ML19275J137
| ML19275J137 | |
| Person / Time | |
|---|---|
| Issue date: | 02/11/1980 |
| From: | Bickwit L, Hanrahan E NRC OFFICE OF POLICY EVALUATIONS (OPE), NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML19274B925 | List: |
| References | |
| FOIA-82-92, TASK-IR, TASK-SE SECY-80-080, SECY-80-80, NUDOCS 8007010690 | |
| Download: ML19275J137 (4) | |
Text
.
UNITED STATES NUCLEAR REGU8.ATORY COMMISSION MSHINGTON, D. m55 February 11, 1980 SECY-80-80 j5FORMATl0N REPORT jgg:
The Commissioners Prom:
Leonard Bickwit, Jr., General Counsel Edward J. Hanrahan, Director, OPE
Subject:
TMI ACTION PLAN AND COMMISSION POLICY STATEMENT ON LICENSING Discussion:
During the Commission meeting on the TMI Action Plan held on February 7, 1980, Commissioner Hendrie referred to earlier proposals to the Commission for several Commission statements of policy on the licensing pause.
As initially contemplated, these statements might be merged into one if the Commission is now ready to set forth in some detail the requirements to be met prior to resumption of licensing.
(See also memorandum to the Commissioners from Chairman Hendrie, dated November 16, 1979.)
Some time ago we prepared a draft of a first statement of policy for your consideration.
This first statement has not been approved by the commassion.
In light of this, we are now drafting a single commission statement of policy for the Commission's consideration.
This draft is proceeding along the following lines:
(1) a factual account of the TMI-2 accident and the short-term Federal response (this would include the suspension of TMI-1, orders to B&W owners and others, the IE investigation of the TMI-2 licensee, recovery and beginning of clean-up at TMI-2, initiation of Kemeny and Rogovin studies, and Congressional and GAO oversight);
(2) a description of the origins and purpose of the Action Plan, stressing that the Action Plan was intended as a comprehensive Staff response to Kemeny, Rogoin and the Staf f's own studies and investigations; CONTACTS:
Martin G. Malsch, OGC o Slaggie, OGC 8007010 O
43224
The Commissioners 2
(3) an account of the Commission's response to the Kemeny study (the Press letter):
(4) the Commission's response to the Rogovin study (this would include an assessment of the con-sistency of the Rogovin recommendations with the Action Plan and the Commission's own conclusions regarding the basic Rogovin recommendations -- which have been adopted, which have been rejected, and which are still under study);
(5) a discussion of the licensing pause and the reasons for lifting its and (6) a discustion of the need for rulemaking.
(1), (2) and (3) would be factual in nature.
The heart of the statement would be in (4), (5), and (6).
The discussion of the Rogovin study in (4) would lead into a discussion in (5) of the licensing pause and the Commission's own conclusions regard-ing the sufficiency of the licensing process to protect public health and safety.
The relaxation of the licensing pause could relate only to OLs or to both OLs and cps.
However, the Commission's deliberations thus far have focused only on OLs.
If only OLs are included, the scope of rulamaking in (6) should be confined to OL issues.
In this regard the discussion in (5) would outline, in general terms, the safety philosophy that NRC uses under the Atomic Energy Act, and that NRC used in assessing the need to shut down or take other action at operating reactors and in assess-ing the need for safety improvements prior to resumption of licensing.
This last discussion would then lead into (6), which deals with rule-making.
With respect to the Commission's decision on the degrees of rulemaking which is appropriate, we want to make a few observations.
We should at the outset distinguish between a suspension of a rule, which merely has the effect of reserving the itam for case-by-case adjudication, and imposing a new rule, which avoids case-by-case adjudication.
Suspensions of particular rules are legally required only if scme new requirement on the "NTOL" list, or some new requirement that the Commission believes should be on the "NTOL"
The Commissioners 3
list, is actually prohibited by a current regulation.
As we read Staff's February 6,1980 mem_randum, only one item on the Staff's "NTOL" list falls in this category -- interim hydrogen control requirements for small containments, item II.B.10.
We have been advised by the Staff that even this item does not require a suspension of the rules for the four OLs coming up in the near future.
Thus, there is no need in the immediate future for suspension of any rules, assuming that the Commission does not add something to the "NTOL" list that is inconsistent with the current rules.
Nevertheless, rules changes of the second type
-- rules changes that impose new requirements --
might be highly desirable in the near future.
Including "NTOL" requirements in regulatory guides and similar documents does not give them the force and effect of law and does not make them legally enforceable per se.
For new OLs, the important elements of the new requirements can be made enforceable (by civil penalty or license suspen-sion or revocation) by including them in the license before the license is issued.
For exist-ing OLs the important elements of the new require-ments can be imposed on each licensee by order and made enforceable in this manner.
However, in either case the imposition of the requirement can be contested case-by-case, either by those who believe that more stringent requirements should be imposed, or by those (such as the applicant or licensee) who might believe that a lesser require-ment or no requirement should be imposed.
We suggest that, as licensing resumes (but not as a condition to resumption), the Staff be requested to prepare notices of proposed rulemaking of the second type on the items in the Action Plan --
both on and off the "NTOL" list -- where some generic resolution would be particularly desirable.
The desirability for rulemaking of this nature would depend on the seriousness of the safety issue, the degree of Commission confidence in the proposed generic resolution, and the resource savings associated with generic, as opposed to case-by-case, resolution of the item.
Items in the "NTOL" list and similar items in the Action Plan that entail urgently needed safety improvements
The Commissioners 4
might be made the subject of immediately effec-tive rulemaking.
In any event, until a rule has been issued, all the items in the Action Plan, except those few that may upon analysis prove to be prohibited by current regulations, could be litigated in pending cases.
In the meantime the Commission could indicate in the policy state-ment that it is of the preliminary view that the "NTOL" list (including any items that the Commis-sion may add to the list) is necessary and sufficient to provide adequate protection in the technical areas addressed in the list and that the list should be followed in each case in the absence of evidence that suggests to the con-trary.
Such an indication would indicate the Commission's intentions, but would not preclude litigation before licensing boards.
We intend to coordinate development of the policy statement with appropriate Staff offices, and would appreciate any guidance that the Commission may offer.
bd b b
Jr. i Leonard Bickwit, General Counsel ha 0 hwbd V
Edward J. Hanrahan Director, Office of Policy Evaluation DISTRIBUTION Commissioners Commission Staff Offices Exec Dir for Operations ACRS Secretariat
,