ML19208C465
| ML19208C465 | |
| Person / Time | |
|---|---|
| Issue date: | 09/07/1979 |
| From: | Hendrie J NRC COMMISSION (OCM) |
| To: | Randolph J SENATE, ENVIRONMENT & PUBLIC WORKS |
| Shared Package | |
| ML19208C466 | List: |
| References | |
| NUDOCS 7909260479 | |
| Download: ML19208C465 (6) | |
Text
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UNITED STATES bOMM O
NUCLEAR REGULATORY COMMfSSION 3
WASHINGTON, D. C. 20555 coa
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September 7,1979 CHAIRMAN The !!onorable Jennings Randolph Chainnan, Committee on Environment and Public Works h@ ()
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United States Senate i UUll y I Washingtor., DC 20510
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Dear Mr. Chairman:
This letter responds to the letter of May 24,1979 from the Committee on Environment and Public. Works which requested the Commission to develop
- legislation giving the Commission clear authority to make operational decisions at a nuclear plant in the event of an emergency.
The Comittee also requested the Commission to consider the questions of government liability in connection with operation of a reactor dur-ing an emergency and the need for training NRC employees to assume operational responsibilities if necessary.
As you know, the Commission believes that its present caganic stabte, the Atomic Energy Act of 1954, provides adequate author-ity for the NRC to direct all safety-related aspects of reactor operation during an emergency.
However, the Commission agrees with the Committee that sclarifying legislation may;be desirable.
In our letter of &ne 28, 1979, we suggested the desira-tility of _a clarifying amenoment to state explicitly that the Commission may issue an immediately effecthe licen:e amendment upon 6 finding that public health and safety or common defense and security so reczuires.
We continue to support such clarifying legislation.
Except for thi..s amendment, which may te needed to further the Three Mile; Island clean;p program, we are not convinced that other legislative char.ges to augment Comn!ssion authority in an emergency should be undertaken at this time.
Severd important inquiries 2 *e now assessing tFe Til accident and will recommend auppropriate changes in the regulation of nuclear energy in crder to enhance protection of the t
. public health and safety.
In addition to the President.'s Con: mission on t.w Accident. at Three Mile Island and several Congressionar inquiries, the NRC
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is.now engaged ir. a thoroughJnquiry into the accident.at Three Mile Island, including areas where the NRC resAonse to such incidents needs to be improvrd.
We expect to be in a better position to propose new leg;islation after receiv-ing the results and recommendations of these proceedings.
Nevertheless, in compliance with the Committee's requas;t, we have considered what legislation might now be examined by the Congress with respect to the Commission's "taking over" a reactor duning an ememene:y, including consid-eration of the various degrees of control and possession which a "take-over" mightJimply. 'The proposals we are submitting raise benic questions about the '
role of the NRC and regulatory agencies ger,arally.
We are not prepared to en-dorss these. proposals at this time but believe it would be benet'.'cial if they
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7909260479
The Honorable Jennings Randolph 2
?00R ORIGINAL were now subjected to a thorough examination by the responsible Congressional committees.
A serious practical obstacle to fRC's assuming complete control of minute-by-minute nuclear plant operation is that with present staf?fing and training levcic MRC personnel cannot be expected to have the diren:t and detailed ex-perience with the real time response of each unique indiividual plant system to make such operation feasible. To assure that the NRC could assume full opera-tional responsibility for every operating power reactor,, a cadre of federal operators essentially duplicating licensed utility perscanneI would have to be trained and maintained in readiness. We question whetheir such an elaborate program would be cost effective or should be undertaken unless the analyses of the Three Mile Island accident now in progress find a cTear need for it.
Therefore, we believe that it would be preferable if pla:ns for coping with reactor emergenc.es emphas'ized effective use of the indi vid:ual licensee's supervisors aM operators, guaranteeing that they will havet adequate training and experience and that their skills will be at the NRC'.s d!isposal during the course of any emergency which might call for direct f:RC ' intervention.
We have drafted legislation which would follow this appr-cac-h.
(See attached draft, which would amend Section 182 of the Atomic Enere;y Act, entitled
" License Application").
Specifically, Section 182 woulci be amended to require that each operating license for a production or utilizat-f am facility */ contain explicit conditicns that during a serious emergency the litcen.see (1) shall insofar as practicable obtain concurrence from the Commi'ss ion or its desig-nated representatives prior to any action which may sigmif-icantly affect the public health and safety; (2) when so ordered by the Con =nisssion shall direct the licensee's employees to obey all orders issued by the (Connission or its representatives at the site; and (2) shall enforce this din ective by a dis-ciplinary program subject to Commissior, standards.
In clefiining the emergency to which these conditions would apply, we have followed lamguage contained in the Senate-passed version of S. 562.
This amendment would put into unambiguous statutory forc a licensee's duty to obtain NRC concurrence in significant safety-related act-forts and would make clear the agency's authority to step into the shoes of r.he licensee, if neces-sary, in directing actions at the facility.
This legislation could be strengthened further by extencling the criminal penalties which would be established by See Tat of S. 562 to cover violation of the license conditions required by ou- &' ft ryendmemt to Section 182.
Tne Commission is presently reviewing itr d vi en the con. tents of NRC licenses and may later recommend that crimint.: A
. as be impo: sed for violation of certain license conditions.
O We have applied the new provision to all reactors (not just power reactors) and to production facilities such as rep 3rocessing plants in the belief that the statutory standards for all produc: tion and utilization facilities should be generally similar, but we rec.ogn Me that for small facilities it would be less likely that the licenste conations would ever come into play.
SSC1E9
The Honorable hnnings Randolph 3
With regard to the question of liability in connection with operation of a reactor under liRC direction during an emergency, it is the view of the Com-mission's General Counsel that there is undoubtedly some possibility of govern-ment liability in the event of hana to persons or property resulting from an accident.
The nature and extent of this liability would be highly dependent on the details of the incident.
The Federal Tort Claims Act (FTCA) would permit recovery against the United States for damages caused by negligent or wrongful acts of federal employees during the incident, unless these acts could be cha.racterized as perfonnance of or failure to perform a "discre-tionary function" in the sense in which the courts have interpreted 28 U.S.C.
Sec. 2680.
The NRC's decision whether or not to take control of a facility during an emergency would in all probability be viewed by the courts as an exercise of discretion in carrying out regulatory activities.
Once NRC had taken control, however, the possibility of liability would increase signi-ficantly.
There is considerable legal authority which suggests that the discretionary function exception is to be interpreted narrowly and would not necessarily exempt the government from potential liability arising from an activity essentially non-governmental in nature, like actual operatfon of a reactor, even though some exercise of discretion is required to perf:orm the activity.
Thus, if damage resulted from a nuclear incident while thie PRC was operating or directing the operation of a nuclear plant, the United. States might not be immune from suit under the FTCA.
Whether a court would find liability and what the extent might be are matters which depend upon the parti:culars of the situation, such as whether the NRC's operational actions could f?airly be characterized as wrongful or negligent and caused damage strich might otherwise have been avoided.
In view of the overriding importance of assuring safe c9eration of at facil ity, the Commission does not regard the possibility of creati,g Federal g;overnment liability as a factor of major significance in deciding whether or not the Commission should exert operational control in the emergency.
Our chief concern would be whether tort liability claims against the government would provide a practical and adequate means of compensating the public for damages 'which might result from an accident caused by government action.
In this regard, we note that although the Price-Anderson liability limitation does not apply to the NRC itself, neither do the provisions for insurance, indemnity, and waiv er of de-fenses which facilitate recovery by persons narmed by a nuclear incident.
The Commission is studying the question whether some fann of insurance and indemnity could be devised to put claimants against the government in a position not less advantageous than claimants against persons and corporations covered by tfie Price-Anderson Act provisions.
If you have further questions about the draft legislation, or the Commission's present views on the subject of assuming operational control over nuclear facilities during emergencies, do not hesitate to contact us.
When the SSE170
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studies now in progress are completed and the results are analyzed, the Comission may have other recomendations to offer.
Sincerely,
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%10seph M. Hendrie
Enclosure:
Proposed Legislation cc:
Hon. Robert T. Stafford Hon. Gary Hart Hon. Alan Simpson k
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