the dispute is the Commission's authority under section 189(a) to define the scope of a i

proceeding. We conclude the Commission has that author.

ity and that, as the proceeding was defined, Bellotti had

, no right to intervene.

On January 18, 1932, the NRC's Office of Inspection '

and Enforcement issued to Boston Edison an Order Modi.

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fying License related to the Pilgrim station. The Order.

discussed serious deSciencies in Boston Edison's manage-ment of the Pilgrim plant and amended Boston Edison's license to require development of a plan for reappraisal and improvement of management functions. Concur-rently, the NRC imposed civil penalties of $550,000 on the utility. Bellotti petitioned to intervene un February

~17,19S2, proposing to address himself to the plant's con.

tinued operation, the adequacy of Boston Edison's reap-praisal plan, the nature of necessary improvements at the plant and the adequacy of Boston Edison's imple-

nentation of recuired changes. Joint Appendix ("J.A.")

at 32-33. After Sve months had passed without a Com-mission response to the petition, Attorney General Bellotti brought suit in the Distri:t Court fer the District of Co-lu. ,hia to compel intervention. After the Commission issued its July 30,19S2 Order denying intervention, the -

sui: in district court was voluntarily dismissed and Bel.

lo::i petitioned this court t'o review the Order of July 30.

Section 189(a) of the Atomic Energy Act provides:

(1) In any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license or construction permit, or applicatiots to transfer control, and in any proceeding for the issu-ance or modiScation of rules and regulations decling with the activities of licensees, and in any proceeding for the payment of compensation, an award or royal-ties under sections 2183, 2187, 2236(c) or 2238 of this title, the Commission shall grant a hearing upon the request of any person whose interest may be af-fected by the proceeding, and shall admit any such person as a party to such proceeding. . . .

42 U.S.C.12239(a)(1976) (amended by Pub. L. No.97-415, i 12,96 Stat. 2067,2073 (1953) ). Petitioner contends' that the statute clearly confers upon him a right of in-te. mention since the section directs the Commission to hear "any person whose interest may be aRected by the e

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4 proceeding.E Intervention is a right only of those af-fected by the y seceding; therefore, as the Commissic-p:ints out, petitioner's conclusion follows only if * <

statute also entitles petitioner to denne the agenda and substance of the proceeding, since, if section 189(a) does not do that, then the proceeding as de5ned by the Com-mission does not acect any interest of the petitioner. The -

drst question, then,is whether petitioner or the Commis-sien has authority to dedne the scope of the proceeding.

We have no doubt + hat, as a general matter, such au-thority must reside di the Commission.2 To read the -

statute very broadly so that any proceeding necessarily implicates all issues that might be raised concern!ng the facility in question would deluge the Commission with intervencrs and expand many proceedings into virtually interminable, free ranging investigations. Few formal proceedings would be schedu]ed, and the Commission's -

substantive discretion to decide what is important enough to merit examination would be subverted by a procedural provirion requiring the Commission to consider any issue any intervenor might raise. Such a reading of the statute is plain!y unterable and cannot be what Congress intended.

This conclusion does net end the controversy, however,

, because petitioner contends: in the alternative, that the Order of January 18, 1982, denned the proceeding in a way which clearly makes the Atte ney General, as the

egal representative of the people of his corrnonwealth, a "person whose interest may be affected" and hence en-2 Tne Commission would have us sustain its position on the basis of BPI v. Atomic Energy Commission,502 F.2d 424,428 (D.C. Cir.1974), wherein we ht!d it not unreasonable under section 189(a) "for the Commission to require that the pro- '

spective intervener first specify the basis for his request for a hearing." BPI provides at best tangential suppert for the Commission's position and it ceitainly does not conclude the U. sue.

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5 titled to intervention and a hearing. According to peti-tiener, the NRC's attempt to limit the scope of the pro-ceedir.g still further-to the question of whether the Order should be sustained-was contrary to the necessary import of the Order. See Brief for Petitioner at 1719.

Only at drst glance does this seem a closer question than .

that already addressed. The Order directs Boston Edison to develop a plan for reappraisal and improvement of

' management functions. Petitioner claims that the con-tent of this plan is necessarily an issue in the proceeding.

Id. at S. If that language makes the improvement of rnanagement the issue in the proceeding, petitioner is probably a person afected. However, the Commission claims to have denned the proceeding more narrowly.

The development of the plan of action, according to the Commission, takes place outside the proceeding, so that the Attorney General would be an afected person only if he opposed issuance of the Order, which he does not.:

The Commission's decision to limit the scope of the pro-ceeding was not arbitrary. That decision was made pur-suant to a Commission policy "directing agency resources toward ti.e inspecticn rather than the ad,iudication proc-ess." Brief for Respondents at 29; see Public Sertrice Company of Indiasm,11 N.R.C. 438, 441-42 (1980). We

'h' ave no reason to believe that this allocation of resources '

is irrational, and the policy through which the Commis-sion has implemented it serves its purpose well. It should be noted that the issues petitioner seeks to litigate as within the scope of the Order-the plar.t's continued op-

' The Order Modif. ting License provides that the issue at auf hearing held ;ursuant to it shall be "[w]hether, on the basis of the matters set forth in Sections II and UI of this Order, this Oroer should be su tained." J.A. at 13. As re-spondents interpret it, this language limits possible inter-venors to those who think the Order should not be sustained, thereby precluding from intervention persons such as peti-tiener.who do not object to the Order but trJght seek further corrective measures.

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. 6 eration, the adequacy of the reappraisal and its imple-mentation, and the nature of necessary improvements at the plant-would result in a hearing virtually as lengthy and wide ranging as if intervenors were allowed to

. specify the relevant issues themselves. Petitioner's nar-rower claim turns out not te be so narrow and would place an unworkable burden on formal pro:eedings.

Though petitioner intends no such result, the rule for which he contends is capable of turning focussed regula-to:7 proceedings into amorphous public extravaganzas.

Moreover, if at petitioner's behest we sought to overturn this agency decision on regulatory priorities, it is by no means clear that we would achieve the result petitioner favors. Rather, we would more likely cause the Commis-sion to be rnere circumspect in its drafting of orders and seek to accomplish some reforms informally. The dissent-ing opinion complaias that such informal negotiations be- -

tween the Ccmmission staff and licensees are already too common. They would probably become more so if every r.ew safety measure accomplished through license amend-ment opened the door to'a free wheeling examination cf all. possible discontents. If so, the net effect would be regulation less visible to the public. Either way, the ef-ficacy of the regulatory process would be lessened.

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- We are reinforced in this view by an examination of the larger regulatory structure. Petitioner Bellotti is in no sense left without recourse by the NRC's denial of in-tervention in the Boston Edison proceeding. Commission regulations provide for public petitions to modify a 11-cense, which may lead to license modification proceedings if the Commission finds that appropriate. 10 C.F.R.

I 2.206 (1983). Moreover, Commission denials to instituta proceedings under section 2.206 are subject to judicial re-view. Lorion v. NRC, 712 F.2d 1472,1478 79 ( D.C.

Cir.), reh'g denied, No. 821132 (Sept. 22,1983); County of Rockland v. NRC, 709 F.2d 766 (2d Cir.1983), peti.

tion for cert. fded, 52 U.S.L.W. 3172 (U.S. Aug. 25,

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1983) (No! S3 329); Rock /ord Leaps 4 of Women Voters

v. NRC,679 F.2d 1218 (7th Cir.1982). The issues peti-tiener seeks to raise through intenention he may seek to raise by this alternative route. It is true that the Com-mission need not hold a hearing on the section 2.206 re-

, cuest, Lorion, 715 F.2d at 1475, and that the decision whether or not to begin proceedings is reviewable under deferential standards. But, given the fact that members of the public cannot be allowed to litigate before the Com-mission any and all issues that occur to them without demolishing the regulatory process, it is appropriate that the Commission be reviewed under an "arbitrary and ca-pricious" standard. That ensures that only serious issues need be addressed.

Contrary to the views expressed in the dissenting opin-ion, our holding does not destroy the role of section 189(a).

Indeed, our view of section 189(a), when coupled with the .

petition procedures under section 2.206, provides the -

' ' functional equivalent to the dissent's view of the proper reading of section 189(a). To the degree that there is a diference, it is that our reading provides for more or-derly procedures and, perhaps, more rapid implementa-tion of new safeguards. These points may be quickly made.

. The Commission's power to denne the scope of a pro- ,

ceeding will lead to the denial of intervention only when the Commission amends a license to require additional l or better safety measures. Then, one who, like petitioner i l

Bellotti, wishes to litigate the need for still more safety l measures, perhaps including the . closing of the facility,  !

will be remitted to section 2.206's petition procedures. A petition is not a futile gesture, for the Commissicn may '

not deny it arbitrarily. If, on the other hand, the Com-  !

mission proposes to amend a license to remove a restric.  !

tion upon the licensee, the scope of the proceeding is de-Sned by that proposal and section 189(a) permits public l

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participation to oppose that relaxation. The upshot is that automatic participation at a hearing may be denied .

only when the Commission is seeking to make a f acility's .

operation safer Public participation is automatic with respect to all Commission actions that are potentially harmful to the public health and welfare. Thus, our helding tocay does not, contrary to the dissent'c belief, "end all public participation with respect to nuclear li-censing issues of public concern." Dissenting op., at 4.

Indeed, because it recognizes the need to prevent sec-tien 189(a) from producing unstructured and almost in-terminable hearings on any issue some member of the public may wish to litigate, the dissent introduces prc-eedural limitations that would have much the same efect  :

upon public participation as toes our decision. The dis- ,

sent points out that the Commission has authority to l sacture and control section 189(a) proceedingt. This 2

means that issues seme member or representative of the public wishes to litigate may be ruled out. Should such ,

a ru.ing be appealed, the court would surely apply an l "arbitrary and capricious" star.dard, just as it would if the same person appealed from a denial of a petition under section 2.206. The results for public participation  !

would appent to be quite similar if not the same. The I diference would be that one system would delay an on- i going proceeding to impose new safety requirements '

I while the view we espeuse would not. l

. In this case petitioner is not t.5ected by the proceeding l as the Commission has limited it, and so he is not en-titled to intervene pursuant to section 189(a). Accord-ingly, the decision under review is i A firmed. .

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l WRIGHT, Circuit Judpt, dissenting: The Nuclear Reg-ulatory Commission's interpretation of Section 189(a) of I the' Atomic Energy Act, 42 U.S.C. I 2239(a) (1976)

(amended by Pub. L. 97 415, i 12, 96 STAT.1067, 2073 )

(1953), codi6ed at 42 U.S.C.A. I 2239 (a) (1983 l pocket part)), which the majority approves today, em- l bodies a policy on public intervention in nuclear license amendment proceedings so at odds with the purposes of ,

Section IS9(a) that I cannot concur. I must instead l agree with those members of the Commission who had I opposed the adoption of that interpretation and called it l a "pell mell retreat from meaningful public inquiry * *

• i Ithat) suggests to the * *

• outside world that the agency i is run by people living in fear of their own citizenry."

Wiscon. sin Electric Power Co. (Foint Beach, Unit 1),12 ,

KRC 547,550 (1980) (dissenting view of Commissioner  ;

j Bradford with Commissioner Gilinsky concurring). .

l This case involves the Massachusetts Attorney General's '

unsuccessful eforts to participate in NRC proceedings concerning a license amendment that had been developed and ordered by NRC's Office of Inspection and Enforce-l ment. The amendment was a response to severe safety '

problems uncovered at Boston Edison Company's Pilgrim l

, Nuclear Power Stationlocated in Plymouth, Massachusetts. >

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The safety problems discovered at the Pilgrim facility I were extraordinary. NRC had found that over a period of two and a half years there had beeit "a series of break-downs" in t. widt variety of management functions relat-ing to the operations of the nuclear facility. Manage-ment's ahility to cetrol engineering and design review activities, reiise opersting procedures, conduct facility 4 maintenance activities, notify NRC sbout safety prob- ,

lems, and conduct onsite safety committee Activities, had l all deteriorated. Order .Hodifying License Efective Im-l medi.stely (January 18,1982) at 2 (Order), Joint Ap- j pendix (JA) 5. In a January 18,19S2 letter to the li-l l

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2 censee (Letter) the Director of the Office of Irispection  !

and Enforcemer.t traced the licensee's "series of noncom- l pliances" to "a :ack of management attention over a pro-  !

lenged period," and described the "failures in the man-  !

agement and control of safety related activities at the Pi! grim facility as very serious matters requiring ex-traordinary regulatory actions * * *," Letter at 2, JA 15.  ;

NRC's Order, issued on the same date, referred to "sub-  !

s.artial serious breakdowns in Besten Edison Company's i inanagement controls related to the Pilgrim facility." Or- l der at 6, JA 9. Indeed, the safety problems were so severe I

that NRC in the words of its sta5's attorney, began "one l of the most significant enforcement actions ever taken" l by it. NRC Staf's Answer Opposing Request for a Hear-ing by the Attorney General of the Commonwealth of Massachus'etts (March 2,1982) at 1, JA 41 In addition '

to cedering the license amendment, NRC imposed chil .

penalties amounting to $550,000, which we are told were the highest such penalties ever levied by the Commission J on a nuclear plant licensee for violating NRC regulations.

Brief for petitioner at 3.2 NRC concluded that "[c)on-tinued operation of the * *

• facility require (d) signifi-cant' changes in Boston Edison Company's control of li-censed actidties." It determined that the license amend. '

1 2 Some of the specifes from NRC's findings will illustrate I the =anner in which the facility was being operated. Among other de$clencies, the Order discussed a condition at the facil.

ity involving the partial disabling of a system designed to as-1 sure automatic c]osure of certain valves whose "failure to close when required could result in the release of signi6 cant amounts of radioactive materials into the environment." Order at 2, ,

l JA 6. At least as disturbing was the finding that, after NRC l inspectors discovered errors in safety systems, the lleensee had reported to the agency that the errors had been corrected, although they had not been. Later, when the licensee docu-mested the errors, it failed either to inforTn NRC of what it had found or to inform NRC of the fact that the previous statement concerning compliance had been false. Id. at 3-4, J A 6 7.

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3 ment it had. developed was "required by the public health,. .

i safety, and interest, and (,) therefore, should be imposed t by an immediately eNective order." Order at 6, JA 9.  !

The license amendment ordered by the Commission in-cluded a requirerrent that the licensee, within 30 days, develop and submit for NRC approval "a ecmprehensive , j plan of action," id., in which the licensee would assure l  ;

NRC that it would review, evaluate, and, as necessary, "j ,

modify a variety of its procedures and operations relating to design changes, safety, personnel training, and man-  !

' agement oversight. The plan would also have to provide  :

for a program to assure the completeness and securacy of i information that had been or would be provided by the '

licensee to NRC. Moreover, the amendment required the ,

licensen to retain an independent organization, with suf5 l cient authority and freedom tc evaluate a number of as- l l'

pects of the licensee's organization and operation, to assist  !

the licensee in meeting NRC requirements and to initiate, recommend, or provide solutions to problems.

j It is clear that NRC's findings with respect to the Pil-grim Nuclear Power Station's operation raise concerns for the health and safety interests of the residents of Massa- s chusetts. To put it mildly, the plant had been operating -

far below those safety levels that the Commonwealth of '

Massachusetts and its residents had a right to expect. The NRC-ordered license amendment and the plan it requires

'the licensee to develop are efforta, whether adequate or inadequate, to remedy this situation. Yet NRC baa i adopted the positien that no representative of the resi- . I dents cf Massachusetts has a right to participate in any I aspect of the formulation of the licensing amendment or i

• he evaluation of the plan required by the amendment.

In its Order Modifying License it offered to provide a hearing to the licensee, if requested, on the issue of whether the Order should be sustained. It offered no .

hearing to anyone other than the licensee. The licensee i did not request a hearing, and the petition for a hearing i

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4 filed by the Massachusetts Attorney General was denied by the Commission. -

Section IS9(a) of the Atomic Energy Act is a broadly worded intervention statuta that assures that "(i)n any proceeding * *

• for the granting, suspending, revokirg, or amending of any license * *

• the Comt.dssion shall grant a hearing upon the request of cny person whose interest may be afected by the proceeding, and shall ad-mit any such person as a party to such proceeding." 42 U.S.C. I 2239 (a). While it is true that this court has held that Section IS9(a) is not "the last word on the sub.

ject of intervention" and that it "does not confer the auto.

rnatic right of intervention upon anyone," BPI v. AEC, 502 F.2d 424, 427, 428 (D.C. Cir.1974), this case pre-sents a very diferent question from prior cases.

Previous limits on the participation right in Section IS9(a) have all involved cEerts by the Commission to regulata the orderliness or timing cf pubMe participation 1 in its proceedir.gs, and in those contexts this court has i emphrsized that "an agency 'should be accorded broad l discretion in establishing and applying rules for * *

• i public participation * * *.'" Cities of Statestille et al. i

v. AEC, 441 F.2d 962, 977 (D.C. Cir.1969) (en bene),

quoting Of.ce of Ccmmunicction of United Church of Chrut v. FCC,359 F.2d 994,1005-1006 (D.C. Cir.1966).

. While it may be proper to read Section 189(a) flexibly when the Commissier is seeking to structure and channel l participation, no such deference is owed when the Com-  ;

mission wholly excludes nondiscretionary public participa- -

l tion. None of our prior cases have involved eEerts that -

i would end c!Z public participation with respect to nuclear I licensing issues of public concern. In this case NRC's l

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In all prior cases the NRC policies that we upheld en.

visioned some nondiscretionary pubile parti:!pation. Thus in Citics of Stctestf.le e5 el v. AEC,441 F.2d 962 (D.C. Cir.

1969) (en bene), we permitted the Commission to deny par.

tie:pation to a prospective intervenor where his interests were

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5 eforts to structure and characterize its proceedings so as to completely insulate a certain class of licensing decisions frem the scrutiny of nondiscretionary participation are a'l the more shocking in that the insulated class of cases '

includes cases where NRC has found serious and current public safety problems to exist. The rationale it oders fer denying participation is that in its view no public

. interest in the proceeding exista. But its rationale can only be viewed as a glaring example of placing form be.

fore substance.

NRC reached its intervention position in two steps.

First. in Nuclear Engineering Co. (Shetield, Illinci.s Low.

Level Radioactive Waste Disposal Site), 7 NRC 737, 743 (1975), the Commission declared that "the test (for stand.

ing to intervene) is whether a cognizable interest of the peti:ioner might be adversely affected if the proceeding has one outcome rather than another." In formulating this test the Commission seemed to be doing little more than restating its adoption of traditional standing doc. .

trine .nd thus its exclusion of those "who seek to do no mere than vindicate their own value preferences * * *."

iuly represented by other parties;in Sc4 tern Utilities Comm'n

t. AEC, 424 F.2d 847 (D.C. Cir.1970) (en bene), we per.

mi:.ed the Commission to enforce time limitations on the ability.to petition for intervention where those limits were re.tsonable; and in BPI r. AEC,502 F.2d 424 (D.C. Cir.1974),

we permitted the Commission to require that prospective in.

tervenors Srst specify the basis for their request for a hearing.

Even in Porter County Chapter of Izack Walton League v.

NRC, 606 F.2d 1363 (D.C. Cir.1979), where we held that NRC was not required to hdd hearings on unresolved safety questions relating to a nuclear power plant construction per.

mit, we emphasized that the plant could not begin operation without an operating license and that a hearing would have to be made available prior to issuance of that license and thus prict to any posing of actual"danger to the public health and safety." 606 T.2d at 1369. See clso Seceoest Anti. Pollution Leccue of New Hampshire v. NRC,690 F.2d 1025,10311033 (D.C. Cir.1982).

j _ . . . _ . . . . . . . .

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.N 7 NRC at'742, quoting Sierra Club v. Morton,105 U.S.

727, 740 (1972). The Commission took the more con-troversial second step in Public Service Co. of Indianc 1 (Marble Hill Nuclear Gersrating Station, Units 1 & 2), f ,

11 NRC 438 (1980), where it allowed itself the power to

. limit the scope of any license amendment hearing to the

{

.nrowest possible question: should the specific amend-  !  ;

ment formulated and ordered by the Commissioner be j sustained or overturned. By equating this power to limit  ;

the hearing's scope with the power to limit the scope of the i

"proceeding" referred to in Section 189(a) and in Shef- ,  !

,deld, NRC performed a semantic sleight of hand to ac-  !

quire for itself the power to e:<clude publi. intervention. t In Shefteld it had defined the test for intervention stand- E  !

ing in terms of the possible outcome of the proceeding, and l it could now limit what would be called a proceeding so that no one but the licensee could be adversely affected by 1 its outcome. It is this power that is at issue today. In 7s' l the end, it is a power to sbleld the licensee from public  :

l scrutiny, to allow the licensee to effect a cover up of its i  ;

l operations. '

Under the Commission's reasoning, where a licensed -

I and operating plant hr.s been found unsafe, where the ?I Commission has ordered some remedial amendment, and ..

t where the licensee has accepted that amendment, there is I

. no .public interest in any proceeding. The only "proceed-ing" is that offered by the Commission, and that proceed- i ing is limited to whether or not the specific amendment j I cffered should be sustained. If there were a chance that -

j the proceeding would overturn the . mendment, the public .

would have standing, since the plant could return to or y remain in its pre amendment unsafe condition. But this s5 -

is not a possibility unless the licensee seeks a hearing. i Unless the licensee protests, any proceeding, as limited by l 1 .

NRC, could only sustain the amendment and thus tech- .i alcally would not adversely affect the public interest be-cause it would make the public more rather than less.se- '

cure when compared to the pre-amendment situation.

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Because no oth,er issue is within the scope set by the Com-mission, the public is held to have no interest and there-  ;

fore no right of participation, even though the license amendment was necessitated by severe pub'ic safety prob-less at licensed and operating nuclear facilities. Thus, ,

by the combined action of the Commission and the li-  ;;

censee, the public is excluded from perticipating in a ctatutory hearing that Congress provided for the public's protection. No hearing is held, hence the licensee's "cover-  ;!

?

up."

This result is a denigration of the participatory goals I of Section 189(a). In a somewhat different context this court has said that "[b)y requiring a hearing upon re-quest whenever a license is ' grant [ed), suspend (ed), re- .<

vok[ed), or ' amend [ed),' Congress apparently contem- '

plated that interested parties would be able to intervene . .

before any signi5 cant change in the operation of a nu-clear facility." Sholly v. NRC, 651 F.2d 780, 791 (D.C.

Cir.1950) (per curiam), vacated end remended, U.S. , 51 U.S.L.W. 3610 (February 22,1983).' NRC, in efect, argues that its proceedings conformed to this principle in that the relevant signincant change is the -

ordered licensing amendment, which adversely affects only the licensee. But this is narrow formalism.

'i'h'at'the statute assured the pubile a right to partici.

pate in,the initial licensing proceedings re8ects Congress' recognition of the public's interest in assuring that the ,

initiallicense protected public health and safety. Presum-ably NRC believed that public health and safety had been suf5ciently protected by that license. If NRC now finds that the operations of the facility have changed in such a signincant way that these public interests are no longer sufficiently protected by that license, it is absurd for the Commission to argue that no public interest is involved in

, the proceedings to remedy the problem. Just as the public ,

had a vital interest in participa+.ing in the process by -

which the license that would initially protect them was -

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formulahd, they have an interest in participating in the process of making the revisions necessary to the protee-tion of their heahh and safety. That NRC's actions are eEorts to make the unsafe facility to some degree safer is  ! <

no reason to exclude the public and assert that there is 9 no public interest. Although it may be that we should 3 show great deference to NRC's decisions with respect to E ,

how meaningful public participation can best be incorpo- i rated into its processes, NRC cannot reserve to itself the  :

[

power to de5ne the meaning of the word "proceedings" so  ;

as to eliminate entirely all rights of public participation ,.

in a matter whose entire focus is the issue of public '

safety. "[W) hen Congress creates a procedure that gives -

i ,

the public a role in deciding important questions of pub- '

t I lic policy, that procedure may not lightly be sidestepped .

by administrators." Environmental Defense Fund, Inc. v. ,  ; l Ruche!shcus, 439 F.2d 584, 594 (D.C. Cir.1971). i

! I!

From its beginnings, this nonintervention policy was recognized as an improper eHort by NRC to acquire for @i '

itself the power to shield from public scrutiny and par- L ticipation its reactions to nuclear safety problems. As, . ,

Commissioner Bradford wrote: I!

The hearing being offered as a matter o[f] right k l pursuant to Merble Hill is a sham. Petitioners are ,

l not permitted to contest the issue that concerns them 4 l

most, namely the susciency of the NRC's action as l l against the claimed need for other remedies. In '

)

short, the Commission has constructed a test that 1 grants a meaningful right to a hearing in cases of , ,

this sort only to the utility or another party which ."

'I may assert that the order goes too far. Anyone else .c seeking to argue the insumciency of an NRC imposed 7' remedy must prove that the remedy has made the facility less safe than it had been. Thus, .he public's opportunity to be heard when dangerous condition.

are shown to exist at a plant can be foreclosed by t .:

staff action resulting in a minimal improvement n. ,

safety. * * * ~

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9 WUconsin Electric Power Co. (Point Beach, Unit .1),*su. .

prc,12 NRC at 549 550 (dissenting view of Commis-sioner Bradford with Commissioner Gilinsky concur-Ting) .s Underlying the Commission's position seems to be a view that public participation in decisionmaking is an en-forcement weapon for the agency to use or not use as it a: tempts to influence licensee behavior. It thus argues that "b.v drawing the scope of the enforcement hearings narrowly, * * * [it can) encourag[e] the licensee to con-

• Commissioner Bradford's reaction to this speciSc policy mirrors that taken by NRC's own Special Inquiry Group (fo ned to study NRC's operation in the wake of the Three Nile Island accident) totvard NRC's general participation policias. See 1 NoctrAR RrovLAtoRY CoMM!ssioN SPECIAL ING :7.y GROUP, THRtr MILE ISLAND: A RrroRT To THE CoM-xtsslohEr.S AhD To TEE PU21.1C (Regovin Commission Report) 139 (1950) ("Insofar as the licensing process is supposed +o -

provide a publicly accessible forum for the resolution of EU safety issues relevant to the construction and operation of a nu:'t.ar plant,it is a sham.") .

The Regovin Commission Report emphasized two factors making public pa:ticipation a sham. First, most safaty issues s.re re. solved during negotiations between NRC sta# and the uti":y, and although these meetings are officially pubMe, "in fact the public and intervenor groups seldom play any mean-ingful role at this stage of the process." Id. This leaves NRC and the licensee as allies at any hearing and would seem to ma.ke independent public participation all the more importe.nt.

Sr.end,'the Report found that because of limited funding and expertise interrenors frequently are unable to "enective[ly) cht.'lenge on technical safety issues * *

• the combined front presented by the NRC star and the (utility's) experts." Id.

But the Report nevertheles,s argued that "intervenors have made an important impact on safety in some instances," id, at 143 (emphasis in original). and recommended a variety of mes.sures "to involve the public earlier and more eKoctively in safety issues." Id. Ironically, here we art faced Mth an inter-venor who is likely to have access to the necessary funds and er,.ertise to be e5ective and is nevertheless prevented from participating by the Commission itself.

'e

4 10 sent to, rather than contest, er.forcement actions (.)" Brief for respondent at 29. The licensees' incentive to settle is the fear that otheridse they would "risk a hearing on whether more drastic relief was called for * * '." Id.,

quoting biarble Hill, supra,11 NRC at 441. But the con-gressionally bestowed right of the public to participate in the making of enforcement policy is not a tool to be used or traded off by an agency as part of its enforcement dis-cretion. The Commission's pesition presents the public with an image of behind the scenes deelsionmaking and licensee. agency collusion. The public might rightly ask why, if a public proceeding might convince the Commis-sien that there is a need for mere drastic remedies, a public proceeding is not held. The Commission's position seems to envision no legitimate and independent public in-terest in participation. In congressional testimony on NRC's intervention policies, Commissioner Bradford painted a picture that I hope is not true. In his view the Commissien "seem[ed) to be basing its decisions * * *  ;

on some hypothetical concept of a vampire intervenor with whose imagined potential transgressions it is ob-sessed to the point of curtailing allinterventions to avoid a few abuses." NRC Oversight: Limitations on Inter.

venors in Licensing Proceedir.gs: Hearing Before a Sub-committee of the House Committee on Government Opera-tions,96th Cong.,2d Sess. 62 (1980).

Although Congress did not distinguish between differ-ent types of public intervenors. for purposes of Section IS9(a), this case, involving as it does the intervention i efor:s of the situs state's Attorney General, highlights I the deleterious consequences of NRC's efforts to entirely .

l eliminate public participants from this class of cases, q The Atomic Energy Act preempts the states' power to protect their citi enry from radiation hazards stemming i l

from nuclear energy generation, see Pccific Gas & Elec.  ! l Co. v. State Energy Resources Conservation & Develop- l ment Comm'n, U.S. , - , 51 U.S. L.W. 4 44 9,  !!

4454 (April 20,1983), and in light of that preemption, I

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promoting public participation in NRC decisionmaking is ,

at the more important. Su: tion 189(a) can be viewed in

- these terms: Having denied state governments the power to protect their citizens directly, Congress tempered the exclusivity of NRC's regulatory power with a require-ment that NRC allow public participation in decisions.

In this way federal admia; . alive regulation of radia-tien related safety issues, though exclusive, could be made mere accountable to state and local concerna.

That the state has a continuing vital interest in par-ticipating in NRC decislens that ziTect the safety of its residents has been repeat 4dly emphasized by Congress, which has twice amended the Act to build a scheme of sta:4 participation in NRC decisions. For example, Sec-tien 274 (1) was added to the Act in 1959 to require that NRC notify the relevant states of any applications for licenses that would authorize any of those activities placed under exclusive NRC regulatory control. The amend.

ment also speel6cally granted states a right to participate in these license application. proceedings even when the states chose not to take a position for or against the granting of the application. Pub. L. S6 373, i 1, 73 STAT.

6SS (codified at 42 U.S.C. [ 2021(l) (1976)); Pccijic Gas & Elec. Co. v. State Energy Resources Conservation

a. Development Comm'n, supra, -- U.S. at n.21, 51 U.S.L.W. at 4454 n.21 (i 2021(!) creates advisory role for the states respecting activities exclusively within :  ;

NRC's jurisdiction). I j The states' continued interest in Section 189(a) par-ticipation was clearly brought home by Congress in a ,

recent amendment to that section. At the Commission's request, Congress relieved the Commission of any obli-gation to hold a hearing prior to issuing operatirg license amendments that involve "no significant hazards consideration." But while lifting the hearing require- t ment, Congress replaced it with a requirement that "(iln' l determining ' * ' whether [an) amendment involves *

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12 no signincant hazards consideration, the Commission shall consult with the State in which the facility ,

(

involved is located." Act of January 4,1983, Pub. L. '

97 415, i 12(a), 96 STAT. 2073 (codined at 42 U.S.C.A.- .-

i 2235(a) (2)( A) (1983 pocket part)).

In light of this, NRC's policy and today's decision sup-  ;

q'..'

• perting it produce a bi:arre result: When NRC feels that i , , _ . .

a licensing amendment involves "no signi6 cant hazards .

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censideration," NRC must nevertheless, on its own initia-tive and in recognition of the state's important interest in ,

safety, seek out state consultation if it chooses to forego a F .

hearing; but in a large group of cases invoh*ing very seri-  ;

ous radiation hazards NRC can simply choose to denne the scope of the hearing it e5ers so as to exclude all state and i public participation. When- Congress relieved NRC of i ,

ho! ding prior hearings on license amendments that in. .a i 1 volved "no signi$ cant hazards consideration," its com- ] ,

l

nittee "stress (ed) its strong desire to preserve for the public a meaningful right to participate in decisions re- 5

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garding the ecmmercial use of nuclear power." S. Rep. i No.113, 97th Cong.,1st Sess. 14 (1981). This concern r -

le:i it to assure some form of state involvement and to retain : requirement that opportunities for hearings be '

ofered later. Less cannot be required of NRC when deal- ~

ing syith amendments raising major safety issues.  ; ,

a ,

The majority offers a number of policy reasons in sup- [ i port of NRC's position, but I Snd none of them persua. .g : *

'f,  ;

sive. First, the majority $nds NRC's contention that it

I rnay choose to devote its "resources toward the inspection i i rather than the adjudication process" to be a reasonable .y]i one. Majority Opinion (Maj. Op.) at 5, Second, the ma- <

i jority warns that preventing NRC from limiting the <

scope of its hearings would turn "focussed regulatory i proceedings into amorphous public extravaganzas." Id. at [r l

6. Third, the majority points out that "Commission regu- i lations [10 C.F.R.12.206 (19S3)) provide for public peti-tions to modify a license, which may lead to license modi-Q+

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13 heatien proce+ dings if the Commission finds that appro-priate." Id. The majority thus Ands that liRC ofers .

an alternative means for the state to voice its concerns.

The nrst contention implicitly treats public partleipa-tion in NRC decisionmaking as a weapon of agency en-forcement. It is not. It is a right granted to the public by Congress to al]ow the citi:enry to protect its interests and to assure that NRC's processes, having been opened i to pubile scrutiny, merit public con 6dence. The decision to involve the public in NRC's enforcement processes has ,

b+en made by Cengress, and it is not up to NRC to decide  !

that that participation is of little relative value.

The second contention, which seems to be a standard "needgates" argument, ignores the fact that a host of limiting principles would allow the Commission to man-age its hearings. This court has long taken the position i that "an agency 'should be accorded broad discretion in establishing and applying rules for * *

• public partic- .

ipation * * *, Cities of Statesville, suprc, 441 F.2d at 977, quoting Ur.ited Church of Christ, suprc,359 F.2d at 1005 1006, and responsible use of that discretion should make unnecessary the complete exclusien of public partic-Ipatien. NRC need not open a hearing to "a free wheel.

ing examination of all possible discontents" whenever it seeks a license amendment. See Maj. Op. at 6. Certainly  :

NRC could at least limit the proceedings to examination '

of theie problems that formed the basis of the licensing amendment.' Morr crr, the Commission is entitled to i In this case the underlying safety problems were numerous ud quite bread, and limiting the scope of a proceeding to an examination of those problems and their remedies would still leave a very involved proceeding. But this is because of the extraordinarily unsafe conditions that were allowed to prevail i

at the facility. There is no reason to expect that this situation

rill be typical; but where such an extreme situation does exist the complexity of the resulting proceeding is understandable and ne.essary. It makes no sense to deny public participation on the ground that the threats to the public's interest are too numerous and broad. It does make sense to have proceedings l l

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great freedom in its efforts to structure its proceedings .

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so as to maintain their integrity while assuring mean- l ingful public participation, but on4 of its goals must be '

to assure that there is meaningful public participation. ,

The third contentien, that 10 C.F.R. I 2.206 (1983) ofers a sufnclent alternative to a state, denigrates the statutory scheme's assurance that there would be public '

participation in specific proceedings as a matter of right  ;

and in order to effectuate a public interest in open deci-  ;

sionmaking. The agency is allowed wide discretion under 1 10 C.F.R. I 2.206. In efect, it can often choose to isolate its decisions from public input. Contrary to the major-ity's position, this wide discretien on the issue of whether

o. not to initiate a pub!!c proceeding cannot be considered the equivalent of the discretion to formulate rules at pub- .

lic proceedings effectively to provide the public with meaningful participation. Section 189(a) places a high 1 l

value on the principle that NRC must at certain times _

i be accessible to public input, whether or not NRC would ,

so choose on its own. The wording of 10 C.F.R. I 2.206 i '

makes clear that it is meant, within certain broad bounds, . 1 to allow the Commission to choose when it wants to hear the pub!ic and when it does not. These are thus not equiv.

21ent provisions. In this case, where the Section 189(a) right should apply,10 C.F.R. I 2.206 can only be called suscient if the Commission would indeed be unable 4 oderwise to prevent the "demolishing (of) the regulatory prccess," Maj. Op. at 7, by the litigation of "any and all issues," id., that might occur to a prospective intervenor.

I :.m confident of the Commission's ability to prevent this, even if we require meaningful public participation in license amendment proceedings that seek to remedy f serious public safety hazards. iL I respectfully dissent.

L 4

whose breadth corresponds to the breadth of the problems they are designed to address. 4 1

e.

'lW 9

625 Washington Street Du xbu ry , M 02332 September 8,1986 Mr. Stephen J. Sweeney President & Chief Executive Officer Ibston Edison Company 1 800 Boylston Street Boston, M 02199

Dear Mr. Sweeney:

j Thank you very much for your informative correspondence dated August 18, 1986, concerning changes you art making at the Pilgrim Nuclear Power Plant prior to its return to service. I want you to Know Diat you are I absolutely correct that my friends and neighbors have been discussing the situation at the Pilgrim Nuclear Power Plant perhaps far mort than

, you and your staff fully appreciate. l It appears to me that the nucle 6r power station in Plymouth has operated for a number of years without a serious safety incident despite the apparent inept, and perhaps incompetent, management personnel of the j Boston Edison Company. Al though I and many of my f riends have considered ourselves nuclear power advocates for many years, rtcent world events, coupled with the disclosures of the management problems at Pilgrim, have led us to conclude that our safety and that of our  ;

families, friends, and fellow comunity members must take precedence in '

this case. It is not that we are against nuclear power, it's that we are scared to death of nuclear power equipment being operated by a company whose performance record is as dismal as your own.

You and your Public Relations people must think that everyone is operating at your level of alertness to believe that a poorly conceived and typographically flawed memo, which fails to even acknowledge the  ;

existence of problems, making claims that you art now, out of concern L. . .:. n t . . . ... .. . for our safety, implementing long overdue safety measures, could convince the public to support reopening this facility at any time in the foreseeable future. I find it almost beyond belief that you and 5..., .'*. .., ,your staff would attempt to address the Pilgrim Station comunity and

"* mot even proofread the letter before you mailed it out. I can only

~

1

] interpret this as another minifestation of the unacceptable quality standards of the Boston Edison Company.

AM .

A Mr. Stephen J. Sweeney Page 2 In case I have not made my position sufficiently clear, please understand that I along with my f riends and neighbors are unalterably opposed to the reopening of the Pilgrim Station and will wort through our government system to see that the Boston Edison Company is never allowed to reopen that f acility. We do this in the full knowledge that this will result in a higher economic cost for power in the futurt, but in this particular case, would nuch prtfer to pay now than to suffer the consequences later.

The Boston Edison Company was given numerous opportunities over the years to rectify serious deficiencies in the management of the Pilgrim facility, and 1 judge your current efforts as too little too late from a company that has never cared enough to assure that the Pilgrim Station neighbors were not in jeopardy.

Sincertly yours,

\

( ,./ )

rian E. McFarland f l

cc Senator Edward Kennedy l Senator John Kerry l kp. Gerry Studds ,

Lando W. Zech, Jr. , Chaiman, NRC j i

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. ...- 6 80670N EDf50N 800 Boyiston street loston, Massachusetts 02199 August 18, 1986

Dear Pilgrim Station Neighbor:

Pilgrim Station has certainly been in the news lately. You and your friends and neighbors probably have discussed it. I know we have. Now that wo have decided to keep the plant shut down until early next year I want to take just a couple of minutes to review some of the actions we are taking to assure that concerns are addressed before the plant returns to service.

In late 1985, we implemented a new management structure at the plant end have since then staffed that organization with expertenced professionals who bring new perspectives and new skills to Boston Edison's nuclear organization.

We have increased staffing in a number of areas, most notably, in the number of operators and radiological technicians and emergency planners.

. In emergency planning, that increase is from one to five full-time ,

professionals. We have also recently opened a state-of-the-art '

emergency operations facility and have made a commitment to the state's ,

public safety officials that we will provide the necessary funding to j assure that state and local plans are thoroughly reviewed and updated, j i

. In keeping the plant out of service until early 1987, we have made a i commitment to enhance a number of aspects of the plant's containment system. In doing so, we were the first utility in the nation with similar containments to make such a commitment.

These are a few of the steps we are taking and it is important to note that our progress is being recognized by the NRC. For example, in its testimony i to a Congres.ional hearing in Washington in July, the NRC made note of plant l improvements when it said "the physical condition of the facility has been l dramatically improved over the years." The NRC went on to say that "actions to strengthen managtment staffing give confidence that the corporate philosophy has been redefined and a new attitude towards excellence is evolving." This recognition is important to all of NRC-Chairman .d Zech's letter to l Representative Gerry E. Stud ch said "Pilgrim Station cper ons have been and are being conducted a safe manner."

I hope t s letter and our other communications have respond to some of your questl 5, but I recognize that you may others. Please don't esitate to contact Go Tis, district manager, at Pilgrim Station, Rocky Hill oad, Plymouth, at 746-0912.

l Sincerely, ,

i

/

St phen J. S eeney President and Chief Executive Officer

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