ML19269E968

NRC Testimony Before Subcommittee on Nuclear Regulation of Committee on Environ & Public Works,Us Senate

ML19269E968
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Issue date:	10/31/1977
From:	NRC COMMISSION (OCM)
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NUREG-0370, NUREG-370, NUDOCS 7911080571
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NU3EG-0370 NRC TESTIMONY BEFORE THE SUBCOMMITTEE ON NUCLEAR REGULATION OF THE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS UNITED STATES SENATE

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2197 253 U. S. Nuclear Regulatory Commission 7911ogg

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Available from National Technical Information Service Springfield, Virginia 22161 Price: Printed Copy $4.50 ; Microfiche $3.00 The price of this document for requesters outside of the North American Continent can be obtained from the National Technical Information Service.

2197 254

NU REG-0370 NRC TESTIMONY BEFORE THE SUBCOMMITTEE ON NUCLEAR REGULATION OF THE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS UNITED STATES SENATE Manuscript Completed: October 13,1977 Date Published: October,1977 7397 255 U. S. Nuclear Regulatory Commission Washington, D. C. 20555

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October 25, 1977 MEh!ORANDU51 FOR: Office of Nuclear Reactor Regulation Staff FR051:

Edson G. Case, Acting Director, Office of Nuclear Reactor Regulation

SUBJECT:

INFOR5!ING LICENSING BOARDS OF.aEW INFOR5!ATION Recent events have served to remind us of the need to pay strict attention to our responsibility to inform licensing boards about material and rele-vant information that becomes available to us during the course of our reactor license application reviews. The attached memorandum from the Executive Director for Operations and the testimony attached to it sets forth NRC policy in this area as it was described to the Senate Subcommittee on Nuc1 car Regu-latien on October 13, 1977 In brief, our present policy is to provide promptly new information that is material and relevant to appropriate licensing boards, appeal boards and the parties to the proceedings, in advance of the evaluation and resolution of any potential safety or environmntal issues that the information contains.

This policy is important in assuring informed and effective public partici-pation in the proceedings pending before the boards, and it must be followed.

Under no circumstances, are we to intentionally withhold or delay providing relevant and material information to the public or the boards, either because we do not have an availabic evaluation of the problem or because we are con-cerned with the timeliness of schedule of any proceeding.

If there is any doutc, the information should be provided promptly to the boards and made publicly availabic.

On October 19, 1977, we briefed the Commission on the present NRR procedure for assuring that new information material and relevant to ongoing proceedings is provided to the boards and parties in a timely way. That procedure is described in P51-218 and is attached here for your convenience. The Commission directed that we continue to follow this procedure pending further considera-tion of proposed revisions that would provide even greater assurant e that all possible material information of relevance is being supplied to the boards.

The new procedures under development would be applicable to the entire NRC staff and will speak to mechanisms for assuring efficiency in this process.

The treatmcat of information regarding the presence of a chlorite scam and fault at Narth Anna, described in the testimony to the Senate Subcommittee, is an example of past practice which does not meet current policy.

I recently became aware of another example involving the St. Lucia board in 1974.

In 2197 256

NRR Staff October 25, 1977 that case, there are documents in NRC files and now publicly availabic that create the impression that information on 1974 electrical grid instabili-ties niay have been intentionally withheld from the St. Lucie board at that time.

Recognizing that our practice prior to about 1975 differed from pre-sent policy and that the current procedures were not formalized until 1976, I am concerned that there may be other examples similar to the St. Lucie situation. Rather than discovering them piecemeal, all members of the NRR staff should search their memory and files to recall any other instance where there might be an appearance of withholding, or proposing to with-hold, information from the boards. The results of the scarch should be reported through the Division Directors to me by close of business November 4.

F 1 NRR supervisors should assure that staff members are familiar with our present policy of informing licensing board of new information, and that this practice is being thoroughly implemented by diligent follow-up in their day-to-day management activities.

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/ Edson G. Case, Acting Director

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Enclosures:

1. Memorandum from L. V. Gossick, Executive Director for Operations dated October 25, 1977, with enclosures.

2. Project Management Division Instructions PM-218 dated November 2, 1976.

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% *~ m.,s J October 25, 1977 MEMORANDUM FOR:

Directors of Offices FROM:

Lee V. Gossick, Executive Director for Operations

SUBJECT:

TESTIMONY BEFORE THE SENATE SU3 COMMITTEE ON NUCLEAR REGULATIONS Enclosed for your information and the information of members of your staff is a copy of my testimony and that of Chairman Hendrie before the Senate Subcommittee on Nuclear Regulation held on October 13, 1977.

I call particular attention to my testimony which includes an extensive discussion of the procedures which the NRC is expected to follow in connection with keeping the licensing boards and Appeal Board informed

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of relevant new information received by members of the NRC staff.

This matter is being brought to your attention to emphasize once again the importance the Conmission places on assuring that the boards are kept fully and currently informed to all new material and relevant information.

During the coming weeks the present procedures of infonning the boards will be subject to intensive reexamination by the Commission to determine whether they can be further improved.

If, as a result, the present pro-cedures warrant changing, this will be done and you will be promptly informed of such changes.

In the meantime, copies of this package should be provided to all members of your staff involved in the licensing process with a reminder of the need to pay strict attention to present procedures.

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. Lee V.'Gossick c.

' Executive Director for Operations

Enclosures:

1.

Testimony of Chairman Hendrie 2.

Testimony of Lee V. GossickgJ 258 cc: ASLB ASLAB

TESTIMONY OF NRC CHAIRMAN JOSEPH M. HENDRIE BEFORE THE SUBCOMMITTEE ON NUCLEAR REGULATION OF THE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS UNITED STATES SENATE OCTOBER 13, 1977 Mr. Chairman, members of the Committee, we are here today at your invitation to respond to an internal memorandum prepared by Mr. Bradford Whitman of the Department of Justice and recently released in connection with a Freedom of Information Act request. We are grateful to the Committee for this opportunity to respond to that memorandum and to lay before the Committee a full exposition of the facts and circumstances surrounding the staff's role in the licensing process affecting the Virginia Electric and Power Company's North Anna nuclear plant. As the Committee requested, we will also explain the steps that have been taken since 1973, and particularly since the formation of the Nuclear Regulatory Commission in January, 1975, to improve the timeliness of submission of information from the staff to the Commission's licensing boards. With me this morning are Mr. Lee Gossick, our Executive Director for Operations; and Mr. Ed Case, Acting Director of 'ne Office of Nuclear Reactor Regulation. Mr. Gossick will describe che staff's role in the 2197 259

2 licensing process generally, and will identify the present procedures for providing information to the licensing boards. M*. Case will des-cribe the specific events that occurred in the period May through August, 1973 in the North Anna proceeding. I should like to divide my testimony into three parts: First, a brief chronology and a summary of some points that I wish to emphasize so that they are not obscured in the detailed testimony that follows; second, a statement of my own recollection of the North Anna matter as an official in the regulatory staff at that time; and third, a summary of the views of the Commissioners of the NRC in reviewing that matter last year. The chronology is given in tabular form il the Appendix to these remarks. The points I wish to emphasize are as follows. The staff action in 1973 in attempting to make at least a preliminary determination as to whether the newly-reported fault at the North Anna site was capable or not before informing the licensing board was consistent with practice up to that time. It had always been the practice to evaluate the safety significance of a newly-reported matter before going forward to the boards. In the North Anna case, this practice resulted in an unfortunate delay in notification. That delay has been extensively and publicly cormiented upon and criticized in Commission proceedings and decisions r 2197 260 that predate the Whitman memorandum and that were fully available to Mr. Whitman long before his memorandum was prepared. In its North Anna decision of November 12, 1976, the Commission stated: "We find the staff's delay in informing the Board and the explanations given for that delay unacceptable. The Licensing Board, the parties and the public have a right to be promptly informed of a discovery of this magnitude, before staff evaluation of that discovery and regardless of whether the record is technically open. No other policy is consistent with the staff's obligation to help the Commission f ulfill its statutory mandate." In response to criticism and in response to this specific Commission order that old practice of the staff has long since been changed. The staff now informs licensing boards promptly of significant matters and then carries out its safety evaluation, with ebsequent reports to the boards. Finally I should make clear, in light of some lack of pre-cision in Mr. Whitman's memorandum on the point, that the events in ques-tion in 1973 were carried out under the Atomic Energy Commission and the corresponding Congressional oversight structure. Now, as to my personal recollections of the matter. During the period in question, in 1973, I was Deputy Director for Technical Review in che Atomic Energy Conmission's Directorate of Licensing. I was responsible for the detailed safety reviews of all power plant licensing applications, including those at the North Anna site. The staff geologists and seismologists who worked on the North Anna fault problem were members of my division. I can recall a series of discussions 2197 261 with my staff on the nature of the fault at North Anna and the progress in establishing its safety significance. Somewhat later, on September 27, 1973 and again on October 1,1973, I presented testimony to the Joint Committee on Atomic Energy as to the safety significance of the faulting reported at the North Anna site. That testimony was given during Joint Committee hearings on the status of nuclear reactor safety in the 93rd Congress and is reported in Part 1 of the record of those hearings. With regard to the question of notifying the North Anna licensing board of the n!wly-reported fault I cannot recall any specific dis-cussions or decisions, nor do my records show any such discussions or decisions. The notification question was apparently discussed at a regular program review, or " Blue Book" meeting on June 22, 1973 i'en the status of a number of other applications for licenses was discussed. My appointment log from that time shows both the Blue Book meetinq, and a conflicting meeting to brief a Commissioner. I do not know which meeting I attended, but I suspect the Commissioner took precedence. However, whichever meeting I attended, I must have been aware of the decision to complete at least preliminary evaluation of the fault before notifying the board. Having been there at the time, I can personally assure you, Mr. Chairman, that the staff's primary concern was with the safety aspects of the fault at North Anna. To the extent that there was any concern over possible licensing delays, which I believe there was, it was in the sense that an unevaluated reported of the fault might cause more confusion than good. There was no intent to conceal, or to prevent 2197 262 a full and proper review of the facts by the licensing board, as soon as those facts were reasonably in hand. In hindsight, it is abundantly clear that the board should have been notified earlier than it was, and that any concern over confusing the proceeding was misplaced. However, it is important to remember that in 1973, the policy thrust in this area,raflected from the Congress and the Atomic Energy Commission, was somewhat different than it is today. Now, Mr. Chairman, let me turn to Commission actions with regard to the staff's delay in notifying the licensing board of the North Anna fault. As I noted earlier, it is not a new issue. The matter has been the subject of public discussion for r ar two years. On three specific occasions the staff's actions hat: been publicly examined and criticized in Commission adjudicatory pronouncements -- most receatly by the Nuclear Regulatory Commission in its decision on the North Anna matter published on November 12, 1976, which I have previously mentioned. Similar criticisms of the staff's action are contained in minority comments in the decision of the Atomic Safety and Licensing Board that presided at the Jblic hearings on the Morth Anna fault matter, published September 10, 1975, and in minority comments in the decision of the Atomic Safety and Licensing Appeal Board that reviewed the licensing board's decision, published April 15, 1976. Mr. Chairman, I would like at this time to offer for the Committee's record copies of these three published decisions. 2197 263 There should be no misunderstanding on the point that it was not the recently publici.* Department of Justice internal memorandum that first brought to public attention -- and criticized -- the staff's delay in notifying the licensing board. That matter has been dealt with before. Furthermore, we are not here talking about the safety signi-ficance of the fault. After discovery of the fault, an Atomic Safety and Licensing Board conducted extensive hearings on the question of whether the plant could be bui't safely. During these hearings, experts from the Commission, the U.S. 3eological Survey and the Virginia Depart-ment of Mineral Resources all testified that the fault was not of safety significance. The licensing ;oard which heard this evidence ur.animously concluded that the fault was not of safety significance. This conclusion was affinned by the Commissio1's Appeal Board. This final decision of the Appeal Board was reviewed end affirmed by the U.S. :ourt of Appeals for the D.C. Circuit. As the Court concluded, "the evidence in this case establishes that the fault is not ' capable and has not moved for at least 500,000 years." What is new in Mr. Whitman's memorandum are the charges of conceal-ment and pervasive staff bias against public scrutiny. I believe the facts speak for themselves, and as the Commission has noted, they show an obsolete staff practice in not promptly notifying the licensing board, a practice judged unacceptable by this Commission in view of the need for all parties in the public hearing process to 2197 264 be kept informed. However, they do not show an attempt to hide or conceal, and the charge that they do is unfair and unsupported. The Department of Justice has given us an opportunity to review some of their files on this matter. NRC attorneys will be examining these files to determine whether they contain information not pre-viously available to the Commission that may be relevant to NRC's enforcement action against VEPC0 which has resulted in a $32,500 fine. Although it is not directly a subject of this hearing, I should note that we will be reviewing the Commission's recent enforcement action against the Virginia Electric and Power Ccmpany in the light of any new information now available. In connection with the staff's current prccei Jres, I should. note that from September 6, 1973, with the publication of the Atomic 3afety and Licensing Appeal Board's ficGuire decision (a copy of which I would now submit for the record), the staff has been admonished to notify the licensing boards of any change that is relevant and material and that bears on the licensing board's decision process promptly and in any event prior to the issuance of the initial decision. Of course, the most recent direction is that contained in the Nuclear Regulatory Commission's November 12, 1976 decision from which I quoted earlier. In that decision, the Commission noted the staff's description of its current practice: "Our current practice in this reaard is to make every effort promptly to report information of this kind to the affected licensing boards and parties, and then to provide staff evaluation of the information reported when it is completed." 2197 265 The Commission then said: "We believe this statement of current practice correctly reflects the staff's obligation, and the staff is hereby directed to insure the practice is fully enforced." I agree with that directive and intend that it be fully implementad. Additionally, Congress, the public, and the regulated industry should be aware that the business of the Commission is the administering of a licensing system which protects the public health and safety. While we strive to eliminate unnecessary delay from our licensing process, our primary mission is to assure that the health and safety of the public are protected. I might note that the Commission will be discussing the details of current procedures for keeping the licensing boards informed in the n':.ar Tucure, to see how the procedures are working and whether any additional measures are appropriate. With the Committee's permis.ioc, I would now like to ask Mr. Lee Gossick to discuss the staff role in licensing and the staff procedures for notification of our licensing boards. Mr. Ed Case will then des-cribe the events of the period from May to August of 1973 2197 266

CHR0fl0 LOGY -- fl0RTH AtitlA UtlITS 1, 2, 3 & 4 The following is a chronology of significant events related to the licensing of tiorth Anna Units 1, 2, 3, & 4, particularly with regard to f4RC staff actions associated with identification of a fault at the fiorth Anna site. The site is located in Louisa County, Virginia on the south shore of Lake Anna, 24 miles S.W. of Fredericksburg and 40 miles titlW of Richmond, Virginia. Units 1 and 2 are 943 MWe Westinghouse reactors. Unit 1 is 99% complete and Unit 2 is 86% complete. Units 3 and 4 are 907 MWe Babcock and Wilcox reactors. Owing to construction delays announced by VEPC0, Unit 3 is 7% complete, and Unit 4 is 4% complete. Presently, an f1RC public hearing is in progress on operating licenses for Units 1 and 2. The application for operating licenses for Units 3 and 4 is not expected before late 1979. March 21, 1969 - Application to construct Units 1 and 2 filed February 19, 1971 - Construction permit for Units ' and 2 issued September 15, 1971 - Application to construct Units 3 and 4 filed May 7-10, 1973 - Hearing on construction permit for Units 3 and 4: record remained open pending Virginia water quality certification May 17, 1973 - AEC staff informed by VEPC0 of " chlorite seam" June 18, 1973 - AEC staff, including staff Project Manager and USGS, visit site and first learn of " fault" June 21, 1973 - Trip report of site visit prepared by staff Project Manager; staff geologist leaves for European trip 2197 267 June 22, 1973 - Scheduled " Blue Book" meeting discussion regarding notifying Licensing Board of fault June 26, 1973 - Staff Project Manager's trip report of site visit placed in AEC Public Document Room July 5, 1973 - Staff geologist returns from European trip July 18, 1973 - First draf t of staff geologist's affidavit sent to Office of General Counsel August 3,1973 - Completed staff geologist's affidavit forwarded to Licensing Board August 29, 1973 - Virginia Water Quality Control Board decision issued regarding the VEPC0 water quality certification (401 certificate) August-September, 1973 - Public charges made that VEPC0 concealed information about fault October 17, 1973 - AEC issues show cause order for Units 1 and 2 on fault matter which commences hearing process on that issue

• October 17, 1973

- AEC staff motions to Units 3 and 4 Licensing Board to reopen hearing on the matter of the geologic fault

• May 28, 1974

- The AEC ordered separate hearing on allegations against VEPC0 of material false statements June 27, 1974 - Licensing Board decision finding fault not " capable" in show cause proceeding

• These two proceedings were consolidated by order of the Licensing Board.

2197 268 July 18, 1974 Initial decision authorizing issuance of construction permits for Units 3 and 4 July 26, 1974 - Construction permits issued for Units 3 and 4 September 10, 1975 - Licensing Board decision on material false statement issue imposing $60,000 penalty on VEPC0 March 3, 1976 U. S. Court of Appeals (D.C. Circuit) affirmed that florth Anna fault was not capable April 15,1976 - Appeal Board decision reduces penalty to $17,500 November 12, 1976 - NRC decision increases penalty to $32,500 flovember 12, 1976 - VEPC0 appeals NRC decision to 4th (.trcuit Court of Appeals flovember 30, 1976 - Hearing on operating license for Units 1 and 2 commenced 2197 269

TESTIMONY OF LEE V. G0SSICK EXECUTIVE GIRECTOR FOR OPERATIONS U. S. NUCLEAR REGULATORY COMMISSION SUBCOMMITTEE ON NUCLEAR REGULATION COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS UNITED STATES SENATE OCTOBER 13, 1077 Introduction Mr. Chairman, I am plc3 sed to have this opportunity to describe how the NRC staff, in its licen:.ing and other regulatory activities, keeps the Commission's licensing boards and parties to their proceedings informed of new information that is material and relevant. In retrospect, the questions on the specific North Anna case are relatively straight forward because we have all the necessaty facts of that case before us. But as you know, the NRC is responsible for the regulation of a large number and a wide variety of nuclear facilities. The question of board notification is more complex when viewed in that broader context of our day-to-day operations because each of the many facilities under licensing review may be at any one of several phases of the licensing process. To help sort through these complexities, I have provided a brief sumnary of our process for licensing of facilities pursuant to the Atomic Energy Act, the Energy Reorganization Act and the National Environmental 2197 270

2 Policy Act. This sunmary is submitted as Enclosure A to my prepared testimony. I want to describe at some length how new information arises in the licensing process, either from inside the fiRC or from outside sources, and how that new information is acted upon by the staff depending upon its significance to public health and safety or the environment. I will use some specific examples from the early 1970's through the past year which chronicle our continuing efforts to keep the Atomic Safety and Licensing Boards, the parties to their proceedings, and others, informed of new information. I will also address changes that have occurred in our practices to facilitate the timely notification of the boards and parties to their proceedings of material and relevant information. We believe this matter deserves continuing attention, and I will describe considerations ongoing in the staff for assuring that Commission policy and guidance are fully implemented. It is important to recognize that in acting on the information before the flRC staff, we must exercise judgment as to the relative importance of various individual pieces of information to overall safety and environmental protection. The recent record in keeping the Linsing Boards and parties to their proceedings informed of material and relevant information is good, and it is not being 2197 271 challenged in these hearings. Rather, we are concerned today with the handling of information developed in 1973 and subsequent actions by the staff. With the procedures now in place, as I will describe below, I am confident that the recent good record can be maintained. I wish to underscore the fact that the primary focus of the staff's attention when new information arises must always be on evaluating its safety implications. In fact, as Chairman Hendrie noted in his remarks, this was the case in our handling of the information regarding the fault at North Anna. We must, in our current procedures and actions, assure continuation of this primary focus. Staff Action on New Information Before giving some specific examples of how new information has been provided to the licensing boards, I will describe in general terms the sources of new information and our procedures and priorities for acting on it. New information arises in the regulatory process continually. One source of new information is experience with operating facilities. Another source is n.w ideas, facts, or engineering formulations generated by license applicants, their contractors, or the NRC staff 7'97 272 in the course of licensing reviews. Other new information can come from interested citizens, anonymous sources, or foreign govern-ments. The priorities and processes for dissemination of new information depend primarily upon the safety significance of the information and not upon its source, as I will describe next. The first priority of the staff in reviewing new information is to decide whether a matter of immediate safety concern exists for operating reactors. The staff then assures that the information is reasonably well characterized and categorized for plants at various stages of licensing review. Finally, a plan for a resolution of any safety or environme ital problems is developed for action on a time scale consistent with the significance of the issues involved. The information is made available to the public, affected licensees or applicants, and hearing boards and parties to their proceedings in a variety of ways and at several stages in its processing by the staff. I will first summarize how our licensees or rpplicants and the public are routinely kept up to date on new information being reviewed within the regulatory process, then I will turn specifically to the question of informing the licensing boards. Operating information of safety significance is rapidly provided to the NRC and is, in turn, widely disseminated. The large number of Licensee Event Reports required by our regulations is reviewed, 2197 273 and some are identified as Abnormal Occurrences, using procedures specified in the Commission's Policy Statement of February 23, 1977 (provided for the record) and reported to the Congress in accordance with Section 208 of the Energy Reorganization Act of 1974. In addition, the reporting of defects pursuant to Section 206 of the Energy Reorganization Act is presently required by NRC. When prompt action is needed for operating plants on the basis of such data, there is wide public dissemination of information about these actions. If the data indicate the need for further evaluation, supportive infonnation is requested by letter to the affected licensee, or a class of licensees if there is a generic problem. Copies of such correspondence are available in the Public Document Rooms in Washington, D. C. and in the locality of each nuclear plant. In some cases license amendments or orders are issued and noticed in the Federal Register. Routine operating information and new information developed in the course of licensing reviews is documented in incoming corres-pondence or in staff summaries of meetings. These documents are placed in the Commission's Public Document Rooms. Some time lag in documenting information can occur because of the need to coordinate among several technical disciplines within the staff. The possible 2197 274 generic implications of the information are considered as a part of this technical coordination. The most common disposition of information relevant to a plant in the licensing process is by its inclusion in the staff's Safety Evaluation Report or supplements. These are the principal staff input to the proceedings of the licens hg boards. During the technical appraisal of new information and in the flow of information between the staff and applicants or licensees, judgments must be exercised continually on whether the new information is significant to the consideration of matters ongoing before licensing boards. First there is the question of whether information specific to one plant is material and relevant and therefore must be made avail-able to the licensing board for that particular plant. For operating plants generally, the question of formal notification to boards is not applicable since these plants are not usually involved in pending licensing hearings. For facilities still involved in licensing proceedings, all correspondence between the staff and the applicant is sent directly to all parties in the proceeding and routinely placed in the Public Document Rooms. Parties are also given the opportunity to stay on the service list for routine correspondence even after the oroceeding is ended. It has been our judgment that 2197 275 not all such information is sufficiently important or new to warrant bringing it specifically and immediately to the attention of the licensing board, especially since anything of importance will be provided later in the staff's Safety Evaluation Repe-t or its supplements. Matters do arise which are new or outside the scope of normal staff review, and these warrant special attention. It is staff practice under current Commission guidance to inform the boards and parties to their proceedings of significant information of this sort in advance of the development of a solution to any significant safety or environmental issues that it generates. Next there is the question of new information possibly generated on a specific facility, but having more general significance to other facilities. This can be information from operating plants or any other source. For generic issues of serious safety significance, action is taken by the staff on the time scale of hours or a few days tc assure continuing protection of public safety for operating plants, as explair.ed above. The most formal mechanism available to the Commission for informing the licensing boards of new generic information requiring action in a number of proceedings is to issue additions or changes 2197 276 to the Commission's regulations. This mechanism requires relatively complete evaluation and documentation of a basis for the proposed rules, but it can be accomplished on a relatively short time frame. Two examples which serve to illustrate this mechanism are the Interin Acceptance Criteria for Emergency Core Cooling System issued in June of 1971 and the Final Acceptance Criteria issued in December of 1973. For plants still in the licensing process and not operating, more deliberate processing of generic information is appropriate, but licensing boards and parties to the proceedings are to be supplied material and relevant information in a timely way. For generic items considered to warrant further evaluation before a particular licensing action takes place, there is dissemination of this information to the board and the parties by incorporation in staff Safety Evaluation Reports, and by providing the parties to the proceeding with copies of correspondence to the applicant informing him of needed additional information. There can be a delay between the identification of an item in the Safety Evaluation Report and its resolution. However, there generally is low potential for adverse impact on the licensing board or parties since all information flowing between the staff and applicant is routinely served on all parties to the proceeding and since there is usually some time between 2197 277

.g_ the issuance of the Safety Evaluation Report and subsequent action in the hearing process. In addition, counsel which represents the staff before licensing boards attempts to assure that for matters clearly relevant to highly contested issues the parties are informed promptly, usually in the informal discovery process. Information produced in the discovery process is generally not brought to the special attention of licensing boards. On the other hand, if there has already been staff testimony on such an issue in the proceeding, before the generic item was identified, and if the information is relevant, the staff promptly notifies the board and the parties. Evolution of practice I will now turn to a sucmary of the evolution of specific procedures for informing the licensing boards and parties to their proceedings of material and relevant information. I will include some examples to show how this information was provided to the boards in the past and how the process is working today. First, I will describe the practices that were used prior to about 1975 for making licensing information available to the public, and especially to the licensing boards. I will indicate how these practices have evolved to their present state, and why. 2197 278 During the earlier period, and continuing to the present, the Commission staff routinely made all incoming and outgoing written correspondence between applicants or licensees and the staff available in the Commission's Public Document Room in Washington, 9. C. and in the local public document rooms situated near each proposed facility site. For example, in the North Anna proceeding, we established two local public document rooms; one in Louisa, Virginia in August 1971 and the second in Charlottesville, Virginia in January 1974. Copies of meeting sumaries and trip reports are also put in the Public Document Rooms. This was done in the North Anna case in 1973, as it is today. In addition, we today serve these documents on all parties to the proceedings. Although the information contained in exchanges of correspondence and meeting minutes was routinely available to the public, it was not formally provided to the boards. Rather, it was provided in the staff's basic testimony at the licensing hearing in the form of the Safety Evaluation Report and its supplements. These documents were further supplemented by additional testimony as the need arose. During the period of 1972 and 1973, any new information which was material and relevant and which was obtained while a hearing was in progress was first evaluated by the staff and the results of the evaluation and the staff's conclusions were presented i: 2197 279 to the board and parties by legal brief, testimony, or affidavit. This practice was followed whether the new information came to light in the hearing record or from other sources. In those days, the reasoning of the AEC was that before such information would be of significant use in the decisionmaking process it needed evaluation. This approach to handling new information was not limited to the North Anna proceeding. Another example is provided by the operating license hearings for the Pilgrim, Unit I reactor in Massachusetts. These hearings opened on December 6, 1971. In the spring of 1972 the staff determined, as a result of work performed at Brookhaven National Laboratory, that the calculational model for reactivity worth of control rods used in the applicant's Final Safety Analysis Report was not suitably conservative. As a result of further review, the staff concluded that the analysis of a postulated rod drop accident in the Safety Evaluation Report was no longer correct. At the licensing board hearing on June 27, 1972, the staff corrected its testimony, stating the current understanding of the situation and indicating that it was including a condition in the facility license to correct the matter. The practices for handling new information obtained during a proceeding began to change in late 1973 as a result of a dec sion i by the Atomic Safety and Licensing Appeal Board on September 6,1973 2197 280

4 in the proceeding for the McGuire plant in North Carolina. This followed the North Anna time frame of interest here today by about one month. In that decision, the Appeal Board noted that the staff and applicants should infom the Licensing Boards and the parties of new infor'mation that is relevant and material to matters being adjudicated, so as to assure that the Boards would be acting upon evidence accurately reflecting existing facts. The Appeal Board admonished the staff for not being sufficiently prompt in advising the Licensing Board of a change to the applicant's quality assurance organization. Specifically, the Appeal Board stated that the change "should have been brought to the attention of the Licensing Board much earlier than it was, and in any event prior to the issuance of its initial decision." In relating this Appeal Board guidance to the specifics of the North Anna case, it should be noted that the staff did inform the board of North Anna about the fault before the initial decision could have been issued, in accord with the Appeal Board directions. In response to the 1973 Appeal Board decision on McGuire, the staff altered its practices regarding the handling of new information in ongoing proceedings. Since that time a greater effort has been made to inform the Boards and parties of material and relevant matters promptly. Although no specific rule or procedure was developed at that time, the direction of the Appeal Board was carried out. Qh For example, the staff notified the licensing board in the Shearon Harris proceedings of a minor geologic fault in August,1974, prior to determining whether it was capable or not. The same procedure was followed in the Limerick proceeding in 1974. The first example concerns the Construction Permit proceeding for the Shearon Harris plant in North Carolina. The staff was notified by the applicant on July 11, 1974 of the identification of a minor geologic fault in the excavation of the waste processing building. On July 25 the staff visited the site to inspect the excavation. The Licensing Board was notified of the situation on August 13, 1974. As a result of two subsequent visits to the site and a review of considerable information submitted by the applicant, the staff concluded in a Supplement to the Safety Evaluation Report that the fault was not capable and did not change the previous staff conclusions on the safety of the plant. The Shearon Harris proceeding, subsequently delayed for other reasons, has now been reactivated and is still before the Board. The second example concerns the Constrx tion Permit proceeding for the Limerick Plant in Pennsylvania. On February 21, 1974 an NRC staff geologist observed a fracture zone at the Limerick excavation during a routine visit to the site. The site v~ sit report was prepared on March 6 and the Licensing Board and parties w?re notified on April 3. 2197 282 Th's time frame shows that it took some time to sufficiently characterize the new information, but the important point is that the new information went to the Board before the staff requested additional information ' rom the applicant to complete its evaluation of the new information. In addition to increased emphasis on informing the boards and parties of new information material and relevant to the proceedings, the Safety Evaluation Reports themselves have become considerably more comprehensive in recent years, and all outti.anding items in the review are carefully outlined and clearly stated. This improvement, I believe, goes far in informing the boards and parties of all matters we judge to be material and relevant to the proceedings. On April 9,1976, Mr. Anthony Roisman, representing the intervenorin a proceeding involving Indian Point Units 1, 2 and 3 in New York, wrote to then Acting Chairman, Marcus Rowden that the staff did not inform the Indian Point Licensing Board and parties of information developed in another proceeding that he alleged to be relevant to the Indian Point proceeding. Mr. Roisman requested Mr. Rowden to ascertain what specific written procedures had been established to assure that all data developed in any licensing proceeding, or otherwise, is freely made available in other proceedings where its relevance is apparent. 2197 283 As a result of that letter, the Commission directed the staff to review the coordination and disclosure of technical information relevant to more than one proceeding and to develop appropriate recommendations. The staff reported its plans for developing formal procedures on June 17, 1976, and issued the orocedure on November 2, 1976. This procedure is in effect today and, as Chairman Hendrie noted, we are examining the details of the procedure to see whether revisions are nece'ssary to reflect the year of experience in its implementation. I will conclude the chronicle of staff performance in informing the boards by citing two recent examples. One example concerns internally generated staff views on new safety issues. On No/emoer 3, 1976, the Director of Nuclear Reactor Regulation directed his staff to perform a thorough review of internal views on safety issues to identify any which were seriously held by technical reviewers, but were not, in their opinion, being satisfactorily addressed in the ongoing licensing process. A number of issues were identified and evaluated for v'.S review. The two reports describing these generic issues were published in November and December 1976 and were provided to the licensing boards whose proceedings were in progress in late December 1976 (NUREG-0138 and 0153). These reports served to inform the boards, and parties to their proceedings, well in advance of the 2197 28.4 development of long term solutions to some ci these issues which will be undergoing further work by the staff over the next several years. There is also a recent example of how material information coming from outside the agency is being made available to relevant boards in a timely way. On July 21, 1977 the United States Geological Survey informed the staff of its conclusion that the 1872 earthquake in the Pacific Northwest must be considered in the design of the Skagit nuclear plant in the State of Washington. Ir July and August the staff formally informed the boards and parties to the proceedings for the Washington Public Power Supply System Units 1 and 4 and Units 3 and 5, the Pebble Springe, and the Trojan nuclear power plants, also located in the Pacific Northwest, of this new information. Staff evaluation of the new information and any required changes for the affected plants is still ongoing. Conclusions After reviewing the facts of the matter, which h:ive been well ventilated in the public record over the last several years, I am confident that the staff has met its responsibilities to assure the health and safety of the public. The staff also has heeded the admonitions of the Licensing Boards, the Appeal Board, and the Commission itself, and has conformed staff practices for informing 2 M7 285 the Boards and the parties on matters involving adjudication to their guidance. As I have outlined previously, the NRC licensing process provides a variety of ways for disclosing all relevant safety and environmental informwon to the public, Congress, hearing boards, and parties to licensing proceedings. In view of the massive amount of information generated and provided to our agency, occasional audits of the process are warranted to assure that information is being dissz-inated in a timely way. Further, if any changes to the current proc;ss, which is already comprehensive, are shown to be necessary, I will assure that they are implemented promptly. It has been proposed that we document the basis on which the stat f determines whether information is material and relevant and should be provided to licensing boards. This question must be approached with some caution to avoid an unnecessarily complicated procedure. Identification of significant issues is already part of the process, but there are many sources of information that become available to the staff; such as, results of research, development of new criteria, findings by the nuclear industry, and occurrences at operating facilities. This last source of information alone is voluminous. Last year licensees reported about 3,000 such occurrences to the Commission. Under existing procedures information from all these sources is reviewed 2197 286 and made publicly available. The material found to be relevant to a particular proceeding is brought to the attention of the licensing board and the parties to the proceeding. To document on an item-by-item basis why hundreds of other items are not specifically brought to the attention of particular licensing boards would be en enormous undertaking with a significant impact on limited staff resources. Caution must be exercised to assure that the primary mission of our agency, assurance of the safety and the environmental acceptability of nuclear plants, ic not hampered by procedures that proliferate paperwork without real benefit to the central mission of the agency. Nevertheless, careful atter, tion to the need to provide prompt public dissemination of information concerning the safety of facilities is essential. And we are giving special staff attention to one aspect of this responsibility -- keeping the boards informed. I have directed that copies of the NRC testimony to this Committee be provided to our staff to underscore the need to be sensitive and responsive in this area. We will continue to monitor this process and any changes in the procedures that are required to be made will be made. Mr. Chairman, I hope our testimony has made it clear that there is no question that the Corrmission's regulatory process is open. Our principal emphasis has been

continues to be on assuring prompt evaluation by the staff of the safety and environmental significance of new information.

2197 287 In recent years we have also recogniz?d the need for increased staff sensitivity to the need for prompt disch sure of relevant information in the hea-ing process. However, any suggestion that the earlier handling of the North Anna fault information involved improprieties is simply erroneous. 2197 288

Enclosure A OVERVIEW 0F REGULATORY PROCESS For background and for contexting the procedures and examples described in this testimony, it is useful to have a brief review of the NRC licensing process. For simplicity, and because it is the primary area of interest to this subcommittee hearing, I will use the example of nuclear power reactors to explain the process. A utility planning to build and operate a nuclear power plant must seek approval from the Nuclear Regulatory Commission (NRC). The NRC licensing process is a two-stage procedure. The initial stage consists of the filing by the utility and review by the !!RC staff of an applica-tion for a construction permit. The second stage consists of the filing by the utility and review by the staff of an application for an operating license. A construction permit application contains a detailed description of the proposed site and preliminary design of the proposed plant, an account of the financial qualifications of the utility and other informa-tion required by the Commission's regulations. The utility also must submit an environmental impact report relating to the proposed plant. In addition, the utility must submit information that will permit the Department of Justice to determine whether construction and operation of the proposed facility would create or maintain an existina situation inconsistent with antitrust laws or policies. 2197 289

A-2 The NRC arranges for documents and correspondence relating to each case to be available for public inspection at a local public docu-ment room in the vicinity of the proposed facility as well as in the NRC Public Document Room in Washington, D.C. Each application is initially reviewed by the NRC staff to determine whether the application contains sufficient information to satisfy our requirements for a complete application. If the application is not sufficiently complete the application is rejected. If the application satisfies the requirements, it is formally accepted for detailed review. The detailed review of the construction permit application is conducted according to the Commission's regulations and the Regulatory Guides and Standard Review Plans issued by the staff. It is a thorough, and highly technical review requiring many months to complete. The NRC is required by the Atomic Energy Act to hold a public hearino before a construction permit (CP) can be issued. The hearing is conducted by a three member Atomic Safety and Licensing Board. The Chairman is a lawyer qualified in the conduct of administrative proceedings; the second member is either a reactor engineer or physicist; the third member is an environmental scientist. Soon after acceptance of the application, the Commission issues a notice of the public hearing which will be held on environmental and safety aspects of the application after appropriate NRC staff reviews have been completed. The notice of hearing identifies the basic issues that must be considered at the hearing, and tells how 2197 290

A-3 interested members of the public may participate in the hearing -- as a party supporting or opposing the construction permit application views, or in the form of a " limited appearance." The notice of public hearing is issued at this early stage of the licensing process, even though the actual hearing will not begin for several months, in order to provide for full public participation in the decision making process. The NRC staff may hold meet'rgs with ootential intervenors as well as the utility to discuss matters cf mutual interest. About 60 days after publication of the notica of hearing in the Federal Reaister, a special prehearing conference is convened by the Licensing Board to consider any petitions to intervene; to permit identification of the issues in controversy; to determine the need for parties to obtain further information and documents; and to discuss scheduling of future actions. Meanwhile, comprehensive reviews of the safety and environmental aspe ts of the application have begun, as described above. Using the utility's environmental impact report as a basis, a Draft Environmental Statement is prepared by the staff. The Draft State-ment gives detailed consideration to the environmental impacts which would be associated with construction and operation of the proposed facility and assesses them in tcims of the available alternatives and the need for power. It is circulated for review and comment by appropriate Federal, State, and local agencies and interested members of the public; 2197 291

A-4 this is consistent with the requirements of the National Environmental Policy Act and NRC regulations implementing that Act. A Final Environ-mental Statement normally is issued about seven months after receipt of the applicant's environmental report. The NRC staff introduces the Final Statement into the record of the public hearing. The public hearing on environmental matters and issues related to the suitability of the site is held in +he vicinity of the proposed facility. If, after considering the evidence included in the record, the Licensing Board's findings are favorable, it may then authorize the NRC staff to issue a Limited Work Authorization (LWA) to the appli-cant. A LWA permits the applicant, at its own financial risk, to v..dertaFe preparation of the site for construction; installation of temporary e 'nstruction support facilities; excavation for power plant structures; construction of service facilities; and construction.of facilities not associated with the nuclear portions of the plant. While the environmental review is in progress, other members of the NRC steff review the safety aspects of the application. This review results in a detailed Safety Evaluation Report which is made available to the pu;lic and is reviewed by the independent Advisory Committee on Reactor Safeguards (ACRS). The ACRS furnishes its advice on the safety of the reactor in a written report to the Commission which becomes a part of the public record. Although the ACRS meetings are open to the public, its meetings are not public hearings and public participation is limited. 2197 292

A-5 Following completion of these safety reviews, the public hearing considers safety-related matters. If the findings of the Atomic Safety and Licensing Board on safety-related issues are favorable, the Board may authorize the NRC staff to issue a construction permit. The initial decision and appeals from the decision filed by any of the parties to the hearing, are considered by a three member Atomic Safety and Licensing Appeal Board. Normally, the license application review process will end with a final decision by the Appeal Board; however, the Commissica may, on its own motion or at the request of a party to the proceeding, review particular issues. After about two years of construction work, the utility files a safety analysis re;;rt in support of its application for an operating license. This report is subjected to the same kind of safety review by the NRC staff and the ACRS as was the case at the construction per-mit stage. The environmental review takes into acccunt matters which may be significantly different from those considered earlier. Soon after acceptance of the operating license application, the Comission publishes notice that it is considering issuance of the license. The notice provides that any person whose interest may be affectea by the proposed action may petition the NRC to hold a public hearing and specifies the period of time within which such petitions must be filed. If no hearing is requested, the NRC staff aay issue an operating license after the safety and enviror. mental reviews are completed, a quality assurance program for operations has been implemented and approved, and the facility has been i Mcted to be sure it has been 2197 293

A-6 built properly and is ready for fuel loading. If a request for hearing is received and granted, icsuance of an operating license is dependent on favorable findings by the Atomic Safety and Licensing Board. The Licensing Board's initial decision and any exceptions are again subject to review by an Atomic Safety and Licensing Appeal Board and possibly the Commission. The NRC staff, through its inspection and enforcement program, maintains surveillance over the facility during this entire process, from start of construction through its lifetime, to ensure compliance with the specifications of the permit, license or NRC regulations. 2197 294

g# *%g UNITED STATES f. ?t NUCLEAR REGULATORY COMMISSION ( T'( WASHINGTON, D. C. 20555 -y o a NOV 2 1976 All PM Personnel PM OPERATING PROCEDURE 218 COORDINATION AND DISCLOSURE OF NEW TECHNICAL INFORMATION RELEVANT TO ONE OR MORE LICENSING PROCEEDINGS

Background

In 1973 the Atomic Safety and Licensing Appeal Board (ASLAB) admonished the staff and applicants to keep the Atomic Safety and Licensing Boards (ASLB) and parties informed of new data which is relevant and material to licensing proceedings, so as to assure that the ASLB's are kept in-fonned as to new technical information which may be relevant to ongoing proceedings. In ALAB-143, dated 9/6/73, the ASLAB cited the staff's failure to inform the McGuire ASLB of changes in the applicant's QA program in a timely manner. The staff has attempted to be responsive but has had no formal or uniform procedures for identifying and evaluating situations in which there might be a disclosure obligation. There is a need to disclose information to the ASLB not only in the proceeding where the information was developed but also in other proceedings where the information might be material and relevant. This procedure provides guidance to the staff by establishing a uniform practice for the disclosure of new technical infonnation relevant to one or more licensing proceedings. It is addressed to DPM personnel and specifically to the LPM's who must initiate and coordinate the required actions with regard to safety-related information. However, it is equally applicable to EPM's with respect to their areas of responsibility. In addition, reviewers in DSS, DSE and DPM must be aware of this dis-closure requirement and should be alert to recognizing such new issues or problems and bringing them to the attention of the appropriate PM. Procedure This procedure is somewhat less specific than other PM0P's. At least initially, much is left to the judgement of NRR and ELD management, based on the facts of specific cases. Some aspects of the procedure which are judgmental include: (1) testing for materiality and relevancy, especially where the new information is characterizad by opinion rather than fact; (2) determining how promptly and in what form such information can and should be disclosed, especially at what point in the licensing 2197 295

NOV 2 1976 PMOP 218 process this should be done and (3) how much technical analysis must be made before a proper determination is possible. The procedural steps are described below. They assume that the project manager's case in question will have a hearing. The same general pro-cedure should be followed even if there is no hearing, as the information might be relevant to another proceeding. 1. The project manager identifies any new problem, issue or other significant matter which might be relevant to the hearing proceeding on his case. Each LPM and EPM is responsible for highlighting those matters that fall within the scope of his hearing responsibility. 2. The project manager prepares a memo to his Assistant Director through his Branch Chief to notify him of the new information which might be significant to the conduct of the hearing. This memo should indicate that the subject matter relates to the question of disclosure of new technical information relevant to a proceeding and should contain enough detail about the issue and its potential relevance to the hearing so that a management determination is possible as to whether there is significance to that or any other proceeding. Copies of this memo should be sent to: Director and Deputy Director of NRR, Directors of DPM, DSE and DSS, Deputy Executive Legal Director, Chief Hearing Counsel - OELD, and assigned case attorney. 3. The appropriate Assistant Director, NRR, and the Chief Hearing Counsel, ELD, will review the memo and obtain additional background and facts as necessary. They will make a joint determination as to whether the new information or problem is material and relevant to a particular proceeding. For matters which are deemed to be relevant in any one proceeding, they also will determine the materiality and relevance to all other on-going proceedings. In general, if there is uncertainty about the relevancy and materiality of the new information, it should be disclosed to the ASLB. 4. The appropriate Assistant Director, NRR, and Chief Hearing Counsel, ELD, will determine, in each case, what documentation is needed and if and when notification and disclosure to one or more ASLB's is appropriate. 5. If the item is deemed to be relevant and is provided to one or more ASLB's, the cognizant PM will assure that copies of all documentation are placed in the appropriate dockets in the NRC and local PDR's. Copies also should be sent to other affected PM's, assigned case attorneys and applicants. 2197 296

NOV 2 1976 PMOP 218 6. When the action has been completed, the cognizant PM prepares a memo to his Assistant Director through his Branch Chief confirming and sv.rnarizing the actions taken. Copies of this memo should be sent io: Djrector and Deputy Director, ONRR, Directors of DPM, DSE and DSS, Deputy Executive Legal Director, Chief Hearing Counsel - OEIF,, affected project managers and attorneys. The action should be completed as rapidly as practicable but the specific timing must be determined in each case. e i rbert N. Berkow Program Assistant to Director Division of Project Management cc: B. Rusche E. Case R. Boyd H. Denton R. Heineman T. Engelhardt M. Grossman V. Stello All DSS Personnel All DSE Personnel 2197 297

UNITED STATES q NUCLEAR REGULATORY COMMISSION W ASHINGTON, D. C. 20555 POST AGE AND FEES PAID OFFICI AL BU$1NES$ .[c , ['[3)((g,$" PEN ALTY FOR PRIVATE USE. 5300 L j 2197 298}}