ML19262B875
| ML19262B875 | |
| Person / Time | |
|---|---|
| Issue date: | 11/07/1979 |
| From: | Ahearne J NRC COMMISSION (OCM) |
| To: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| Shared Package | |
| ML19262B859 | List: |
| References | |
| SECY-79-082, SECY-79-82, NUDOCS 8001150534 | |
| Download: ML19262B875 (13) | |
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UNITED STATES l'
' 'n NUCLEAR REGULATORY COMMISSION q$
WASHIN GTON, D.C. 20555 t
+9.....,O',c November 7, 1979 OFFICE OF THE COMMISSIONER MEMORANDUM FOR:
Mr. Chilk, Secretary FROM:
John Ahearne
SUBJECT:
STAFF COMMUNICATIONS WITH THE COMMISSION, SECY-79-82 We have received the OPE /0GC Delegation of Authority study.
It does not address the role of the EDO.
Therefore, although the 7/2 version submitted by the ED0 does not address the more significant issues regarding the ED0's role, I do agree we should at least take those steps.
Therefore consistent with my vote of 2/16/79, I agree with the 7/2 versior.
cc:
Chairman Hendrie Commissioner Gilinsky Commissioner Kennedy Commissioner Bradford 1921 124 53f 8001150
COMMISS10NER ACTION I T E ki RESPONSE SHEET
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TO:
SAMust J.COMMISSIONCHILK, SECRETARY
- O.: THE ERC.i:
SUEE_CT:
SECY-79 STAFF COMMUNICATIONS WITH THE CO.v?!SSION O s r.a d M k
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NOTED WITHOUT C3JECTION Co.v.nENTs :
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6, V4 D 3 NATURE hf$Y sf 1921 125 SECRETARIAT fl0TE:
Please also respond to and/or cc=ent on OGC/0?E memorandui if one has been issued on this pape:.
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NAME IHIF309030 PAGE 39 926 my opinion all those applications will be delayed, because 927 of the shifts in staffing, in some significant ' nays. We are 928 going to be spread too thin dealing with the Three Mile 929 Island report and our own report and. applying those lessons 930 i to the operating plant in the near time for,thereviot to be 931 significant slippages across the board and'some very 932 significant delays, especia!!y in the construction permit 933 area.
934 Mr. Gramm. Thank you. Mr. Chairman.
935 Mr. Gore. So it is your conclusion, Commissioner 936 Bradford, that all 92 plants currently under construction 937 will be delayed?
938 Mr. Bradford. I draw back from all 92; maybe there were 939 deferrals or doubt on scr,e. So, the additional delays may 940 not show up in any isolated ways as to delays, but that 941 caveat is basically right.
942 Mr. Gore. I would like to move now into some of the more 943 technical areas. Specifically, one of the recommendations 944 was that the collegial body be eliminated, that it be 945 replaced by a single administrator. I would like to ask a 946 couple of questiens about that recommendation. I wculd like 947 to preface it this way-it seems to me that the structure 948 of the NRC is unique and some of the deficiencies identified 949 by the Kemeny Commission may stem from the peculiar 950 structure of the NRC, rather than its generic quality of
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l TJAME: !HIF309030 PAGE 40 951 being collegial. All the Commissioners are essentially 952 equal, with the Chairman having no special authority.
953 Secondly, the Executive Director for Operations, who should 954 be the administrator for the Agency, is statutorily very 955 weak in that under the Atomic Energy Act,and Atomic
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956 Reorganization Act the director reports directly to the 957 Commission rather than the Executive Director. This is 958 important because of the quasi-judicia! nature of the 959 Commission; it sits as the last board of appeal any of which 960 arise that judicatory hearings and involve questions of both 961 fact and law. Because the Commission may then sit in the 962 judgment of licensing questions it insulates itself from 963 involvement in the ongoing operations of the staff, which is 964 why the staff rather than the Commissioners issue 965 construction permits, operating licenses, enforcement 966 actions, and orders to shut down reactors, as well as many 967 other actions.
968 Now it seems to me that a strong administrator in the 969 position of Executive Director or identified in some other 970 way could serve as a buffer who could endorse Commission.
971 policy without injecting the Commissioners into the actual 972 implementation of that policy, and thereby reserve their 973 impartiality for the exercise of the quasi-judicial 974 functions. A proposal to establish a single administrator 1921 127 975 by contrast does not resolve the problem of how the policy j
NAME HIF309030 PAGE 41 976 formation and implementation functions would os resolved in 977 view of the need for administrative review.
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978 Now what effect. and I will address this to each of you, 979 and I invite your comments on my preface, what effect does 980 the statutory limitation placed on the Exec' tive Director in g
981 terms of the ability of the three d'irectors' to communicate 982 directly with the Commission have on the efficient operation 983 of the Commission, and would you agree with my analysis?
984 Mr. Chairman.
985 Mr. Hendrie. I would agree with your initial analysis.
986 Mr. Gore, and I think a strong Executive Director with the 987 lines of authority clearly drawn and understood and agreed 988 to by all would be a very considerable benefit to the Agency and effebve administration of its affairs, and that in 989 990 turn would improve what has been criticized as a lack of 991 leadership in the Agency.
992 Mr. Gore. Mr. Ahearne.
993 Mr. Ahearne. I think the general points that at least i 994 infer from your commen'.s, I would agree with that is that if 995 ene did not go to a single administrator, then there are 996 substantial improvements which could be made in giving both 997 the Chairman a clearer role as more than just equal te the 998 other Ccmmissioners, plus giving the EDO a role that would j
999 really make him a director of the staff, whereas at the 1921 128 1000 present time, it is a nebulous situation.
NAME: 'HiF309030 PAGE 42 1001 I think one thing one has to keep in mind in going towards 1002 any changes are that it is not a clean slate one is starting 1003 with, it is not as though this is a new organization 1004 established that has not been in place before. There are 1005 many people both inside and outside the NRC who are familiar 1006 with the way the structure operates in actual operation, so 1007 I think it is going to need explicit statutory language 1008 changes to make it clear. If the Chairman is to be the 1009 Chairman, if the EDO is to be a staff director, then the 1010 statute must have that more clear than would be required if 1011 it were an entirely new agency. You have to break the 1012 pattern of the past 1013 Mr. Gore. I agree with you Let me pursue this with you 1014 in your initial statement you agreed with the Kemeny 1015 Commission that there should be a single administrator. How 1016 do you solve the problem of the necessary division between 1017 policy formation and the quasi-judicial review of the 1018. decisions made?
1019 Mr. Ahearne. I would have kept the system of licensing 1020 board, appeals board, but I would not go along with the 1021 Kemeny Commission, as I think Mr.'Bradford pointed out 1022 They end up, if I read the recommendation correctly, after 1023 the appeal board that would be the final process to the 1921 129 1024 Agency. I would have the Administrator review that action.
1025 I think that is acceptable under the APA to have that policy i
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N A M E: HIF309030 PAGE 43 1026 in place and still have the Administrator.
1027 Mr. Gore. I think it is possible under the,JA.
1028 Administrative Procedures Act, but is it a good system?
1029 Mr. Ahearne. Whether you have one person at the top, two.
1030 three, four, five. $a fundamental quality you look for is 1031 objectivity. I think it would be a workabie systern 1032 Mr. Gore. Have you a comment. Mr. Gilinsky?
1033 Mr. Gliinsky. I certainly do, Mr. Chairmart We ought to 1034 remember as a result of the change in the law, an amendment 1035 to our authorization act was passed in 1975, the Chairman of 1036 the NRC has more authority over this agency than a Chairman 1037 had over AEC. The problem is not the lack of authority; the 1038 problem is that to make a Commission work you have to have a 1039 working majority on it. This Commission lacks a working 1040 majority. There are not three Commissioners with sufficient 1041 overlap in their views that they form in effect a working 1042 majority. Th? is the problem in the lack of guidance to 1043 -the staff. Normally the staff would basically work for the 1044 majority of the Commissiert Working for the Commission is 1045 working for the majority. That is the problem in giving 1046 directions to the Executive Director. That job is 1047 essentially open-ended in authority. That is not the 1048 problem ycu raised here.
1049 Mr. Gore. What are you saying here? That the Commission 1050 has no confidence in its Executive Director?
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I NAME-lHIF309030 PAGE 44 1051 Mr. G//insky. I am saying that this executive officer 1052 does not have the backing of the Commission: that is the way 1053 I see the. situation.
1054 Mr. Gore. Why? He works for you, does he not?
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1055 Mr. Gi/insky. He certainly does.
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1056 Mr. Gore. He does not have your confidence?
1057 Mr. Gliinsky. You are saying me personally, yes.
1058 Mr. Hendrie. That is not the view of the majority of the 1059 Commission.
1060 Mr. Gore. What is it, a 3-2 split?
1061 Mr. Hendrie. I guess I will let my colleagues vote for 1062 themselves. For myself, I have great confidence in the 1063 Executive Director.
1064 Mr. Gi/insky. I have some other points I would like to 1065 cover.
1066 Mr. Gore. Go ahead. Maybe we will come back to that one.
1067 Mr. G//insky. You mentioned the matter that other 1068 officers of the Commission can report directly to the 1069 Commission. The reason that provision..was put into the law 1070 was to make sure that safety matters could get directly to
-1071 the Ccmmission; that there would not be one person who would 1072 control access of information to the Commissioner. We have 1073 an open-door policy allowing any member of the staff to come i
1074 to the Conimission to report anything that he feels is bein 1075 done improperly with regard to safety or any other matter,
NAME ~HIF309030 PAGE 45 1076 for that matter.
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1077 You dealt with the question of the excessive application l
1078 of the ex parte rules. I am in agreement witn you. I have 1079 argued for a long time that the Commission has to involve 1080 itself more directly in the adjudicatory process. Nf you 1081 are not involver', you cannot write sensibfe rules. In fact.
1082 you do not know what rules should be written. In fact, I 1083 made a recommendation before this committee a year ago, 1084 suggesting that the Commission take direct appeals from the 1085 licensing board and that we reduce the number of levels of 1086 appeal 1087 The Kemeny report seems to go off in the opposite 1088 direction, as has been pointed out; and would have the head 1089 of this new agency not have the authority to review appeals.
1090 He would thereby lose control over the process, I think, as 1091 a practical matter. If he did take appeals, he would be a 1092 single judge. You were asking if that is a good idea i 1093,must say, I do not think it isi in this case. What would 1094 happen, the appeals would be dealt with by the General 1095 Counsel The single administrator could not take very many 1096 of them.
1097 Mr. Gore. Mr. Chairman, let me ask a question before I go 1098 to you, Commissioner Bradford.
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1099 You kind of skipped over lightly the question of whether 1100 or not the Executive Director is statutorily weak, without
I NAME-HIF309030 PAGE 46 1101 getting into personalities. I would certainly hope the 1102 Commission would resolve a situation where some of the 1103 members have no confidence in the Executive Director. I 1104 would hope that somehow that could be remedied. But let me 1105 address the statutory aspects of this probjern w
1106 If you have a collegial body of five' members, then you 1107 have three Directors of various nuclear agencies, these 1108 three people are all coming in and reporting to each of you 1109 five people. Wou!d it not make more sense to have a strong 1110 Executive Director or Administrator that could serve as a 1111 funnel to the. Commission for the recommendations of all 1112 these other people underneath him?
1113 Mr. Gliinsky. I think that is the sensible way of 1114 approaching it. The law has simply devised a safety valve 1115 for a statutory officer to be able to report basically 1116 matters that he feels are not getting to the Commission, 1117 that the Commission needs to know about. It is not a normal 1118. reporting channel, it is simply providing an opportunity for 1119 the chief safety officers----
et 1120 Mr. Gore. As a practical matter, do they go through the 1121 Executive Director or not?
1122 Mr. G//insky. The situation is mixed. I should teIL jg }}3 1123 Mr. Gore. It should not be. 1124 Mr. Gliinsky. I agree with you, under our manual. Mr. 1125 Denton reports to the Executive Director.
NAME 'HIF309030 PAGE 47 1126 Mr. Gore. Some of the others do not? 1127 Mr. Gi/insky. They all do. 1128 Mr. Gore. How is it mixed? 1129 Mr. Gi/insky. I would say the practice has certainly 1130 formally been they report to the executivs director, but you 1131 are asking me how it really works, and I have to tell you 1132 the situation varies, and you have to understand the history 1133 of this agency and the personalities involved to understand 1134 the way things have developed 1135 I agree with you that it should not be that way. 1136 Mr. Gore. Commissioner Bradford 1137 Mr. Bradford. I believe that certainly the normal 1138 reporting channels should be through the Executive Director, ~ 1139 and that he should be kept informed, certainly, of '1140 communications to the Commissioner. I do believe the safety-1141 valve aspect is useful if it were felt that some issue were 1142 being bottled up at the staff level So I eliminate that 1143 -entirely. But your basic premise as to how the Department 1144 should work is a correct one. 1145 If I might come back to the question of ex parte rules, 1146 the relationship with the appeals board and the Commission's 1147 function as manager of the Agency-at the moment. I think 1148 we are getting the worst of both rules. We have a rigid ex 1149 parte set of restraints which are designed to protect us in 1150 the event we choose to act as the Supreme Court of the 1921 134
i l 4 NAME: !HIF309030 PAGE 48 1151 agency analyting the case. In fact, we very rarely do tnat. 1152 and with the single exceptien of Seabrook we have done it in 1153 no major cases since I have been on the Commission. I think 1154 whether it is done as Commission Gilinsky has suggested or 1155 simply by taking more types of _ issues up,to thesCommission, 1156 we should definitely exercise our adjudicatory role more 1157 extensively. With that being done, then the adjudicatory 1158 function becomes more involved with the management function 1159 because we would be laying down principles under the 1160 adjudicatory functiort At the moment, we keep ourselves out 1161 of management because of the ex parte rules and do not take 1162 the cases up actually reviewing them and using the ( 1163 adjudicatory process as a way of laying down guiding 1164 principles. 1165 There are several points I woulo have with Commissioner 1166 Ahearne's formula but I agree with him the fundamental 1167 quality I would look for in the decisionmaker of the Agency 1168,would be objectivity. But to assume all administrators 1169 would be appointed solely because they would be objective-- 1170 let us put it this way, if we could mak that assumption, i 1171 could have fewer problems with the structure. The strength 1172 of the structure of the Agency is that it signals 1173 objectivity rather than a single administrator chosen by the 1174 President. who would be much more susceptible than we are in 1175 having his decisions made more a part of the overall energy 1921 135
NAME:!HIF309030 'PAGE 49 1176 policy. 1177 Mr. Gore. That would be the other extreme. 1178 Mr. Hendrie. Could I just add a remark on those ex parte 1179 limitations? All of us at one time or-another, some of us 1180 frequently have ground our teeth over inahility tb get into 1181 the merits of issues on a particular case lest we then have 1182 to disqualify ourselves from any eventual adjudicatory 1183 action on it Nevertheless. I would not want you to go away 1184 with the impression that the ex parte rules prevent us from 1185 going down and looking at things in' the staff at all. In 1186 fact, it is perfectly consistent with our own Administrative 1187 Procedures Act for me or another Commissioner to ask a 1188 member of the staff working on a particular case what the 1189 progress is, what his projected schedule is, what he has 1190 done up to date. That is ideal with the procedural aspects. 1191 I can deal with where they are, whether they are meeting 1192 schedule or not, what the problem areas are. What I cannot 1193. discuss are the issues, the safety issues, the environmental 1194 issues ir whatever the staff is dealing with. Those. 1195 however, the Commission and I as an individual can deal with 1196 on a generic basis. 1197 Mr. Gore. The impression I am left with, let me just 1198 say, is that though you are charged with administering the 1199 law and issuing licenses and permits and also charged with 1200 reviewing the actions taken, you have immersed yourselves in 1921 136}}