ML19308B917
| ML19308B917 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 12/15/1978 |
| From: | Rosenthal A NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | Kelley J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| Shared Package | |
| ML19308B912 | List: |
| References | |
| TASK-TF, TASK-TMR NUDOCS 8001170625 | |
| Download: ML19308B917 (2) | |
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UNITED STATES
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j5 NUCLEAR REGULATORY COMMISSION
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'd WASHINGTON, D. C. 20555
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December 15, 1978
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MEMORANDUM TO:
James L. Kelley, Acting General Counsel
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(: L Alan S.
Rosenthal, Chairman FROM:
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Atomic Safety and Licensing Appeal Panel
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SUBJECT:
MODIFICATION ~OF SUA SPONTE RULES
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This is in response to your December 13, 1978 memorandum on the above-styled subject, to which was attached your 7
December 1, 1978 memorandum to-the Commission entitled
" Generic Issues and the Sua Snonte : Review Standard".
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have only the following brief corments:
7 1.
Neither -memorandum makes clear that the sua sponte
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review standard.under consideration relates exclusively to Z
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operatinc license proceedings.
As recognized in ALAB-491 (slip opinion, p. 2), the Rules of Practice do not restrict
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the right of either a licensing er an appeal board to raise
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issues on its own initiative in ~ a construction pe=it pre-ceedinc.
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2.
The appeal boards have never taken the terms.cf 10 CFR 2.760a and 2.785 (b) (2) as precluding rheir. inquiry into a matter not considered by the licensing board which, in the judgment ~of'the particular appeal board, has suffi-i M-cient potential safety or environmental significance to warrant exploration sua snonte.
At the same time, however',
E there are decided practical limitations upon the ability k=..g I:ME of an appeal board -to ferret out and then to reach an h==
-informed conclusion -on matters which -were not raised befcre
' %F""j cr considered by.the -licensing. board and as to which :the're.
ing.
Put another way, appeal boards do not have the
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is no contest between.or ~ among Jthe parties to the proceed-
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resources to serve as general overseers of the mannerlin l== =
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2 which the staff-is discharging its functions in-connections L
D. =r with the review of operating license applications.
This is especially so insofar as the staff review is addressed
- -"i to whether acknowledged generic safety problems have.been satisfactorily. resolved for the facility in cuestion.~-
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James L.
Kelley December 15, 1978
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3.
For the foregoing reason, I am very much concerned
......1 that a modification of the terms of section 2.785 (b) (2) 19 7
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along the lines indicated in your December 13 memorandum micht be construed to reflect a Cc missicn belief that it F==..=..
is both possible and appropriate for appeal boards to under-
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take a role which they.are unable to perform.
It seems to e.=
me that the preferable course is to leave section 2.785 (b) (2)
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at p.
6 of your December 1 memorandum to the Commissien that
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- be explcred to increase the Ccm-
"a number of avenues *
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mission's involvement in -resolving generic problems * * * *.
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With due respect, I believe it. manif es:.that it is the respon-
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sibility of the Commission itself --- and not that of its adjudicatory boards -- to police the activities of the staff
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I have no views respecting the best means for achieving
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greater direct Commission involvement in the resolution of i= ]:.:.:.(;
generic safety problems.
I think it at best doubtful, how-
~ i.E ever, that meetings with the adjudica cry boards should be
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a part of the process.
As I see it, there are clear perils associated with: assigning non-adjudicatory. functions to M.l=f those boards.
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4.
One final, albeit mincr, point.
.The phrase'"sua h:
sponte review" is misleading as used in the centext of M...~....-
L sections 2.7 60a and,2.7 85 (b) (2).
In NRC parlance, that E ::::~~~
phrase has accuired'the settled meaning of review by an i.C =l appeal board its own initiative of those porticas of a
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licensing boaru decision--(cr of the evidentiary record upon which that decision Eis' based) which are not encompassed.in
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any appeal which:may have'.been taken by one of the. parties _
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to the proceeding.w Needless'to say,~neither ALA3-491-nor h===
your two memoranda Zare addressed to' that ' appeal board.Jfunction.
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Indeed, we were careftil-in AIAE-4911 (slip ~ opinion, ;p.1) -to draw a distinction 'between the ' review (in:the absence of-an-
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matters not previously put in controversy" in's6ch a pro-ceeding.
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CE Howard K.
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