ML19308B921
| ML19308B921 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 12/21/1978 |
| From: | Shapar H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Kelley J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| Shared Package | |
| ML19308B912 | List: |
| References | |
| TASK-TF, TASK-TMR NUDOCS 8001170632 | |
| Download: ML19308B921 (3) | |
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NUCLEAR REGULATORY coMM!ss:ON E)..)-
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- - Ei-MEMORANDUM FOR:
James L. Keliey, Acting General Counsel Eg
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FROM:
Howard K. Shapar, Executive Legal Director
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TUBJECT:
MODIFICATION OF SUA SPONTE RULES E.
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This responds to_vour memorandum cf _Decamber 13,1978,.which concerns
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possible modifications to the sua sconte review standards applicable p
to Licensing and. Appeal Boards' examination of uncontested issues.
ca Certain fundamental points should be unders: cod' and carefuliy weighed E
in considering changes in the NRC's sua sconte rules. There is,
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first of all, a significant difference in tne sua sconte rules as they
.5" apply to a mandatory construction permit proceecing anc to an opera 6-
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ing license proceeding.
I assume, from its context, that your h ~~~
memorancum is directed at the operating license proceeding.
- Secondly, in both types of proceedings the rules reflect an attempt to balance i~ P certain possibly--competing considera ticas.
Let me elaborate briefly.
[..t.f As you know, the. Atomic-Energy Act requires a hearing in a construction permit proceeding even~ if there is no intervention and no contested issue.
On the other. hand, a hearing must be conducted in an operat-ing license proceeding only on specifically identified issues.
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both types of proceedings, if contested, the primary role of 'the 5
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presiding board.hast been.to resolve matters in controversy.
In a EE construction permit proceeding, the licensing boards are neither. _
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required nor' expected,;with-respect toTadiological health and safety i.=_
matters which are not-in controversy,-to, duplicate the review already
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perfarmed by-the' staff'and the ACRS."Inta compietely uncontested ;
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proceedino, theirole of' the: board -is.'to decide whether"the application-
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the review of the' application by the staff has b^een adequate, ~-to b..l=
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_ support issuance of the construction permit.
Thus, the boards =
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'in depth ~those matters.that are.of. concern to them.
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In contrast lto the' broad; range _of issues which must by?1aw be examined
- p. _ al in a ~ construction ~pennit" hearing, even'.in the absence of a contest,
- E it"is the existence orf a: contest which triggers:the holding of, an u-remains the focus of,(an operating 1icense hear.ing.
If there _ \\
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James L. Kelley P
December 21, 1978
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controversy, then there' is no hearing (except for the very rare case 51 where the Commission decides on its own motion to have a hearing
...2 conducted).
Thus, an operating license hearing is much more pre-E! =5d cisely focused than a construction pemit hearing.
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It is important to note that if thern is no hearing on the operating
's=.fas license application, then there is no -hearing board appointed and M
"F" there is no independent review of the staff's performnce (except, P...._..
of course, for the ACRS revi 2w). This means that the existence of U ".-~.;=
a single limited controverted issue--for example, an environmental E.= '!L issue such as an alleged inf1 station of shipwoms in a local body
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of water--means not only that a hearing will be held but that, in'
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theory at least, the;: presiding board can raise a. series of other environmental issues--or, for t1at matter, a series of radiological L:_
health and safety issues--whick, are not at all related to the issu which caused the hearing to ce held anc which wculd not otherwise be subject to hearing bor.rd review. The main function and purpose G";.1 of the sua sconte rule is to rationalize this somewhat anomalous situation:
to allow the boards to raise a serious health and safety,
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co=on defense and. security, or environmental matter not raised by the parties to the proceeding but at tne same time not to divert.the
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2 hearing from.its., intended purpose which.is to settle the controversy
_ J that caused the hearingrto be held in Ine first place.
I suspect ac that few would argue.at.this late date Inst the boards should be,
a-confined to the controverted issue if they are genuinely troubled.
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by a serious safety matter.
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..yl Regardless of the type-of proceeding, a presiding board, as has been
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shown, does.not have its hands tied when it perceives an-issue that
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.lr needs to be. explored.
I note that both - Alan Rosenthal and Jim Yore have: indicated that the-boards do not feel constrained by the sua-J.~..
sconte rHies from raising serious. safety, environmental"and cv
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=Z.M oefense -and securitylmatters. 'I have checked with senior'OELD -
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^ hearing counsel, and.;their perception is"the same.. On the:other m gif5l.]
hand, -the fact that.the2 cards may. probe serious uncontroverted
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matters.that concern:them-should.not-be construed to mean that the
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boards should act as an ombudsman or'have a general superviso y "7..
w function regarding the perfomance of the regulatory staff. 'Tradi-tionaily -in administrative:and judicial proceedings, the presiding
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body makes '. decisions.on the basis of. a record developed.by the. parties E.;;~
to the' proceeding; :The~ adjudicatory. process is designed-to resolve
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matters in controversy.JIt is.not designed to provide an efficient.._
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or workable mechanism for a presiding' board to perfom general super-G.J'.;Z visory, functions.. ~ of '
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James L. Kelley December 21, 1978 Page 3 If the Commission believes that additica )..menision of the staff's performance is needed, this should be accomSi
.ed by the Commission i ts el f.
Imposing additional supervisory fertiens en presiding boards would force the adjudicP. tory prcccn a be used for somethin; for which it was never intended and whicn ;; ir not designed to handle ef fi ci en tly.
A presiding board is limited ts *.ne record before it.
Beyond this, the boards are somewhat isolatec f rom the day-to-day activities of the agency (which, of course, is caly natural in view
'of their adjudicatory role) and cannot be reasonably expected to have tne same broad perspective as the Commission.
In su=riary, I believe the existing sua sconte rules to be a reasonably I
balanced treatment of the competing cor.sa cerations wnich I have tried c icentify.
I do not, however, agree with Alan Roscn:hai that the rules should not be changed at all.
I: is manifest that they are confusing as presently draf ted--the different percer: ions of their meaning is objective enough evidence of this.
My own view is that a clarifying amencment is needed along the lines of the second option
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mentioned in your December 13 memorance. (connect " extraordinary circumstances" with " serious... safety matter").
If the Commission agrees, I would be happy to work with you in drafting -he amendment.
r 1-L 3 j-f Howard K. Snapar Executive Legal Director
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Alan S. Rosenthal, ASLAP James R. Yore, ASLSP EN.
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