ML19316A864
| ML19316A864 | |
| Person / Time | |
|---|---|
| Site: | Point Beach  |
| Issue date: | 05/12/1980 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8005270697 | |
| Download: ML19316A864 (6) | |
Text
a UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
ch John F. Ahearne, Chairman f
'cccgan t
Victor Gilinsky us.me Richard T. Kennedy Tc Joseph M. Hendrie g I e,,_:0 e, a
Peter A. Bradford 05
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k& uni & : des
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5.:. :h In the Matter of
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WISCONSIN ELECTRIC POWER COMPANY
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Docket No. 50- 266 (PointBeach, Unit 1)
Request for Hearing
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ORDER The Commission has before it a request for a hearing on two orders relating to Unit 1 at the Point Beach nuclear facility. This request for a hearing is one in a series of filings, meetings, Commission briefings and orders related to the question of steam generator tube integrity at Point Beach. On ?!ovember 30, 1979, after a Commission briefing on the safety issues involved, the Director of NRR issued an order amending Unit l's license and placing certain limiting conditions on its operation. The order gave an opportunity for hearing to "any person whose interest may be affected" by the order.
By letter dated December 17, 1979, Wisconsin's Environmental Decade, Inc. (Decade) requested a hearing on the order. The licensee, Wisconsin Electric Power Company, filed a response on December 27, 1979, in opposition to the request.
Subsequently, following a second briefing to the Commission on January 3, 1980, the staff imposed addi-tional limiting conditions reducing the primary pressure in the steam generators at Unit 1.
See Order Modifying Confirmatory Order of tiovember 30,1979. On February 11, 1980, the NRC staff filed a motion to deny the request on 80052 70 V'9
. essentially the same grounds as the licensee's December 27 response.
Finally, on February 22, 1980, Decade answered the staff's February 11, 1980 Motion To Deny Request For Hearing, repeating its request for a hearing and alleging injury to its members stemaing from the order.
Pursuant to Section 189a. of the Atomic Energy Act, which provides for a hearing in license amendment proceedings, the November 30, 1979 order stated that any person whose interest may be affected by the Order may request a hearing.
The order also limited the issues in any such hearing to:
1.
whether the facts stated in Section II and III of this Order are correct; and, 2.
whether this Order should be sustained.
In a recent case the Cc amission ruled on a request for a hearing on an enforcement order with a similar scope.
Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), CLI 10,11 NRC (March 13,1980).
The Commission directs the Chairman, Atomic Safety and Licensing Board Panel, to empanel a Board to determine whether a hearing is required based on the principles set forth in that case.
If the Board determines that a hearing is required, the Board is I
instructed to conduct an adjudicatory hearing solely on the issues identified in the Order.
See Marble Hill, suora.
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Comissioners Gilinsky and Bradford dissent from this Order. Their dissenting views are attached *.
For the Commis n
)..0!N(On:.L
{ Secretary of 1he Commission
'SK4UEL J./L6TLK Dated at Washington, D.C.
this 12th day of May,1980.
Section 201 of the Energy Reorganization Act, 42 U.S.C. 55841 provides that action of the Commission shall be determined by a " majority vote of the members present."
Commissioner Kennedy was not present at the meeting at which this order was affirmed.
Had Commissioner Kennedy been present at the meeting he would have voted to approve the order.
To enable the Commission to proceed with this case without delay, Commissioner Bradford, who was a member of the minority on the question up for decision, did not participate in the formal. vote. Accordingly, the formal vote of the Commission was 2-1 in favor of the decision.
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DISSENTING VIEW 0F COMMISSIONER BRADFORD WITH COMMISSIONER'GILINSKY: CONCURRING One need not have high expectations about the contribution that a hearing might make to the' safety of the plant in'any given case to be distressed about the levels of illusion involved in the Nuclear Regulatory Commission's applic.ac;cn 3f its recent Marble Hill decision-1/
to this and to future cases.
There are at least three such levels.
In increasing order of importance, they are:
1)
The agency so misstates history that it is clearly either incapable of giving an accurate account of its own past doings or else its legal positions are being chosen after the desired result (in this case no meaningful opportunity for hearing) has
- ien decided.
The Marble Hill case, which seems to control the result in this case, claims that it is " settled that the Commission will apply judicial concepts of standing to determine hearing and intervention rights under Section 189a of the Atomic Energy Act."
This holding is alleged to flow from Portland General Electric Comoany (Pebble Springs Nuclear Generating Station, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976).
It does not.
The Portland case states only that.the concept of a petitioner
" interest which may be affected by the proceeding" within the meaning of Section 189a of the Atomic Energy Act is to be assessed according to contemporary concepts of standing. The Portland case then goes on to 2/
recognize, as this agency has since its first recorded decision, that hearing and intervention rights before administrative agencies need not
-1/
Public Service Company of Indiana (Marble Hill Nuclear Generating l
Station, Units 1 and 2) CLI-80-10,11 NRC (March'3,1980) l 2/
In the Matter of Power Reactor Develooment Comoany,1 AEC l', at p.3 TT9T6T
be governed by judicial concepts of standing. The Portland case lays out a test for discretionary hearing rights based on the six factors outlined in 10 CFR 2.714 but acknowledging that other factors may be considered. Marble Hill pays no explicit heed to the Portland General test and applies only those of the factors convenient to the result sought by the Commission.
In this case, the Commission goes further and declines to apply the discretionary tests itself or to permit the Board to do so.
2)
The hearing being offered as a matter or right pursuant to I.'.arble Hill is a sham.
Petitioners..re not permitted to contest the issue that concerns them most, namely the sufficiency of the NRC's action as against the claimed need for other remedies.
In short, the Commission has constructed a test that grants a meaningful right to a hearing in cases of this sort only to the utility or another party which may assert that the order goes too far. Anyone else seeking to argue the insufficiency of an NRC imposed remedy must prove that the remedy has made the facility less safe than it had been.
Thus, the public's opportunity to be heard when dangerous conditions are shown to exist at a plant can be foreclosed by a staff action resulting in a minimal improvement in safety. The " remedy" that the Commission offers in the Marble Hill case is the filing of a 10 CFR 2.206 petition with the staff l
whose remedy is being challenged.
Of course, a 2.206 petition does not lead to a hearing either, and its denial is not even appealable to the Commission.
3)
Most unfortunate of all is the way in which the Commission's 1
pell mell retreat from meaningful public inquiry in the twistings between here and Marble Hill suggests to the staff and the outside world that the agency is run by people living in fear of their own citizenry.
n
. In the wake of the Kemeny and Rogovin Reports' calls for more effective public involvement, the Commission responds with a hearing offer that is a transparent sham. To a staff that has made significant improvements in recent months, to an industry trying to appraise the seriousness of the post-TMI requirements, and to a skeptical public, the message can only be that the NRC's priority on citizen involvement is, as is stated 3/
expressly on page 6 of the Marble Hill opinion, a relatively low one.
Nothing in this opinion would compel the granting of a hearing in all cases or the granting of all contentions even in those hearings that were allowed.
Nor does it preclude any board's taking firm action to control needless delay in its hearings.
This opinion would compel a return to the standards on intervention rights as set forth in the Edlow International Company, CLI-76-6, NRCI-76/5 563, (1976) and Portland cases and the allowing of a hearing to a group able to make a reasonable showing that the action taken by the staff had failed, in some important respect, to remedy a particular safety concern.
To that extent, it would rectify Marble Hill's incorrect claim that it stated " settled" law and would put an end to the majority's result oriented fooling around with the Commission's more or less settled practices.
k 3/
It should be noted that Marble Hill's assertion of a major tradeoff in staff time between fielc inspections and legal proceedings is simply false. The' technical staff manhours consumed in hearings of this sort would not normally detract significantly.from the NRC's field responsibilities.
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