ML19308E147
| ML19308E147 | |
| Person / Time | |
|---|---|
| Site: | Indian Point, Crystal River, 05000376  |
| Issue date: | 10/19/1972 |
| From: | Ramey J US ATOMIC ENERGY COMMISSION (AEC) |
| To: | Muntzing L US ATOMIC ENERGY COMMISSION (AEC) |
| References | |
| NUDOCS 8003240649 | |
| Download: ML19308E147 (2) | |
Text
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Y, ATOMIC ENERGY COMMISSION WASHINGTON. D.C. 20545
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OCT 191972
.e MDiORANDUM FOR L. Manning Muntaing Director of Regulation
SUBJECT:
Presumptions and Burdens of Proof This will confirm my concerns in regard to the formal and informa~_ use of presumptions and burdens of proof by the Regulatory staff.
The governing rule in this regcrd would appear to be Section 7 of the Administrative Procecures Act and Section 2.732 of the AEC Regulations which state that the proponent of a rule or order shcil have the burden of proof.
As interpreted in the Attorney Genercl's Manuci on t'ha APA (page 75), burden of proof recas not only that the pcrty iniciating the proceeding has the general burden-cf co=ing fc=:ard with c prima facia case but thct the other pcrties uho are proponents of some differeni result, also for that purpose have a burden to mainccin.
Contrary to this rule, in diccussions of sc:a licsnsing cases, ther2 are indications that the staff nay either be piccing c heavier burden on the applicant thcn the " burden of going forward" or may bc placing tha burden of proof cn the applicant when, under our rules, the burden should be maintained by the AEC staff.
rj I called attention to this oroblem in connection with the seismic criteric in av cemoicadum of August 15, 1972.
I b, N interpretec,Regulctory's consultants (U.S.Geological Survey) noted that the criteria to require the appliccnt to prove y'
"beyond a reasonable doubt" geologic inactivity at the O
Q Aguirre site in Puerto Rico_ In your memorandum of September 11, 1972., you indicceed that you intend to g.
modify the proposcd criteria to clarify the intent as q
requiring an cpplicant to make a reasonable investigaticn Q
to dete= sine uhether c particular fcult enhibited any of the charactaristics lis:ed in subsection III.g; ra:her than requiring an applicant to prm a that the fault does not exhibit sv.h characteristics.
Another example occurred in connection with the Cec =ission discussion en August 10, 1972, of possible backfitting v :..-
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. requirements for the Florida Power Corporction Crystal River Plcnt.
It became apparent that the Regulatory staff may have been misapplying the presumpticas and burcen or prcor principle as contained in Section 50-109 of the backficting regulations.
That section provides that the Commission may require the backfitting of a facility if it nahes a finding u
t at sue., action w1_3t provice suostant:..ai, acc;t;.ona3. pro-tection which is recuired for public health cnd safety or the co:cen defense and security.
Notuithstanding, the staff seemed to b-.
indicating that the burden is on the applicant to show tha. backfitting is not necessary.
I have alu 4 in connection with environnental statements that variot ptions and burdens have been creeping in.
An example ie
_adian Point 2 ccse.
In its finci environ-mental impact anclysis of the plant, the staff reached :he conclusion that the operation of Unit Nos. 1 and 2 with the present once-through systen has the potential for a long-ter environmental impcce on the acuatic biota inhabiting the Hudson River.
The Final Environnental Statenant (in contrast to the Draft sectccent) recc mends that the licensee bc requirec to nave instattec a closed-cyc_,e coo,ing systan by January 1, 19 /o, untess ne can demcastrate nithin the rive year perloc cnat t.ne ence-enrougn cooling systa= wi3,u not resu.,t in an unacceptc.o e, one-term Irrecarao e camate o
3 to aq.uatic Diota.
On occasion it sea s that the effect, if not the purpcse, of a presanpticn or burden is to minimize staff..iork on the part of the Cctrission in obtcining facts er reaching colucions to
,r rob lems.
In many cases this may be necessary or cppropricte, but in others it may be inequitchle and nou consistent with the energing judicial doctrine that tha Cennission staff cust make sc=e affinnecive investi2ations or showin"s in connection o
with safety, environmental, and cntitrust proble=s.
I would be happy to discuss this with you at your convenience.
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,.sc..ey Consissioner cc:
Commissioner Dcub
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