ML20059J535
| ML20059J535 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 06/30/1993 |
| From: | NRC |
| To: | |
| Shared Package | |
| ML20059J092 | List: |
| References | |
| 2.206, NUDOCS 9311120249 | |
| Download: ML20059J535 (17) | |
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REVIEW OF THE @ 2.206 PETITION :
PROCESS :
BACKGROUND DISCUSSION PAPER !
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U.S. NUCLEAR REGULATORY COMMISSION 9 ?auacWi June.1993.
9311120249 931103 E PDR ADOOK 05000289..
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. t INTRODUCTION The Commission has approved the initiation of a review of its regulations and practice governing petitions under 10 CFR S 2.206.
The first step in this evaluation process will be a public workshop where knowledgeable affected interests will share their advice and recommendations concerning the S 2.206 process with the NRC staff.
In addition to providing an opportunity for representatives of affected interests to comment on the S 2.206 process, the workshop will also provide an opportunity for participants from citizens' groups, industry, and government to exchange information on the objectives of the S 2.206 process, its effectiveness, and what, if any, improvements could be made to the process. The Commission believes that, whatever the ultimate outcome of the Commission's
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evaluation of the S 2.206 process, this educational aspect of the workshop will be valuable for all participants in terms of fostering a better understanding the 5 2.206 process. The purpose of this paper is to outline the scope of the review, to provide background information on the S 2.206 process, and to identify several broad categories of potential improvements for discussion ;
at the workshop.
The S 2.206 petition is the primary formal method for a member of the public to request commission review of a potential safety
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problem with an NRC licensed facility, outside of a licensing or l
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rulemaking proceeding l. The petitioner need only ask in writing f t
that some action be taken against an NRC licensee and identify the {
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facts that the petitioner believes provide sufficient grounds for taking the proposed action. This action triggers an evaluation by ,
the appropriate program office which concludes with a written t decision by the Office Director which addresses the issues raised !
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in the petition.
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k The NRC has not re-examined the process in any systematic way since !
this provision was added to the Commission's regulations in 1974. I In addition, this process has been the subject of longstanding criticism by citizens' groups and by some members of Congress, !
prirsrily because most 52.206 petitions have been denied in whole i or in part in the past. Therefore, the Commission believes that it r
is time to evaluate the S 2.206 process and to determine whether any changes should be made to that process. This evaluation is also consistent with current commission efforts to enhance public !
e participation in the Commission's decisionmaking process. The f
purpose of this review is to ensure that the 5 2.206 process is an i effective, equitable, and credible mechanism for the public to '!
i prompt commission investigation and resolution of potential health l and safety problems. In addition, given the reality of shrinking l i
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A less formal process is also available for any person to bring _an allegation of wrongdoing associated with NRC licensed activities to be investigated by the NRC. The Atomic Energy Act '
includes no provision for " citizen suits" whereby an interested :
person or group may bring suit directly against a licensee-for violations of the Act or NRC rules or orders. (See, e.g., Section 304 of the Clean Air Act, 42 U.S.C. 7604). !
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rather than expanding resources, the Commission believes.that the evaluation of the S 2.206 process must consider how to achieve a +
more effective S 2.206 process with equal or fewer resources.
Section 2.206 was added to the Commission's regulations in 1974 to specify the procedures to be used by members of the public to ,
request action against an NRC licensee. The broad focus of the Commission's review of the 5 2.206 process is to determine whether S 2.206 has proven to be an effective mechanism, for not only bringing potential safety problems to the Commission's attention, but also ensuring that the Commission has been responsive in evaluating any such potential safety problems. The review of the S 2.206 process will address such questions as: What is the !
objective of the S 2.206 process? Is it meeting this objective?
How can the S 2.206 process be improved? Is this the most effective mechanism to bring safety problems to the Commission's attention? What other mechanisms exist, such as, for example, the allegation management system, for bringing safety problems to the Commission's attention? How are these different from S 2.206 both in objective and procedure? The workshop will not only focus on these broad issues, but will specifically address the procedures that the Commission uses to evaluate S 2.206 petitions. The staff has identified three broad areas of potential improvement to the S 2.206 process which are discussed later in this paper:
- 1. Increasing interaction with the petitioner; 2. Focussing on i resolution of safety issues rather than on requesting enforcement i i
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4 action; and 3. Categorizing petitions according to importance of issues raised.
II. Description of the 4 2.206 Process Any person may file a petition under 10 CFR 5 2.206 to request that the Commission institute a proceeding to modify, suspend, or revoke a license, or for such other action as may be proper. This process provides the public with a mechanism to raise issues of concern, which must then be reviewed and addressed by the Commission's staff. Except as specifically provided in the regulations 2, each 5 2.206 petition is reviewed by the appropriate major program Office Director, who must either initiate the requested proceeding or issue a formal Director's Decision providing a specific disposition of all issues raised . in the petition within a
" reasonable time." If the Director finds that the petition raises a substantial safety question, an enforcement order will be issued or other appropriate action taken, within the Director's discretion.
2 For instance, Part 52 at section 52.103(f) provides that a petition to modify the terms and conditions of the combined license will be processed as a 5 2.206 petition. However, these petitions
- shall be considered by the Commission itself. The Commission must determine whether any immediete action is required prior to commencement of operation under the license. The scope of this workshop discussion is limited to the usual enforcement-type 5 2.206 petitions, and specifically excludes S 2.206 petitions pursuant to Part 52 combined licenses. '
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5 In reviewing the issues -raised in a 5 2.206 petition, the staff
- generally relies on its own resources to gather and review j informatios,. including, when appropriate, '
the initiation of engineering reviews by headquarters staff or inspections by inspectors operating out of one of the NRC regional offices.
t Allegations of wrongdoing concerning the conduct of NRC-licensed activities which are contained in a 5 2.206 petition may be ,
referred to the NRC Office of Investigation, or, if the allegation
-t suggests wrongdoing by a Commission employee, to the Office of the '
Inspector General, for further inquiry. The staff also may rely on '
studies prepared by NRC consultants and, for emergency planning issues, may refer the petition to the Federal Emergency Management Agency for its review and comment.
The licensee usually voluntarily responds in writing to the issues in the petition.
Also, at the staff's discretion, it may require ,
the licensee to submit under oath or affirmation, additional P
information in response to the petition. In many instances, the staff's review may not involve new engineering work or inspection; rather, the primary job of the staff may be to explain why results of earlier technical reviews or inspections do not warrant further agency action.
An important purpose of 5 2.206 is to provide a simple nethod for any member of the public to bring facts or issues to the NRC's attention for evaluation. The petitioner bears a minimal burden in
i filing a request under S 2.206. The petitioner need only ask that some action be taken against a licensee and identify the facts that the petitioner believes provide sufficient grounds for taking the proposed action. No showing of legal standing or interest is required. It is not even required that the petition mention S 2.206. The NRC's normal practice is to treat a request for ,
action against a licensee as a S 2.206 petition, provided only that it identifies a sufficiently specific basis for the request. l The bases for the staff's determination on each 5 2.206 petition 4
are set forth in a formal Director's Decision signed by ' the Director of the appropriate program office. Decisions are published with reported agency adjudicatory decisions in the NRC -
Issuances although the Director's Decision are not adjudicatory in nature. '
The filing of a 5 2.206 petition does not, by itself, initiate a hearing, and 5 2.206 petitions have resulted in hearings only rarely. If an order is issued as a result of a 5 2.206 petition, it may trigger an agency proceeding in which the petitioner may intervene, although the intervention is allowed on a limited basis, within the scope of issues defined by the Commission. Bellotti v.
l{RC, 725 F.2d 1380 (D.C. Cir. 1983). However, a formal hearing will usually result only when the licensee demands a hearing to challenge the proposed order. Also, in general, S 2.206 petitions may not be used to relitigate an issue that has already been I
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decided or to avoid an existing forum, such as a- licensing proceeding, in which the issue is being or is about. to be litigated.
Consequently, some issues raised in $ 2.206 petitions have been addressed in hearings associated with other NRC proceedings.
When a petition is granted, the Director may also issue an order to ,
modify, suspend, or revoke a license pursuant to the NRC's rules in 10 CFR S 2.202. Not all actions granting a petition will necessarily require the issuance of an order. For example, without issuing an order, the staff may issue a notice of violation, or a civil penalty, or may obtain a licenses's agreement either not to restart its facility pending completion of certain safety reviews or to take other appropriate measures to correct a problem that has been cited in the 5 2.206 petition.
A review of the record shows that in about 10% of the more than 300 petitions that have been filed with the NRC, regulatory action was taken which, in effect, granted, in whole or in part, the relief requested.
The actions taken have included issuance of a Notice of violation and Proposed Imposition of Civil Penalty, orders modifying, suspendi' or revoking licenses, and the initiation of further non-routine "RC inquiries into the safety issues raised in the petition. In addition, in many instances where the petition was denied, the action requested had already otherwise been taken, ,
and thus the $ 2.206 petition was effectively nooted.
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, 8 t Although no formal appeal of a denial of a S 2.206 petition is allowed under the rule, such denial decisions are subject to the discretionary review by the full Commission. If, after considering the Director's Decision, the Coraission does not. decide to take review of the Decision within 25 days, the Decision becomes the final decision of the agency. This review authority has been rarely exercised.
III. Areas of Cooortunity to Enhance Participation in the C 2.206 .
Process A significant concern with the 5 2.206 petition process from the view of the participating public is that the majority of these petitions are denied, usually without any further input from the petitioner other than the original written petition. The NRC staff has found that, of the more than 300 petitions which have been filed, approximately 10% have achieved, in whole or in part, the objective which the petitioner sought. However even in many of ,
these cases, the petition is at least partially denied. Therefore, the public perception may be that these petitions are almost ,
automatically denied.
When a petitioner submits a petition, the NRC issues an acknowledgement letter and a Federal Register notice from the '
appropriate program Office Director. These documents are very often the only communication the petitioner receives from the NRC
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- 9 until the date that the Director's Decision is issued. That may be a fairly long time period, depending on the issues raised in the petition. However, the Director's Decision itself will often recount extensive interactions between the NRC staff and the licensee in order to resolve the issues. A possible appearance of this practice may be that while there is little opportunity for the petitioner to participate in the resolution of the issues the petitioner has raised, the licensee has a much greater opportunity to become involved and influence the decision process. In fact, often by the time of the issuance of the Director's Decision, af ter interactions with the NRC staff, the licensee has taken measures to correct the problems noted in the petition and the NRC has evaluated the licensee action as acceptable. These actions are treated as grounds to deny the S 2.206 petition as moot and have the effect of avoiding initiation of formal enforcement proceedings.
On the other hand, from the point of view of the NRC staff, a disproportionate amount of time and resources are spent coordinating decisions on S 2.206 petitions. Time spent on S 2.206 petitions must be taken away from other direct regulatory responsibilities.
Very often the facts alleged in a 5 2.206 petition are gleaned from NRC documents, and are thus well known to the staff, and have already been er are being resolved in the normal course of regulatory interaction between the NRC and the licensee.
, 10 The goal in considering possible changes to the 5 2.206 process would be to produce improvements in the opportunities for petitioner's participation, without adding significantly to existing resource burdens on either staff or petitioners, and with f
the possibility of reducing resource requirements by more efficient allocation. Some of the changes discussed below may require changes to the regulation, while others may be accomplished by directing internal staff practice and procedure:
- 1. Increasina interaction with the petitioner. One option involving only staff practices would be to implement a variety of '
internal staf f procedures to enhance interactions with petitioners.
Some of these practices are carried out currently to some extent, but these procedures could be made an explicit and mandatory part of the procedure for handling S 2.206 petitions. .
One such example would be informal inquiries to clarify matters raised in the petition and the petitioner's concerns. This effort might serve also to focus or narrow the issues in question.
In appropriate cases, increased consideration could be given to requiring the licensee to respond under oath or affirmation (pursuant to a staff request under 10 CFR S 50.54 (f)) to issues
- raised in the petition. The petitioner would be provided a copy of the licensees response and would be allowed to submit comments on 9
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focus the issues of concern.
The petitioner could be put on the service list for all communications with the licensee regarding issues raised in the petition. In addition, the petitioner could be permitted to attend NRC staff meetings with the licensee regarding these issues and these meetings could be held in the area where the licensee is located.
The petitioner could also be permitted to respond to any other submission of information on the issue from the licensee.
Some of these measures have already been implemented to some extent, however, the practice could be made explicit.
Informal public discussions could be held on significant issues upon a determination that the scope of the issue (s) would be appropriate for broader public input.
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Focussino on resolution of safety issues rather than on l recuested enforcement action. Another option would involve simply l a change in approach to the resolution of issues raised in the petition. Although a petition under S 2.206 is phrased in terms of '
requesting a particular action from the Commission. i.e., to
" modify, suspend, or revoke a license, or for such other action as may be proper", the underlying significance of the S 2.206 petition is to bring issues of potential health and safety impact to the attention of the Commission. Therefore, if a new issue of some
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make additional inquiries, inspections, or investigations, the i petition could be granted with the actual outcome of the additional ef forts lef t open. This treatment would acknowledge the legitimacy of the petitioner's concerns.
A variation on this approach would involve a change to the rule in S 2.206 which would allow petitions that the commission consider a ;
safety issue or issues, alleging violation of a commission rule or policy, rather than requesting a specific enforcement action (i.e.
to modify, suspend, or revoke a license) . This change of the focus '
of the rule would explicitly recognize and implement an important i purpose of the S 2.206 petition, which is to bring alleged facts and concerns to the Commission's attention for further evaluation.
It would de-emphasize the need to request a specific enforcement action.
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Catecorizina petitions and allocatino more remources accordina to irportance of issues raised. An option to allocate more effectively the limited existing amount of staff time and resources on S 2.206 petitions would be to establish internal criteria for determining the level of effort and the types of procedures to be used on each petition. One possible set of criteria would divide 5 2.206 petitions into three categories:
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In the first category would be $ 2.206 petitions which merely raise issues and cite information which has already been evaluated by the i
NRC staff, without adding any new information or new issues. Some S 2.206 petitions merely incorporate publicly available NRC !
documents, such as inspection reports, and, without introducing any new information or issues or without arguing why previous decisions i 1
should be re-evaluated, request a more severe enforcement action. '
These petitions would be handled in the Director's Decision simply ;
by confirming, and if appropriate, restating the staff's pre- ,
existing evaluation of the issues.
s At the other extreme would be a category of petitions which raise large significant unresolved generic issues affecting one or more i licensees. An example of this type of petition involves the Thermo Lag issue.
In this category, a larger scale effort could be !
expended, involving, as appropriate, i
solicitation of public l comments, public workshops, commission meetings, etc. In appropriate cases, a 5 2.206 petition could be treated as a 4
petition for rulemaking. i In the middle range would be a category of petition which raises a j significant issue or issues with regard to a specific licensee. i The approach on this category of petitions would be substantially.
similar to that used on most petitions now, involving a systematic I l
resolution of all issues raised by the petition, allowing appropriate participation by the petitioner. i'
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For the category of petitions which the Commission has determined l raise the most significant issues, some consideration could be given to providing more explicitly some type-of internal review by-Commission staff of the Director's Decision. Section S 2.206 could be amended by rulemaking to incorporate some type of review within l the NRC of the Director's Decision which would provide a solution for the petitioners' concern that S 2.206 petitions are reviewed only by the same NRC staff which may have already evaluated the !
infornation in the course .of other regulatory responsibilities.
For instance, as an example, a special internal staff group could !
be established to perform a review of the. denial of a S 2.206 '
petition upon petition for review.
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Rifs7IlkP790 Elf FICE OF THE SECRETARY Mribanna Peggeratupdate stueuget2 CORRESPONDENCE CONTROL ~ TICKET P y' W- l PAPER NUMBER: CRC-93-0898 LOGGING DATE: Oct 12 93 ACTION OFFICE: EDO Cys: Taylor Sniezek AUTHORt ROBERT GARY B1aha AFFILIATION: MD (MARYLAND) Lieberman, OE Scinto, 0GC '
ADDRESSEE: CHAIRMAN SELIN TMartin, RI LETTER DATE: Oct 7 93 FILE CODE: IDR-5 TMI !
SUBJECT:
10 CFR'2.206 PETITION REQUEST RE EMERGENCY EVACUATION PROCEDURES APPLICABLE TO TMI UNIT 1 ACTION: Appropriate DISTRIBUTION: CHAIRMAN, COMRS, DSB, OGC SPECIAL HANDLING: NONE CONSTITUENT: i e
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